People v. Morales , 104 Cal. Rptr. 2d 582 ( 2001 )

Opinion

MOSK, J.

We granted review to decide whether a prosecutor committed prejudicial misconduct in his summation to the jury in a criminal case. We conclude that the prosecutor’s actions do not require that defendant’s conviction be reversed.

I

In an information filed December 8, 1995, defendant was charged with violating Health and Safety Code section 11377, subdivision (a), by possessing phencyclidine (PCP). (See also id., § 11055, subd. (e)(3)(A).) It was alleged that he had two prior (Pen. Code, § 667, subds. (b)-(i); id., § 1170.12, subds. (a)-(d)) robbery (id., § 211) convictions and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

On the evening of November 3, 1995, defendant’s wife asked Los Angeles police officers to help her husband, who was outside in the police station parking lot. The officers found him sitting in the opening of the sliding door of a van that was parked askew with the driver’s door also open. The officers ordered him to stand up and put his hands on his head. He slowly complied, but only after they gave the order several times. They noticed that he Was sweating, had a blank stare, and exuded an odor revealing the presence of ether, in turn revealing the use of phencyclidine. They removed a partly exposed vial from under the driver’s seat, containing a liquid that also exuded a strong ethereal odor attributable to PCP.

In the station, a police officer trained to recognize signs of drug use observed defendant and ran tests on him. One test, however—of urine to detect PCP’s presence—defendant ultimately refused to take (after initially agreeing to do so), even after a police officer admonished him that he had no constitutional right to avoid it.¹

The officer determined that defendant was under the influence of PCP. The vial’s contents also were tested. An expert witness testified that the vial held a solution containing about three cubic centimeters of PCP.

A police officer who helped arrest defendant testified he did not know who owned the van or who had driven it to the police station.

Following the presentation of evidence at trial, the jury was instructed regarding PCP possession: “Every person who possesses . . . phencyclidine ... is guilty of the crime of illegal possession of a controlled substance, in violation of Health and Safety Code section 11377(a).

“In order to prove such crime, each of the following elements must be proved: one, a person exercised control [over] or the right to control a certain controlled substance; two, such person had knowledge of its presence; three, such person had knowledge of its nature as a controlled substance; and, four, the substance was in an amount sufficient to be used as a controlled substance.”

“Actual possession requires . . . direct physical control . . .”

With those impending instructions in mind, the parties presented their summations.

In his initial closing argument, the prosecutor said, “you’re here to make one decision, and that is on November 3rd, 1995, was the defendant in possession of a controlled substance. ... [f] As you look at this evidence, certainly, the most compelling evidence is that the defendant was under the influence of PCP. And you think to yourself, \ . .is there any way on this planet you could physically become under the influence of PCP if you didn’t possess it at some time before you became under the influence?’ It’s kind of hard to sit and get drunk on beer if you don’t have any beer; okay?” The prosecutor summarized the evidence that defendant was under the influence of PCP when the police found him, “and in the van . . . is a vial of PCP. HQ Now, you . . . [might] say, ‘Well, gee, how do we know that was the vial and we know he’s on PCP?’ We know he got there by being in possession of PCP. How do we know that was the PCP? Maybe he had another bottle at home, or maybe he had five other bottles at home. That’s not the issue. fiQ The only issue for you to decide, ladies and gentlemen, is, do you believe . . . that on ... or about November the 3rd, 1995, the defendant was in possession of . . . PCP? HQ And it does not necessarily require that you all unanimously agree that it was some PCP from this vial. That is simply additional evidence that what he was under the influence [of] was clearly PCP, and in order to get under the influence, he had to possess PCP Pretty simple process. [IQ . . . [^Q . . . [T]he evidence . . . establishes that the defendant had to have been in possession of PCP in order to get under the influence of PCP on November the 3rd . . . .”

Defense counsel made his closing argument, in which he tried to persuade the jury that the prosecution had presented no direct evidence that defendant possessed PCP—“[n]obody saw anybody in direct control of [the vial]”— and that the circumstantial evidence was insufficient to convict him. Counsel emphasized that “unless the proved circumstances are, one, not only consistent with the theory that the defendant is guilty of the crime, but cannot be reconciled with any other rational conclusion, a finding of guilty as to any crime may not be based on circumstantial evidence.” There was “[n]o proof that the van was owned by [defendant] legally or registered to him. No proof that he even drove that van.”

“Now, we have a vial here that was found underneath the driver’s seat. Mr. Morales was seated ... in the back . . . . HQ . . . HQ We don’t know who put the van there. . . . HQ We don’t know how long that vial was there. There were no fingerprints taken from the vial.” He asked why, if the state wanted to solidify its case, it had failed to take fingerprints. “Remember what this case is here. The charge is possession.” “Where is the evidence beyond a reasonable doubt that Mr. Morales exercised control over that vial?”

The prosecutor responded: “The reality here is that Mr. Morales is sitting in this van . . . . HQ . . . And Mr. Morales is wasted .... He is intoxicated on PCP HQ And then, of course, one could speculate. ‘Well, gee, how do we know that this was not an immaculate intoxication? That he was simply overcome with PCP spirit or something, out of outer space or something.’ HQ We know because we have a lifetime of experienced.[²]You don’t get drunk unless you take in the intoxicant. You can’t take in the intoxicant if you don’t have it. Very simple. Very simple deductive process. I can’t drink beer until I’m drunk unless I have beer to drink. HQ And [defense] counsel adeptly says there are the elements of the offense of possession^] one must exercise control in order to ingest the intoxicant. [But] I’ve got to be in control of it, unless, of course, someone is holding me down and force-feeding me this intoxicant; okay? But you cannot speculate on things, . . . what might have been or could have been. You have to rely on the evidence.

“Now, you have to be aware of the [drug’s] presence. It’s a little hard to get yourself loaded if you’re not aware of the presence of what you’re getting yourself loaded on. And the nature of it. If I sit down with a six-pack of Budweiser, and I drink that six-pack of Budweiser, I know the nature of it. And if I get intoxicated on that six-pack, it’s because I knew the nature of it. That’s why I drank it. HQ And it has to be an amount sufficient to be used as a controlled substance. ... He was high. He was intoxicated. [1D • • • He had certainly enough to get loaded on it. If he didn’t, he would have been sober. So all of those elements are conclusively proven based upon the condition that Mr. Morales is in at the time he’s found. . . .

“Now, the vial of PCP in the van in which . . . Mr. Morales is found is certainly circumstantial evidence, that it is PCP we’re talking about. . . . [f] If someone finds me [lying] in the street, smelling of beer and heavily intoxicated, and I am surrounded by Budweiser bottles, it’s going to be pretty easy to figure out what substance it is that got me drunk. . . . Although, maybe I didn’t get drunk on one of those bottles or two of those bottles; it may have been one that’s over behind the bushes that added the final touch. That’s not the issue here, so don’t be misled, ladies and gentlemen.”

The prosecutor reminded the jury of the evidence that both defendant and the vial exuded the “distinct” odor attributable to a PCP solution.

In sum, having referred to the jurors’ life experience, the prosecutor argued that they could conclude defendant consumed PCP voluntarily, knowing what it was, for the purpose of intoxicating himself with it.

Along with those we have already described, the trial court instructed the jurors in other matters relevant here.

Regarding its role and that of the attorneys, the trial court orally instructed, “You must accept and follow the law as I state it to you, whether or not you agree with the law. If anything concerning the law said by the attorneys in their arguments, or at any other time during the trial, conflicts with my instructions on the law, you must follow my instructions and disregard what they say regarding the law.” (The written instruction omitted the last eight words.)

And regarding the method of evaluating circumstantial evidence, the trial court instructed, “a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only, one, consistent with the theory that the defendant is guilty of a crime, but, two, cannot be reconciled with any other rational conclusion.”

“Also,” the instructions stated, “if the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations, one of which points to the defendant’s guilt and the other to his being not guilty, you must adopt that interpretation which points to the defendant’s being not guilty and reject that interpretation which points to his guilt. flO If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

After the jury began deliberating, it asked that defendant’s closing argument be read back to it. Neither the parties nor the trial court had ever witnessed a closing argument read back to a jury, though defendant urged the court to comply with the jury’s request and said he was prospectively objecting if it did not do so. After a recess for the parties to research the issue, the court called the jury back into court and, over defendant’s prior objection, denied the request.

The jury convicted defendant of the charge and found the allegations to be true. The trial court imposed a prison term of 26 years to life, and $1,050 in fines and fees.

The Court of Appeal affirmed the judgment. As relevant here, it concluded that there was no prosecutorial misconduct.

II

Health and Safety Code section 11377, subdivision (a), provides: “Except as authorized by law and as otherwise provided in [other legal provisions], every person who possesses any controlled substance . . . specified in subdivision . . .(e). . .of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year or in the state prison.”³ Subdivision (e)(3)(A) of section 11055 of the Health and Safety Code lists PCP as being among such substances.

“The essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.’ ” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717] (Palaschak).)

Defendant claims that the prosecution presented its case to the jury on a theory that was “ ‘legally incorrect,’ ” wherefor “ ‘the conviction cannot stand.’ ” (People v. Guiton (1993) 4 Cal.4th 1116, 1122 [17 Cal.Rptr.2d 365, 847 P.2d 45] (Guiton).) Specifically, he contends that the prosecutor’s arguments misled the jury about the law governing PCP possession, in violation of state law and the due process clause of the Fourteenth Amendment to the United States Constitution. He further maintains that charging him with and trying him for possessing PCP was improper given that the Legislature has passed a less severe law proscribing PCP use. We consider each argument in turn.

1. The Prosecutor’s Closing Argument

As alluded to, defendant contends that Guiton, supra, 4 Cal.4th 1116, and the precedent it discussed, particularly People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468] (Green), govern this case and, in light of the prosecutor’s closing arguments, compel reversal.⁴ We disagree.

Guitón was convicted of selling or transporting cocaine, a single offense set forth statutorily in the disjunctive (Health & Saf. Code, § 11352, former subd. (a); Stats. 1989, ch.. 1102, § 1, p. 3936) and charged as a single count. The Court of Appeal found sufficient evidence he transported cocaine, but insufficient evidence that he sold it, could not determine on which basis the verdict rested, and ordered reversal. We reversed in turn, reinstating Guitón’s conviction.

In discussing Guitón’s case, we noted that presenting a jury with a criminal case premised on an incorrect legal theory usually does require reversal. “ ‘Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.’ ” (Guiton, supra, 4 Cal.4th at p. 1125, quoting Griffin v. United States (1991) 502 U.S. 46, 59 [112 S.Ct. 466, 474, 116 L.Ed.2d 371].)

In Green, supra, 27 Cal.3d 1, Green moved the victim three times. We “found [legal] error as to two of the three possible segments of asportation, . . . [and] could not determine from the record whether the jury based its verdict on either of the ‘legally insufficient segments of [the victim’s] asportation. . . .’ ” (Guiton, supra, 4 Cal.4th at p. 1121, quoting Green, at p. 67.) The errors were, with regard to the first movement, instructional (Green, supra, 27 Cal.3d at pp. 63-64), and with regard to the third, that no crime had occurred under the facts adduced (id. at pp. 65-67). Each error amounted to the presentation of a legally deficient case, and “[u]nder the circumstances, we stated this general rule: ‘[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.’ ” (Guiton, at p. 1122, again quoting Green, at p. 69.)

Guitón and Green are unlike this case in that in each of them, the court presented the state’s case to the jury on an erroneous legal theory or theories. In Green, the instructions were deficient, either because their language was legally unsupported (the first movement), or because (regarding the third movement) there was insufficient evidence to proceed. The evidence regarding the third movement did not describe a crime. When the court did nothing to “disabuse[] the jury of [the] notion” (Green, supra, 27 Cal.3d at p. 68) that it did (a defect it could have cured with a preclusive instruction), it ratified the prosecutor’s error. The dissent in Green summarized the majority’s reasoning in these terms: “had the jury been properly instructed regarding the law of kidnaping, and particularly had it been told that neither a fraudulent asportation nor a 90-foot movement would constitute kidnaping, it might have acquitted defendant of that offense.” (Id. at p. 81 (conc. & dis. opn. of Richardson, J.).)

In Guitón, too, a theory unsupported by evidence was presented to the jury in the very trying of the case—he was charged with selling cocaine despite a lack of evidence that he engaged in this conduct. Again, the trial court should have modified the instructions in light of this fact. We said, in language equally applicable to Green: “Trial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place. Although the presenting of alternate theories to the jury here does not require reversal, we stress that it was error nonetheless.” (Guiton, supra, 4 Cal.4th at p. 1131.)

In this case, by contrast, the court did not present to the jury a case that was premised on a legally incorrect theory. The prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct (see People v. Osband (1996) 13 Cal.4th 622, 696 [55 Cal.Rptr.2d 26, 919 P.2d 640]) during argument, rather than trial and resolution of the case on an improper legal basis.

When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal. (E.g., People v. Osband, supra, at p. 696.)

Defendant made no objection to the prosecutor’s remarks and thus has waived his claim. His appeal is foreclosed on that basis. Moreover, even if the claim had not been waived, it would lack merit.

The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 283-284 [96 Cal.Rptr.2d 682, 1 P.3d 3].)

At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom. (See People v. Bemore (2000) 22 Cal.4th 809, 846 [94 Cal.Rptr.2d 840, 996 P.2d 1152]; People v. Sandoval (1992) 4 Cal.4th 155, 183 [14 Cal.Rptr.2d 342, 841 P.2d 862] [both speaking of the prosecutor’s entitlement in this regard].)

Recently, in Palaschak, supra, 9 Cal.4th 1236, we considered the law against possessing controlled substances. We explained that evidence of having introduced a controlled substance into one’s body may be evidence of having possessed it—in many cases, “one who ingests a drug must have possessed it at least temporarily.” (Id. at p. 1241.) As long as the past possession occurred within the statute of limitations period, it could be punished as such. {Id. at p. 1240.)

But we did not state in Palaschak that evidence of being under the influence of a contraband substance, or other evidence of having introduced it into one’s body, is by itself proof of present or past possession. And it is not.

Certainly, evidence of being identifiably under the influence of a specific drug or other evidence of having introduced it into one’s body tends to prove having knowingly, and hence unlawfully, possessed it. “Intoxication has obvious relevance to the question of awareness, familiarity, understanding and the ability to recognize and comprehend” the presence of an illegal intoxicating drug. (People v. Foster (1971) 19 Cal.App.3d 649, 655 [97 Cal.Rptr. 94].)

But intoxication does not always prove possession, past or present. Every crime requires a union of an act and a criminal mental state. (See Pen. Code, § 20 [referring to an act accompanied by intent or negligence].) Thus, we at least implied in Palaschak that “evidence of drug ingestion” without more “is insufficient to sustain an unlawful possession charge.” (Palaschak, supra, 9 Cal.4th at p. 1239, italics omitted.) “[Depending on the circumstances, mere ingestion of a drug owned or possessed by another might not involve sufficient control over the drug, or knowledge of its character, to sustain a drug possession charge.” (Id. at p. 1241; see People v. Rubacalba (1993) 6 Cal.4th 62, 67 [23 Cal.Rptr.2d 628, 859 P.2d 708] [speaking of possession].) For example, as hypothesized by counsel at oral argument, another individual could have soaked PCP invisibly into a cigarette that defendant smoked, unaware of the adulteration. Or the amount possessed might be too minuscule to assign criminal liability—i.e., useless. (People v. Rubacalba, supra, 6 Cal.4th at p. 66.) Or a drug may have been possessed or introduced into the body under duress, and depending on the circumstances, that might not be criminal. (Pen. Code, § 26, subd. 6; see People v. Bacigalupo (1991) 1 Cal.4th 103, 125 [2 Cal.Rptr.2d 335, 820 P.2d 559], vacated and remanded on other grounds sub nom. Bacigalupo v. California (1992) 506 U.S. 802 [113 S.Ct. 32, 121 L.Ed.2d 5].)⁵

Defendant contends in sum that the prosecutor ran afoul of the foregoing principles when he presented an improper theory of guilt to the jury— namely, that even if the jurors, or some of them, did not believe he possessed the vial found in the van, they could still find him guilty of possessing PCP because he could not have been under the influence of the drug without first possessing it in some form.

Like the Court of Appeal, we disagree with defendant’s interpretation of the prosecutor’s summation. We acknowledge, however, that the question is close.

We are able to discern instances in which the prosecutor did urge the jury that if defendant was under the influence of PCP, that was enough to establish possession. The prosecutor began by telling the jury that “certainly, the most compelling evidence is that the defendant was under the influence of PCP. And you think to yourself, ‘. . .is there any way on this planet you could physically become under the influence of PCP if you didn’t possess it at some time before you became under the influence?’ ” He later told' the jurors that they need not “unanimously agree that it was some PCP from this vial”—i.e., the vial found on the van’s floor. “That is simply additional evidence that what he was under the influence [of] was clearly PCP, and in order to get under the influence, he had to possess PCP Pretty simple process.” “You don’t get drunk unless you take in the intoxicant. You can’t take in the intoxicant if you don’t have it. Very simple. Very simple deductive process. I can’t drink beer until I’m drunk unless I have beer to drink.”

But to focus solely on the foregoing remarks, stripped of their context, would be to leave our discussion incomplete. Defendant was found, intoxicated by PCP, in a van containing a vial of the substance. His wife had gone to the police seeking help for him—presumably, help in dealing with the substance’s effects. That evidence, by itself, is susceptible of various interpretations: that he voluntarily consumed PCP, or that he ingested it unwittingly or unwillingly. Invoking the jurors’ life experience, the prosecutor argued for the former interpretation. That was proper argument.

It is important to recall the state of the evidence—and the prosecutor referred at other times to its state. The jury had also heard testimony that defendant had refused to take a urine test for the substance’s presence. That evidence is not consistent with unwitting or coerced (in sum, involuntary) ingestion of PCP. It is evidence of voluntary self-administration of the substance, knowing it to be an illegal intoxicant. The prosecutor pointed out that the jury needed to examine the case in light of the evidence presented. “[T]he evidence,” he argued, “establishes that the defendant had to have been in possession of PCP in order to get under the influence of PCP on November the 3rd . . . .” He agreed with defendant that among “the elements of the offense of possession” he needed to prove was control; “one must exercise control in order to ingest the intoxicant. [But] I’ve got to be in control of it, unless, of course, someone is holding me down and force-feeding me this intoxicant; okay? But you cannot speculate on things, . . . what might have been or could have been. You have to rely on the evidence.”

The instructions forbade “a finding of guilt . . . based on circumstantial evidence unless the proved circumstances are not only, one, consistent with the theory that the defendant is guilty of a crime, but, two, cannot be reconciled with any other rational conclusion.” If defendant had evidence to rebut the prosecution’s evidence of knowing and voluntary ingestion, he could have presented it to invite the jury’s conclusion that his possession was unwitting or unwilling. He did not do so.⁶

Viewed in context, we find no reasonable likelihood that the prosecutor’s arguments misled the jury in an objectionable fashion—i.e., so as to improperly convict him of possessing PCP. To be sure, the advantage of hindsight allows us to say that the prosecutor’s arguments were less than ideal. He should have argued the importance of defendant’s actions inside the police station. Refusing to provide a urine sample was evidence of defendant’s voluntary self-administration of PCP, knowing it to be an illegal intoxicant. (See People v. Johnson (1992) 3 Cal.4th 1183, 1235 [14 Cal.Rptr.2d 702, 842 P.2d 1], citing People v. Roach (1980) 108 Cal.App.3d 891, 893-894 [166 Cal.Rptr. 801] [proper to instruct that refusing to take a urine test is evidence of consciousness of guilt]; ante, p. 38 [knowledge of substance’s restricted-dangerous-drug character].) Had the prosecutor commented specifically on defendant’s refusal to take the urine test, the question before us would be easier to resolve. Still, the arguments, read as a whole and in light of the evidence before the jury, were not improper—the prosecutor was arguing that the jurors could deduce that defendant voluntarily ingested PCP whether or not he drew it from the vial in the car.

In sum, there was no misconduct. Moreover, we presume that the jury relied on the instructions, not the arguments, in convicting defendant. “[I]t should be noted that the jury, of course, could totally disregard all the arguments of counsel.” (Green, supra, 27 Cal.3d at p. 76 (cone. & dis. opn. of Richardson, J.).) Though we have focused on the prosecutor’s closing arguments, we do not do so at the expense of our presumption that “the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70 [47 Cal.Rptr.2d 843, 906 P.2d 1129].) The trial court emphasized this rule when, as stated, it instructed the jury to follow its instructions and to exalt them over the parties’ arguments and statements.

The instructions themselves did not permit a conviction solely on evidence of intoxication, but required, as stated, that the jury find defendant “exercised control [over] or the right to control a certain controlled substance; two, [he] had knowledge of its presence; three, [he] had knowledge of its nature as a controlled substance; and, four, the substance was in an amount sufficient to be used as a controlled substance.” This instructional language is found in CALJIC No. 12.00 (5th ed. 1989 rev.), evidently used at the time of trial, and is different today only in nonsubstantive respects (id. (6th ed. 1996 bound vol.)). It accurately restated the law.⁷ (Palaschak, supra, 9 Cal.4th 1236, 1242.)⁸ Also regarding the instruction’s fourth component, “the . . . usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven.” (People v. Rubacalba, supra, 6 Cal.4th 62, 66.)⁹

The instructions were governing and, contrary to the dissent’s insistences, were clear.

We recognize that Green's discussion of asportation could be read to suggest that because the closing argument is part of the presentation of the state’s case, error may arise solely from improper remarks made therein. That would, however, be an incorrect reading of precedent. Green, supra, 27 Cal.3d 1, stands for the proposition that the prosecution may present a case in which jurors may have been (1) legally misled by instructions or evidence, i.e., presented an “alternate theory [that] is legally erroneous” (id. at p. 69) because it is based on (a) incorrect instructions or (b) inadmissible evidence; or (2) factually misled by evidence, “i.e., when the reviewing court holds the evidence insufficient to support the conviction” (id. at p. 70). Properly understood, Green reasons that in cases suffering from insufficient evidence, deficient instructions, or other errors made in presenting evidence or giving instructions, ill-advised remarks by the prosecutor may compound the trial’s defects. Nothing of the type occurred here.

Were we to apply the rule defendant prefers, then arguably, as we inquired about at oral argument, it would be prejudicial misconduct for a prosecutor to discuss only certain elements of a crime during closing argument, rather than all of them. Such a rule would confine argument, running the risk of turning it into a colloquially worded version of the instructions. The law does not require such a stricture.¹⁰

2. Prosecuting for Possession Versus Use

As mentioned, defendant claims that charging him with and trying him for possessing PCP was improper. His argument is that the Legislature passed a less severe law proscribing PCP use, the evidence of his ingestion sufficed to show that he consumed the drug, and to rely on evidence of use to prove the more severe offense of possession violates the intent underlying the statutory scheme.

We rejected this claim, at least implicitly, in Palaschak, supra, 9 Cal.4th 1236. We explained that though it may be true “that the Legislature, in other contexts, has often punished use of drugs less severely than possession thereof [citation], thus indicating some legislative intent to distinguish between use and possession of illegal drugs,” so that “a rule that would allow a possession charge and conviction to be based solely on evidence of use might unduly blur the distinction between use and possession,” as long as “ ‘[t]he People introduced substantial evidence to satisfy each of the[] elements [of possession required under CALJIC. No. 12.00]’ ” the conviction of possession was proper. There as here “ ‘[ajppellant exercised control over the [drug]. He knew [it] was in his office, knew it was a controlled substance, and knew it was a usable amount.’ ” (Palaschak, supra, 9 Cal.4th at p. 1240.)

We continued in this vein, saying “we can discern no good reason why substantial evidence of past possession of [an illegal drug] (within the period of the applicable statute of limitations) should be deemed insufficient to sustain a conviction of that offense.” (Palaschak, supra, 9 Cal.4th at p. 1240, italics omitted.)

We find Palaschak’s reasoning to apply to the circumstances of this case, and to defeat defendant’s claim.

Disposition

In sum, we find defendant’s first claim to have been waived, and his second claim to be without merit. We affirm the Court of Appeal’s judgment.

George, C. 1, Baxter, 1, and Chin, 1, concurred.

1 Defendant does not dispute that the police procedure was permitted under the federal Constitution, or that it did not offend that Constitution for the jury to hear the officer’s testimony about his refusal to undergo the test. (Pennsylvania v. Muniz (1990) 496 U.S. 582, 604-605 [110 S.Ct. 2638, 2652, 110 L.Ed.2d 528].)

2 Earlier, on this theme, the prosecutor had argued that the jurors were “here as judges because you’re human beings and you bring with you a lifetime of experience, and those are the things that make judgments about human conduct possible. Computers have not quite achieved the point where they can say, you know, electronically, ‘We know what humans do. We know how they act.’ You know, the good old computers have yet to master the common sense of the human being.”

3 The statute was not materially different at the time of the crime.

4 Green, supra, 27 Cal.3d 1, was overruled on other points by People v. Hall (1986) 41 Cal.3d 826, 834 [226 Cal.Rptr. 112, 718 P.2d 99], footnote 3, and People v. Martinez (1999) 20 Cal.4th 225, 239 [83 Cal.Rptr.2d 533, 973 P.2d 512].

5 Absent the requirements of an act accompanied by criminal intent, and of a usable quantity of the substance, virtually every adult residing in California (except, ironically, long-term prisoners and others institutionalized at length) might be guilty of possessing cocaine (Health & Saf. Code, § 11350, subd. (a); id.., § 11055, subd. (b)(6)), given the possibility that in recent years 97 percent of all paper money circulating in the United States has been contaminated with cocaine (U.S. v. $5,000.00 in U.S. Currency (6th Cir. 1994) 40 F.3d 846, 849), 90 percent of it sufficiently so contaminated as to be detectable by a trained dog (ibid.).

6 This point was raised at oral argument. Counsel argued: “The [district attorney] . . . has the burden to provide some proof beyond simply the proof [that if] this guy’s under the influence he must have possessed the drug.” But the prosecution did provide sufficient evidence relevant to the elements of possession to satisfy the jury.

7 Though we cite CALJIC No. 12.00 for reference purposes, we caution that jury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent. They should not be cited as authority for legal principles in appellate opinions. At most, when they are accurate, as the quoted portion was here, they restate the law.

8 The instruction’s “right to control” language relates to constructive possession (People v. Barnes (1997) 57 CaI.App.4th 552, 556-557 [67 Cal.Rptr.2d 162]; Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 538-539 [265 Cal.Rptr. 877]), a matter that does not appear to be at issue here.

9 In this regard, the prosecutor’s arguments were more generous to defendant than they need have been. The prosecutor told the jury it could not convict defendant unless he had ingested “enough to get loaded.” To be sure, this was a minor concession, because, as the prosecutor next argued, with substantial support in the evidence, “He had certainly enough to get loaded on it. If he didn’t, he would have been sober.”

10 We also would reject defendant’s federal constitutional claim if required to reach it on the merits. The prosecutor did not engage in conduct so unfair as to deny him due process. No behavior even close to the required standard appears in the record.