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

The PEOPLE, Plaintiff and Respondent, v. Gail Margaret KARSNOK, Defendant and Appellant.*

Cr. 29333.

Decided: September 12, 1977

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, and Jonathan B. Steiner, Deputy State Public Defender, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

By information, defendant was charged with offering to sell a controlled substance, amphetamines, and then selling another substance in lieu of the controlled substance, in violation of Health and Safety Code section 11382. It was alleged in an amendment to the information that defendant had suffered two prior felony convictions. Defendant entered a plea of not guilty but admitted the prior felony convictions.

Trial was by jury. Defendant was found guilty as charged. Defendant's motion for a new trial was denied. Probation was denied and defendant was sentenced to state prison for the term prescribed by law. She appeals from the judgment of conviction.

According to the prosecution's evidence, at 6:30 p.m. on February 13, 1976, Terry Irish, an undercover investigator for the Southgate Police Department, went to defendant's residence to purchase amphetamines from her. He was accompanied by an informant, William Gueits. Gueits introduced Irish to defendant; she asked Gueits what he needed. Gueits replied “[a] dime of whites, if you have them.”1 Defendant said “[s]ure” and removed a plastic bag containing white pills from her sewing basket on the couch of the living room. She gave it to Gueits. Gueits gave the bag to Officer Irish. Gueits gave two five-dollar bills to defendant and defendant placed the money in her sewing basket. The money came from Irish but Irish and Gueits disagreed as to the exact time when Irish handed the bills to Gueits.

It was later ascertained that the pills in the bag did not contain any controlled substance as amphetamines.

The defense offered evidence that William Gueits often attempted to obtain amphetamine pills; on January 20, 1976, he asked Theresa Woodward, defendant's daughter, if defendant had any “whites.” Theresa told Gueits that her mother did not, but that her mother had some pills containing caffeine.

Some time after that, but before February 13, 1976, Gueits became involved with the police in connection with a narcotics offense, and, in return for lenient treatment, agreed to cooperate in the apprehension of other narcotics offenders.

Several days before the date of the sale, Gueits had asked defendant if she had any “whites.” She had told him she did not, but that she had some white pills to help keep her awake. She had given Gueits 100 of these pills in return for some tires.

Defendant testified that at the meeting with Irish and Gueits on February 13, 1976, she did not hear Gueits ask her for “whites,” but thought he wanted more of the pills she had given him previously. But both the informant and the undercover agent testified that defendant had been informed that “whites” were what they wanted to buy.

On this appeal, defendant first contends that reference to her two prior felony convictions must be stricken from the judgment of conviction because she was not properly advised of the consequences of admitting the prior felony convictions. The People argue that the record shows sufficient exploration of the consequences, and further assert that it is essentially the duty of defense counsel to insure a defendant's understanding of the penal effect of admitting prior felony convictions.

The record shows that the prosecutor advised defendant that the priors could have the effect of increasing her punishment and also of making her ineligible for parole. She indicated she understood this and then admitted the priors to be true. However, defendant was not told that if she admitted the priors, the minimum sentence upon conviction would be two years, pursuant to Penal Code section 3024, as opposed to a lesser minimum sentence provided for by Health and Safety Code section 11382. In contending that this failure was error, defendant relies on In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, wherein the California Supreme Court declared a judicial policy with respect to a defendant's admitting that an allegation of a prior felony conviction is true. It stated: “[A]n accused, prior to the time the court accepts his admission of an allegation of a prior criminal conviction or convictions, is entitled to be advised: (1) that he may thereby be adjudged an habitual criminal pursuant to section 644 if that section is applicable in his case; (2) of the precise increase in the term or terms which might be imposed, if any, in the accused's case pursuant to section 644 or other applicable statutes (see e. g., §§ 666, 667); and (3) of the effect of any increased term or terms of imprisonment on the accused's eligibility for parole. The failure to so advise an accused in the enumerated instances will constitute error which, if prejudice appears, will require the setting aside of a finding of the truth of an allegation of prior convictions.” (In re Yurko, supra, 10 Cal.3d 857, 864, 112 Cal.Rptr. 513, 517, 519 P.2d 561, 565; fns. omitted.) (Emphasis added.)

The Yurko decision relied heavily on the policy considerations expressed in Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449. While Yurko was decided within the context of the habitual offender statute, the California Supreme Court observed in In re Foss (1974) 10 Cal.3d 910, 930, 112 Cal.Rptr. 649, 519 P.2d 1073 that the general policy enunciated in Yurko was equally applicable when other punishment statutes were involved.

Although no particular language is required in meeting the Yurko mandate (People v. Lizarraga (1974) 43 Cal.App.3d 815, 821, 118 Cal.Rptr. 208), precise information must be conveyed to the defendant concerning the minimum sentence that could be imposed (People v. Martinez (1975) 46 Cal.App.3d 736, 744-745, 120 Cal.Rptr. 362; People v. Killman (1975) 51 Cal.App.3d 951, 957, 124 Cal.Rptr. 673). Reliance may not be placed upon defense counsel to insure the transmittal of this precise information; the trial court has an affirmative duty to see that such is clearly communicated to a defendant. (People v. Tabucchi (1976) 64 Cal.App.3d 133, 134 Cal.Rptr. 245.)

We hold that the advice given to defendant that the priors would increase her punishment, was not adequate to meet the Yurko requirement that the full penal effect be communicated. We conclude, therefore, that the finding that the allegations of prior felony convictions were true is erroneous and cannot stand. In view of our disposition of this issue, we need not consider defendant's corollary contention that inadequate reference to priors was made in the pronouncement of judgment.

Defendant next contends that the trial court erred when it instructed the jury that Health and Safety Code section 11382 is violated when the accused has the requisite general criminal intent.2 The trial court refused defendant's instruction that the section required a finding of specific intent.

Defendant points out that while some Court of Appeal decisions were holding that specific intent was a requirement (People v. Contreras (1964) 226 Cal.App.2d 700, 38 Cal.Rptr. 338; People v. Sweet (1967) 257 Cal.App.2d 167, 65 Cal.Rptr. 31), other Court of Appeal cases were holding the opposite—that general intent was all that was required. (People v. Northern (1967) 256 Cal.App.2d 28, 64 Cal.Rptr. 15; People v. Medina (1972) 27 Cal.App.3d 473 103 Cal.Rptr. 721.)

The irreconcilable conflict between the two lines of decisions was resolved in People v. Haines (1975) 53 Cal.App.3d 496, 125 Cal.Rptr. 735, by interpretation of action taken by the California Supreme Court with respect to that decision. The first Haines opinion had stated that a general intent instruction was sufficient to describe the intent required to establish a violation of Health and Safety Code section 11382—the section involved in the case at bench. The Supreme Court had granted a hearing, and then retransferred the case to the Court of Appeal “‘for the refiling of its opinion with an appropriate reference to People v. Daniels (1975) 14 Cal.3d 857, 122 Cal.Rptr. 872, 537 P.2d 1232.”’ (Haines, supra, 53 Cal.App.3d 496, 497, 125 Cal.Rptr. 735, 736.) The Haines court then reaffirmed its original position in a published opinion, stating that “we interpret this action of the Supreme Court to be an oblique holding that the offense of sale of a substance in lieu of a restricted dangerous drug is a general intent crime.” (Id. at 497-498, 125 Cal.Rptr. at 736.) Haines has now been followed by People v. Lechlinski (1976) 60 Cal.App.3d 766, 131 Cal.Rptr. 701, in interpreting the intent required to establish a violation of a similar section—Health and Safety Code section 11355—as a general intent: “‘We therefore hold that it is immaterial to a violation of section 11503 [now 11355] whether the defendant either before or at the time of the delivery of the non-narcotic substance, intends to deliver a narcotic or some innocuous material. The section is violated if there is an offer of a narcotic and a subsequent delivery of a non-narcotic substance.”’ (Lechlinski, supra, 60 Cal.App.3d 766, 769, 131 Cal.Rptr. 701, 703.)

Defendant contends, however, that close scrutiny of the “conceptual” framework of People v. Daniels (1975) 14 Cal.3d 857, 122 Cal.Rptr. 872, 537 P.2d 1232, should have, although it did not, produce exactly the opposite result in Haines and Lechlinski. Daniels, which involved the sale of a restricted dangerous drug (Health & Saf.Code, § 11912) had this to say about the distinction between general and specific criminal intent: “The terms ‘specific’ and ‘general’ intent have been notoriously difficult to define and apply. [[[[Citation.] While both terms have been employed in more than one sense, thereby causing confusion [citations], we have stressed an important temporal difference and have observed: ‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.”’ (Daniels, supra, 14 Cal.3d 857, 860, 122 Cal.Rptr. 872, 874, 537 P.2d 1232, 1234.) (Emphasis added.)

Defendant impliedly argues that agreeing to sell one substance—and then substituting something else—does not describe “a particular act” but rather involves two distinct acts, including the further act of substitution. Although the language of Daniels in defining the difference between “general” intent and “specific” intent may still lead to some difficulty in the application and classification of specific crimes, we conclude that Daniels and Haines are dispositive of the issue, insofar as Health and Safety Code section 11382 is concerned. The Daniels court's instruction to the Haines court seems clear and explicit in expressing the opinion of the Supreme Court that Health and Safety Code section 11382 is to be deemed a general intent crime.

Under Daniels and Haines, the only intent of consequence is that of intentionally agreeing to sell a narcotic substance, followed by delivery of a non-narcotic substance. In the case at bench, the court also gave the following instruction relating to the elements of the offense: “Before you can find the defendant guilty of the offense charged, you must be satisfied beyond a reasonable doubt as to each of the following: [¶] 1. that the defendant, with the specific intent to do so, did offer, agree or consent to sell, furnish or give away a controlled substance, [¶] 2. that the defendant did furnish, sell or give away another substance instead of the controlled substance which was the subject of the offer, agreement or consent. [¶] It is not necessary that the People prove that the defendant know the nature of the substance actually furnished.” (Emphasis added.)

The defense was essentially that defendant had never told Gueits and Irish that she would sell them “whites”; that they did not mention “whites” to her, and that she thought they wanted her white, non-narcotic caffeine pills, which she delivered to them. The quoted instruction emphasized the importance of jury determination relative to what defendant understood concerning what Gueits and Irish wanted to buy. This was the crucial factual dispute in the case. We conclude, therefore, that the combined instructions on intent are not inconsistent with Daniels, Haines or Lechlinski, and that the jury was adequately instructed in the realm of criminal intent.

Defendant asserts that the trial court committed error by its failure to give CALJIC Instruction 3.30, the basic instruction which tells the jury that there must be a concurrence of the criminal act and general criminal intent, or CALJIC Instruction 3.31, which covers the concurrence of the criminal act and specific criminal intent. There can be no doubt that CALJIC 3.30 should have been given. As was said in People v. Mayberry (1975) 15 Cal.3d 143, 154, 125 Cal.Rptr. 745, 752, 542 P.2d 1337, 1344, “Penal Code section 20 provides, ‘In every crime … there must exist a union, or joint operation of act and intent, or criminal negligence.’ The word ‘intent’ in section 20 means ‘wrongful intent.’ [Citation.] ‘So basic is this requirement [of a union of act and wrongful intent] that it is an invariable element of every crime unless excluded expressly or by necessary implication.”’

Some illumination of this situation is contained in the record; it appears that defense counsel had argued strenuously and without success that defendant had been charged with a “specific intent” crime, and, as a consequence, voluntarily agreed that CALJIC 3.30, referring to general intent, should not be given. Defendant argues here that despite trial counsel's withdrawal of the instruction, the trial court was under a duty, sua sponte, to instruct on those general principles of law which are relevant to the issues of the case. The Attorney General responds that the trial court's own instruction on “specific intent” was adequate to cover the situation and, in any event, the withdrawal of the instruction was “invited error” of which defendant may not now complain.

The doctrine of “invited error,” however, is not unlimited its application to instructions offered in criminal cases. It was stated in People v. Graham (1969) 71 Cal.2d 303, 318, 78 Cal.Rptr. 217, 227, 455 P.2d 153, 163, that only where there is a “‘deliberate’ or ‘expressed’ tactical decision by counsel to forego a particular instruction which the court was otherwise obliged to render to the jury,” does the doctrine of invited error apply. (See also People v. Newton (1970) 8 Cal.App.3d 359, 380-381, 87 Cal.Rptr. 394.) The record before us does not suggest that a well-reasoned tactical decision had been made, but rather a withdrawal of the instruction for the purpose of appearing consistent to the court.

The controlling principle was expressed in Graham as follows: “[T]his court has held that a trial judge must on his own motion fully and correctly instruct the jury on general principles of law, regardless of the failure of defense counsel to offer such instructions or to object to their omission.” (Graham, supra, 71 Cal.2d 303, 320, 78 Cal.Rptr. 217, 227, 455 P.2d 153, 163.) It follows that CALJIC 3.30 should have been given, regardless of the continuing dispute over “general” and “specific” intent.

Defendant further claims that the trial court erred in giving, at defendant's request, CALJIC Instruction 4.35, which reads: “An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission lawful.”

Defendant complains that this instruction, as given, did not apply to the particular factual situation presented herein, because it was conceded that defendant did intend to make a sale; the mistake, if any, related to her delivery to Gueits and Irish of one substance when they expected to obtain another. Defendant suggests that the instruction given should have undergone modification in the first paragraph to read: “An act committed or an omission made under an ignorance or mistake of fact which disproves the existence of any element [rather than intent alone] of the crime is not a crime.” (Emphasis added.)

It is correctly asserted that a defendant has the right to a properly instructed jury, and proper instructions refer to those directly relevant to the issues in the case. (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913.) However, the argument advanced appears to be hair-splitting of some magnitude, reaching an exercise in semantics. We repeat that the crucial issue for jury determination in the instant case was whether defendant delivered to Gueits and Irish the non-narcotic pills under an assumption that Gueits and Irish had asked for those pills and not for “whites.” We think the CALJIC Instruction 4.35, when viewed with the court's other instructions, adequately covered defendant's defense of a mistake of fact—a mistake as to what Gueits and Irish had requested her to furnish to them.

Defendant attacks the trial court's giving of CALJIC Instruction 2.62 to the jury.3

Defendant contends that this instruction was not relevant to the issues in the case, as there was nothing that defendant “failed to explain or deny.” It is further asserted that indiscriminate use of this instruction has the unfortunate result of singling out a defendant's testimony from that of other witnesses, with the implication that it is subject somehow to stricter scrutiny. The Attorney General answers this contention by pointing out that the jury was also given CALJIC Instruction 2.20 the general instruction on witness credibility,4 and thus the jury was told that they should treat all testimony presented to them by applying the same standard.

The rule is well settled that when a defendant takes the stand and testifies in his own behalf, he “waives his state constitutional privilege against self-incrimination only to the extent of the permissible scope of cross-examination.” (People v. Ing (1967) 65 Cal.2d 603, 611, 55 Cal.Rptr. 902, 906, 422 P.2d 590, 594.) In Ing, a rape case, the prosecution introduced evidence that defendant had committed rapes other than the offense charged, under the common scheme or plan concept. The defendant in Ing testified in his own behalf, but limited his testimony to a denial of the charged offense. The trial judge refused to permit a cross-examination of defendant with respect to the uncharged offenses, but gave the jury an instruction similar to CALJIC Instruction 2.62. In holding that the instruction was appropriate under the circumstances presented, the Ing court stated that, “[s]ince in the present case defendant on direct examination made a general denial of the offenses charged, cross-examination concerning the other offenses would have been proper. Defendant thus waived his state constitutional privilege against self-incrimination with respect to the collateral offenses, and comment and instruction on his failure to deny them were not improper.” (Ing, supra, 65 Cal.2d 603, 611, 55 Cal.Rptr. 902, 907, 422 P.2d 590, 595.) (Emphasis added.) Similar to Ing are the cases of People v. Perez (1967) 65 Cal.2d 615, 55 Cal.Rptr. 909, 422 P.2d 597 and People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267.

The Ing, Perez and Thornton cases all involve clear-cut instances of defendants who testified in their own behalf, and whose testimony amounted to a denial of guilt, and who failed or refused to deny or explain evidence introduced by the prosecution against them. The implications to be derived from Ing, Perez and Thornton are clearly to the effect that the evidentiary record must contain a factual basis that supports the giving of CALJIC Instruction 2.62. The giving of CALJIC Instruction 2.62 can be justified only if there exists evidence, introduced by the prosecution, which a defendant has failed or refused to deny or explain in his testimony. Thus, in People v. Tealer (1975) 48 Cal.App.3d 598, 122 Cal.Rptr. 144, the court disapproved of the use of CALJIC Instruction 2.62 where the defendant testified in a very limited fashion—denying only the voluntariness of a confession. The giving of CALJIC Instruction 2.62 cannot be justified in a case in which defendant takes the stand and the prosecution has presented no evidence—such as evidence of uncharged offenses—which the defendant has failed to explain or deny.

But this is the very situation presented by the case at bench. The Attorney General points to no evidence presented by the prosecution which the defendant refused or failed to deny. Also, the record indicates that the prosecutor, in opening argument, told the jury that it would be getting from the court an instruction that would relate to the testimony of a defendant, in addition to getting an instruction pertaining to the credibility of witnesses generally. The prosecutor told the jury that “[a] defendant, of course, stands in a little bit different position than any other witness that's here in the courtroom, and this instruction basically tells you that a defendant testifies, and if the defendant is asked questions to answer matters that are solely within the defendant's mind and the defendant does not answer those questions reasonably as could be expected, based on the defendant's own knowledge, you can use that answer against the defendant in determining whether the defendant is guilty or not guilty.”

In the case at bench, the error in giving CALJIC Instruction 2.62 when there was no evidence presented to justify the instruction, is compounded by the prosecutor's argument to the jury regarding the instruction. The instruction misled the jury into thinking that evidence was presented by the prosecution which the jury could find that defendant failed to explain or deny and, hence, would warrant an inference of guilt. The prosecutor's argument added to the error by stating a very damaging misinterpretation of CALJIC Instruction 2.62. The prosecutor's argument to the jury, as set forth above, told the jury that it could treat the defendant's answers to the prosecutor's questions in a special way—different from the answers given by other witnesses to questions put to them. The giving of CALJIC Instruction 2.62 and the prosecutor's statement as to what this instruction meant irrevocably emasculated and destroyed the effective utilization by the jury of CALJIC Instruction 2.20—which relates to judging the credibility of all witnesses who testify. “‘It has been repeatedly held to be improper for the court to single out a particular witness and to charge the jury how his evidence should be considered. [[[[Citations.]”’ (People v. Lyons (1958) 50 Cal.2d 245, 271, 324 P.2d 556, 570.)

Defendant claims that the prosecutor was guilty of prejudicial misconduct during closing argument when he referred to a matter not in evidence and when he made a personal disparaging comment about defense counsel.

The record shows the following:

MR. FAGAN [Deputy District Attorney]: “Now, in his opening statement Mr. Margolin told you he was going to produce Mr. Dawson, the deputy district attorney, to testify that Mr. Gueits said that. [¶] You will notice that yesterday—

MR. MARGOLIN [Defense Counsel]: Excuse me for interrupting.

THE COURT: State your objection, counsel.

MR. MARGOLIN: Yes. It's inappropriate to comment on evidence that was not produced with reference to the opening statement. The defendant doesn't have a burden to produce all evidence mentioned in the opening statement.

THE COURT: That's correct; however, the comment is appropriate. You may proceed.

MR. FAGAN: You will notice Mr. Dawson was here yesterday; Mr. Dawson did not take that stand and did not testify that Mr. Gueits told him anything other than what Mr. Gueits told you—

THE COURT: Counsel, there is nothing in the record from which the jurors could conclude that Mr. Dawson was here yesterday.

MR. FAGAN: Strike that, but you will notice he did not testify and the reason he didn't testify was because—

MR. MARGOLIN: I am going to object to speculation as to why he didn't testify.

THE COURT: As to why he was not—why he didn't testify counsel, you may not speculate on it.

MR. FAGAN: He didn't testify; he did not state to anyone that Mr. Gueits did not tell the truth.

MR. MARGOLIN: I'm going to object and submit to the Court respectfully that it's improper.

MR. FAGAN: Your Honor, after this morning's comments, I refuse to sit here and listen to this attorney talk about what's improper.

THE COURT: I understand that, Mr. Fagan; however, I am asking you at this time to restrain yourself. You may comment on the fact Mr. Dawson was not called as a witness; however, I would suggest that you leave it at that point.” (Emphasis added.)

We note, in preliminary fashion, that the trial court's ruling on the propriety of the prosecutor's comment about the missing Mr. Dawson was proper. “It is now well established that although Griffin [Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106] prohibits reference to a defendant's failure to take the stand in his own defense, that rule ‘does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [[[[Citations.]”’ (People v. Vargas (1973) 9 Cal.3d 470, 475, 108 Cal.Rptr. 15, 18, 509 P.2d 959, 962.

It was not proper to refer to the witness' asserted presence in the courtroom the day before; the trial court dealt with that impropriety promptly. It was also improper, obviously, to imply that defense counsel had been conducting himself improperly at some previous time. The judge's response to the attack on defense counsel—“I understand that, Mr. Fagan”—was unfortunate, as it could have been interpreted as agreement with the deputy district attorney that the latter had been aggrieved, and properly so, by the conduct of defense counsel. The decisional law has traditionally defined prosecutorial misconduct as “a dishonest act or an attempt [by an attorney] to persuade the court or jury by use of deceptive or reprehensible methods.” (People v. Beivelman (1968) 70 Cal.2d 60, 75, 73 Cal.Rptr. 521, 529, 447 P.2d 913, 921.)

“[T]he burden is on the defendant who claims that the prosecutor was guilty of misconduct to object and to seek a curative admonition.” (Beivelman, supra, 70 Cal.2d 60, 75, 73 Cal.Rptr. 521, 529, 447 P.2d 913, 921.) Although no admonition was sought by defense counsel, the trial judge's unfortunate response may well have misled defense counsel into thinking that a request for a curative admonition to the jury would have been futile. We conclude that the combination of the prosecutor's remarks and the trial court's response thereto constitute error properly cognizable by us on this appeal.

Since we conclude that the errors discussed herein mandate a reversal of the judgment of conviction, we do not consider defendant's contention that she was deprived of her constitutional right to a fair trial because of the inadequacy of her trial counsel. The crucial issue before the jury related to the correct version of the transaction between defendant and Gueits and Irish—the version testified to by defendant or the version testified to by Irish and Gueits. The resolution of this issue depended upon the credibility of these witnesses. It is to be noted that there were some differences between the testimony of Gueits and Irish, the prosecution's witnesses, as to the details of the transaction with defendant. Thus, Gueits testified that he had been given ten dollars by Irish before they entered defendant's home, to be used in making a purchase from defendant. Irish, however, testified that he handed Gueits two five-dollar bills in the presence of defendant at the time of consummation of the transaction in defendant's living room.

Under these circumstances, the errors involving the giving of CALJIC Instruction 2.62 with the prosecutor's comment on the instruction, the prosecutor's improper remarks in argument and the trial judge's misleading response to the prosecutor's attack upon defense counsel took away from defendant all possibility and opportunity for the jury to make a fair and just appraisal of her credibility as a witness, contrasted with that of Gueits and Irish. We conclude that “it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the errors” discussed herein. (People v. Duran (1976) 16 Cal.3d 282, 296, 127 Cal.Rptr. 618, 627, 545 P.2d 1322, 1331; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

The judgment from which the appeal has been taken is reversed.

I concur in the reversal because of the Yurko error. Seemingly, there here was the prejudice required by Yurko.

However, inasmuch as another judge undoubtedly will try this case and another prosecutor will appear, I see no reason to discuss jury instructions or alleged prosecutorial misconduct as does the majority. For that reason, I dissent from that discussion.


1.  “Whites” are pills containing amphetamines; a “dime” means a quantity of tablets selling for $10.

2.  The instruction, CALJIC 12.04 (Revised in 1976), given by the court, reads: “Every person who agrees, consents, or offers to unlawfully sell, furnish, administer, or give away any controlled substance, and then sells, furnishes, administers, or gives away any other substance in lieu of a controlled substance, is guilty of a crime.”

3.  CALJIC Instruction 2.62 reads as follows: “It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney. In this case defendant has elected to and has testified as to certain facts. If you find that he failed to explain or deny any evidence or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable. In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence. The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.”

4.  CALJIC Instruction 2.20, as given by the trial court, reads:“Every person who testifies under oath is a witness. You are the sole and exclusive judges of the credibility of the witnesses who have testified in this case.“In determining the credibility of a witness you may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony, including but not limited to the following:“His demeanor while testifying and the manner in which he testifies;“The character of his testimony;“The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies;“The extent of his opportunity to perceive any matter about which he testifies;“His character for honesty or veracity or their opposites;“The existence or nonexistence of a bias, interest, or other motive;“A statement previously made by him that is consistent with his testimony;“A statement made by him that is inconsistent with any part of his testimony;“The existence or nonexistence of any fact testified to by him;“His attitude toward the action in which he testifies or toward the giving of testimony;”

JEFFERSON, Associate Justice.

KINGSLEY, Acting P. J., concurs.

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