Trial court’s error in failing to instruct the jury with an essential element of transportation of drugs for sale was prejudicial. While awaiting trial for possession of drugs for sale, officers arrested McCloud after finding cocaine, $45 cash, a stun gun, and two cell phones in his car. McCloud was charged with transportation of drugs for sale (Health & Saf. Code, § 11352, subd. (a).) At trial, the prosecution’s drug expert testified that the circumstantial evidence of McCloud’s intent to sell drugs in this more recent incident was not as strong as the evidence in the prior arrest where officers found drugs, guns, baggies, and a scale in his bedroom. The trial court instructed the jury that they should find McCloud guilty of transporting drugs for sale if, among other elements, it found that McCloud “transported a controlled substance.” The jury convicted McCloud of possession of drugs for sale and transportation of drugs for sale. On appeal, the parties agreed that the trial court failed to instruct the jury with an essential element of transportation for sale—that when McCloud transported the cocaine, he intended to sell it. However, the People argued that the error was harmless because of the overwhelming evidence of an intent to sell based on his prior arrest. Held: Reversed. Omission of an element of an offense in a jury instruction is subject to the harmless error analysis articulated in Chapman v. California (1967) 386 U.S. 18. The reviewing court’s task is to determine “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” (People v. Mil (2012) 53 Cal.4th 400, 417.) If the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless. In this case, the court held that the evidence, coupled with the expert’s inability to definitively conclude McCloud intended to sell the cocaine, was sufficient to raise a reasonable doubt. Therefore McCloud was prejudiced by the incomplete instruction. The court reversed the transportation for sale conviction.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E065359.PDF