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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Shawn Garrett BAUTISTA, Defendant and Appellant.

No. H015917.

Decided: March 19, 1998

Peter Hensley,In Association with:  Sixth District Appellate Project (Under appointment by the Court of Appeal), San Jose, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Sr. Assistant Attorney General, Joan Killeen and Allan Yannow, Deputy Attorneys General, for Palintiff and Respondent.

In this appeal Shawn Bautista challenges his convictions of possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)) and using or being under the influence of methamphetamine (Health & Saf.Code, § 11550, subd. (a)).1  In the published portion of this opinion, we address his contention that the trial court incorrectly instructed the jury on the “use” element of section 11550, subdivision (a).   In the unpublished portion we consider (1) whether he is entitled to a new trial because his public defender at trial had replaced his previous public defender, contrary to a prior court order;  and (2) whether sufficient evidence supports the finding that he “used” methamphetamine within the meaning of section 11550, subdivision (a).   We find no error and affirm the judgment.


At about 11 p.m. on February 19, 1996, San Jose Police Officer John Seaman stopped defendant for speeding.   Seaman asked defendant for his driver's license.   Defendant said he did not have it, and the officer asked him to get out of his truck.   Seaman called dispatch to verify that defendant had a driver's license.

While waiting for an answer, Seaman noticed that defendant's forehead was perspiring even though the temperature outside that night was 50 to 55 degrees.   Defendant's pupils were large, even though he was in the spotlight of the police car.   He was very talkative and appeared not to hear the officer's responses to his questions.   Though defendant was repeatedly directed to stand in front of the spotlight, he kept moving away.   The officer testified that these characteristics were typical of those who were under the influence of a stimulant.

Officer Seaman asked defendant whether he had any drugs on him.   Defendant said he did not, but he consented to be searched.   In a pocket of defendant's pants Seaman found a bindle of an off-white powder, later determined to be 1.35 grams of methamphetamine, enough for about 10 uses.   As Seaman removed the bindle, defendant said, “What's that?”

Seaman arrested defendant for possession of a controlled substance.   Defendant asked whether Seaman could “forget about what [he'd] found.”   On the way to the station defendant was talkative, even though Seaman said he could not hear him.   At the police department defendant said he was a drug addict and could “give up the big connection.”   His pupils were still nonreactive, his pulse was elevated, and he appeared to have a dry mouth.   Seaman then formed the opinion that defendant was under the influence of a stimulant.

Defendant gave a urine sample which tested positive for methamphetamine and amphetamine.   The forensic chemist at the crime laboratory testified that methamphetamine is detectable in the urine for 48 to 72 hours after use.   The results indicated only that the defendant had used the drug within that period;  the witness could not say how much had been used, nor could she associate the amount detected with any particular symptomatology.

The defense presented the testimony of the nurse manager of the jail.   When defendant was admitted to jail his pulse and blood pressure were in the normal range.


1.- 2.***

3. “Use” Instruction

a. CALJIC No. 16.060

The trial court instructed the jury on the section 11550 charge according to CALJIC No. 16.060 as follows:  “Every person who uses or is under the influence of any controlled substance[,] namely methamphetamine, as charged in the Information, is guilty of a misdemeanor in violation of Section 11550(a) of the Health and Safety Code. [¶] If a controlled substance is appreciably affecting the nervous system, brain, muscles or other parts of a person's body or is creating in him any perceptible abnormal mental or medical condition, such a person is under the influence of a controlled substance.”

Defendant first contends the court omitted a required element by failing to read the last part of CALJIC No. 16.060.   That paragraph states:  “In order to prove this crime, the following element must be proved:  [¶] [1. A person willfully [and unlawfully] used a controlled substance, namely _ [.] [;  or] [¶] [1.] A person was under the influence of a controlled substance, namely _.]”

 According to defendant, the omission of this portion deprived him of his right to have every material element decided by the jury.   He does not explain, however, in what way the jury was unable to understand its duty from the instructions it did receive.   The omitted portion of the instruction only restates the two ways a person may be in violation of section 11550 -by willfully using the controlled substance or by being under the influence.

The jurors were well aware of these two factual alternatives.   During deliberations they asked whether they were required to find guilt only if the defendant used the drug and was under the influence of it, as alleged in the Information.   The court explained that in a crime that may be committed in several ways, the Information may use “and,” but the proof “is with an ‘or.’ ”   Thus, the court explained, in this case a conviction could be based on “either one, either using or being under the influence.”   The foreperson indicated the explanation was sufficient.

Later, after answering a second jury question, the court returned to this subject by adding, “On the other point that you raised, the defendant is accused of having committed a crime of using or being under the influence of methamphetamine in Count 2. The prosecution has introduced evidence tending to prove that there is more than one act upon which a conviction on Count 2 can be based:  That would be the use or being under the influence.”   The court continued with an instruction as to the required unanimity on the particular act on which a guilty verdict must be based.   When the jury announced its verdict, it was asked to state on which of the two grounds it found defendant guilty.

On this record it is clear that the jury understood the nature of the charges and the two alternative factual scenarios before it.   Consequently, the omission of the last portion of CALJIC No. 16.060 was not so significant as to deprive defendant of a fair determination of the material issues.

b. Instruction on “Current Use”

Defendant further argues that the court was required to define “use” for the jury because this word has a technical meaning calling for a finding of current use.   The People respond that the instruction was correct as far as it went, and therefore a request was necessary to clarify or amplify it.   Because no such request was made to the trial court, the People maintain defendant has waived any objection to the asserted deficiency.   A close examination of the “use” element of section 11550 convinces us that a sua sponte instruction on the definition of this term was not required.

 A trial court in a criminal case must instruct the jury sua sponte on the general principles of law relevant to the issues raised by the evidence.  (People v. Hood (1969) 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370;  People v. Estrada (1995) 11 Cal.4th 568, 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)   To this end, “[i]t is the trial court's duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function.   This duty is not always satisfied by a mere reading of wholly correct, requested instructions.”  (People v. Reynolds (1988) 205 Cal.App.3d 776, 779, 252 Cal.Rptr. 637;  People v. Enriquez (1996) 42 Cal.App.4th 661, 665, 49 Cal.Rptr.2d 710.)

 The “general principles of law governing the case” are those principles “connected with the evidence and which are necessary for the jury's understanding of the case.”  (People v. Estrada, supra, 11 Cal.4th at p. 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)   If the matter at issue falls outside any of the general principles, the defendant must request a clarifying or amplifying instruction.  (People v. Kimble (1988) 44 Cal.3d 480, 503, 244 Cal.Rptr. 148, 749 P.2d 803;  People v. Estrada, supra, 11 Cal.4th at p. 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)

 “The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification.   If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.”  (People v. Poggi (1988) 45 Cal.3d 306, 327, 246 Cal.Rptr. 886, 753 P.2d 1082.)

 “The rule to be applied in determining whether the meaning of a statute is adequately conveyed by its express terms is well established.   When a word or phrase ‘ “is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.” ’  [Citations.]  A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.”  (People v. Estrada, supra, 11 Cal.4th at p. 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)   Thus, “terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance.”   (Id. at pp. 574-575, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)

In this case the jury determined that defendant had “used” methamphetamine within the meaning of section 11550.   The question before us is whether the statutory meaning of the term “use” differs from its nonlegal, common meaning.   If, as defendant contends, section 11550 proscribes only a use that occurs “immediately prior to arrest,” the court was required to instruct the jury accordingly.

The additional language urged by defendant is derived from the holding of People v. Velasquez, supra, 54 Cal.App.3d 695, 126 Cal.Rptr. 656.   In that case the appellate court reversed a conviction of using heroin because the evidence supported a finding of use at most five to seven days before the defendant's arrest.   The court concluded that “while usage no more distant than that might support a finding of danger to become (again) addicted, it does not support a finding of a current addiction and use.”  (Id. at p. 700, 126 Cal.Rptr. 656.)   Thus, the court stated that the “use” required for conviction is a “current use, not a use in the past.”  (People v. Velasquez, supra, 54 Cal.App.3d 695, 700, 126 Cal.Rptr. 656;  see also People v. Jones, supra, 189 Cal.App.3d at p. 404, 234 Cal.Rptr. 408.)

Velasquez was followed in subsequent cases.   In Bosco v. Justice Court, supra, 77 Cal.App.3d at page 191, 143 Cal.Rptr. 468, the Fifth District interpreted the Velasquez holding to mean that the proscribed use must occur “immediately prior to the arrest.”  (Id. at p. 191, 143 Cal.Rptr. 468.)   So viewed, the court held, the “use” language in section 11550 was not unconstitutionally vague.   In People v. Jones, supra, 189 Cal.App.3d at pages 405-406, 234 Cal.Rptr. 408, evidence of narcotics use during the 48 hours preceding the arrest was deemed to be sufficient to qualify as “current use.”   In clarifying the distinction between current and past use, the Fifth District emphasized that a past, discontinued use indicates at most withdrawal, whereas a recent use indicates that the defendant is currently “supporting his [or her] habit through illegal means.”  (Id. at p. 405, 234 Cal.Rptr. 408.)   The rationale underlying the distinction, the Jones court explained, “is that it is in the public interest to encourage users of illegal drugs to seek rehabilitation.   If use sometime in the past w[ere] made punishable, such a policy would not only discourage users from seeking rehabilitation but punish those who have used in the past but in the meantime have become rehabilitated and ceased the use of drugs.”  (Ibid.)

 We agree that convictions of using controlled substances may not be based solely on withdrawal symptoms or the status of addiction, since neither the condition of withdrawal nor the status of addiction is a crime.   (See People v. Gutierrez (1977) 72 Cal.App.3d 397, 402, 140 Cal.Rptr. 122 [officer may not arrest for section 11550 violation based solely on withdrawal symptoms];  Robinson v. California (1962) 370 U.S. 660, 666-667, 82 S.Ct. 1417, 1420-1421, 8 L.Ed.2d 758 [state may not punish status of addiction];  People v. Jones, supra, 189 Cal.App.3d at p. 405, 234 Cal.Rptr. 408 [withdrawal is not a crime but “the direct result of discontinuing the crime of use”].)  Section 11550, however, prohibits a discrete act, not a state or condition-that is, an act of ingesting or injecting a specified controlled substance.  (Bosco v. Justice Court, supra, 77 Cal.App.3d at pp. 187-188, 143 Cal.Rptr. 468 [section 11550 punishes “an act, as opposed to a condition”].)  “A person may make unlawful use of narcotics (for a short time) without becoming or being addicted to the use.   He may, while addicted to the use, be in a city where he cannot obtain any narcotic and so does not make use of it there.”  (People v. Thompson (1956) 301 P.2d 313, 144 Cal.App.2d Supp. 854, 856.)   Describing a person as in “danger” of becoming addicted, as the court did in Velasquez, may be useful for evaluating the appropriateness of involuntary civil commitment (see Welf. & Inst.Code, § 3053, et.seq.), but it has no application to a determination of whether an event-an act of use-has occurred.  (Cf. Powell v. Texas (1968) 392 U.S. 514, 532-533, 88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254 [state may validly punish act of public drunkenness, as opposed to status];  In re Orosco (1978) 82 Cal.App.3d 924, 928, 147 Cal.Rptr. 463 [state may punish use of addictive substances, though not status of addiction].) 4

Just as section 11550 does not tie the act of using the controlled substance to the danger of addiction, it likewise does not impose any limitations according to the amount of time that has elapsed between the act and the arrest.   The only temporal restriction on a prosecution for an act of using proscribed drugs in violation of section 11550 is the one-year statute of limitations.  (Pen.Code, § 802, subd. (a).)  We see no legal or logical basis for construing section 11550 to insert requirements that are not apparent on its face.   Furthermore, a construction that limits the statute's applicability to a specified period before arrest would invite an unproductive debate over how many days since ingestion constitute “past” use which is outside the reach of the statute, regardless of whether the person has actually discontinued the use since then.

 We therefore cannot agree with defendant that a finding of “use” is circumscribed by any specific period of time preceding arrest.   A use more than two days earlier does not necessarily imply that the defendant has discontinued use and sought rehabilitation, nor does it automatically mean that any symptoms observed are those of the withdrawal process.   Accordingly, the court was not required to instruct the jury that a “use” of controlled substances must occur “immediately prior to arrest” to fall within the reach of section 11550.

 Generally, the evidence supporting a finding of use will point to a recent use:  an arresting officer has witnessed the defendant ingesting the substance;  the defendant has exhibited symptoms of recent use;  or a laboratory analysis indicates recent use by the presence of the controlled substance in the defendant's system.   If the defendant's use has been discontinued and he or she has sought rehabilitation, that is an evidentiary matter to be argued to the trier of fact.   And if the circumstances indicate that the accused is being prosecuted solely for the status of addiction or the condition of withdrawal, the defendant may request an instruction directing the jury to find guilt only if there is evidence of an actual use of the controlled substance.  (People v. Saille (1991) 54 Cal.3d 1103, 1119, 2 Cal.Rptr.2d 364, 820 P.2d 588;  People v. Mayfield (1997) 14 Cal.4th 668, 777, 60 Cal.Rptr.2d 1, 928 P.2d 485.)   But because the term “use” does not have a special statutory meaning different from its commonly understood sense, a sua sponte instruction defining this element was unnecessary.

c. Jury's Request for Clarification

During deliberations the jury sent the trial judge a note asking whether conviction on count two was permissible “if the drug was in[g]ested 2 to 3 days before the drug test[;] i.e.[,] what does on or about really mean in the charge[?]”  The court responded as follows:  “When, as in this case, it is alleged that the crime charged was committed on or about a certain date, if the jury finds that the crime was committed it is not necessary that the proof show that it was committed on that precise date.   It is sufficient that the proof shows that the crime was committed on or about that date.”

 When asked to clarify the meaning of “on or about” in relation to the time between the alleged use and the arrest, the court was under a duty to clear up any instructional confusion the jury was experiencing.  (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, 275 Cal.Rptr. 729, 800 P.2d 1159;  People v. Moore (1996) 44 Cal.App.4th 1323, 1331, 52 Cal.Rptr.2d 256.)   In fulfilling this duty, however, the trial court had discretion to determine what additional explanations were sufficient to satisfy the jury's request for information.  (People v. Moore, supra, 44 Cal.App.4th at p. 1325, 52 Cal.Rptr.2d 256.)

 Defendant contends the court's response to the jury's question was “clear error” because the general “on or about” language is inapplicable in light of the statutory and constitutional 5 requirement that a use occur immediately prior to the arrest.   Since we disagree with the assertion that section 11550 imposes such a limitation, we find no error in the court's supplementary instruction.   The court accurately stated that a conviction could be based on proof showing that defendant's use of methamphetamine occurred “on or about” the date alleged in the information.   Nothing more was required.  (Cf. People v. Williams (1997) 16 Cal.4th 635, 677, 66 Cal.Rptr.2d 573, 941 P.2d 752 [correct explanation of term upon jury request sufficient];  People v. McCleod (1997) 55 Cal.App.4th 1205, 1219, 64 Cal.Rptr.2d 545 [jury request for definition of nontechnical term does not by itself create a duty for further instruction].)


The judgment is affirmed.


1.   All further statutory references are to the Health and Safety Code unless otherwise specified.

FOOTNOTE.   See footnote *, ante.

4.   Even the term “current use” is, we believe, inapposite, as it implies a present tendency, process, or condition rather than a discrete event.   Referring to a “recent use” more accurately conveys the proper focus on a single act.

5.   Defendant's argument assumes that section 11550 would be unconstitutionally vague but for the requirement that the proscribed use occur immediately before the arrest.   The assumption is derived from Bosco v. Justice Court,supra, 77 Cal.App.3d at page 191, 143 Cal.Rptr. 468, where the court stated that “[t]he word ‘use,’ when combined with the time implications of People v. Velasquez,supra, is not so vague that one must guess at its meaning.”   We are not asked to revisit this issue in the instant case.   We observe, however, that the Bosco court did not engage in a deliberate analysis of the constitutional implications of the statute.   Instead, in its cursory treatment of the defendant's contention the court appeared to suggest that if the statute is otherwise vague, the temporal limitation derived from Velasquez saves it from such infirmity.   As we have already discussed, the language of section 11550 clearly proscribes an act of “use” without imposing the Velasquez / Bosco restriction.   We therefore do not accept defendant's premise that proof of use immediately before the arrest saves the statute from unconstitutional vagueness.

ELIA, Associate Justice.

PREMO, Acting P.J., and WUNDERLICH, J., concur.