People v. Mode CA1/5

Filed 5/27/14 P. v. Mode CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A138181 v. LAURA ANN MODE, (Del Norte County Super. Ct. No. CRF12-9235) Defendant and Appellant.

Appellant Laura Ann Mode appeals from her conviction, after a jury trial, of two counts relating to possession of methamphetamine and paraphernalia. She contends a jury instruction regarding one of the counts was prejudicial error. We affirm. BACKGROUND In April 2012, appellant was arrested on an outstanding civil warrant. The arresting officer searched appellant’s purse and found two vials containing a substance later determined to be methamphetamine. A glass pipe containing white crystalline residue was also found in appellant’s purse. Results of a field test showed the residue was presumptively positive for methamphetamine; however, the residue was not analyzed by the California Department

1

of Justice.1 A law enforcement officer, testifying as an expert in the use of methamphetamine, testified the pipe was a methamphetamine pipe. In his opinion, it looked like a pipe that had been used to smoke methamphetamine. Appellant was charged with possession of methamphetamine (Health & Saf. Code, § 11377)2 and possession of drug paraphernalia (§ 11364, subd. (a)).3 She was also charged with two additional counts of which she was not convicted and which are not relevant to this appeal. Following a jury trial, she was convicted of possession of methamphetamine and paraphernalia. This appeal followed. DISCUSSION In response to a question submitted by the jury during deliberations, the trial court instructed the jury that “[a] pipe need not have actually been used to smoke methamphetamine” to sustain a conviction under section 11364. Appellant argues section 11364 does require the jury to find a pipe has in fact been used to smoke methamphetamine, and the trial court’s error was prejudicial. We need not decide whether the instruction was error because any error was harmless. “ ‘[A]n instructional error that improperly . . . omits an element of an offense . . . generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution.’ [Citation.] Instead, an erroneous instruction that omits an element of an offense is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18. [Citations.] In general, the Chapman test probes ‘whether it appears “beyond a reasonable doubt that the