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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Roy Thacton HUGHES, Jr., Defendant and Appellant.

No. E012801.

Decided: March 09, 1995

Roberta K. Thyfault, under appointment by the Court of Appeal, San Diego, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Janelle Davis, Supervising Deputy Atty. Gen., and David Delgado–Rucci, Deputy Atty. Gen., for plaintiff and respondent.


A jury found defendant Roy Thacton Hughes, Jr., guilty as charged in count 1 of possession of psilocybin (Health & Saf.Code, § 11377, subd. (a));  in count 3 of transportation of methamphetamine (Health & Saf.Code, § 11379, subd. (a));  and in count 4 of possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)).  The jury found Hughes guilty of possession of lysergic acid diethylamide (LSD) (Health & Saf.Code, § 11377, subd. (a)) as a lesser included offense to the charge in count 2 of possession of LSD for sale.   The jury found true the special allegation that Hughes was personally armed with a firearm in count 3 (Pen.Code, § 12022, subd. (c)).

The trial court sentenced Hughes to the middle term of three years for count 3 plus a consecutive low term of three years for the firearm enhancement.   The court imposed concurrent terms of two years each for counts 1, 2, and 4.

On appeal, Hughes contends:  (1) the evidence is insufficient to sustain his conviction for transportation of methamphetamine;  (2) the trial court erred in denying his motion for acquittal on count 3 under Penal Code section 1118.1;  (3) he should not have been convicted and sentenced for both transportation and possession of the same quantity of methamphetamine;  (4) the trial court abused its discretion in allowing his impeachment with a 16–year old robbery conviction;  (5) the trial court gave erroneous instructions as to the firearm enhancement;  and (6) the evidence is insufficient to sustain the true finding as to the firearm enhancement.


At about 10 a.m. on March 5, 1992, Riverside County Sheriff's Deputies Minard and Pearson went to a trailer home in Oak Glen.1  Three or four people were present, including Hughes, who opened the door to the deputies.   After a few minutes, Hughes asked Minard if he could leave.   Minard agreed to let him leave, but then accompanied him outside “to talk with him a little bit.”

Minard asked Hughes how he had arrived.   Hughes pointed to his pickup truck in the driveway a few feet from the trailer.   Minard asked if he had any narcotics, and he said no.   Minard asked for and received permission to search the truck.

Hughes opened two closed toolboxes on the truck for Minard.   Minard found no contraband in the toolboxes.   Minard asked Hughes to stand in front of the truck while Minard searched inside the truck.   Minard told Hughes he could stop the search at any time.   When Minard opened the unlocked driver's side door, he asked Hughes if there were any weapons in the truck.   Hughes replied that there was a gun in a briefcase on the passenger seat.   Minard opened the briefcase and removed a loaded .44 magnum revolver and a box of shells for the revolver.

Minard also saw a nylon pouch in the briefcase.   Inside the pouch, Minard found several one-inch plastic baggies which contained what appeared to be psilocybin, methamphetamine, marijuana, and LSD.   Later testing confirmed the contraband nature of the substances found.   The briefcase contained intimate personal documents and other papers addressed to Hughes.

Hughes told Minard that the gun was his, but the drugs were not.   Minard arrested Hughes for possession of narcotics and possession of a loaded firearm.

Minard questioned Hughes, and Hughes told him he owned the gun, but not the drugs or the briefcase.   When asked who the drugs belonged to, he said, “ ‘Well, they belong to somebody else, but—some other people.   I'm not going to name them.   I'm not going to say who it belongs to.   If they find out I said anything, they're going to come after me.’ ”   He then said he was going to take responsibility for the drugs.

Deputy Minard testified he did not know what time Hughes had arrived at the trailer home, and did not know if he had driven the truck that day.   For all he knew, “that truck could have been there for a week.”

At the close of the People's case-in-chief, Hughes's counsel moved for acquittal on count 3 under Penal Code section 1118.1.   He argued the evidence was insufficient to establish when the narcotics had been placed in the truck.   The court denied the motion.

Defense.  Hughes testified in his own behalf.   He stated he had been present when the deputies arrived.   When he attempted to leave, Minard asked to look in his truck.   He testified the briefcase in the truck was his.   He had the handgun in the briefcase because he intended to go shooting later that day.

The pouch containing drugs that was found in his briefcase did not belong to him, and he did not put it in the briefcase, although he had seen it before and knew who owned it.   He did not know it was in his briefcase.   When Minard opened the pouch, Hughes said the drugs were not his when he saw a baggie containing marijuana.   He testified that if he told who owned the drugs, his life might be in danger.   He later stated the pouch belonged to his girlfriend's cousin Sean.   He did not like Sean because Sean and his friends were “like long-haired druggies.”   He had seen the pouch sticking out of Sean's pocket the night before at a barbecue.   Hughes had left his truck unlocked and people at the barbecue had been sitting in the cab and in the bed of the truck.   Sean had left the pouch in the back of the truck before.   On cross-examination, he testified he had arrived at the trailer about 10 minutes before the deputies arrived.   He met one of the occupants outside the trailer.   The other occupant was inside sleeping.   Hughes never saw anyone near his pickup.


ISufficiency of Evidence to Sustain Conviction of Transportation of Methamphetamine

 Hughes contends the evidence is insufficient to sustain his conviction of transportation of methamphetamine.   In his reply brief, he adds the contention that the trial court erred in denying his motion to for acquittal under Penal Code section 1118.1.

 When a criminal defendant challenges the sufficiency of the evidence to sustain his conviction, this court “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)   The court resolves the issue based on the entire record and determines whether there is substantial evidence as to each of the essential elements of the offense.  (Id. at p. 577, 162 Cal.Rptr. 431, 606 P.2d 738.)

 “The crux of the crime of transporting is movement of the contraband from one place to another.”  (People v. Kilborn (1970) 7 Cal.App.3d 998, 1003, 87 Cal.Rptr. 189.)   Possession of contraband is not evidence of transportation.   The prosecutor must show that contraband was moved from one place to another and must connect the defendant to that movement.  (Id. at pp. 1002–1003.)   The prosecutor must also show the defendant's knowledge of the presence of the contraband.  (People v. Rogers (1971) 5 Cal.3d 129, 133–134, 95 Cal.Rptr. 601, 486 P.2d 129.)

Hughes testified on cross-examination that about 10 minutes before the deputies arrived at the Oak Glen address, he had driven there alone in his pickup truck.   He had his briefcase in the pickup.   When he arrived, he walked over to one of the trailer's occupants, who was outside.   He saw no one near his pickup.   The drugs were found in Hughes's briefcase in the pickup.

The People contend Hughes's testimony was sufficient evidence to support his conviction for transporting methamphetamine.   It was not necessary that the officers themselves saw Hughes driving the truck.   The fact of his driving the truck containing the drugs in the briefcase was established by reasonable inferences based on Hughes's testimony.

Hughes cites Kilborn, supra, 7 Cal.App.3d 998, 87 Cal.Rptr. 189 to support his argument that the evidence was insufficient to show transporting.   Kilborn is distinguishable on the facts.   In that case, the defendant had reported to the San Diego sheriff that he had been robbed of $7,000.   The defendant called the sheriff at 6 p.m.   At 8:30 p.m., sheriff's officers searched the defendant's unlocked hotel room and found LSD in his suitcase.   (Id., at p. 1001, 87 Cal.Rptr. 189.)   The defendant was convicted of transporting LSD.   On appeal, the court held the evidence was insufficient to support the transportation conviction, because there was no evidence the defendant had carried the LSD anywhere.  (Id., at p. 1003, 87 Cal.Rptr. 189.)

In Kilborn, unlike in this case, a significant amount of time elapsed before the search.   The defendant called the sheriff at 6 p.m.   The deputies searched his unlocked hotel room at 8:30 p.m.   It was plausible that someone else could have entered the room in the intervening time.

Here, Hughes testified he had arrived at the Oak Glen address only 10 minutes before the deputies arrived.   The evidence showed that during that time, no one else had been near his pickup.   The jury could reasonably infer that the drugs found in the pickup had been transported there by Hughes.


Denial of Penal Code Section 1118.1 Motion

After the prosecution presented its case-in-chief, Hughes moved for acquittal on the transportation count on the ground of insufficiency of evidence.   (Pen.Code, § 1118.1.)   The court denied the motion.

“The test to be applied by the trial court under the section is ․ the same test applied by an appellate court in reviewing a conviction:  whether from the evidence, including reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged [citations].”  (People v. Valerio (1970) 13 Cal.App.3d 912, 919, 92 Cal.Rptr. 82.)

 However, in his reply brief, Hughes argues the People may not attempt to sustain the conviction by relying on evidence received after the erroneous denial of the section 1118.1 motion.   This court should review the sufficiency of the evidence based on the state of the evidence at the time the motion was made.  (People v. Lines (1975) 13 Cal.3d 500, 505, 119 Cal.Rptr. 225, 531 P.2d 793;  People v. Belton (1979) 23 Cal.3d 516, 526–527, 153 Cal.Rptr. 195, 591 P.2d 485 [applying same rule in context of Pen.Code, § 1118 motion];  Valerio, supra, 13 Cal.App.3d at pp. 919–920, 92 Cal.Rptr. 82;  see also People v. Clark (1965) 62 Cal.2d 870, 881, 44 Cal.Rptr. 784, 402 P.2d 856 [when the prosecution rested after producing no substantial evidence against the defendants except that contained in improperly obtained extrajudicial statements, and the trial court erroneously denied a motion for an advisory verdict, the court held the defendant's testimony was compelled by the court's orders and “may not be relied upon as curing the very errors which compelled it”].)

Here, when the motion was made, there was no evidence to indicate when Hughes had arrived at the trailer, how long his truck had been parked there, or whether anyone else had had access to the unlocked truck while it was there.   The necessary evidence to sustain the conviction of transporting methamphetamine came from Hughes's own testimony on cross-examination.

However, the Valerio court stated that Penal Code section 1118.1 “is substantially similar to subdivision (a) of rule 29 of the Federal Rules of Criminal Procedure.   Under the federal practice, the majority of decisions hold that, if after the motion is denied, the defendant puts on evidence which supplies any deficiency in the prosecution's case, he may not complain on appeal of the erroneous denial of his motion.  (Cephus v. United States, (D.C.Cir.1963) 324 F.2d 893, 896;  see also 8 Moore's Federal Practice, 2d ed., ¶ 29.03 and 29.05)  In so holding, the cases generally theorize that the defendant ‘waived’ the error or is estopped to assert it or, in some cases, that the error cannot be considered prejudicial.  [Citations.]”  (Valerio, supra, 13 Cal.App.3d at p. 920, 92 Cal.Rptr. 82.)   The Valerio court further noted that the federal waiver rule had been “severely criticized” in Cephus v. United States (D.C.Cir.1963) 324 F.2d 893, 896–897.)

The Valerio court did not find it necessary to resolve the issue, because in that case, the evidence necessary to convict the defendant had been supplied not by the defendant, but by a codefendant who chose to testify.   Thus, under the facts of Valerio, the court was required to review the denial of the defendant's motion for acquittal on the basis of the evidence after the prosecutor's case.  (Valerio, supra, 13 Cal.App.3d at p. 920, 92 Cal.Rptr. 82.)

After Valerio, no California court has explicitly adopted the waiver rule.   However, the waiver rule has been the subject of further discussion in the federal courts.   In 1986, in a unanimous en banc decision authored by then Judge Antonin Scalia, the United States Court of Appeals, District of Columbia Circuit, overruled previous law and joined all the other federal circuits in adopting the waiver rule.  (United States v. Foster (D.C.Cir.1986) 783 F.2d 1082.)

The Foster court traced the development of the waiver rule in the District of Columbia Circuit and in other federal courts, and outlined the criticism of the waiver rule in Cephus:  “The Cephus court felt ․ that the waiver rule had been ‘imported from civil into criminal trials without considering the demands of our accusatorial system of criminal justice.’   [Citation.]  Although quoting from a New Jersey case to the effect that the waiver rule ‘ “comes perilously near compelling the accused to convict himself,” ’ [citation], Cephus 's analysis did not rest upon any constitutional imperative.   Rather, at the heart of its reasoning was the notion that requiring the defendant to forgo presentation of his case if he wishes to preserve his objection to denial of his motion to acquit is requiring him to ‘gamble on a prediction that the jury or appellate court will find [the government's] evidence insufficient,’ [citation]—suggesting that under such compulsion there is no genuine waiver in the sense of a known and voluntary relinquishment of rights.   Moreover, the court noted that what might have been viewed as the technical justification for finding waiver (viz., that the defendant had no categorical right to a ruling upon his motion of acquittal until he had rested his case) had been eliminated by Rule 29(a) of the Federal Rules of Criminal Procedure, [citation].   To the extent that Cephus rests on this rejection of a fictional ‘waiver,’ the foundation of its reasoning has been eroded by our recent en banc decision in United States v. Byers, 740 F.2d 1104 (D.C.Cir.1984), dealing with the similar assertion that a criminal defendant's so-called ‘waiver’ of his fifth amendment right by introducing psychiatric testimony (making him subject to compulsory examination by a government psychiatrist) is not a ‘genuine’ waiver:

The eminent courts that put [the ‘waiver’ theory] forth intended [it], we think, not as [an] explanation[ ] of the genuine reason for their result, but as [a] device[ ]—no more fictional than many others to be found—for weaving a result demanded on policy grounds unobtrusively into the fabric of the law․  [T]hey have denied the Fifth Amendment claim primarily because of the unreasonable and debilitating effect it would have upon society's conduct of a fair inquiry into the defendant's culpability.

Id. at 1113.   So also with the ‘waiver’ here;  it is a conventional fiction used to describe and produce the result that the courts will not blind themselves to incriminating evidence introduced by the defendant who chooses to respond, rather than to demur, to the government's case.   As the Fifth Circuit has put it:

The doctrine's operative principle is not so much that the defendant offering testimony ‘waives' his earlier motion but that, if he presents the testimony of himself or of others and asks the jury to evaluate his credibility (and that of his witnesses) against the government's case, he cannot insulate himself from the risk that the evidence will be favorable to the government.   Requiring the defendant to accept the consequences of his decision to challenge directly the government's case affirms the adversary process.

United States v. Belt, 574 F.2d 1234, 1236–37 (5th Cir.1978) (footnote omitted).”  (Foster, supra, 783 F.2d at pp. 1083–1084.)

The Foster court also addressed the policy concern expressed in Cephus that the waiver rule was “inadequate to ‘the demands of our accusatorial system of criminal justice’ ” in “ ‘seriously limit[ing] the right of the accused to have the prosecution prove a prima facie case before he is put to his defense.’  [Citation.]”  Foster, supra, 783 F.2d at p. 1084.   The Foster court noted that in an analogous context, the United States Supreme Court, in Richardson v. United States (1984) 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242, had held that “the government's initial failure to make out its case, and the trial judge's erroneous refusal to dismiss the prosecution at that stage, can be disregarded when the case continues and results in a conviction supported by adequate evidence.”  (Foster, supra, 783 F.2d at p. 1084.)   The Foster court explained, “The policy judgment that Richardson and the well established waiver rule share is that a defendant demonstrated to be guilty beyond a reasonable doubt on the basis of all the valid and admissible evidence will not be set free merely because, had an earlier erroneous ruling been made correctly, the trial would have ended before sufficient evidence to convict had been introduced.   That balance between the procedural rights of the defendant and protection of society might have been struck differently;  but the fact is that it has not been.”  (Id. at pp. 1084–1085.)

The Foster court surveyed the wide acceptance of the waiver rule, noting that all the other federal circuits had adhered to the rule in cases decided after Cephus.  (Foster, supra, 783 F.2d at p. 1085 & fn. 1 (collecting cases).)   The Foster court noted that the United States Supreme Court had approved of the rule in dicta in McGautha v. California (1971) 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, vacated on other grounds in Crampton v. Ohio (1972) 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765.   Finally, the Foster court noted that the American Bar Association's Standards for Criminal Justice adopted the waiver rule.   Commentary to those standards considered and rejected the positions advanced in Cephus.   Accordingly, the Foster court held that “a criminal defendant who, after denial of a motion for judgment of acquittal at the close of the government's case-in-chief, proceeds with the presentation of his own case, waives his objection to the denial.”   (Foster, supra, 783 F.2d at p. 1085.)

As noted above, no California court has explicitly adopted the waiver rule.   Despite the criticism directed toward the rule, for the reasons stated in Foster, we believe the waiver rule best addresses the balance between the defendant's procedural rights and the protection of society through the adversarial process.   Thus, we conclude Hughes has waived any error in the trial court's denial of his motion for acquittal by putting on his own case after the denial.



The true finding on the enhancement allegation under Penal Code section 12022 is vacated.   The sentence on count 4 is ordered stayed pending completion of the sentence on count 3.   In all other respects, the judgment is affirmed.


1.   The purpose of their visit, which was not made known to the jury, was to serve a search warrant.

FOOTNOTE.   See footnote *, ante.

DABNEY, Acting Presiding Justice.

RICHLI and BIGELOW ***, JJ., concur.