PEOPLE v. RUGE

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Omar Roldan RUGE et al., Defendants and Appellants.

No. B073525.

Decided: November 14, 1994

Alex R. Kessel and Ivy K. Kessel, under appointment by the Court of Appeal, Encino, for defendant and appellant Omar Roldan Ruge. John F. Schuck, under appointment by the Court of Appeal, Palo Alto, for defendant and appellant Jorge Restrepo. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Pamela C. Hamanaka, Supervising Deputy Atty. Gen., and James William Bilderback II, Deputy Atty. Gen., for plaintiff and respondent.

Omar Ruge and Jorge Restrepo appeal from the judgments entered against them following a jury trial.   Ruge was found guilty of two counts of possession for sale of cocaine in an amount over 10 pounds (Health & Saf.Code, §§ 11351, 11370.4, subd. (a)(2)), one count of transporting cocaine in an amount over 10 pounds (Health & Saf.Code, §§ 11352, subd. (a), 11370.4, subd. (a)(2)), conspiracy to transport cocaine in an amount over 25 pounds (Pen.Code, § 182, subd. (a)(1);  Health & Saf.Code, § 11370.4, subds. (a)(2) and (a)(3));  and conspiracy to possess cocaine for sale in an amount over 25 pounds (Pen.Code, § 182, subd. (a)(1);  Health & Saf.Code, § 11370.4, subds. (a)(2) and (a)(3)).   He was sentenced to 14 years in prison.   Restrepo was found guilty of possession for sale of cocaine in an amount over 10 pounds (Health & Saf.Code, §§ 11351, 11370.4, subd. (a)(2)) and conspiracy to transport cocaine in an amount over 10 pounds (Pen.Code, § 182, subd. (a)(1);  Health & Saf.Code, § 11370.4, subd. (a)(2)).   He was sentenced to seven years in prison.

Ruge and Restrepo raise numerous contentions on appeal.   They both contend the court gave a number of erroneous jury instructions, that the evidence was insufficient to support the convictions, that the court erred in denying the motion to quash the search warrant, and that the weight enhancement statute is unconstitutionally vague.   They also both contend that the court erred at sentencing in refusing to strike the weight enhancements.   Restrepo contends the court erred in admitting his birth certificate and passport into evidence.

We reverse as to count 1, the possession for sale, as to both Ruge and Restrepo and remand for further proceedings.   In light of the fact that we reverse as to count 1, the enhancements based thereon must also be reversed.   In all other respects, we affirm the judgments.

SUMMARY OF FACTS

During the period from April through June 1991, agents from the Bureau of Narcotics Enforcement George Gammon, Frank Herbert, Jess Velasquez and Randy Bryant conducted extensive surveillance of appellants Ruge and Restrepo as well as their female companions Orfa Urrea and Auracelly Perdoma.   They observed various events at and between the following locations:  an apartment at 10773 Palms Boulevard in Los Angeles (the Palms apartment), an apartment on Alvern Circle in Los Angeles (the Alvern apartment), an apartment on Bora Bora Way in Marina Del Rey (the Bora Bora apartment), and the Los Angeles International Airport (the airport).   Their observations culminated in two seizures of large amounts of cocaine, one on May 8, 1991, at the airport, and one on July 11, 1991, at the Alvern apartment.

A summary of the agents' observations follows:

On April 18, 1991, Agent Herbert saw a male Latin, later identified as appellant Restrepo, get into a blue Toyota Camry parked near the Palms apartment and drive off.

On April 22, 1991, Agent Gammon saw three men, two of whom were later identified as appellants Ruge and Restrepo, get into a white Nissan Pathfinder parked outside the Palms apartment.   Ruge drove the Pathfinder to a restaurant and then back to the apartment.   The three men got into the blue Camry and drove it to an automobile body shop where they stayed for approximately 45 minutes.   Later that day, Agent Velasquez saw Ruge on the balcony of the Palms apartment talking on a telephone.

That evening, Agent Gammon saw Ruge drive the Pathfinder to Marina Del Rey and park within a few blocks of the Bora Bora apartment complex.   Ruge then drove back to the Palms apartment.   When he got there, Restrepo got into the Camry and followed Ruge, in the Pathfinder, to a secluded parking lot where they got out and had a short discussion.   They then drove their cars to a restaurant.   Gammon observed that they would reverse directions and appeared to be looking to see if surveillance helicopters were following them, which were techniques consistent with “counter-surveillance driving.”

On April 23, Agent Herbert saw Ruge and Restrepo at the Palms apartment with an unidentified Latin male who was carrying a black suitcase.   The three men then went in the blue Camry to a nearby surplus supply store and came out carrying a box marked “sleeping bag.”

On April 29, Agents Bryant, Herbert and Gammon separately observed Ruge drive the Pathfinder from the Palms apartment with a female passenger, later identified as Orfa Urrea, pick up another male and drive to the airport.

On May 7, Agent Herbert saw two females, one of whom was later identified as Auracelly Perdoma, riding in the blue Camry.   That same day, Agent Gammon saw a moving van parked in front of the Palms apartment.   After furniture was loaded into the van, Ruge drove the van to the Alvern apartment, with the blue Camry driving in tandem.

On May 8, Agent Herbert followed Ruge, as he drove the blue Camry from the Alvern apartment to the airport with Restrepo, Perdoma and Urrea in the car.   Ruge got out of the car, and took a large dark-colored suitcase out of the trunk.   The baggage attendant put a tag on the suitcase and gave the claim ticket to Perdoma, who walked to a departure gate.   Ruge drove off with the others.   Herbert was able to retrieve the suitcase from the baggage handler, but Perdoma was not located on her scheduled flight, which was bound for New York.   In the suitcase, Herbert found a sleeping bag wrapped around two bags, one of which was wrapped in duct tape.   The bag wrapped in tape contained several smaller packages which were wrapped in plastic and smeared with grease.   One of the packages had a sticker with a Pepsi logo on it.   Approximately 10 pounds of cocaine was found inside the packages.1  Ruge's prints were found on the plastic wrapping and logo on two of the small packages.

On May 13, Agent Gammon saw Restrepo drive a Ford Escort from the Alvern apartment to a bank.   Restrepo, carrying a leather shoulder bag, went inside the bank.

On May 20, Gammon observed Ruge drive the Pathfinder from the vicinity of the Alvern apartment to the Bora Bora apartment and stay there for several hours.

On June 3, Velasquez saw Ruge and a female companion drive from the Alvern apartment to the Bora Bora apartment where Ruge dropped an envelope into a box or slot.

On June 19, Gammon saw Urrea driving Ruge in the blue Camry from the vicinity of the Alvern apartment to an apartment located on 111th Street.   They went inside and Ruge was carrying a heavy bag.   Shortly thereafter, a Latin female arrived in a BMW.   She went into the residence and later both cars left at the same time.   Agents Gammon and Velasquez followed the female driving the BMW and observed her driving erratically, changing lanes numerous times, making U-turns and illegally cutting through safety cones, all consistent with counter-surveillance techniques.

On July 11, 1991, search warrants were executed at the Alvern apartment and the Bora Bora apartment.

At the Bora Bora apartment, the following evidence was seized:  two cans of multipurpose grease, a bag of latex gloves, Ruge's birth certificate and passport, numerous documents including a photograph of Ruge sitting in a white Nissan Pathfinder holding a cellular telephone, documents in the name of Joe Rossetti, utility bills, several thousand dollars of currency, firearms, and pay/owe journals of narcotics transactions, showing notations of several sales in excess of $15,000.

At the Alvern apartment, agents found Ruge and Urrea sleeping in the south bedroom and Restrepo asleep in the north bedroom.   Ruge identified himself as Joe Rossetti.   In the south bedroom, the agents found a leather purse which appeared to be the same one Restrepo was observed with at the bank and contained a cellular phone and duct tape.   They also found three bags of currency containing a total of $15,000, a gun, bills from a private mailbox rental location, checks in Urrea's name and a drivers' license in the name of Joe Rossetti.   In the north bedroom, where Restrepo had been sleeping, they found a bundle of $10 bills in a plastic bag, cellular phones, a box with traces of white powder resembling cocaine in it, photographs of Ruge, Restrepo, Urrea and Perdoma, a rental application, a passport and a birth certificate in Restrepo's name.

In the living room of the Alvern apartment there were four pagers with the identification numbers removed.

The Ford Escort was found in the parking garage of the Alvern apartment.   Agents looked inside and discovered documents in Restrepo's name, and two shopping bags containing 10 packages of cocaine, weighing a total of 10,024.7 grams.

It was later ascertained that the blue Camry and Pathfinder were both registered to Joe Rossetti, the name Ruge gave to police.

During the entire time spent surveilling Ruge and Restrepo, none of the officers ever saw either of them going to a place of employment.

At trial, the prosecution presented testimony of a trained narcotics expert that in his opinion the amounts of cocaine seized were possessed for purposes of sale.

Appellants presented no affirmative defense.

DISCUSSION

1. & 2.***

3. Sufficiency of the evidence

a. July 11 incident:

Both Ruge and Restrepo contend that there was insufficient evidence to support their convictions for possession of cocaine (count 1), for conspiracy to possess cocaine for sale (counts 5 and 6) and the corresponding weight enhancements based upon seizure of the cocaine in the Ford Escort parked at the Alvern apartment on July 11, 1991.   Each contends that the evidence was insufficient to show that either one had possession or control over the substance.   Ruge further contends that there was insufficient evidence to show he had knowledge of the contents of the Ford.   Restrepo contends that the evidence was insufficient to show his complicity as an aider and abettor.   Both contend that there was no direct evidence of any agreement between them and anyone else to possess cocaine and that their mere acquaintance with each other, as well as the other persons observed by the agents, does not constitute a conspiracy.

We find their arguments to be without merit.   Both appellants had been observed over a three-month period driving to and from the Alvern apartment, and engaging in counter-surveillance driving.   As to Restrepo, there is no dispute that the Escort was his car, and that he lived at the Alvern apartment.   Numerous $10 bills were found in his bedroom.   He apparently lived at the Bora Bora apartment where the tubes of grease were found.   He and Ruge had both been observed buying a sleeping bag and dropping off Perdoma at the airport when the cocaine in the suitcase was discovered.   Ruge, in addition, falsely identified himself to the police when arrested and maintained a false identification card and a mail drop.   Ruge's personal papers were found at the Bora Bora apartment.   A large amount of cash was found in Ruge's bedroom at the Alvern apartment.   Cellular phones and pagers were discovered, which Bureau of Narcotics Enforcement Supervisor Wilfredo Cid testified are often used by drug traffickers, as well as private mail boxes.   All of this circumstantial evidence taken together substantially supported the clear inference that Ruge and Restrepo were each, together, involved in ongoing narcotics transactions and that they possessed the cocaine found in the Ford Escort.   Given this circumstantial evidence, no direct evidence of any agreement to conspire was necessary.  (People v. Zamora (1976) 18 Cal.3d 538, 559;  People v. Aday (1964) 226 Cal.App.2d 520, 534.)

b. May 8 incident: ****

4. Constitutionality of weight enhancement statute (Ruge & Restrepo) †

5. Jury instructions

After two days of deliberations, the foreperson indicated that the jurors had reached verdicts on all of the counts charged but were hopelessly deadlocked as to count 1.

The court ordered the jury to return to the jury room and after a brief period of time, the foreperson indicated that the jury had questions about three of the instructions, reasonable doubt, possession, and aiding and abetting.   The court attempted to answer each of these questions by giving its own lengthy definitions and explanations.   The jurors were then sent back into the jury room for more deliberations.   Shortly afterwards, the jury again buzzed and inquired of the court what would happen if they remained deadlocked on the one count.   An exchange took place and the court refused to answer the question.   Within the next half hour, the jury returned with all verdicts.

Both Ruge and Restrepo contend that the court erred by giving further clarification of the jury instructions on reasonable doubt, possession and aiding and abetting.   They also contend that the court coerced the jury into returning a guilty verdict as to count 1 when it refused to answer the jury's question relating to the deadlock.

We find that the court erred in attempting to further clarify the jury instruction on reasonable doubt and in failing to properly answer the jury's inquiry regarding the deadlock on count 1.   We cannot find that the combination of these two errors is harmless.

a. Reasonable doubt instructions

 The first question asked by the foreperson was, “[W]e would like to know what constitutes reasonable doubt.  [¶] ․ [¶] We read the instructions over and over.   We want you to tell us.”   The court gave the following explanation:  “You know, greater minds than mine have tried to better the instruction, and about all they get is reversed or they mess it up or somebody up in the Court of Appeal or the Supreme Court says, ‘No, that's not quite it.   You blew it.’  [¶] When they say they want—they expect the evidence to leave in your mind an abiding conviction to a moral certainty of the truth of the charges.   An abiding conviction means—it doesn't mean you're supposed to be happy with it this afternoon and you're going to wake up tomorrow morning and you're going to wish you hadn't done it.  ‘Abiding’ means the belief is probably going to stay with you to your grave.   Now, you need a crystal ball to figure that out because you don't know if your minds are going to change or not, but what you do know is how compelling the belief is and what you are able to assess is the probability that will abide with you unchanged and that you will not have buyer's remorse, so to speak, you know, in a week or a month or a year.   If your conviction or feeling or belief in a particular fact or set of facts is such that you are morally satisfied that it will stay with you and that you won't wake up Christmas Day feeling overly charitable and wish you hadn't concluded that because you have some doubt, that is an abiding conviction.   It's one that will stay with you.  [¶] ․ [¶] ‘To a moral certainty’ means—you're not clairvoyant.   None of us are God.   We don't know.   But as best we can do as normal individuals to a moral, human, decent certainty, which is as close as you can get to certainty.   There is no guarantees except what's already been.   We know it's happened if we saw it.   We know what's coming if we're watching it happen.   Everything else in this world that we know is because we believe it for some reason or other.   Now, the extent of your belief must be to a moral certainty based on as certain as you can become as a human being without imagining doubts.   That's why it goes on to say, ‘Everything subject to human experience is subject to a possible or imaginary doubt.’ ”

The foreperson then inquired:  “So should you bring in—try to think of any other possible situation that could have brought these circumstances about or should you just look at the facts as they were presented?”   The court replied, “The circumstance rule is if a set of circumstances is capable of two or more interpretations, one of which points to the defendant's innocence, the other which points to the guilt, you must adopt the one which points to the innocence, but if one is reasonable and the other unreasonable, you must adopt the inference which is reasonable.   It doesn't mean that you are to adopt the inference which is more likely or the one that favors you the most because it's more probable than the other.   That is not the rule.   The rule is it must not only be reasonable, it must be the only reasonable inference.   The other one must be unreasonable in order for you to reject it.   If they're all possible and reasonable to any extent, you must adopt the inference that results in acquittal if it's reasonably possible.  [¶] Everyone asks the question, ‘Where does a mere possible doubt stop and a reasonable doubt start?’   And that's not a bad question.   Could I give you an example of a mere possible doubt which nobody in their right mind would consider?   Well, I shouldn't say that.   Let me leave it to you.  [¶] X is charged with murder.  [¶] ․ [¶] The circumstances are X pushed his victim out of a small airplane.   Did I tell you this one?  [¶] ․ [¶] Okay.   I don't always tell it.2  Okay.   That's a mere possible doubt.   The fact that somebody could fall a mile into the Pacific Ocean and live isn't enough for you to acquit X.   If the evidence is clear that X pushed that guy out of that airplane and all you know is some retired R.A.F. officer with a medical background said, ‘Well, there's lots of incidences in World War II where some of them lived, there's about a dozen of them documented,’ does that mean you're going to license everybody in this state to kill their worst enemy by taking them up, flying them out over Santa Monica and pushing them out of an airplane because you can't find the body?   That's a mere possible doubt.   It's not reasonable to assume—something like that cries out for a response.   It cries out for a defense.   It cries out for something other than just lying there and letting you wrestle with it.   You don't have to wrestle with a mere possible doubt.   It's nonsense and no one can expect you to do so in view of the fact that the alternatives are disastrous.   Everything in human experience is subject to a mere possible doubt.   So if that's what you want to play with, then don't have trials, because you can always find one of those.   Does that make sense to everyone?  [¶] Now, it doesn't mean you have to be persuaded or that the notion that someone is innocent must be favored over the notion that they're guilty.   And we're not dealing with a preponderance.   We went through that, didn't we?   You don't have to be happy with it.   All you have to have is a gnawing concern that there is a reasonable alternative that can't be ignored.   That's a reasonable doubt.”

Penal Code section 1096 states reasonable doubt “․ is not a mere possible doubt;  because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.   It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”   This statement is incorporated in CALJIC No. 2.90, which was given to the jury.  Penal Code section 1096a provides:  “In charging a jury, the court may read to the jury section 1096 of this code, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.”

 While a trial judge has the authority to provide clarification when requested by the jury, diverging from the standard reasonable doubt instruction is not advised.  (People v. Beardslee (1991) 53 Cal.3d 68, 97, 279 Cal.Rptr. 276, 806 P.2d 1311;  People v. Gottman (1976) 64 Cal.App.3d 775, 784, 134 Cal.Rptr. 834.)

The supplemental language and examples given by the court were at best confusing.   These remarks diverted the jury from the standard statutory definition, and instead referred to “probability of guilt,” “moral satisfaction,” “decent certainty” and “gnawing concern” rather than a “moral certainty.”   It was error for the court to attempt to embellish the concept of reasonable doubt.  (People v. Garcia (1975) 54 Cal.App.3d 61, 69, 126 Cal.Rptr. 275.) 3

b. Return to deliberations

 After the foreperson had indicated to the court that the jurors were in disagreement as to some of the verdicts, the following colloquy took place:

“THE COURT:  How many verdicts have you got?  [¶] THE FOREPERSON:  Five.  [¶] THE COURT:  The ones that you're no longer in disagreement on, would you give those to the bailiff, please, and we'll talk about the two remaining counts that you're having a problem with.  [¶] ․4 [¶] I don't need necessarily to know which way—I don't want to know which way you're lopsided if you're not six to six.   If you're lopsided, don't tell me which way but tell me what the count is.  [¶] THE FOREPERSON:  Count 1?  [¶] ․ [¶] On defendant Restrepo?  [¶] ․ [¶] Nine/three.   Defendant Ruge on count 1 also eight/four.  [¶] THE COURT:  We're right in the middle of the day.   We're not going anywhere today.   How do any of you feel about resharing your thoughts, further assessing your respective positions, and possibly that you could swing each other either way?   It doesn't matter.   Do any of you think it's possible to shift if you re-listen, re-think, or do you think it's possible to shift your neighbor your way?   I'm sure you've made every effort, but you're not—you know, you're not professional debaters.   You don't do this for a living and there may be some things that have been left unsaid.   There may be some concepts that you have yet to share.   I would want you to explore every possibility before I declare a mistrial if it aborts the entire thing and puts us back to square one, and it's perfectly all right if that's the result and if you're all morally and truly sincerely satisfied that that's your position, but are you willing to debate it a little longer, at least the rest of today, and then touch bases with me tonight before you go home and let's see if there's been a shift, at least a shift in one direction or the other?   If tonight at quitting time you appear to be hopelessly deadlocked, we'll talk about it again.   Can you do that?  [¶] Have you got an opinion ․?  [¶] THE FOREPERSON:  I have been left with the opinion that it's hopelessly deadlocked.   That's what they told me.  [¶] THE COURT:  Okay.   One side or both sides?   Is one side saying, ‘We're not moving’?  [¶] THE FOREPERSON:  Yes.  [¶] THE COURT:  Okay.   What are the chances of the other side that isn't saying that shifting in the direction of the side that appears to be immobile?  [¶] THE FOREPERSON:  None.  [¶] THE COURT:  So both sides are of the opinion that they're not going to move?  [¶] THE FOREPERSON:  That's correct.   [¶] THE COURT:  Why don't you retire to the jury room, talk about anything you like.   You don't even have to talk about the case if you don't feel like it.   Talk about the case if you feel like it.   I'll chat with the attorneys and we'll do some soul searching and give it some thoughts and then I'll share our thoughts with you in a little while.”

The jury then returned to the jury room and the court and counsel had the following discussion:  “[¶] THE COURT:  Do you want to pol[l] them on the stuff they've already done?  [¶] ․ [¶] You can't ask them individually where they're coming from.  [¶] [THE PROSECUTOR]:  No, you just ask them is the jury hopelessly deadlocked.  [¶] THE COURT:  I'll be glad to do that in just a moment.   Let me see what they did.   I can't even figure out what's missing.”   The jurors buzzed, indicating they had a question.

The following discussion then took place between the jury, the court and counsel:  “THE FOREPERSON:  The first question they had was if we do not reach a verdict on these two counts, you said it was a mistrial.   Is that on the whole case?  [RESTREPO'S COUNSEL]:  No.  [¶] THE COURT:  Well, you're not concerned with the results of your conclusions.  [¶] THE FOREPERSON:  Right.   [¶] THE COURT:  There's an answer to that, but I'm not going to share it with you because your conclusions have got to be based on what you believe, not how much violence you think you're going to do to the world if you come to the conclusion.   Do you understand what I'm saying?  [¶] THE FOREPERSON:  I understand perfectly what you're saying.  [¶] THE COURT:  Does everyone else understand what I'm saying?  [¶] (The jurors answered collectively in the affirmative.) ”  (Emphasis added.)

Shortly after this exchange, the jury returned with verdicts, including the two guilty verdicts as to the first count.

We have no way of knowing exactly what the foreperson meant by the language “I understand perfectly what you're saying.”   However, the conclusion is inescapable that one interpretation relates to his belief that the entire case would be mistried based upon the court's statement that the jury should not consider “how much violence you think you're going to do to the world if you come to the conclusion.”   We find that the nature of the response was inappropriate.

We conclude that “[t]hough the jurors apparently set about their task as conscientiously as possible” after this exchange they were “infected with misinformation that could very likely have exerted a significant influence on the outcome of the deliberative process.”  (People v. Barraza (1979) 23 Cal.3d 675, 685, 153 Cal.Rptr. 459, 591 P.2d 947.)

c. The error was not harmless

 Error relating to instruction of reasonable doubt is tested pursuant to Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705:  “[B]efore the error can be held harmless ‘the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ ”   (People v. Garcia, supra, 54 Cal.App.3d at p. 70, 126 Cal.Rptr. 275.)

 Applying this test, we review what occurred relating to the question on reasonable doubt and the question of mistrial in context with what other information the jury was requesting at the time.

Following the discussion on reasonable doubt, the foreperson indicated that the jury would “like you to elaborate on possession.   We went through the instructions thoroughly.”   The court responded as follows.  “Possession can be either direct or constructive.   Possession is either something you actually hold or contain or keep somewhere or i[s] something over which you have control or it is somewhere that you can—you can acquire it and that you have the wherewithal and the control to take it and do with it what you cho[o]se.   That's constructive possession even if it isn't in your actual possession.   [¶] ․ [¶] I constructively possess the contents of my downtown condo.   I'm not there right now, but nobody else possesses it.   At least no one did when I left this morning.   I certainly hope that no one does.   As far as I know, I still possess the contents of my condo downtown, and that's constructive possession.   I haven't got it.   I can't show it to you.   I can't reach it.   But it's mine and I possess it.”

At that point, one of the jurors interjected with a question.  “JUROR NO. 12:  If there were five people in the room and there was a joint over here in the corner, would you all get busted for that joint?  [¶] THE COURT:  Probably, but you wouldn't get convicted in my court.   That's not necessarily possession.   The mere fact that it's—availability doesn't equal possession.   Is that what you're suggesting?  [¶] JUROR NO. 12:  Yes.  [¶] THE COURT:  The mere fact that something is available doesn't mean you possess it.   There has to be proof that you either directly or constructively possess it, and if you're merely in the presence of something that nobody's allowed to have and there's no evidence that you possess it, that would be for you to determine from the facts and from the evidence that was given you, and what you have give as an example, to my knowledge there's nothing in this transcript comparable to what you just gave me.   There's nothing before you in this case as easy as that.   If there's a joint in the corner and five people in the room, do they all possess it, not unless there's more information to suggest ownership of actual possession or dominion or some kind of control.   It's just there.   It's either going to stay there or it's going to get picked up and it's going to get taken away by the police, but I don't think anybody is going to get convicted on those facts.   However, that's not before you in any part of this trial that I know of.   That's just too simple.”

Immediately after the court had explained the concept of possession, the foreperson requested it to elaborate on aiding and abetting.   The court responded, “Try this:  Any contribution to the event, the absence of which would have rendered the crime less likely of perpetration.  [¶] ․ [¶] Mere presence is not aiding and abetting.   In other words, you need not be present to be an aider and abettor.   You can call somebody on the phone and say, ‘Hey do it.   Hey, there's nobody watching.   I saw the police recover it ten minutes ago.   Now's your chance.’   They're an aider and abettor and they're not even present.   Well, the guy they're taking to robs the cashier, but mere presence and watching a crime occur, even favoring what you see, applauding indeed what you see, and in retrospect saying, ‘I'm sure glad he did that,’ is not aiding and abetting.   It's in awfully poor taste and most good citizens wouldn't take that position, but it's not criminal to do that.”

It is clear that the jury was focusing upon the concept of possession and the fault of each defendant in connection with the concept of reasonable doubt.   Count 1 focused upon the discovery of cocaine in the Ford Escort and who may have possessed it.   We cannot declare that the error was harmless beyond a reasonable doubt.   Therefore, we must reverse as to count 1.

6. Sentencing ††

DISPOSITION

The judgments as to both appellants Ruge and Restrepo on count 1, possession for sale and the respective weight enhancements, are reversed.   We also reverse the finding as to counts 4 and 5 relating to the 25 pound weight enhancement and the 10–pound weight enhancement as to count 6.8  We affirm as to the remaining counts.   The matter is remanded for further proceedings.

I share my colleagues' views that the trial court erred in its efforts to explain the reasonable doubt instruction, that the verdict on count 1 was coerced, and that, together, these errors require reversal of that count, but only of that count.   I also believe the trial court erred when it responded to a jury question asking for clarification of the aiding and abetting instruction with the statement that “any contribution to the event, the absence of which would have rendered the crime less likely of perpetration․  That is an aider and abettor.”   This definition fully eliminated the mens rea element of aider liability.   But it, too, only affected count 1, since the jury already had reached verdicts on the other counts.

I write separately to address the dilemma presented to a trial judge who, like the judge in this case, is asked by a jury for clarification of the reasonable doubt instruction.   What is a judge to do in that situation?   The jury's quandary is entirely understandable in light of the hopelessly confusing language of the second paragraph of the instruction.   Courts are enjoined to answer jury questions of that kind.   But, in the case of this particular instruction, they do so at extreme hazard if they go outside the text set out in Penal Code section 1096a.   Most judges respond by simply re-reading the instructions, perhaps with some inflection on particular phrasing.   Others do what the trial judge did in this case—they try to explain the undefinable.

The California reasonable doubt instruction passed constitutional muster in Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583.   But just barely, and with severe criticism and with a warning that the instruction's “common meaning” may change to the point that it becomes unconstitutional.  (––– U.S. at p. ––––, 114 S.Ct. at p. 1248.)

The infirmities of the instruction are well known and have been fully documented, not only by the high court in the Victor case, but also by Justice Mosk in his concurring opinion in People v. Brigham (1979) 25 Cal.3d 283, 292, 157 Cal.Rptr. 905, 599 P.2d 100 and, most recently, in opinion of the Court and the concurring opinion of Justice George in People v. Freeman (1994) 8 Cal.4th 450, 34 Cal.Rptr.2d 558, 882 P.2d 249.   The Freeman court asked the Committee on CALJIC or the Legislature to revisit the issue, because “[t]he clarity and constitutionality of California's instruction on reasonable doubt are too important to simply ignore the high court's warning signals.”

I would add only that it is high time.   This instruction, in its second paragraph, is surely one whose time has passed.

FOOTNOTES

1.   According to Agent Herbert, grease is used to mask the odor of cocaine.   According to Bureau of Narcotics Enforcement Supervisor Wilfredo Cid, the Pepsi logo is often used to mark and track packages of narcotics.

FOOTNOTE.   See footnote **, ante.

FOOTNOTE.   See footnote **, ante.

FOOTNOTE.   See footnote **, ante.

2.   Apparently, during voir dire, the judge had related a story about a Royal Air Force pilot testifying as an expert about whether someone could survive after being pushed out of a plane.

3.   See also the critical discussion of this jury instruction in the recent Supreme Court opinion of People v. Freeman (1994) 8 Cal.4th 450, 34 Cal.Rptr.2d 558, 882 P.2d 249.

4.   There were only six counts charged.   However, both Ruge and Restrepo were charged in count 1.   We infer the court was referring to the two remaining separate verdict forms for each.

FOOTNOTE.   See footnote **, ante.

8.   Because the court also struck the remaining weight enhancements as to Ruge on counts 1 through 5, the court should also reconsider on remand which, if any, of those enhancements should be imposed upon resentencing.

HASTINGS, Associate Justice.

CHARLES S. VOGEL, J., concurs.

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