People v. Bush ( 2017 )


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  • Filed 2/8/17 Unmodified opinion attached
    CERTIFIED FOR PARTIAL PUBLICATION*
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,                                          A140589
    Plaintiff and Respondent,
    (Sonoma County
    v.                                                   Super. Ct. No. SCR636522)
    WILLIAM DAVID BUSH,
    ORDER MODIFYING OPINION AND
    Defendant and Appellant.                     DENYING REHEARING
    [NO CHANGE IN JUDGMENT]
    THE COURT:
    It is ordered that the opinion filed herein on January 11, 2017, be modified as follows:
    1. At the end of the first (split) paragraph on page 23, after the last sentence
    before the Faretta citation, add as footnote 17 the following footnote, which
    will require renumbering of all subsequent footnotes:
    17
    In his petition for rehearing, defendant argues this court should have
    examined whether the inadequate admonishment affected or contributed to
    the guilty verdict rather than to his decision to decline representation. But
    we have used the same formulation that our Supreme Court applied in
    Burgener, in the same context, although Burgener did so without deciding
    whether it was the proper test, because the error in the case before it was
    not harmless. (Burgener, supra, 46 Cal.4th at p. 245.) Other appellate
    courts have applied the same standard. (See, e.g., Sullivan, supra, 151
    Cal.App.4th at p. 553; Noriega, supra, 59 Cal.App.4th at pp. 321-322;
    People v. Wilder (1995) 
    35 Cal.App.4th 489
    , 502; People v. Fabricant
    (1979) 
    91 Cal.App.3d 706
    , 713-714.) In any event, on the facts of this
    *
    Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
    certified for publication with the exception of part II.B.
    1
    case, the two formulations are essentially the same. As discussed,
    defendant’s adamant refusal to accept counsel—a personal choice, which
    must be respected, even if unwise (see Faretta, supra, 422 U.S. at p.
    834)—demonstrates that the single omission in the admonishment would
    not have deterred him from representing himself and, consequently, would
    not have affected the verdict.
    2. On page 41, in the first full paragraph after the second sentence, the language
    is modified to read as follows:
    Attempting to avoid this conclusion, defendant cites only the unsworn, out-
    of-court statements he made to the police that the money came from a
    legitimate ATM business. No other evidence was offered indicating such a
    business actually existed, however, and defendant does not dispute he also
    provided a contradictory explanation that his mother gave him the money.
    (See, e.g., People v. Player (1958) 
    161 Cal.App.2d 360
    , 362 [“Inconsistent
    statements relevant to the crime charged . . . . tend[] to show a
    consciousness of guilt”]; People v. Carrillo (1995) 
    37 Cal.App.4th 1662
    ,
    1669-1670 [evidence of false exculpatory statements “suggest that there is
    no honest explanation for incriminating circumstances”].) These unsworn,
    uncorroborated statements, which he later contradicted, could not have led
    a rational jury to believe the money in his car trunk came from a lawful
    ATM business. Even if the trial court erred in not instructing the jury on
    the elements of an unlawful sale of marijuana, therefore, it was harmless
    error.
    There is no change in the judgment.
    Appellant’s petition for rehearing is denied.
    Dated: _______________                                _______________________, P.J.
    2
    Filed 1/11/17 Unmodified document
    CERTIFIED FOR PARTIAL PUBLICATION*
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,
    Plaintiff and Respondent,
    A140589
    v.
    WILLIAM DAVID BUSH,                                 (Sonoma County
    Super. Ct. No. SCR636522)
    Defendant and Appellant.
    Defendant William David Bush appeals a judgment entered upon a jury verdict
    finding him guilty of driving with a suspended license and of receiving and acquiring
    proceeds knowing them to be derived from a controlled substance offense with the intent
    to conceal those proceeds and avoid a transaction reporting requirement. He contends on
    appeal that he did not knowingly and intelligently waive his right to counsel; that there
    was insufficient evidence he intended to conceal the nature or source of the money; that
    he could not be convicted for receiving or acquiring proceeds from sales that he allegedly
    conducted himself; and that the jury should have been instructed on the elements of the
    underlying controlled substance offense. We shall affirm the judgment.
    I. BACKGROUND
    We limit our recitation of the facts to those necessary for resolution of the issues
    on appeal.
    *
    Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
    certified for publication with the exception of part II.B.
    1
    On October 6, 2012, California Highway Patrol (CHP) Officer Nicole Brigstock
    stopped defendant for speeding in a black Mercedes sedan that was missing a front
    license plate. Officer Brigstock had been a CHP officer for more than 10 years at the
    time, had attended drug recognition training the year before, and in the course of her
    work had come in contact with marijuana specifically two or three times a week. She
    was therefore familiar with the distinctive smell of marijuana and recognized it as she
    walked up to defendant’s vehicle after stopping him. The smell was intense and when
    she leaned her head in the passenger window, she could tell it was coming from the
    vehicle.
    Officer Brigstock told defendant she could smell marijuana coming from his car
    and asked for his car keys, license, registration, and insurance. Defendant handed her an
    Arizona driver’s license, explaining that he lived both in Arizona and with his parents in
    Santa Rosa and moved all the time. He said the marijuana smell probably was coming
    from him because he had been touching marijuana earlier that day. Officer Brigstock
    saw leafy particles that she recognized as marijuana on the center console and passenger
    side floor area of the car. She asked defendant to get out of the car and noted a “very
    intense” smell of marijuana on his person when he did so.
    Officer Brigstock requested backup and then searched the vehicle. She found $5
    bills in the side pockets and on the floorboard near the back seat, two cell phones in the
    center console, and a binder with papers. In the trunk, she found a big black suitcase and
    searched the contents. Among the clothing inside, stuffed in a pant leg, she found a
    plastic parcel. It was four feet long, heat sealed on all sides, and contained 10
    individually sealed packs of money, mainly in smaller denominations, $1, $5, $10, and
    $20 bills. Defendant said the total amount was $100,000 and that it came from his
    automated teller machine (ATM) business, Mari Marc, in Puerto Vallarta. Officer
    Brigstock found business cards for Mari Marc but no other documents proving the money
    came from an ATM. Asked why he was not transporting the money in an armored truck,
    defendant said it was his life savings, and he wanted to keep it safe.
    2
    Officer Brigstock checked defendant’s Arizona license and learned it was no
    longer good. She checked if he had a California driver’s license and learned it had been
    suspended. Defendant said he had thought both licenses were good.
    Although she found no marijuana, Officer Brigstock noted the car still smelled
    overwhelmingly of it, with all doors opened. She requested a canine unit, thinking
    marijuana might be hidden in the car’s body. Taking another look at the papers on the
    front seat, she noticed a reminder on an August calendar, “Go to DMV and fix license.”
    Questioned about it, defendant confessed he knew his California license was suspended
    but insisted he had thought his Arizona license was still good.
    By this time, CHP Officer Brian Wood had arrived as backup. He had been a
    CHP officer for 10 years and had considerable experience with investigations involving
    raw unprocessed marijuana. He noticed “a strong odor of marijuana” coming from
    defendant’s vehicle and saw small particles on the vehicle floor and carpeting that he
    recognized as marijuana.
    Santa Rosa police officer and canine handler, Patrick Gillette, arrived next with his
    police dog, Utz, who is trained and experienced in detecting the odor of narcotics,
    including marijuana. Officer Gillette had 22 years of experience, including about six
    years working in narcotics investigations and had seen marijuana “thousands of times.”
    As soon as he got out of his car, he noticed “the overwhelming smell of raw marijuana.”
    Officers Brigstock and Wood briefed Officer Gillette and then returned the
    suitcase with the money to the trunk of defendant’s car, closing the trunk. Officer
    Gillette got Utz out of his car and brought him to the trunk, instructing him to search for
    drugs. Utz immediately became excited and signaled he had detected narcotics by
    scratching on the trunk. Allowed to search inside defendant’s vehicle, Utz gave the same
    signal at the glove box and on the driver’s seat. Standing just outside the car, Officer
    Gillette could smell marijuana also.
    One of the officers then removed the money from the suitcase, placing it about
    25 yards down a nearby driveway, upwind of defendant’s car. Bringing Utz to the start
    of the driveway, Officer Gillette commanded him to search again and removed his leash.
    3
    Utz worked his way to the money and signaled that he detected narcotics. Officer Wood
    moved the money farther down the driveway, and Utz again worked his way to it and
    signaled he smelled narcotics on it. Utz had a documented accuracy rate of more than
    97 percent in detecting narcotics.
    At this point, concluding the money “was probably from selling controlled
    substances,” Officer Brigstock called a narcotics taskforce to investigate. Narcotics
    detective Bryan Londo of Sonoma County Sheriff’s Department responded. He had
    17 years’ experience as a peace officer and specialized narcotics training. Inspecting
    defendant’s vehicle, he too noticed an odor of raw marijuana and saw particles inside that
    he recognized as marijuana.
    Detective Londo then went through the papers on defendant’s passenger seat. He
    found receipts for $1,900 in electronic money transfers, which he knew people use to
    purchase narcotics because it leaves no paper trail. He found a legal pad containing the
    notes “SD” with a number—for example SD 5 and SD 20—which he understood as a
    common drug sellers’ shorthand for tracking sales of specified pounds of Sour Diesel, a
    particular marijuana strain. He found a shopping list for fertilizer, bloom enhancer, and
    other items that can be used to grow marijuana, and he found a cash receipt for about
    $4,000 spent on wood, part of a gate, and a privacy lattice, supplies the detective had seen
    used to conceal tall outside marijuana grows.
    Detective Londo read defendant his Miranda1 rights, and defendant agreed to
    answer questions. He repeated that the money came from his business of ATMs in
    Mexico and was his life savings, explaining that he liked to keep it safe in the trunk of his
    car. After Detective Londo finished questioning defendant, Officer Brigstock arrested
    him for driving while unlicensed.
    When the money found in defendant’s car later was counted, it totaled $46,959. In
    reviewing the papers taken from the car, Detective Londo found a $5,000 cashier’s check
    from a Tristan Von Junsch made out to Tesla Motors and another $5,000 check to
    1
    Miranda v. Arizona (1966) 
    384 U.S. 436
    .
    4
    defendant from a business called Web Tab. A Web Tab representative later confirmed
    the check refunded cash that defendant had put on account for future purchases.
    Detective Londo subpoenaed defendant’s bank records for the past two years and
    found cash deposits totaling $113,000. He saw several purchases from a hydroponics
    store, which sells equipment and supplies that can be used to grow marijuana. A forensic
    download of the two cell phones found in defendant’s car revealed that the text messages
    had been erased.
    Interviewed again at the county sheriff’s office, defendant first said his mother had
    given him the money found in his car and later said he earned it from his ATM business.
    He presented documents in Spanish that Detective Londo could not read and said he dealt
    mainly in cash, which is hard to track. He told Detective Londo he had not filed tax
    returns for at least two years.
    Detective Londo searched the Internet for information on a business named Mari
    Marc and checked with the State Board of Equalization. The latter had no permits or
    sales tax documentation for such a business, and the Internet search yielded a single
    website, possibly Swedish or German, apparently launched in 2007, containing no
    contact information.
    During the investigation, Detective Londo observed defendant driving a new Jeep
    Cherokee and obtained the records of that purchase and of the Mercedes defendant had
    been driving. In both instances, the records reflected large cash deposits, $20,000 for the
    Mercedes and $10,000 for the Jeep. Detective Londo observed that defendant’s use of
    cash meant there was no record of the money’s source. Based on his investigation, he
    concluded defendant had acquired the money found in his car from marijuana sales.
    Defendant did not testify at trial.
    The jury found defendant guilty of the felony offense of knowingly receiving and
    acquiring proceeds knowing them to be derived from a controlled substance offense with
    the intent to conceal those proceeds and avoid a transaction reporting requirement
    5
    (Health & Saf. Code, § 11370.9, subd. (a)2 (count one); and guilty of the misdemeanor
    offense of driving with a suspended license (Veh. Code, § 14601.1, subd. (a)) (count
    two).3 The trial court imposed a suspended sentence, placing defendant on probation for
    three years, and ordered him to serve six months in jail and to pay a fine of $94,000.4
    II. DISCUSSION
    A.       Self-representation
    Defendant represented himself at trial and now contends his conviction must be
    reversed because his waiver of the right to counsel under Faretta v. California (1975)
    
    422 U.S. 806
     (Faretta) was defective for lack of proper admonitions. We reject this
    contention.
    1. Background
    The original felony complaint was filed in 2012. Defendant was represented by
    retained counsel early in the case.
    a. February 25, 2013—Faretta Hearing
    On February 25, 2013, defendant submitted a form requesting leave to represent
    himself.5 He answered yes to all questions on that form, indicating he understood he had
    a right to representation by an attorney, including an appointed attorney if he could not
    2
    All undesignated section references below are to the Health and Safety Code.
    3
    Defendant’s arguments on appeal do not address the merits of the conviction for
    the driving offense.
    4
    Pursuant to the parties’ stipulation, the court also ordered the forfeiture of the
    money seized in the search of defendant’s vehicle.
    5
    All further date references are to events that occurred in 2013.
    6
    pay, and that he understood the listed disadvantages of self-representation.6 At the
    hearing on his request, he told the court he had graduated high school, completed two
    years of junior college, and been involved as a litigant in multiple civil cases over the
    course of four and a half years.
    The court explained to defendant that, even for experienced attorneys, “it is never
    a good idea to represent yourself, because you don’t have the objectivity another
    professional would have on your behalf.” If it granted the request, the court cautioned, it
    could not “lean over backwards for [him] because that would be unfair to the People. If
    there is something you don’t know or understand . . . as far as making motions,
    subpoenaing witnesses, laying foundations to get certain evidence, I can’t help you, do
    you understand that?” When defendant remained firm in his request, the court granted it,
    allowing retained counsel to withdraw.
    b. May 15—Readiness Hearing
    At a readiness hearing on May 15, two days before the original trial date, after
    defendant explained his reasoning for rejecting a proposed plea agreement, the court
    returned to the subject, asking “Why didn’t you hire an attorney so perhaps you could
    pursue some of these issues . . . .” Defendant responded, “More money, you know, it was
    what they were going after in the first place. And I understand[.] I’ve been in the
    system[.] [A]nd it started out at $5,000. They want $5,000 and it was going to take a
    6
    Specifically, he wrote yes next to each of the following statements: “[Do you
    know that:] 1. It is well known that it is almost always not wise to act as your own
    attorney? [¶] 2. You may do more harm than good for yourself? [¶] 3. You will get no
    special treatment from the Judge, and you will have to follow the same rules that a lawyer
    would have to follow? [¶] 4. The prosecuting lawyer against you will be an experienced
    lawyer, and it is this lawyer’s duty to give you no special treatment or consideration?
    [¶] 5. If you had a lawyer of your own, that lawyer might file pretrial motions and
    conduct investigations before advising you what to do? [¶] 6. In acting as your own
    lawyer, you will not be able to receive the good advice of an experienced criminal
    lawyer? [¶] 7. No one will be appointed to assist you in your self-representation?” He
    also answered “yes” to the question, “Do you understand that if the Judge allows you to
    represent yourself, you cannot later change the result by saying: ‘I did not represent
    myself well,’ or ‘I should have had a lawyer?’ ”
    7
    year.” “It went to 15, then 25,” he continued, “and . . . I already have two firms of
    attorneys in Texas, I didn’t do anything wrong here, there was nothing illegal, it is a
    situation where I feel like it could have been resolved between intelligent people. But
    they wanted my money like everybody does, and I felt like hiring more attorneys was
    going to be fighting fire with fire.”
    The court cautioned, “I just want to make sure it is on the record and you are
    properly advised that if you are convicted by a jury and ultimately sentenced to the
    maximum sentence, which I’m not saying you would be, it could be up to four years in
    state prison. That would be served locally in the county jail.” “That could also include
    ultimately the forfeiture of the money” seized from defendant’s vehicle, the court added.
    In the same hearing, after defendant indicated he was unfamiliar with the Evidence
    Code and had not subpoenaed witnesses, the court again encouraged him to hire an
    attorney, saying, “All right, well you are facing a very serious charge. I’m strongly
    advising you against going forward with this trial without representation. If you can’t
    afford an attorney[,] I can appoint one to represent you. There may be fees at the end of
    the trial. You certainly would be best served by having an attorney representing you. I
    know you’ve been very adamant about representing yourself. I believe you had
    represented to the Court that you do have an ability to pay an attorney, but basically
    choose not to. Those are choices that you have a Constitutional right to make. I hope
    I’ve highlighted some of the challenges you may face. I cannot ignore the laws. It is an
    adversarial process, so I can’t favor you or help you just because you are unfamiliar with
    the process or the law. That would be unfair to the District Attorney’s office. [¶] Do
    you have any interest in hiring your own attorney?” Defendant responded, “I have many
    attorneys in this case. . . . [Y]ou know, I hired two. And I have two more that called me
    to talk to me about it that are somewhat involved.”
    After further colloquy confirmed no attorney would be appearing to represent
    defendant, the court asked, “What can I do to dissuade you from going forward without a
    lawyer? I will emphasize, if you have no money . . . you have the right to the assistance
    of a public defender. I can appoint an attorney to represent you from right now until this
    8
    case is concluded. If there is an ability to pay, I may assign some fees at the end of the
    case, but essentially you have an absolute right to representation by a lawyer.”
    The discussion continued in the following colloquy: “THE DEFENDANT: Am I
    not intelligent enough to represent myself these days? Like I don’t understand that. I
    mean we all have to like learn the system and the process. [¶] THE COURT: This is two
    days set from trial. If you can memorize and fully understand the Evidence Code
    between now and then. You are already too late to subpoena witnesses. Do you have
    any defense witnesses? [¶] THE DEFENDANT: Defense against what? [¶] THE
    COURT: Sir, you are facing a four-year felony here. Defense against that charge . . . .
    You are making— [¶] THE DEFENDANT: If God wants me to go to jail, I’ll go to jail,
    that’s fine.” [¶] THE COURT: You are making very poor decisions. You may be
    extremely intelligent, but you don’t seem to understand the Evidence Code or procedures
    for preparing a defense or what a defense even might be in this case. You mentioned a
    potential for an unlawful stop, yet you brought no motion properly to challenge that stop,
    either as a motion in limine or as a [Penal Code section] 1538.5 [motion to suppress].
    You are not making good choices. [¶] THE DEFENDANT: I’m not defending the—
    [¶] THE COURT: Let me finish. Let me characterize it this way[.] [Y]ou don’t know
    what you don’t know. You may not be able to get any evidence before the jury if you
    don’t follow rules. You don’t have witnesses subpoenaed. You are subject to testifying
    yourself. You have to follow the Rules of Court as far as that testimony that’s relevant
    and not wasteful of the court’s time. So ultimately you may not have a defense at all.
    You . . . potentially stand to be convicted of a felony, which the People are willing to
    dismiss,[7] then have all of your property forfeited anyway and then ultimately do up to
    four years in prison served in a local jail. [¶] THE DEFENDANT: That would be a
    terrible terrible thing to do to somebody.”
    7
    The prosecutor and defendant told the court in this hearing that the prosecution
    had offered to drop the section 11370.9 charge if defendant would plead guilty to driving
    with a suspended license in violation of Vehicle Code section 14601 and stipulate to
    forfeiture of the $46,959 found in his car.
    9
    The hearing concluded shortly after this exchange. The case did not go to trial that
    month, however, because a prosecution witness was unavailable. As the prosecution was
    unable to meet the statutory deadline for bringing defendant to trial, and defendant
    refused to waive time, the court granted his motion to dismiss the case, without prejudice,
    knowing the prosecution would refile the charges.
    c. June 10 and 20
    At a hearing on June 10 to discuss the prosecution’s refiling of charges, the court
    began with the issue of self-representation, in the following colloquy: “THE
    COURT: . . . [I]t looks like the People are refiling their case. So my first question to
    [defendant] is have you reconsidered having an attorney? I can appoint an attorney to
    represent you . . . . [I]f you have no ability to pay[,] you are entitled to a defense.
    [¶] DEFENDANT BUSH: I’m speaking with [an attorney] out of Oakland, he’s a civil
    rights attorney, he’s thinking about taking this case pro bono, so he may be here . . . .
    [¶] THE COURT: . . . So you don’t want me to appoint a public defender?
    [¶] DEFENDANT BUSH: No, Your Honor. [¶] THE COURT: And I know we’ve
    made extensive inquiries on the last case, but I do need to try once again to dissuade you
    from that. Again, you are entitled to a public defender to represent you through all
    proceedings. You can also [hire] someone else later or if someone wishes to substitute in
    pro bono that can occur later.”
    Discussing scheduling later in the same hearing, the court reiterated, “I strongly
    encourage [you] again to hire an attorney, have one appear on your behalf pro bono[,] or
    allow me to appoint someone to represent you [who] can help sort through these
    decisions. It is always helpful to have a lawyer provide you advice on the best procedure
    to follow.” Defendant refused, telling the court, “I’ve had three or four attorneys in town
    call me consistently about this case since it started[.] I got advice. I can speak for
    myself, it just becomes a . . . trust issue.”
    At the start of a hearing on June 20, the court returned to the issue, in the
    following exchange: “THE COURT: Mr. Bush, you are still appearing without an
    attorney? [¶] [DEFENDANT] Yes. [¶] THE COURT: I know you are getting tired of
    10
    it[.] I’m still willing to appoint an attorney to represent you. You are entitled to
    representation, whether you can afford representation or not. Certainly that is in your
    best interest. Do you still wish to proceed on your own? [¶] [DEFENDANT]: They are
    expensive. [¶] THE COURT: No, but this is a public cost . . . . The issue of whether
    you can afford one or not shouldn’t come into consideration. [¶] [DEFENDANT]: My
    plan to go to law school when I came back from Mexico has turned into a real life
    experience, so I’m interested in learning . . . . [¶] THE COURT: You’ll be matched up
    against someone who has gone to law school, who has been practicing for quite some
    time. I can’t favor one side or the other. I would hate to get a preliminary law school
    education that is going to end up having you incarcerated for years. [¶] [DEFENDANT]:
    Fortunately the facts of the case are on my side and I’m not really in danger of that.
    [¶] THE COURT: So you still wish to proceed without the help of an attorney?
    [¶] [DEFENDANT]: Yes, Your Honor.”
    d. July, August, September
    At each of the hearings on July 8 and 22, August 7 and 9, and September 6, 18,
    and 23, the court again asked defendant to hire an attorney or accept appointment of
    counsel at no cost if he was unable to pay, advising him that it would be in his best
    interest to do so. Defendant declined each time, explaining alternatively that he wanted
    to speak for himself, he did not trust attorneys, he wanted to learn “the process,” and the
    prosecution lacked evidence to win a conviction.
    2. Legal Principles
    “ ‘A criminal defendant has a right under the Sixth Amendment to the federal
    Constitution, to conduct his own defense, provided that he knowingly and intelligently
    waives his Sixth Amendment right to the assistance of counsel. (Faretta, supra, 422 U.S.
    at pp. 835-836); People v. Bradford (1997) 
    15 Cal.4th 1229
    , 1363.) A defendant seeking
    to represent himself “should be made aware of the dangers and disadvantages of self
    representation, so that the record will establish that ‘he knows what he is doing and his
    choice is made with eyes open.’ [Citation.]” (Faretta, 
    supra,
     422 U.S. at p. 835.)’ ”
    (People v. Burgener (2009) 
    46 Cal.4th 231
    , 240-241 (Burgener).)
    11
    “Our own Supreme Court instructs that ‘[t]he test of a valid waiver of counsel is
    not whether specific warnings or advisements were given but whether the record as a
    whole demonstrates that the defendant understood the disadvantages of self
    representation, including the risks and complexities of the particular case.’ ” (People v.
    Conners (2008) 
    168 Cal.App.4th 443
    , 454 (Conners), quoting People v. Bloom (1989)
    
    48 Cal.3d 1194
    , 1225; accord People v. Lawley (2002) 
    27 Cal.4th 102
    , 140.) “ ‘[A]s long
    as the record as a whole shows that the defendant understood the dangers of self
    representation, no particular form of warning is required.’ ” (Burgener, 
    supra,
     46 Cal.4th
    at p. 241.) “On appeal, we review the entire record, including proceedings after the
    invocation of the right to self-representation, and determine de novo whether the
    defendant’s waiver of the right to counsel was knowing and voluntary.” (Conners, at
    p. 454, citing People v. Marshall (1997) 
    15 Cal.4th 1
    , 24; accord People v. Jackio (2015)
    
    236 Cal.App.4th 445
    , 452 (Jackio).)
    Defendant contends his waiver of his Sixth Amendment right to counsel was
    invalid because the trial court did not warn him of all the possible penal consequences if
    he was convicted of violating section 11370.9. There is no dispute that in addition to
    warning him at length about the tactical dangers and disadvantages of representing
    himself—e.g., because he would be opposing an experienced attorney, could receive no
    special treatment or assistance from the judge, and was making poor decisions that might
    ultimately compromise his ability to present a defense—the trial court also told him
    conviction could mean a sentence of up to four years’ imprisonment and forfeiture of the
    $46,959 seized from his car. The court did not specifically inform him, however, that a
    monetary fine of up to $250,000 could be imposed.8
    Defendant contends this omission alone precluded a valid waiver of his Sixth
    Amendment right to counsel, requiring reversal of his conviction. He relies primarily on
    Iowa v. Tovar (2004) 
    541 U.S. 77
     (Tovar) and Arrendondo v. Neven (9th Cir. 2014)
    8
    As noted, a fine of $94,000 ultimately was imposed.
    12
    
    763 F.3d 1122
     (Arrendondo).9 Reviewing a decision of the Iowa Supreme Court, Tovar
    addressed a narrow question: “ ‘Does the Sixth Amendment [of the United States
    Constitution] require a court to give a rigid and detailed admonishment to a pro se
    defendant pleading guilty of the usefulness of an attorney, that an attorney may provide
    an independent opinion whether it is wise to plead guilty and that without an attorney the
    defendant risks overlooking a defense?’ ” (Tovar, at p. 91.) Tovar answered the question
    in the negative, concluding “neither warning is mandated by the Sixth Amendment.” (Id.
    at p. 81.) “The constitutional requirement is satisfied,” Tovar observed, “when the trial
    court informs the accused of the nature of the charges against him, of his right to be
    counseled regarding his plea, and of the range of allowable punishments attendant upon
    the entry of a guilty plea.” (Ibid.)
    In Arrendondo, the defendant petitioned for a writ of habeas corpus, contending
    his pretrial waiver of counsel was invalid because the court had not explained the
    potential application of uncharged recidivist sentencing enhancements. (Arrendondo,
    supra, 763 F.3d at p. 1133.)10 The Ninth Circuit Court of Appeals affirmed denial of the
    petition, concluding it was not an unreasonable application of United States Supreme
    Court case law to refuse to require, as the Nevada Supreme Court there had done, that a
    defendant understand the potential penal consequences of uncharged enhancements. (Id.
    at pp. 1130-1131, 1134-1135.) In analyzing the issue, Arrendondo characterized Tovar,
    supra, 
    541 U.S. 77
     as establishing a “minimum” constitutional requirement that a
    defendant waiving counsel to enter a guilty plea “must understand ‘the range of allowable
    punishments.’ ” (Arrendondo, at p. 1131 & fn. 2.) Observing that the trial court there
    9
    See, e.g., Fair v. BNSF Railway Company (2015) 
    238 Cal.App.4th 269
    , 287
    [“ ‘[T]he decisions of the lower federal courts on federal questions are merely
    persuasive’ ”].
    10
    At the time of the defendant’s conviction in Arrendondo, Nevada law allowed
    the prosecutor to seek an enhanced sentence by filing an information after conviction but
    before sentencing. (Arrendondo, supra, 763 F.3d at p. 1133, fn. 4.) In 2013, the Nevada
    legislature amended the law to require the filing of a habitual criminal information at
    least two days before the start of trial in most circumstances. (Ibid.)
    13
    had informed the defendant of the maximum penalties for conviction of the charged
    offenses (id. at p. 1132), however, and applying the deferential standard of review
    required for habeas rulings, it concluded the state court reasonably might have decided
    “the Tovar right” did not apply. (Id. at p. 1135.)
    In characterizing Tovar as establishing a constitutional “minimum”—a so-called
    “Tovar right”—Arrendondo, supra, 
    763 F.3d 1122
     overstates the holding of that case. In
    Tovar, the Supreme Court expressly underscored the narrow nature of its ruling, stating,
    “We hold only that the two admonitions the Iowa Supreme Court ordered are not required
    by the Federal Constitution.” (Tovar, 
    supra,
     541 U.S. at p. 94, italics added.) Although
    it affirmed that the constitutional requirement of a knowing, intelligent waiver “is
    satisfied when the trial court informs the accused of the nature of the charges against him,
    of his right to be counseled regarding his plea, and of the range of allowable punishments
    attendant upon the entry of a guilty plea” (id. at p. 81), the Supreme Court did not state
    that courts must give these advisements in every case.11
    To the contrary, in Tovar, supra, 
    541 U.S. 77
     the court reaffirmed its long-
    standing rule that there is no prescribed formula for ensuring a defendant knows what he
    is doing in electing to represent himself. “The information a defendant must possess in
    order to make an intelligent election . . . will depend on a range of case-specific factors,
    including the defendant’s education or sophistication, the complex or easily grasped
    nature of the charge, and the stage of the proceedings.” (Id. at p. 89.) Although
    “[w]arnings of the pitfalls of proceeding to trial without counsel . . . must be
    ‘rigorous[ly]’ conveyed,” the court observed (ibid.), a waiver of counsel is “ ‘knowing,
    intelligent, and sufficiently aware if the defendant fully understands the nature of the
    right and how it would likely apply in general in the circumstances—even though the
    defendant may not know the specified detailed consequences of invoking it.’ [Citation.]”
    11
    See People v. Evans (2008) 
    44 Cal.4th 590
    , 599 [“ ‘[a]n appellate decision is not
    authority for everything said in the court’s opinion but only “for the points actually
    involved and actually decided” ’ ”].
    14
    (Id. at p. 92.) That a defendant “ ‘lacked a full and complete appreciation of all of the
    consequences flowing from his waiver,’ ” will not alone defeat a showing that “ ‘the
    information . . . provided to him satisfied the constitutional minimum.’ ” (Ibid.) “[T]he
    information a defendant must have to waive counsel intelligently will ‘depend, in each
    case, upon the particular facts and circumstances surrounding that case.’ [Citation.]”
    (Ibid.)
    Based upon all of the language in Tovar, 
    supra,
     
    541 U.S. 77
    , we respectfully
    disagree with the Ninth Circuit’s conclusion that Tovar “clearly establishes that a
    defendant waiving counsel must understand ‘the range of allowable punishments . . . .’
    [Citation.]” (Arrendondo, supra, 763 F.3d at p. 1131, fn. 2.) In Burgener, our own
    Supreme Court interpreted Tovar as simply affirming the long-standing rule that the
    information a defendant must possess to make an intelligent waiver “depends on the
    particular facts and circumstances” of each case. (Burgener, 
    supra,
     46 Cal.4th at p. 242.)
    What Tovar requires is that the defendant be “made aware ‘of the hazards ahead’ if he
    proceed[s] without the assistance of counsel.” (Ibid.) In evaluating this point, Burgener
    reiterated, “ ‘ “the test is whether the record as a whole demonstrates that the defendant
    understood the disadvantage of self-representation, including the risks and complexities
    of the particular case.” ’ ” (Id. at p. 241; see also People v. Weber (2013)
    
    217 Cal.App.4th 1041
    , 1059 [citing Tovar for the proposition that “[a]lthough no
    particular warnings are required, ‘before a defendant may be allowed to proceed pro se,
    he must be warned specifically of the hazards ahead’ ”], italics added.)
    In People v. Sullivan (2007) 
    151 Cal.App.4th 524
    , this court applied the same test,
    re-affirming that no “ ‘ “ ‘specific warnings or advisements’ ” ’ ” are required. (Id. at
    p. 546.) Like Burgener, 
    supra,
     
    46 Cal.App.4th 231
    , Sullivan cited Tovar in this context
    for the narrow proposition that the information a defendant must possess to waive
    counsel intelligently will vary in every case. (Sullivan, at p. 546.) We do not ignore that
    in exhaustively setting forth the applicable legal principles Sullivan did cite a Ninth
    Circuit Court of Appeals opinion for the principle that a trial judge, among other things,
    must ensure a defendant understands “ ‘the possible penalties,’ ” but Sullivan did not
    15
    discuss or apply this requirement. (Id. at p. 545.) Nor did the court rely on that principle
    for its conclusion. Rather, there, the trial court erred by entirely failing to advise
    defendant of his right to appointed counsel and failing to obtain an express waiver when
    defendant was arraigned on the felony information. (Id. at p. 551.)
    People v. Noriega (1997) 
    59 Cal.App.4th 311
    , which defendant also cites, is
    similar. Although the Court of Appeal there faulted the trial court for not having
    inquired, among other things, whether the defendant “understood the charges against him
    and the potential penal consequences if he lost at trial” (id. at p. 319), it did not rule that a
    trial court in every instance must affirmatively warn a defendant on this point. Nor did it
    discuss the scope of the required inquiry in this area. (Id. at pp. 319-320.) Ultimately,
    the Court of Appeal ruled there had been prejudicial error requiring reversal of the
    conviction in that case because “the trial court did not give any necessary warnings to
    assure itself [the defendant] was making an informed and intelligent decision to represent
    himself despite the disadvantages and risks of that choice”; to the contrary, the court
    “seemed to encourage [the defendant] to take that course” with comments that “were
    likely to further mislead [him] about the true consequences of the waiver.” (Id. at
    pp. 320-321, italics added).
    More recently, another court reiterated, after acknowledging Sullivan and
    People v. Noriega, supra, 59 Cal.App.4th that “[t]he overriding principle . . . remains as
    stated in People v. Bloom, supra, 48 Cal.3d at page 1225: the test of a valid waiver of
    counsel is based on the record as a whole.” (Conners, supra, 168 Cal.App.4th at p. 455;
    see also People v. Marshall, supra, 15 Cal.4th at p. 24 [“[e]ven when the trial court has
    failed to conduct a full and complete inquiry regarding a defendant’s assertion of the right
    of self-representation, [appellate] courts examine the entire record” to determine whether
    the waiver of the right to counsel was knowing and voluntary].)
    It is true that the Court of Appeal in Jackio read Tovar differently. It concluded
    that Tovar requires that a court, in admonishing a defendant desiring to represent himself
    in a guilty plea, include “ ‘the range of allowable punishments.’ ” (Jackio, supra,
    236 Cal.App.4th at p. 454.) Observing that in the guilty plea setting “the crimes and
    16
    enhancements for which the defendant can be punished are known,” the court concluded
    that the same cannot be said for a waiver in a pretrial setting. (Ibid.) This is because it is
    “impractical to try to predict the possible terms and enhancements that will eventually be
    available to the trial court at sentencing” since it cannot be known whether a jury will
    acquit or convict on any given charge or find true the enhancement allegations. (Ibid.)
    Therefore, Jackio concluded, it suffices to advise a defendant who is seeking to represent
    himself at trial of the maximum punishment that could be imposed if he is found guilty,
    rather than “the range of allowable punishments.” (Id. at pp. 454-455.)
    It appears that the parties in Jackio did not question whether the court had an
    affirmative obligation to warn the defendant about the maximum punishment, as it was
    undisputed in that case that he had been so warned. (Jackio, supra, 236 Cal.App.4th at
    pp. 451-452.) Instead, the dispute centered on the adequacy of the warning. The
    defendant contended it was not enough to tell him that he faced “ ‘life in prison,’ ”
    because this could mean “incarceration for the rest of his life” or an indeterminate life
    term with the possibility of parole after seven years. (Id. at pp. 455-456.) The court
    disagreed, concluding there was no duty to explain “that defendant was facing possible
    determinate and indeterminate [life] terms or that he could be subject to consecutive
    terms of 25 years to life.” (Id. at p. 456.) Because the defendant was warned he could be
    sentenced to life in prison, the court presumably did not have occasion to consider
    critically the question of whether a warning about the maximum potential penalty is
    always required for a valid waiver of the right to representation at trial.
    Our review of the relevant cases does not persuade us that a pretrial waiver of
    counsel cannot be valid if the court did not specifically advise the defendant of all
    possible penal consequences of the charged offenses, including all monetary fines. While
    the better practice would be to inform the accused, on the record, of the maximum
    sentence, including any maximum monetary fine that could be imposed on a conviction,
    17
    defendant does not cite, and we have not found, any case specifically concluding that an
    advisement on this point is a constitutional minimum in every case.12
    As the California Supreme Court has observed, the purpose of recommended
    admonitions “is to ensure a clear record of a knowing and voluntary waiver of counsel,
    not to create a threshold of competency to waive counsel.” (People v. Koontz (2002)
    
    27 Cal.4th 1041
    , 1071.) No advisements can do more than impress upon the defendant
    the gravity of the matter and the likelihood that he cannot improve his position by
    foregoing professional representation. (See, e.g., Lopez v. Thompson (9th Cir. 2000)
    
    202 F.3d 1110
    , 1119 [“In assessing waiver of counsel, the trial judge is required to focus
    on the defendant’s understanding of the importance of counsel, not the defendant’s
    understanding of the substantive law or the procedural details”]; Faretta, 
    supra,
     422 U.S.
    at p. 835 [the defendant “must ‘knowingly and intelligently’ forgo” “the traditional
    benefits associated with the right to counsel”].) Accordingly, here we will apply the test
    articulated in Burgener. As stated in that case, “ ‘ “the test is whether the record as a
    whole demonstrates that the defendant understood the disadvantages of self-
    representation, including the risks and complexities of the particular case.” [Citations.]’ ”
    (Burgener, 
    supra,
     46 Cal.4th at p. 241.) But even assuming, arguendo, that the trial court
    had an affirmative duty specifically to admonish defendant about the maximum potential
    fine on conviction, we also reject defendant’s contention that the omission of this single
    piece of information from the court’s extensive colloquy with him about the hazards and
    risks of self-representation requires an automatic reversal.
    3. Structural Error and Harmless Error
    “ ‘Error that occurs during the presentation of the case to the jury is generally trial
    error; an error that erroneously adds to or subtracts from the record before the jury can
    “be quantitatively assessed in the context of the other evidence presented in order to
    12
    Although the Sixth Circuit Court of Appeals has deemed a trial court’s failure to
    inform a defendant of a monetary fine “troubling,” it did not hold that such an admonition
    is required. (Akins v. Easterling (6th Cir. 2011) 
    648 F.3d 380
    , 399.)
    18
    determine whether its admission was harmless beyond a reasonable doubt.” [Citations.]
    A court in such circumstances can meaningfully ask “whether the guilty verdict actually
    rendered in this trial was surely unattributable to the error.” [Citation.] In contrast,
    structural errors not susceptible to harmless error analysis are those that go to the very
    construction of the trial mechanism—a biased judge, total absence of counsel, the failure
    of a jury to reach any verdict on an essential element.’ [Citations.] . . . . [¶] In short,
    trial errors can be fairly examined in the context of the entire record and are amenable to
    harmless error review. Structural errors, on the other hand, go to the very reliability of a
    criminal trial as a vehicle for determining guilt or innocence and are reversible per se.
    [Citations.] A structural error requires per se reversal because it cannot be fairly
    determined how a trial would have been resolved if the grave error had not occurred. For
    example, it would be impossible to divine how a trial would have proceeded if a
    defendant had been allowed counsel or the trial judge not been biased.” (People v.
    Anzalone (2013) 
    56 Cal.4th 545
    , 553-554.)
    The United States Supreme Court “has ‘repeatedly recognized that the commission
    of a constitutional error at trial alone does not entitle a defendant to automatic reversal.’
    [Citation.] An error is . . . ‘subject to automatic reversal, only in a “very limited class of
    cases.” ’ ” (People v. Mil (2012) 
    53 Cal.4th 400
    , 410.) It is required, for example, where
    a court denies an indigent defendant’s request for appointment of counsel, as occurred in
    Gideon v. Wainwright (1963) 
    372 U.S. 335
    , 336 (see Neder v. United States (1999)
    
    527 U.S. 1
    , 8 (Neder)), or, as defendant notes, where an accused is denied the right to
    counsel of his choice because the attorney is erroneously disqualified. (United States v.
    Gonzalez-Lopez (2006) 
    548 U.S. 140
    , 144.)
    Although the denial of a proper request for self-representation has been
    determined to be structural error (McKaskle v. Wiggins (1984) 
    465 U.S. 168
    , 177, fn. 8),
    neither the federal Supreme Court nor the state Supreme Court has decided whether the
    granting of a request for self-representation based on an inadequate Faretta
    admonishment compels the same result. (See, e.g., McCormick v. Adams (9th Cir. 2010)
    
    621 F.3d 970
    , 979; Burgener, 
    supra,
     46 Cal.4th at pp. 243-244.) Our state courts that
    19
    have addressed the question have applied the Chapman harmless error standard.13 (See
    cases collected in People v. Sohrab (1997) 
    59 Cal.App.4th 89
    , 99-100, disapproved on
    other grounds in People v. Crayton (2002) 
    28 Cal.4th 346
    , 366, fn. 10.)14 Although two
    California courts have applied automatic reversal following errors in allowing self-
    representation, the cases are readily distinguishable. In both instances the defendants
    received no self-representation warnings at all before being allowed to proceed without
    counsel. (People v. Hall (1990) 
    218 Cal.App.3d 1102
    , 1108-1109; People v. Lopez
    (1977) 
    71 Cal.App.3d 568
    , 570-571.)15
    Defendant contends a Faretta error involves “choice of counsel,” which is
    necessarily unquantifiable, and therefore unquestionably qualifies as structural error,
    citing United States v. Gonzalez-Lopez, 
    supra,
     548 U.S. at p. 149 (both denial of counsel
    and denial of right of self-representation are structural errors). Defendant then points to
    three California cases holding that “Faretta error” is reversible per se: People v. Boyce
    (2014) 
    59 Cal.4th 672
    , 702; People v. Butler (2009) 
    47 Cal.4th 814
    , 824; and People v.
    Joseph (1983) 
    34 Cal.3d 936
    , 946. These cases, however, all involve denials of Faretta
    motions that should have been granted. In such cases, structural error applies for a reason
    that differs from the basis for other structural error. As we have stated, in other cases—
    such as denial of counsel or judicial bias—the error is prejudicial per se because it cannot
    be known whether the matter would have had a better outcome if the defendant had been
    allowed counsel or the trial judge not been biased. (People v. Anzalone, supra,
    13
    Chapman v. California (1967) 
    386 U.S. 18
    , 24 (Chapman) (“a federal
    constitutional error can be held harmless” “beyond a reasonable doubt”).
    14
    The Ninth Circuit apparently agrees. (See McCormick, 
    supra,
     621 F.3d at
    p. 979 [a court’s “defective . . . colloquy” with a defendant about a Faretta request “ ‘will
    not necessitate automatic reversal when the record as a whole reveals a knowing and
    intelligent waiver’ ”].)
    15
    Other courts have avoided the debate, finding under the facts before them that
    the failure to advise of the dangers of self-representation is prejudicial even under a
    harmless error analysis. (Burgener, 
    supra,
     46 Cal.4th at p. 245; People v. Bauer (2012)
    
    212 Cal.App.4th 150
    , 161; People v. Spencer (1984) 
    153 Cal.App.3d 931
    , 945-946;
    People v. Fabricant (1979) 
    91 Cal.App.3d 706
    , 713-714.)
    20
    56 Cal.4th at p. 554.) But where a request for self-representation has been erroneously
    denied, structural error applies for a different reason: “ ‘Since the right of self-
    representation is a right that when exercised usually increases the likelihood of a trial
    outcome unfavorable to the defendant, its denial is not amenable to “harmless error”
    analysis. The right is either respected or denied; its deprivation cannot be harmless.’
    [Citation.]” (People v. Tena (2007) 
    156 Cal.App.4th 598
    , 614.)
    It seems to us that if an erroneous denial of a self-representation request—where
    the issue of defendant’s knowledge or understanding is a close question—is reversible
    per se, and if the erroneous granting of such a request—where the admonition is
    incomplete rather than completely absent—is also reversible per se, the trial court is left
    with the narrowest of channels along which to navigate the shoals of possible error. (See,
    e.g., People v. Cervantes (1978) 
    87 Cal.App.3d 281
    , 287 (Cervantes) [In this context,
    courts must navigate “between the Scylla of denying a defendant the right to determine
    his own fate and the Charybdis of violating his right to counsel by acceptance of an
    ineffectual waiver”], disapproved on another ground in People v. Barnum (2003)
    
    29 Cal.4th 1210
    , 1219, fn. 1, 1222-1225.) And, although the granting of a Faretta
    motion based on incomplete warnings can arguably be considered prejudicial per se
    because it results in an unknowing waiver of counsel (and thus a “denial” of counsel), we
    observe, as did the concurring opinion in United States v. Salemo (3d Cir. 1995) 
    61 F.3d 214
    , that “[s]uch a blanket rule could produce some strange results. For example,
    suppose that a defendant does not validly waive counsel at sentencing but is given the
    mandatory minimum sentence prescribed by statute . . . . In this case, must the sentence
    to be vacated and the case remanded so that the very same sentence can be imposed with
    counsel present?” (Id. at p. 223, fn. 1.)
    Based upon all of these considerations, we find Cervantes to be persuasive. There
    the Court of Appeal rejected the defendant’s contention “that failure of the trial court to
    adequately warn [him] of the hazards and risks of self-representation require[d] an
    automatic reversal,” concluding that the Chapman test applied in such circumstances
    instead. (Cervantes, supra, 87 Cal.App.3d at p. 291.) The court reasoned, “We perceive
    21
    a signal difference between a case where an indigent was not advised at the time of trial
    on the merits that he could have an attorney appointed by the court at public expense and
    did not waive his right to counsel as in In re Smiley (1967) 
    66 Cal.2d 606
    , which requires
    a reversal per se, and one where defendant, as in the instant case, was fully aware of his
    right to counsel, requested to represent himself pursuant to Faretta and in fact was
    granted self-representation but which was predicated on an insufficient record with
    respect to a warning of the pitfalls involved in self-representation as mentioned in
    Faretta.” (Cervantes, at p. 292.)16
    Although a defendant who “unequivocally requested permission to conduct his
    own defense pursuant to Faretta should not be precluded on the theory of ‘invited error’
    or ‘estoppel’ from raising on appeal the issue of the trial court’s failure to adequately
    warn him of the dangers entailed in self-representation,” the court reasoned, “some
    standard of review short of an automatic reversal should be applied.” (Cervantes, supra,
    87 Cal.App.3d at p. 293.) We concur in the court’s holding that the Chapman standard is
    appropriate. Applying that standard, we conclude that, if there was demonstrable error,
    such error here was harmless.
    4. Knowing and Intelligent Waiver
    The first question posed is whether the warnings provided by the trial court
    satisfied the constitutional requirement that defendant be made aware of the
    disadvantages of self-representation, including the risks and complexities of defendant’s
    specific case. (Burgener, supra, 46 Cal.4th at p. 245.) The record as a whole convinces
    us the trial court satisfied that requirement and did not err in failing to inform defendant
    during the Faretta colloquies of the maximum fine on conviction. But, even if such was
    error, the record as a whole also convinces us beyond a reasonable doubt that defendant
    16
    In Cervantes, the defendant had been represented by a public defender before
    requesting self-representation. (Cervantes, supra, 87 Cal.App.3d at pp. 286, fn. 1, 294.)
    After confirming that he knew the charges against him and had completed two years of
    college, the trial court warned “he would be afforded no ‘special privileges and [would]
    be treated the same as if [he] had counsel.” (Ibid.)
    22
    knew what he was doing in requesting self-representation, made his choice with eyes
    open, and would have done the same even if the court had advised him specifically about
    the maximum potential fine on conviction. (Faretta, supra, 422 U.S. at p. 835.)
    When defendant first requested leave to represent himself, he completed a form
    affirming that he understood the numerous dangers and disadvantages of doing so. The
    court attempted to talk him out of discharging his attorney in that instance and returned to
    the subject in each of 10 subsequent hearings, each time offering to appoint an attorney to
    represent defendant if he could not afford to retain one himself. In one hearing, the court
    twice advised defendant that a conviction could mean up to four years of incarceration
    and forfeiture of the $46,959 seized from his car. In another, it observed that he could be
    “incarcerated for years.”
    As the case progressed, the court strongly cautioned defendant that he was
    “making very poor decisions.” It noted he did not “seem to understand the Evidence
    Code,” which created “almost an impossible hurdle of getting any . . . evidence into
    court,” and also that he did not seem to understand the “procedures for preparing a
    defense or what a defense even might be in this case.” Observing that he had brought no
    motion in limine or motion to suppress, although his comments suggested such actions
    might be appropriate, the court told the defendant, “[Y]ou don’t know what you don’t
    know. You may not be able to get any evidence before the jury if you don’t follow rules.
    You don’t have witnesses subpoenaed . . . . So ultimately you may not have a defense at
    all. You . . . potentially stand to be convicted of a felony, which the People are willing to
    dismiss, then have all of your property forfeited anyway, and then ultimately do up to
    four years in prison.”
    The record also shows that defendant was a high school graduate who had
    completed two years of junior college, had experience as a civil litigant, and claimed to
    own several businesses through which he had earned “probably $3.8 million” in the “past
    six years.” He does not claim on appeal that he did not understand the court’s warnings
    or the risks in question. In response to the court’s repeated warnings, he remained
    23
    adamant, responding that he had already consulted attorneys and was continuing to
    consult attorneys during the case.
    The record reflects that defendant retained one attorney and then substituted in a
    second during the first four months of the proceedings. In his initial appearance with
    each, he was provided a copy of the criminal complaint, which cited Health and Safety
    Code section 11370.9 as the basis for one of the two charged offenses. A simple reading
    of the statute reveals the potential of a $250,000 fine. (Health & Saf. Code, § 11370.9,
    subd. (e).) As noted, during settlement discussions, the prosecution told defendant it
    would drop the section 11370.9 charge if he would plead guilty to driving with a
    suspended license in violation of Vehicle Code section 14601 and stipulate to forfeiture
    of the $46,959 found in his car.
    Defendant repeatedly insisted that the prosecution had no case, the facts were in
    his favor, he was intelligent enough to represent himself, and he wanted to speak directly
    to the jury. Over the course of several months, despite the court’s repeated reminders at
    10 separate hearings that he had an absolute right to representation by counsel and the
    court’s repeated offer at each of those hearings to appoint a public defender to represent
    him at little or no cost to himself, defendant declined. The record abundantly shows
    defendant wanted to waive counsel, understood the essential risks, chose to do so, and
    would have chosen the same had the trial court specifically advised him about the
    maximum potential fine on conviction.17
    B.     Sufficiency of the Evidence
    Defendant next contends there is insufficient evidence to support his conviction
    under section 11370.9, subdivision (a). We disagree.
    When reviewing a challenge to the sufficiency of the evidence, we ask “ ‘whether,
    after viewing the evidence in the light most favorable to the prosecution, any rational trier
    17
    We do not address the question the parties raise about which side bears the
    burden of proof on a challenge to the validity of a Sixth Amendment waiver of counsel
    because we find that the record establishes a knowing and intelligent waiver regardless of
    where that burden lies.
    24
    of fact could have found the essential elements of the crime beyond a reasonable
    doubt.’ ” (People v. Edwards (2013) 
    57 Cal.4th 658
    , 715, quoting Jackson v. Virginia
    (1979) 
    443 U.S. 307
    , 319.) “In doing so, a reviewing court ‘presumes in support of the
    judgment the existence of every fact the trier could reasonably deduce from the
    evidence’ ” (Edwards, at p. 715) and “ ‘ “must accept logical inferences that the [jury]
    might have drawn from the circumstantial evidence.” [Citation.]’ ” (People v. Dealba
    (2015) 
    242 Cal.App.4th 1142
    , 1149). “Because the sufficiency of the evidence is
    ultimately a legal question, we must examine the record independently for ‘ “substantial
    evidence.” ’ ” (People v. Banks (2015) 
    61 Cal.4th 788
    , 804, quoting People v. Boyce,
    supra, 59 Cal.4th at p. 691.)
    Section 11370.9, subdivision (a) provides in pertinent part: “It is unlawful for any
    person knowingly to receive or acquire proceeds . . . known to be derived from any
    violation of [the California Uniform Controlled Substances Act (Health & Saf. Code,
    § 11000 et seq.) (Controlled Substances Act)] with the intent to conceal or disguise . . .
    the nature, location, ownership, control, or source of the proceeds or to avoid a
    transaction reporting requirement under state or federal law.” The word “proceeds,” as
    used in this section, means “property acquired or derived directly or indirectly from,
    produced through, or realized through any violation of [the Controlled Substances Act].”
    (Id., § 11370.9, subd. (h)(1).) Other statutes define “property” as including money. (See,
    e.g., Pen. Code, § 7; Code Civ. Proc., § 17.)
    In challenging the sufficiency of the evidence supporting his conviction under
    section 11370.9, subdivision (a), defendant does not dispute that he concealed money in
    the trunk of his car or that the money was connected to marijuana sales. Instead, he
    focuses on the element of intent, arguing it was not enough to show that he concealed the
    money found in his car, but that there must be evidence he intended to conceal an
    attribute of the money, for example, its nature or source, i.e., that it came from an
    unlawful drug transaction. In his opening brief, defendant cursorily contends, without
    citation to the record, that the court did not instruct the jury about this element of intent,
    and there was insufficient evidence he had such intent. We disagree on both points.
    25
    As an initial matter, the record reflects that the court did instruct the jury regarding
    that charge and, specifically, the element of intent. It told the jury: “To prove that the
    defendant is guilty of [violating section 11370.9], the People must prove that [he], one,
    knowingly received or acquired proceeds or engaged in a transaction including proceeds
    in excess of $25,000.[18] Two, knew the cash was derived from any violation of [the
    Controlled Substances Act]. And, three, had the intent to conceal, disguise or aid in
    concealing or disguising the nature, location, ownership, control or source of the
    proceeds or to avoid a transaction reporting requirement under state or federal law.”
    (Italics added.) The court also instructed the jury that this charge “requires specific
    intent. For you to find a person guilty of this crime, that person must not only
    intentionally commit the prohibited act but [also] must do so with the specific intent.”
    The prosecution covered the same point in its closing argument, telling the jury,
    “The second charge . . . is the money laundering. It is . . . section 11370.9. The
    defendant knowingly received or acquired proceeds or engaged in a transaction involving
    proceeds in excess of $25,000. He knew the cash was derived from any violation of the
    [Controlled Substances Act]. He had the intent to disguise or aid in concealing or
    disguising the nature, location, ownership[,] control[] or source of proceeds, or to avoid
    a transaction reporting requirement under state and federal law.” (Italics added.) Later
    the prosecution explained, “The intent to disguise or aid in concealing or disguising the
    nature, ownership, location or control or the source of the proceeds. Was he trying to
    conceal where he got those proceeds from[?]” (Italics added.) Discussing the evidence
    that defendant had unexplained sources of cash and admitted not having filed income tax
    returns for two years, the prosecution also said, “And you can ask yourself as [to]
    someone who is accumulating all these funds who hasn’t been paying his taxes, is he
    trying to avoid detection and avoiding taxes[?]”
    18
    See section 11370.9, subdivision (f) [“This section shall apply only to a
    transaction, or series of related transactions within a 30-day period, involving over
    twenty-five thousand dollars ($25,000) . . . .”].
    26
    We also disagree with defendant’s contention that there was insufficient evidence
    he intended to conceal the nature or source of the money, i.e., that it was derived from
    unlawful marijuana sales. In his opening papers, defendant presented only a brief
    argument on this point, relying largely on Cuellar v. United States (2008) 
    553 U.S. 550
    (Cuellar) for the proposition that hiding money while transporting it does not alone
    suffice to establish the requisite intent. Defendant did not actually discuss the evidence
    in his opening brief, nor did he fully explain his legal argument until his reply brief. In it,
    he argued for the first time that the record contained no evidence that he intended when
    he received the money to conceal its nature (drug money) or its source (unlawful drug
    sales). “As a general proposition, points raised for the first time in a reply brief will not
    be considered unless good reason is shown for failure to present them earlier.” (People v.
    Whitney (2005) 
    129 Cal.App.4th 1287
    , 1298.) Despite defendant’s failure to fully
    develop his argument in his opening brief, we will address the merits.
    We begin with Cuellar. Although the case involved an analogous federal money-
    laundering statute, the proposition for which defendant cites it relied on statutory
    language not included in section 11370.9. Cuellar involved an alleged violation of
    
    18 U.S.C. § 1956
    (a)(2)(B)(i) which, among other things, makes it a crime to “transport”
    money from unlawful drug sales out of the country knowing the transportation itself is
    designed to conceal the nature, location, source, ownership, or control of the money.
    (Cuellar, 
    supra,
     553 U.S. at p. 557 & fn. 2, quoting 
    18 U.S.C. § 1956
    (a)(2)(B)(i).)19 The
    defendant in Cuellar was arrested driving toward the border between the United States
    19
    See 
    18 U.S.C. § 1956
    (a)(2) [“Whoever transports, transmits, or transfers, or
    attempts to transport, transmit, or transfer a monetary instrument or funds from a place in
    the United States to or through a place outside the United States or to a place in the
    United States from or through a place outside the United States—[¶] . . . . [¶]
    (B) knowing that the monetary instrument or funds involved in the transportation,
    transmission, or transfer represent the proceeds of some form of unlawful activity and
    knowing that such transportation, transmission, or transfer is designed in whole or in
    part—[¶] (i) to conceal or disguise the nature, the location, the source, the ownership, or
    the control of the proceeds of specified unlawful activity . . . [¶] . . . . [¶] shall be
    sentenced to a fine . . . or imprisonment”].
    27
    and Mexico with $81,000 in cash, bundled in plastic bags, concealed in a secret
    compartment in his car. (Cuellar, at p. 554.) While acknowledging that “secretively
    transporting” the money suggested that the defendant wanted to conceal the money, the
    court concluded that this fact alone did not establish that the defendant engaged in the
    predicate act, transporting the money, with the purpose of concealing one of the money’s
    attributes (e.g., its source (unlawful drug sales)). (Id. at pp. 565-566.) In fact, to the
    contrary, the court observed, the only evidence offered about the purpose of the act
    (transporting the money) indicated the goal was to move the money back to Mexico to
    compensate leaders of the smuggling operation. (Id. at pp. 566-567.)
    Under section 11370.9, subdivision (a), in contrast, the concealment prong
    required proof that defendant performed a different predicate act, receiving the money,
    with the intent to conceal one of the money’s attributes. While, as Cuellar indicated, the
    manner in which money is transported may be weak evidence of the purpose of the
    transportation (Cuellar, supra, 553 U.S. at p. 566), it may be stronger circumstantial
    evidence of the intent with which it was received. An ordinary person might reasonably
    hide a large sum of money from public view to avoid theft, possibly going so far as to
    stuff the money up a pant leg in a suitcase in a car trunk while transporting it, but this
    innocent purpose would not necessitate also separating the money into 10 individually
    sealed packs and enclosing them in a heat-sealed plastic parcel.
    Defendant maintains the manner in which the money was hidden says nothing
    about the circumstances or intent when it was acquired. We disagree. “ ‘ “[T]he element
    of intent is rarely susceptible of direct proof and must usually be inferred from all the
    facts and circumstances disclosed by the evidence.” [Citations.]’ ” (People v. Lopez
    (2015) 
    240 Cal.App.4th 436
    , 454.) A jury may find a defendant’s intent in undertaking a
    particular action from his conduct after the action. (People v. Edwards, supra, 57 Cal.4th
    at p. 719.) In this case, four law enforcement officers from three different agencies
    testified that defendant’s car smelled strongly of marijuana when he was stopped. One
    officer saw $5 bills lying in various locations inside the car, and three officers saw small
    particles they recognized as marijuana . Based on this evidence, a rational jury could
    28
    have concluded defendant wrapped the money himself while in his car after unlawfully
    selling marijuana.
    Detective Londo provided expert testimony, and numerous federal courts have
    observed, that wrapping and sealing money in materials similar to those used to store the
    money found in defendant’s car is a technique commonly employed to conceal the smell
    of drugs and avoid detection by drug dogs. (See, e.g., United States v. $42,500.00 U.S.
    Currency (9th Cir. 2002) 
    283 F.3d 977
    , 982 [“Unlike a purse or money pouch, cellophane
    is not a normal repository for carrying large amounts of money”]; United States v.
    Burkley (10th Cir. 2008) 
    513 F.3d 1183
    , 1189 [vacuum-sealed bags]; United States v.
    $84,615 U.S. Currency (8th Cir. 2004) 
    379 F.3d 496
    , 501-502 [same]; United States v.
    $242,484.00 U.S. Currency (11th Cir. 2004) 
    389 F.3d 1149
    , 1162 [cellophane-type
    material]; see also, e.g., People v. Miranda (2008) 
    161 Cal.App.4th 98
    , 104 [equating
    plastic and cellophane]; Merriam-Webster Dict. (Jan. 11, 2017) ) http://www.merriam-
    webster.com/cellophane [defining cellophane as “thin transparent sheets used especially
    for packaging].) “[W]here the consequences of an action are commonly known, a trier of
    fact will often infer that the person taking the action knew what the consequences would
    be and acted with the purpose of bringing them about.” (Cuellar, supra, 553 U.S. at
    p. 567 & fn. 8.) Here a rational jury could have concluded defendant wrapped the money
    with the intent to conceal the smell of marijuana and, by extension, avoid detection by
    drug dogs, concealing the nature and source of the money as derived from unlawful
    marijuana sales.
    Even if this were not the case, there was sufficient evidence to support the verdict
    on the alternative ground that defendant knowingly received money he knew derived
    from any unlawful marijuana sales “with the intent . . . to avoid a transaction reporting
    requirement under state or federal law.” (Health & Saf. Code, § 11370.9, subd. (a),
    italics added.) Defendant did not dispute the sufficiency of the evidence on this point in
    his opening brief, although he belatedly attempted to do so in his reply. “It is axiomatic
    that arguments made for the first time in a reply brief will not be entertained because of
    29
    the unfairness to the other party.” (People v. Tully (2012) 
    54 Cal.4th 952
    , 1075.) Even if
    this were not the case, however, we conclude there was sufficient evidence.
    Defendant undisputedly received and spent large sums of cash. When he was
    stopped in his car, he had receipts for electronic money transfers totaling $1,900, receipts
    for other large cash purchases, a cashier’s check for $5,000, and $46,959 in cash. He had
    made a deposit of $20,000 in cash for the Mercedes he was driving and he made another
    deposit of $10,000 in cash for a new Jeep shortly after the police stopped him. Detective
    Londo testified as an expert that electronic money transfers often are used in the drug
    trade to avoid creating a record or paper trail of sales transactions and that cash purchases
    achieve the same effect. Although defendant told the police he owned an ATM business,
    and records indicated he made other cash deposits to his bank account over the preceding
    two years totaling $113,000, he told police officers he had not filed tax returns in the
    same period and the police could find no evidence he owned a legitimate business. The
    prosecution argued at trial that defendant received money—including that found in his
    car—intending to avoid reporting and paying taxes on the income. A rational jury could
    have inferred from all the evidence that defendant purposely used cash, electronic money
    transfers, and cashier’s checks to avoid creating a paper trail that would require him to
    report and pay taxes on income derived from unlawful marijuana sales, including the
    money found in his car. (See, e.g., Spies v. United States (1943) 
    317 U.S. 492
    , 499-500
    [extensive use of cash may be considered evidence of intent to avoid proper reporting of
    taxable income]; United States v. Stierhoff (1st Cir. 2008) 
    549 F.3d 19
    , 26-27 [regularly
    conducting business in cash, using untraceable money orders, and earning substantial
    income over multiple years without reporting it may be evidence of intent to evade
    taxes].)
    C.     Health and Safety Code section 11370.9, subdivision (a)
    Defendant next takes issue with the prosecution’s theory of the case, for the first
    time on appeal contending he may not be convicted of money laundering under
    section 11370.9 if the claim is that he acquired the money in question by unlawfully
    selling the marijuana himself. Relying almost entirely on United States v. Santos (2008)
    30
    
    553 U.S. 507
     (Santos), which interpreted a federal money-laundering statute, he makes a
    cursory argument that the California Legislature cannot have intended section 11370.9 to
    criminalize conduct it had duly considered and appropriately punished in another law. A
    person who acquires money directly from buyers through unlawful drug sales, he
    suggests, can only be charged, if at all, with violation of the law prohibiting the sale and
    not with any subsequent action to conceal the proceeds.
    Although “we may consider a new theory presented for the first time on appeal if
    it presents a question of law arising from undisputed facts” (People v. Smith (2014)
    
    227 Cal.App.4th 717
    , 727, citing People v. Butler (1980) 
    105 Cal.App.3d 585
    , 588), we
    are not persuaded by this argument. As an initial matter, we note “ ‘[i]t is axiomatic the
    Legislature may criminalize the same conduct in different ways.’ ” (People v. Chenze
    (2002) 
    97 Cal.App.4th 521
    , 528, quoting People v. Superior Court (Caswell) (1986)
    
    46 Cal.3d 381
    , 395.) In People v. Benavides (2005) 
    35 Cal.4th 69
    , for example, the court
    observed that the same conduct may be charged alternatively as lewd conduct, rape, or
    sodomy. (Id. at p. 97; see also id. at p. 99 [“the rape or sodomy and lewd conduct, while
    based upon the same conduct, were not the same crime[]”]; see also, e.g., People v.
    Vargas (2014) 
    59 Cal.4th 635
    , 645 [a defendant may be charged with robbery and
    carjacking based on the same act, forcibly taking a victim’s car]; Pen. Code, § 215,
    subd. (c) [authorizing same].) “ ‘[W]hen an act violates more than one criminal statute,
    the Government may prosecute under either so long as it does not discriminate against
    any class of defendants.’ ” (People v. Villegas (2001) 
    92 Cal.App.4th 1217
    , 1229,
    quoting United States v. Batchelder (1979) 
    442 U.S. 114
    , 123-124 (Batchelder).)
    Although analysis of any claim regarding legislative intent must “begin with the
    plain language of the statute” (People v. Watson (2007) 
    42 Cal.4th 822
    , 828 [the statutory
    language “generally is the most reliable indicator of legislative intent”]), defendant does
    not discuss or acknowledge the expansive language of section 11370.9, subdivision (a).
    Without limitation, the provision expressly applies to “any person [who] knowingly . . .
    receive[s] or acquire[s] proceeds . . . known to be derived from any violation of [the
    Controlled Substances Act] with the intent to conceal” a specified attribute of the
    31
    proceeds or “to avoid a transaction reporting requirement.” (Health & Saf. Code,
    § 11370.9, subd. (a), italics added.) The provision does not contain any language limiting
    its application to those who were not directly involved in a violation of the Controlled
    Substances Act. As it is our job “ ‘to ascertain and declare what is in terms or in
    substance contained in the provision, not to insert what has been omitted’ ” (People v.
    Roach (2016) 
    247 Cal.App.4th 178
    , 183, citing Code Civ. Proc., § 1858), we cannot add
    an exception that was not included. (See, e.g., Blakely v. Superior Court (2010)
    
    182 Cal.App.4th 1445
    , 1454 [The Legislature knows how to create a statutory exception
    when it wants one].)
    Defendant’s argument regarding legislative intent is further undercut by the
    definition of “proceeds” found in subdivision (h)(1) of the same statute. As previously
    noted, it defines “proceeds” as “property acquired or derived directly or indirectly from,
    produced through, or realized through any violation of [the Controlled Substances Act].”
    (Health & Saf. Code, § 11370.9, subd. (h)(1), italics added.) The definition itself
    specifically includes money directly acquired through a violation of the act. This
    supports the conclusion that the Legislature intended that a person who commits the
    offense of an unlawful marijuana sale may be charged with violating section 11370.9,
    subdivision (a) if there is evidence of the requisite intent. Defendant’s arguments to the
    contrary in his reply brief based on authority construing a different federal law are
    unpersuasive.
    Santos does not require otherwise. Unlike here, the defendant in that case had
    been charged and convicted of both money laundering and the predicate offense, running
    an illegal lottery. (Santos, 
    supra,
     553 U.S. at pp. 509-510.) The federal money-
    laundering statute made it a crime to use “proceeds” from an unlawful activity in
    transactions intended to promote specified criminal pursuits. (Id. at pp. 510-511, quoting
    
    18 U.S.C. § 1956
    (a)(1)(A)(i).) The defendant sought postconviction relief, contending
    there was no evidence of money laundering, applying a narrow interpretation to the word
    “proceeds.” (Santos, at p. 510.) He maintained Congress must have intended the word to
    refer to profits obtained from an unlawful activity, not the gross receipts. (Ibid.)
    32
    Applying the rule of lenity and adopting an interpretation favoring the defense, a
    majority of the court agreed, where the predicate offense involved a gambling operation,
    affirming an order vacating the conviction (Santos, supra, 553 U.S. at pp. 510, 519 (plur.
    opn. of Scalia, J.); id., at p. 528 (conc. opn. of Stevens, J.)), although Justice Stevens,
    writing separately, concluded “proceeds” could mean either profits or receipts depending
    on the predicate offense. (Id. at pp. 524-528 (conc. opn. of Stevens, J.).) In reaching its
    decision, the plurality reasoned in part that the alternative interpretation—construing
    “proceeds” as receipts—meant “nearly every violation of the illegal-lottery statute would
    also be a violation of the money-laundering statute, because paying a winning bettor is a
    transaction involving receipts that the defendant intends to promote the carrying on of the
    [illegal] lottery.” (Santos, at pp. 515-516.) In other contexts, however, the court has
    determined Congress purposely intended to enact overlapping statutes, allowing
    prosecutors discretion in selecting which to charge. (Batchelder, supra, 442 U.S. at
    pp. 119-121 [The statutory language, structure, and legislative history reflect that
    “Congress intended to enact two independent gun control statutes” prohibiting convicted
    felons from receiving firearms].)
    Significantly, in Santos the court looked beyond the statutory language to consider
    the consequences of the alternative interpretations only after determining the word
    “proceeds” was “truly ambiguous.” (Santos, supra, 553 U.S. at pp. 511-512; see id. at
    p. 519 [“We interpret ambiguous criminal statutes in favor of defendants”] italics added.)
    In other instances, however, where “ ‘Congress has conveyed its purpose clearly,” the
    court has “ ‘decline[d] to manufacture ambiguity where none exists.’ ” (Batchelder,
    
    supra,
     442 U.S. at p. 122 [Where the defendant “unquestionably” violated a law allowing
    five years’ imprisonment, the fact that another statute permits a term of no more than two
    years for the same conduct “is no justification for taking liberties with unequivocal
    statutory language”].) Section 11370.9, subdivision (a) unequivocally applies to “any
    person” who acquires money, “directly or indirectly,” from a violation of the Controlled
    Substances Act, with intent to conceal or avoid a transaction reporting requirement.
    There is no ambiguity in the statute’s plain language.
    33
    The reasoning in Santos also does not apply because, in determining legislative
    intent, it relied in part on the significant difference between the maximum punishment for
    money laundering and the maximum punishment for operating an illegal lottery under
    federal law. As the court observed, a defendant convicted under the former could be
    incarcerated for up to 20 years, while under the latter the maximum sentence would be
    just five years. (Santos, supra, 553 U.S. at p. 516, citing 
    18 U.S.C. §§ 1955
    (a),
    1956(a)(1).) The court questioned whether Congress would have wanted to “radically
    increase” the sentence for the predicate offense in this manner. (Santos, at pp. 517 (plur.
    opn. of Scalia, J.); id. at p. 526 (conc. opn. of Stevens, J).) In contrast, the maximum
    sentence for a violation of section 11370.9, subdivision (a) is four years, while the
    maximum sentence for an unlawful sale of marijuana is three years. (Health & Saf.
    Code, §§ 11359-11360; Pen. Code, § 1170, subd. (h).)
    For the foregoing reasons, we reject defendant’s argument that his conviction
    under section 11370.9, subdivision (a) should be reversed because the Legislature did not
    intend the provision to apply to a person who acquired proceeds directly by unlawfully
    selling marijuana.
    D.     Jury Instructions
    Defendant offers a final argument that his conviction under section 11370.9,
    subdivision (a) must be reversed because the trial court prejudicially erred in failing to
    adequately instruct the jury on all elements of the offense. The court did instruct the jury
    on the elements from that provision, explaining that conviction under section 11370.9
    required proof defendant (1) “knowingly received or acquired proceeds,” (2) “knew the
    cash was derived from any violation of California’s Uniform Controlled Substances Act,”
    and (3) “had the intent to conceal” specified attributes of the money or avoid a
    transaction reporting requirement. It also instructed that possession for sale of marijuana
    was an example of a violation of the Controlled Substances Act. Defendant contends,
    however, that the court also had a duty sua sponte to tell the jury the elements of the
    specific violation of the Controlled Substances Act from which the prosecution claimed
    the money found in his car trunk was derived, i.e., unlawful sale of marijuana.
    34
    In his opening brief, defendant presents the barest of arguments on this point,
    citing two cases for the general propositions that “a jury must be properly instructed on
    the relevant law” (McDowell v. Calderon (9th Cir. 1997) 
    130 F.3d 833
    , 836, overruled in
    part on other grounds by Weeks v. Angelone (2000) 
    528 U.S. 225
    ), and a court must
    ensure adequate instruction “on the law governing all elements of the case . . . to the
    extent necessary for a proper determination.” (People v. Iverson (1972) 
    26 Cal.App.3d 598
    , 604-605, disapproved on other grounds in In re Earley (1975) 
    14 Cal.3d 122
    , 130,
    fn. 11.) He does not attempt to apply these general principles or explain why they
    compel the conclusion that the court had a duty sua sponte to instruct on the elements of
    an uncharged violation of the Controlled Substances Act.20
    Although no court as yet has discussed section 11370.9, subdivision (a) or the
    requirements for proving a violation, defendant does not attempt to fill that void by
    examining case law involving analogous statutes, for example, other federal or state
    money-laundering statutes containing a similar knowledge requirement (see, e.g.,
    
    18 U.S.C. § 1956
    (a)(1) [A defendant must “know[] . . . the property involved . . .
    represents the proceeds of some form of unlawful activity”]; Pen. Code, § 186.10,
    subd. (a) [A defendant must “know[] that the monetary instrument represents the
    proceeds of . . . criminal activity”]), or statutes criminalizing conduct involving
    commission of an uncharged felony. (See, e.g., Pen. Code, § 32 [It is a crime, “after a
    felony has been committed,” to harbor, conceal, or aid “a principal in such felony”].) As
    the California Supreme Court has observed, however, “ ‘[e]very brief should contain a
    legal argument with citation of authorities on the points made. If none is furnished on a
    particular point, the court may treat it as waived, and pass it without consideration.’ ”
    (People v. Stanley (1995) 
    10 Cal.4th 764
    , 793.) Defendant’s submission in support of his
    argument about instructional error is so conclusory and lacking in substantive analysis
    20
    Continuing a pattern, defendant better explains his argument in his reply brief,
    and provides more case law, but none of that authority focuses on precisely the point
    defendant attempts to make here.
    35
    that it risks being dismissed as waived. The People follow suit, presenting a cursory
    response on the merits, suggesting defendant’s failure to request clarifying or amplifying
    language in the instruction means he forfeited it. Nonetheless, we consider the merits of
    the issues the parties have sketched.
    As an initial point, we agree a “trial court must instruct the jury on all elements of
    the charged offenses.” (People v. Mays (2007) 
    148 Cal.App.4th 13
    , 36 (Mays), citing
    People v. Flood (1998) 
    18 Cal.4th 470
    , 480; see, e.g., People v. Hillhouse (2002)
    
    27 Cal.4th 469
    , 503 [“Instructions regarding the elements of the crime affect the
    substantial rights of the defendant, thus requiring no objection for appellate review”].) A
    party may not argue on appeal, however, “that an instruction correct in law was too
    general or incomplete, and thus needed clarification, without first requesting such
    clarification at trial.” (Hillhouse, at p. 503.) The question then is whether the elements
    of the offense—violation of section 11370.9, subdivision (a)—included the elements of
    the uncharged violation of the Controlled Substances Act from which the proceeds are
    alleged to have been derived, creating a sua sponte duty of the court to instruct the jury
    on the latter.21
    Confronting a similar question in United States v. Martinelli (11th Cir. 2006)
    
    454 F.3d 1300
    , that court answered in the negative. The defendant in that case was
    charged with conspiring to launder money in violation of 18 U.S.C. section 1956(a)(1).
    The provision makes it a crime to knowingly attempt to conduct a financial transaction
    that involves the proceeds of a “specified unlawful activity,” knowing the transaction is
    designed to conceal an attribute of the proceeds. (
    18 U.S.C. § 1956
    (a)(1)(B)(i); see 
    id.,
    § 1956(c)(7) [defining “specified unlawful activity” as including a long list of crimes].)
    The defendant there contended the lower court erred by failing to instruct the jury on the
    basic elements of mail fraud, the uncharged “specified unlawful activity” underlying the
    alleged money-laundering conspiracy in question, arguing that mail fraud was a “ ‘core
    21
    Defendant does not contend that he objected to the jury instruction below as
    incorrect or incomplete, or that he requested an additional instruction.
    36
    element of the offense.’ ” (Martinelli, at p. 1310.) The Eleventh Circuit rejected the
    argument, reasoning that the defendant “was not charged with mail fraud and the
    government did not have to prove he committed mail fraud to convict him of conspiring
    to launder money.” (Id. at p. 1311.) “In fact,” it continued, “the government did not
    have to prove any of [the] elements [of mail fraud]; [the defendant] simply had to know
    the funds were derived from the specified unlawful activity of mail fraud.” (Ibid.)
    In an analogous case, People v. Shields (1990) 
    222 Cal.App.3d 1
     (Shields), a
    California Court of Appeal reached a similar conclusion. The defendant there was
    convicted of being an accessory to murder after the fact and claimed instructional error.
    (Id. at p. 3.) Although the jury had been instructed on the elements of accessory to a
    felony, and the felony was identified as murder, the instruction did not include the
    elements of murder. (Id. at p. 4.) Observing that it found no cases concluding that a trial
    court had a sua sponte duty to include the elements of the uncharged felony (murder)
    when instructing on the charge of accessory, the court considered several analogous cases
    involving charges of assault likely to produce great bodily injury. (Id. at pp. 4-5, citing
    People v. Miller (1981) 
    120 Cal.App.3d 233
    , 236; People v. Kimbrel (1981)
    
    120 Cal.App.3d 869
    , 876; People v. Roberts (1981) 
    114 Cal.App.3d 960
    , 964-966.) In
    three of those cases, the courts had concluded a sua sponte instruction defining “great
    bodily injury” was not required. (Shields, at p. 5.) In the fourth case, “the court found
    that it was unnecessary to amplify the definition of great bodily injury that was given to
    include specific examples.” (Ibid., citing People v. La Fargue (1983) 
    147 Cal.App.3d 878
    , 886.) Shields found these cases persuasive. (Shields, supra, 222 Cal.App.3d at
    p. 5.) Turning to the charge of accessory, it reasoned, “All that was needed was proof
    that a felony had been committed.” (Ibid.) Defining that felony in the instruction as
    murder sufficed as “the jury was not required to find a technical first degree murder in
    order to convict defendant of being an accessory to a felony.” (Ibid.)
    More generally, courts have agreed that “[t]he statutory language defining a crime
    ‘is generally an appropriate and desirable basis for an instruction . . . . If the jury would
    have no difficulty in understanding the statute without guidance, the [trial] court need do
    37
    no more than instruct in statutory language.’ ” (Mays, supra, 148 Cal.App.4th at p. 36,
    quoting People v. Poggi (1988) 
    45 Cal.3d 306
    , 327.) “ ‘[T]erms are held to require
    clarification by the trial court when their statutory definition differs from the meaning
    that might be ascribed to the same terms in common parlance.’ ” (Mays, at p. 36, quoting
    People v. Estrada (1995) 
    11 Cal.4th 568
    , 574-575.)
    In this case, the trial court instructed the jury in the statutory language of
    section 11370.9, subdivision (a). On the second element—knowing the money he
    received or acquired was derived from a violation of the Controlled Substances Act—the
    court instructed that possession for sale of marijuana was an example of such a violation.
    The prosecution suggested an unlawful sale of marijuana was another example, arguing
    that the evidence showed defendant had acquired the money by conducting a sale
    himself. The offense of unlawfully selling marijuana includes just two elements—“(a) a
    sale of marijuana and (b) knowledge of the character of the substance sold.” (People v.
    Van Alstyne (1975) 
    46 Cal.App.3d 900
    , 906; see CALCRIM No. 2350, citing Van
    Alstyne, at p. 906.) This is not a technical or peculiar legal definition, and there is no
    suggestion in the record the jury was confused on this issue. Nor does defendant argue
    the jury actually was misled.
    Although in People v. Magee (2003) 
    107 Cal.App.4th 188
    , another Court of
    Appeal disagreed with Shields, supra, 
    222 Cal.App.3d 1
     about the need to include
    instruction on the elements of the felony to which a defendant is charged with being an
    accessory, the alleged felony in Magee was robbery and the elements of robbery are more
    complex. (Magee, at pp. 191-193; see, e.g., People v. Clark (2011) 
    52 Cal.4th 856
    , 943
    [“Robbery is the taking of ‘personal property in the possession of another against the will
    and from the person or immediate presence of that person accomplished by means of
    force or fear and with the specific intent permanently to deprive such person of such
    property”].) In concluding that the trial court there had a duty to instruct on the elements
    of robbery, Magee reasoned that the jury otherwise “[would] not know the facts the
    prosecution must prove to establish the underlying felony” and would be left “to guess or
    speculate.” (Magee, at pp. 192-193.) In this case, in contrast, we think the jury easily
    38
    would have understood what possession for sale or sale of marijuana entailed, without
    specific instruction.
    Even if the court did have a sua sponte duty to instruct on the elements of an
    unlawful sale of marijuana, however, we conclude the omission in this case qualified as
    harmless error. (See, e.g., People v. Gonzalez (2012) 
    54 Cal.4th 643
    , 666 [harmless error
    test applies for instruction that erroneously omitted element of offense].) In this context,
    a demonstration of harmless error requires “proof beyond a reasonable doubt that a
    rational jury would have found the defendant guilty absent the error.” (Ibid., citing
    Neder, 
    supra,
     527 U.S. at p. 18.) Where, for example, a defendant contests the omitted
    element “and raised evidence sufficient to support a contrary finding,” a court should not
    find the error harmless. (People v. Mil, supra, 53 Cal.4th at p. 417.)
    Here, as noted, four law enforcement officers from three different agencies
    testified defendant’s car smelled strongly of marijuana when he was stopped. Three
    officers saw small particles in the car that they recognized as marijuana. A trained
    narcotics dog known to be highly accurate signaled that he detected the smell of a
    controlled substance in defendant’s car, at the lid of the car’s trunk, and on the cash
    ($46,959) concealed there. The money was found in packaging that an expert testified,
    and numerous federal courts have observed, is commonly used to conceal the smell of
    drugs and avoid detection by drug dogs. (See, e.g., United States v. $42,500.00 U.S.
    Currency, supra, 283 F.3d at p. 982 [“Unlike a purse or money pouch, cellophane is not a
    normal repository for carrying large amounts of money”].) The defendant admitted to a
    police officer he had touched marijuana earlier in the day.
    When stopped, defendant’s car contained a shopping list for gardening supplies,
    and a receipt for the purchase of wood, part of a gate, and a privacy lattice that could be
    used to conceal a tall outside marijuana grow. It also contained a legal pad with
    notations, such as “SD” and a number, which an expert testified was common drug
    sellers’ shorthand for tracking sales of particular marijuana strains, including “Sour
    Diesel.” Defendant gave the police conflicting and unsupported explanations of the
    source of the cash found in his car, first maintaining it came from his ATM business and
    39
    later suggesting it was a gift from his mother. No documentation or testimony was
    offered at trial to confirm either explanation, and a narcotics detective testified he could
    find no record with the State Board of Equalization or on the Internet indicating the ATM
    business existed.
    Although defendant told the police he kept the $46,959 in cash with him in his car
    to ensure its safety, he did use a bank account to hold other cash deposits totaling
    $113,000. No evidence was offered to explain defendant’s different handling of these
    cash amounts. Evidence was presented, however, that defendant used electronic money
    transfers and cash for large purchases, a practice that an expert testified had the effect of
    avoiding a paper trail indicating the money’s source. Despite defendant’s claims that he
    operated an ATM business and evidence that he received and deposited at least $113,000
    in cash over the course of the preceding two years, defendant told the police he had not
    filed tax returns in that period. Based on all of this evidence, an expert in the
    identification, sales, and distribution of controlled substances concluded defendant
    acquired the $46,959 found in his car from marijuana sales. (See, e.g., People v. $47,050
    (1993) 
    17 Cal.App.4th 1319
    , 1325 [“[A]n expert’s opinion on an ultimate issue of fact is
    admissible, and may constitute substantial evidence”].)
    In People v. Mitchell (1994) 
    30 Cal.App.4th 783
    , the Court of Appeal found less
    evidence—a trained narcotics dog alerting to money in defendant’s possession,
    packaging of the money in a manner used by collectors of drug proceeds, untruthfulness
    about the money’s source, and expert testimony—was “ample” to prove beyond a
    reasonable doubt the defendant there knowingly acquired the money from a violation of
    the Controlled Substances Act. (Id. at pp. 803-804.)22 We conclude that the evidence in
    this case proved beyond a reasonable doubt that if the trial court had included instruction
    on the elements of an unlawful sale of marijuana, it would not have altered the jury’s
    22
    In that case, the defendant was charged with knowingly possessing over
    $100,000 obtained from drug sales in violation of Health and Safety Code
    section 11370.6. (People v. Mitchell, supra, 30 Cal.App.4th at pp. 790, 800.)
    40
    verdict. A rational jury would have concluded defendant knew the money discovered in
    his car came from the unlawful sale of marijuana.
    We have reviewed the record to determine whether it “ ‘contains evidence that
    could rationally lead to a contrary finding with respect to the omitted element’ ” of
    knowing the money in question derived from violation of the Controlled Substances Act.
    (People v. Gonzalez, 
    supra,
     54 Cal.4th at p. 1261, quoting Neder, 
    supra,
     527 U.S. at
    p. 19.) We have concluded no rational juror could find defendant lacked such
    knowledge. Attempting to avoid this conclusion, defendant cites only the statements he
    made to the police that the money came from a legitimate ATM business. No evidence
    was offered indicating such a business actually existed, however, and defendant does not
    dispute he also provided a contradictory explanation that his mother gave him the money.
    (See, e.g., People v. Player (1958) 
    161 Cal.App.2d 360
    , 362 [“Inconsistent statements
    relevant to the crime charged . . . . tend[] to show a consciousness of guilt”]; People v.
    Carrillo (1995) 
    37 Cal.App.4th 1662
    , 1669-1670 [evidence of false exculpatory
    statements “suggest that there is no honest explanation for incriminating
    circumstances”].) Even if the trial court erred in not instructing the jury on the elements
    of an unlawful sale of marijuana, it was harmless error.
    III. DISPOSITION
    The judgment is affirmed.
    _________________________
    Rivera, J.
    We concur:
    _________________________
    Ruvolo, P.J.
    _________________________
    Streeter, J.
    41
    Trial Court:              Solano County Superior Court
    Trial Judge:              Honorable Gary A. Medvigy
    Counsel for Appellant:    Walter K. Pyle, under appointment by the First District
    Appellate Project
    Counsel for Respondent:   Kamala D. Harris, Attorney General, Gerald A. Engler,
    Chief Assistant Attorney General, Jeffrey M. Laurence,
    Acting Senior Assistant Attorney General, Catherine A.
    Rivlin, Supervising Deputy Attorney General, Allan
    Yannow, Deputy Attorney General
    42