Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA327722 Frederick N. Wapner, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Timothy Brevard appeals from the judgment entered after his conviction by a jury on one count of transportation of cocaine base and one count of possession of cocaine base for sale. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the late afternoon of August 17, 2007 Los Angeles Police Detective Erik Armstrong and between 15 and 20 additional officers served a search warrant at a residence located on East 36th Street in Los Angeles. Approximately 20 minutes before the search was executed, Officer Brian Cooney, wearing plain clothes and driving an unmarked vehicle, drove past the residence and parked a block away in a position to observe the property. Shortly after Officer Cooney parked, Brevard drove a black Cadillac past the residence toward Officer Cooney and parked on the corner of a side street not far from him. Officer Cooney observed Brevard, whom he recognized from a previous arrest, insert something into the interior headliner of the car’s roof above the driver’s seat. Brevard then walked to a blue van parked across the street. According to Officer Cooney, Brevard held two small, cloth packages in one hand and unlocked the driver’s door of the van with his other hand. He leaned into the van and inserted the two packages into the interior headliner of the van’s roof, again above the driver’s seat. He locked the van, walked back to the Cadillac and tossed a set of keys through the car’s open window. He then walked to the residence and entered through the gate.
After the police entered the property, they found 10 to 12 men, including Brevard, standing in an interior courtyard between the front house and a second house located on the property. The men were handcuffed, and the houses searched. Detective Armstrong approached Brevard and told another officer standing nearby the blue van belonged to Brevard. Brevard denied the van belonged to him and told Armstrong he had arrived in the Cadillac parked around the corner. Armstrong asked if he could search the Cadillac; and Brevard answered, “Go ahead. The keys to the Cadillac are in my pocket.” Another officer took the keys from Brevard’s pocket and searched the Cadillac. The officer recovered a clear plastic bag containing 4.34 grams of cocaine base from the lining of the roof of the Cadillac. He also found a key ring with a number of keys in the center console area of the Cadillac. Detective Armstrong opened the van using these keys. The van was registered to Perry Brevard at an address in Los Angeles. A search of the van revealed two socks hidden in the ceiling of the van next to the windshield. One sock contained 17 pieces of individually wrapped cocaine base with a total net weight of 118.3 grams. The other sock contained a loaded, nine-millimeter semi-automatic handgun.
Detective Armstrong was familiar with the van because he had arrested Brevard some months earlier on another drug-related charge. Following that arrest, Brevard had pleaded guilty to a violation of Health and Safety Code section 11379.6, subdivision (a) (manufacture of a controlled substance). Brevard posted bail and was released from custody pending sentencing. At the time of this incident he was still awaiting sentencing on the earlier drug charge.
Brevard was charged in an amended information with transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). It was further alleged as to the first two counts Brevard had been personally armed with a firearm (Pen. Code, § 12022, subd. (c)) and as to all counts he had been released from custody on bail at the time of the offenses (Pen. Code, § 12022.1).
During jury selection, after the prosecutor used a peremptory challenge to exclude the third of three African Americans in the venire, Brevard’s counsel objected to the challenge as racially biased. The court denied the defense’s Wheeler motion for lack of prima facie evidence of discrimination but directed the prosecutor to state the reasons for his challenge on the record. He did so, explaining the proposed juror had seemed troubled by a friend’s complaint he had been stopped by the police while driving because he was Black. The court found the prosecutor’s statement to be sincere and reaffirmed the finding the defense had failed to establish a prima facie case of racial bias.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in party by Johnson v. Californai (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.#d.2d 127]; Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69].
Both Detective Armstrong and Officer Cooney testified at trial about the execution of the search warrant and Brevard’s actions in hiding the items in the ceiling liners of the two vehicles. In addition, Detective Armstrong opined the amount of cocaine base found in each vehicle was capable of being used in multiple doses and was consistent with possession for sale.
The defense called two witnesses. Marvin Henson, a longtime friend of Brevard’s, testified he saw Brevard drive past the house in the black Cadillac and then walk back to the house a few minutes later. He and Brevard were together with a number of other men in the courtyard behind the house when the police entered. The officers searched the men and used the keys they took to open car doors along the street. The officers did not secure permission from Henson before searching his car. After the arrest, Henson saw an officer drive past the house in Brevard’s Cadillac, and another driving the blue van. The officer in the blue van flaunted the gun and package retrieved from the van before driving away. Elisa Vazquez also testified for the defense. She had been sitting on her front porch with her parents when Brevard parked his car at a nearby corner and walked toward the house targeted by the police. She had previously seen him in the neighborhood and had spoken to him as he walked by. According to Vazquez, the blue van, driven by a man she did not know, arrived after the police had entered the house.
The defense had also intended to call a third witness from the neighborhood, Juan Madrigal. Although a process server was prepared to testify she had personally served Madrigal with a subpoena, Madrigal called Brevard’s counsel to inform him the process server had mistakenly served his son with the subpoena and he was in Las Vegas with no plans to return before the end of the week. Brevard’s counsel, believing Madrigal was reluctant to testify, asked the court to issue a body warrant for the witness. As he represented to the court, Madrigal would testify there had been no vehicle parked in the red zone on the corner where Officer Cooney claimed Brevard’s Cadillac had been parked. Madrigal had been standing outside of his house when the police arrived and had watched as the police searched the vehicles along the street.
As requested, the court issued a body warrant for Madrigal but advised Brevard’s counsel it would not continue the trial if Madrigal did not appear before all other evidence had been presented. Defense counsel attempted again to locate Madrigal at his home that evening but failed. The following day counsel informed the court the clerk had refused to enter the body attachment because Madrigal’s date of birth was not known. He asked the court to order the sheriff’s department to enforce the body attachment or, in the alternative, declare a mistrial. The court denied the motion for a mistrial and refused to continue the trial. Nonetheless, over the next few hours, the court attempted to learn how the body attachment might be enforced and directed the People to proceed with rebuttal while the defense attempted to locate Madrigal. Like the defense, the court was unsuccessful in convincing the sheriff’s department to serve the body attachment without a date of birth for Madrigal. On the final day of trial defense counsel renewed the motion for a mistrial, which was again denied.
The jury convicted Brevard of transportation of cocaine base and possession of cocaine base for sale. The court declared a mistrial on the possession-of-a-firearm charge and the special allegation Brevard had been personally armed while committing the two drug offenses after the jury failed to reach a verdict on them. On the bail allegations Brevard waived his right to a trial and admitted he had been released from custody on bail at the time of the drug offenses. The court denied Brevard’s motion for a new trial and sentenced him to an aggregate state prison term of five years, consisting of the low term of three years on count one, plus two years for commission of the offense while released on bail. The court stayed sentence on the possession-for-sale count pursuant to Penal Code section 654 and dismissed the firearm-possession count and the firearm-use allegations.
CONTENTIONS
Brevard contends the court committed prejudicial error by refusing to order the sheriff’s department to execute the body attachment order for Madrigal or, alternatively, to continue the trial to allow the defense to secure his presence at trial. Brevard also contends the court erred in denying his Wheeler motion and by failing to instruct the jury on the lesser included offense of simple possession of a controlled substance. In addition, Brevard argues the court erred in denying his motion to suppress based on his lack of consent to the search of his car and the lack of probable cause for the search and by failing sua sponte to give a unanimity instruction on the drug charges.
DISCUSSION
1.The Trial Court Did Not Abuse Its Discretion In refusing To Continue the Trial To Accommodate an Absent Witness
Brevard claims the trial court’s failure to order the sheriff’s department to execute a body attachment for Madrigal or, alternatively, continue the trial until he could be produced violated his due process right to present a defense and to rely on the compulsory process of the court.
A trial court has “‘inherent... discretion to control the proceedings to ensure the efficacious administration of justice.’” (People v. Gonzalez (2006) 38 Cal.4th 932, 951.) That broad discretion extends to a determination whether good cause exists to grant a continuance of the trial. “‘“A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.” [Citation.] Such discretion “may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.” [Citation.] “To effectuate the constitutional rights to counsel and to due process of law, an accused must... have a reasonable opportunity to prepare a defense and respond to the charges.”’” (People v. Riggs (2008) 44 Cal.4th 248, 296.)
“In determining whether a denial [of a continuance] was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request.” (People v. Frye (1998) 18 Cal.4th 894, 1013, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.) Factors to consider include “‘“the benefit which the moving party anticipates[,]... the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.”’” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Denial of a continuance does not warrant reversal of a conviction in the absence of a showing of abuse of discretion and prejudice to the defendant. (People v. Samayoa (1997) 15 Cal.4th 795, 840; see also People v. Howard (1992) 1 Cal.4th 1132, 1171-1172 [“‘[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.’ [Citation.] Instead, ‘[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’”].)
We cannot conclude the trial court abused its discretion in denying an indefinite continuance to allow Madrigal to be located and produced as a witness at trial. During jury selection, a number of the jurors actually seated had expressed serious time constraints that made completion of the trial in a timely fashion imperative. The People had nearly completed its case when Brevard’s counsel first alerted the court to Madrigal’s failure to respond to service. The court issued a body attachment as requested by the defense and allowed the reordering of witnesses to grant more time to find and produce Madrigal at trial. When defense counsel advised the court of the difficulties encountered in enforcing the body attachment, the court itself made inquiries about those problems and attempted to resolve them.
Brevard’s assertion the court should have ordered the sheriff’s department to enforce the body attachment without the date of birth does not address the central issue—Madrigal’s disappearance to avoid testifying. The defense does not provide any evidence Madrigal was still in Los Angeles and available to be brought to trial despite his reluctance. As one court explained years ago, “While a defendant’s right to have process to compel the attendance of witnesses in his behalf is conceded, it is not the duty of public officials to locate or assist a defendant in locating a witness whose whereabouts is unknown to them or to the defendant himself.” (People v. Bailey (1949) 91 Cal.App.2d 578, 580.)
Moreover, the testimony Madrigal allegedly would have provided was not sufficiently probative to warrant a prolonged continuance or a new trial. According to the defense, Madrigal, who lived on the corner where Officer Cooney claimed he saw Brevard’s Cadillac parked, would have testified there was no car parked in the red zone where Officer Cooney placed Brevard’s Cadillac. He also would have testified Cooney was not at the location. Undoubtedly, any testimony undermining the veracity of the police was corroborative of Brevard’s contention the police had lied in other material aspects, but there was no dispute Brevard had driven the Cadillac to the location and parked near the corner where Madrigal lived. Brevard’s own friend, Marvin Henson, testified Brevard drove past in the black Cadillac and parked near the end of the block. Nor would Madrigal’s testimony have established the police planted the drugs in the Cadillac, the drugs that Brevard acknowledges formed the basis for his conviction. Even absent Madrigal the defense succeeded in convincing at least some jurors they could not rely on Officer Cooney’s testimony about the blue van. The evidence tying Brevard to the Cadillac, however, was far stronger and not exclusively dependent upon Officer Cooney’s testimony.
2.The Trial Court Did Not Err in Rejecting the Claim of Racially Biased Jury Selection
i. Governing law
The exercise of peremptory challenges to remove prospective jurors on the sole ground of group bias violates both the California and the United States Constitutions. (People v. Ward (2005) 36 Cal.4th 186, 200, citing Wheeler, supra, 22 Cal.3d at pp. 276-277 and Batson v. Kentucky (1986) 476 U.S. 79, 89 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson).) The procedure and substantive standards trial courts properly use when considering motions challenging peremptory strikes are now well-established: “‘“‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination’”’” (People v. Hamilton (2009) 45 Cal.4th 863, 898, quoting Snyder v. Louisiana (2008) 552 U.S. 472, 476-477 [128 S.Ct. 1203, 1207, 170 L.Ed.2d 175, 181] (Snyder).)
“[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California (2005) 545 U.S. 162, 170 [125 S.Ct. 2410, 162 L.Ed.2d 129]; accord People v. Hawthorne (2009) 46 Cal.4th 67, 79.) “An inference is a logical conclusion based on a set of facts. [Citation.] When the trial court concludes that a defendant has failed to make a prima facie case, we review the voir dire of the challenged jurors to determine whether the totality of the relevant facts supports an inference of discrimination.” (People v. Lancaster (2007) 41 Cal.4th 50, 74, citing Johnson, at p. 168 & fn. 4.)
As always, “‘[w]e review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “‘with great restraint.’” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’” (People v. Lenix (2008) 44 Cal.4th 602, 613-614 (Lenix).) If the record “‘“‘“suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’”’” (People v. Adanandus (2007) 157 Cal.App.4th 496, 501; see People v. Bonilla (2007) 41 Cal.4th 313, 341 [“we review the trial court’s denial of a Wheeler/Batson motion deferentially, considering only whether substantial evidence supports its conclusions”] (Bonilla).) “On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” (Snyder, supra, 552 U.S. at p. 477.)
The California Supreme Court has held that the “substantial evidence” standard for review of pure issues of fact is equivalent to the federal “clearly erroneous” standard. (See People v. Hamilton, supra, 45 Cal.4th at p. 901, fn. 11.)
ii. The peremptory challenges here
Brevard challenges in particular the prosecutor’s peremptory challenge to one juror, N.S., a woman, who was one of three African-American potential jurors in the venire. Of those three potential jurors, one had already been excused for a hardship. A second had been challenged by the prosecutor after she stated she had “huge problems” with the way police had treated people where she grew up in Mississippi. Following the prosecutor’s use of a peremptory to challenge N.S., defense counsel objected, claiming the challenge was racially motivated and had resulted in the exclusion of all African Americans from the venire. The trial court disagreed the prosecutor’s use of peremptories had been racially motivated and found Brevard had not established a prima facie case of discrimination. As the court explained, the second African American juror had, in addition to a perceived hardship in serving, “all of those issues growing up in Mississippi where the police treated people unfairly. She had huge problems with that. I can understand... that the People would want to excuse her. So the fact that there are two of them... is not a basis for a prima facie showing of group bias.” As to N.S., the court continued, “Although she appeared to me to be a very reasonable person, she said that she had a friend who got a ticket and that he said he got the ticket because he was Black. She said she’s not sure about it. So I can understand why that might make any prosecutor uneasy. So I don’t think you’ve made a prima facie case.”
The court then asked the prosecutor to state his reasons for the challenges on the record. The prosecutor answered, “It’s a case that’s going to come down to officer credibility. This juror said her friend was pulled over and said it was because of race. She said, ‘Maybe yes, maybe no.’ That was her answer when asked if she believed it. Candidly she didn’t appear to me—she looked like she was saying that because she thought that’s what she should say.... There [were] half a dozen other jurors who expressed belief that police lie or harass minorities. I kicked all of them regardless of race. I think two of them were White, three or four were Hispanic, and then [the two African-American women]. I can’t help... those were the only two African-American jurors on the venire.” The court accepted the prosecutor’s explanation, although it disagreed N.S. had given an answer she thought she was supposed to give. The court continued, “I think his reasoning was made in completely good faith. I think it’s credible, and that is in fact the reason that he excused her and not as an excuse for excusing her because she was Black.”
iii. The trial court’s denial of the motion was not clearly erroneous
Although, as Brevard contends, “exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal” (People v. Silva (2001) 25 Cal.4th 345, 386), a Wheeler inquiry often focuses on situations in which “a discriminatory pattern begins to emerge.” (People v. Motton (1985) 39 Cal.3d 596, 604; see Bonilla, supra, 41 Cal.4th at p. 343, fn. 12 [“‘in drawing an inference of discrimination from the fact one party has excused “most or all” members of a cognizable group’... ‘a court finding a prima facie case is necessarily relying on an apparent pattern in the party’s challenges’”].) Here, even though the striking of N.S. resulted in the exclusion of all African Americans in the venire, “‘the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible.’” (Bonilla, at p. 343.)
Apart from statistics, the trial court is permitted to consider a wide range of factors, not only by drawing upon its contemporaneous observations of the venire and voir dire, but also by considering the prosecutor’s demeanor, how reasonable or improbable the reasons are and whether they have some basis in trial strategy, the court’s own experiences as a lawyer and bench officer, and “even the common practices of the advocate and the office who employs him or her.” (Lenix, supra, 44 Cal.4th at p. 613; see People v. Howard (2008) 42 Cal.4th 1000, 1017-1019; People v. Hoyos (2007) 41 Cal.4th 872, 901-902; Bonilla, supra, 41 Cal.4th at p. 343.) The trial court here, having considered the totality of circumstances, concluded Brevard had failed to establish a prima facie showing of bias. The court properly directed the prosecutor to state the reasons underlying his challenge for the record and reaffirmed its finding of no prima facie case, adding a finding that it considered the prosecutor’s objections “credible” and to have been made in good faith.
Brevard challenges the court’s affirmation of the prosecutor’s good faith, pointing to a White juror who had expressed doubt about the reason she was given a traffic ticket but was not challenged. We have reviewed the transcript of the voir dire, however, and note the White juror did not express any emotional reaction to the incident. In contrast, another juror, an Hispanic man who was questioned at the same time as the White woman, expressed significant anxiety about an incident in which a friend had been arrested for drunk driving. According to that prospective juror, the police officer had lied. He was subsequently struck by the prosecutor.
As acknowledged by the court, the first African-American woman struck by the prosecutor expressed significant concern about discrimination experienced by African Americans at the hands of law enforcement. N.S., Brevard counters, declined to adopt her friend’s perception he had been stopped because he is Black. Nonetheless, our jury system allows the use of peremptories based on the slightest of hunches, so long as those hunches are not demonstrably used to purge particular jurors based on their group membership. As the prosecutor explained, he used his peremptories to strike any potential juror whom he perceived as having a distrust of police officers and their treatment of minorities. Troubling as the ramifications of such challenges may be, the prosecutor’s justification was not constitutionally impermissible; and the trial court did not err in denying Brevard’s Wheeler motion.
See, e.g., People v. Hamilton, supra, 45 Cal.4th at p. 935[peremptory challenges “may be made on an ‘apparently trivial’ or ‘highly speculative’ basis”]; People v. Watson (2008) 43 Cal.4th 652, 670 [“‘[j]urors may be excused based on “hunches” and even “arbitrary” exclusion is permissible, so long as the reasons are not based on impermissible group bias’”]; Lenix, supra, 44 Cal.4th at p. 613 [“prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons”]; People v. Lancaster, supra, 41 Cal.4th at p. 76 [“[a] tendency toward equivocation” may be legitimately found objectionable by a prosecutor]; People v. Johnson (1989) 47 Cal.3d 1194, 1219 [trivial reasons such as “body language” and “mode of answering questions” legitimate grounds “so long as asserted in good faith”].)
3.The Trial Court Did Not Err in Refusing To Instruct on Simple Possession as a Lesser Included Offense
A trial court in a criminal case has a duty to instruct on general principles of law applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, “‘“‘those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004) 32 Cal.4th 73, 115.) This obligation includes the duty to instruct on a lesser included offense if the evidence raises a question as to whether the elements of the lesser included offense, but not the greater offense, are present. (Ibid.; People v. Breverman (1998) 19 Cal.4th 142, 154.) When a trial court refuses a proposed instruction for lack of evidence, we review the record de novo to determine whether the record contains substantial evidence to warrant the instruction. (People v. Manriquez (2005) 37 Cal.4th 547, 581, 584; People v. Cruz (2008) 44 Cal.4th 636, 664.) However, the existence of “‘any evidence, no matter how weak’” will not justify instructions on a lesser included offense. There must be “‘evidence that a reasonable jury could find persuasive.’” (Breverman, at p. 163.)
In this context, “substantial evidence” means “‘“evidence from which a jury composed of reasonable [persons] could... conclude”’” that the particular facts underlying the instruction did exist. (People v. Cruz (2008) 44 Cal.4th 636, 664; see also People v. Wilson (2008) 43 Cal.4th 1, 16 [“[t]here was no substantial evidence, that is, evidence that a reasonable jury would find persuasive,” to warrant lesser included offense instruction].)
A particular offense is considered a “lesser included offense” and, therefore, subject to the duty to instruct if it satisfies one of two tests. The “elements” test is satisfied if the statutory elements of the greater offense include all the elements of the lesser, so that the greater cannot be committed without committing the lesser; the “accusatory pleading” test is satisfied if the facts actually alleged in the accusatory pleading include all the elements of the lesser offense, such that the greater offense charged cannot be committed without committing the lesser offense. (People v. Cook (2001) 91 Cal.App.4th 910, 918; accord, People v. Anderson (2006) 141 Cal.App.4th 430, 442-443; see People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) Ordinarily, simple possession of a controlled substance is considered a lesser included offense of possession for sale of the same controlled substance. (People v. Oldham (2000) 81 Cal.App.4th 1, 16.)
On the facts of this case, the trial court did not err in refusing to instruct the jury on simple possession. At the commencement of deliberations, in response to an inquiry by the court, defense counsel did not seek an instruction on simple possession, explaining the instruction on the lesser included offense “would not eliminate count 3... [or] count 1, so Mr. Brevard has elected to go for it all.” The trial court agreed, noting “there really is no evidence that would support a straight possession in any event. The issue in this case is credibility and whether or not... Mr. Brevard... was in possession of any of these items. There was no paraphernalia found; nobody was using drugs here, and the quantities that were found—the only testimony about those quantities is that they are consistent with selling them to street-level dealers who then break them down and resell them. They are not small little rocks that you can put in a pipe and smoke. So the evidence does not support a lesser included offense of straight possession. Therefore, the court is not giving it.”
Midway through deliberations, however, notes from the jury indicating potential disagreement about Brevard’s use of the van led defense counsel to reverse his position and request instruction on the lesser included offense of possession because of the smaller amount of cocaine base found in the Cadillac. The court denied the request, noting “[i]t’s either appropriate for the whole thing, or it [i]sn’t.”
As the court explained in deciding not to instruct sua sponte on the lesser included offense at the commencement of deliberations, the evidence in this case did not support a charge of simple possession. Other than the smaller amount of cocaine base found in the Cadillac—4.34 grams as opposed to 118.3 grams—Brevard has identified no evidence that would justify instruction on simple possession. The testimony was undisputed the amount found in the Cadillac was sufficient for 10-12 street-level sales, and Brevard had no drug paraphernalia in his car or on his person. Accordingly, there was an absence of evidence “a reasonable jury could find persuasive’” the cocaine base was intended for Brevard’s personal use and, thus, no error by the court in refusing to instruct on simple possession. (See People v. Breverman, supra, 19 Cal.4th at p. 163.)
4.The Trial Court Properly Denied Brevard’s Motion To Suppress
a. Governing Law
Police contacts with individuals fall into “three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) A detention occurs within the meaning of the Fourth Amendment when the officer, by means of physical force or show of authority, in some manner temporarily restrains the individual’s liberty. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 789-790; People v. Souza (1994) 9 Cal.4th 224, 231.) Unlike consensual encounters, which do not trigger Fourth Amendment scrutiny (Florida v. Bostick (1991) 501 U.S. 429, 434 [111 S.Ct. 2382, 115 L.Ed.2d 389]; In re Manuel G., at p. 821), detentions must be supported by articulable suspicion that the person has committed or is about to commit a crime. (In re Manuel G., at p. 821; Souza, at p. 231 [“[a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity”].) If a defendant consents to a search while being illegally detained, that is, if there is no reasonable suspicion to support the detention or the detention is unlawfully continued after any lawful and proper purpose has passed, that consent is vitiated by the illegal detention. (See Florida v. Royer (1983) 460 U.S. 491, 501 [103 S.Ct. 1319, 75 L.Ed.2d 229] [“statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will”]; People v. Valenzuela (1994) 28 Cal.App.4th 817, 833 [“it is axiomatic that a consent to search produced by an illegal arrest or detention is not voluntary”].)
In reviewing the denial of a motion to suppress, the appellate court defers to the trial court’s express or implied factual findings when supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 342; People v. Ayala (2000) 23 Cal.4th 225, 255) and independently determines, based on relevant legal principles, whether the search or seizure was reasonable under the Fourth Amendment. (Zamudio, at p. 342; People v. Glaser (1995) 11 Cal.4th 354, 362.)
b. The evidence offered at the hearing
Before trial an evidentiary hearing was held pursuant to Penal Code section 1538.5 on the question whether the search of Brevard’s Cadillac was justified. At the hearing Officer Cooney testified about his observations of Brevard before the execution of the search warrant. Officer Cooney recognized Brevard, and the blue van, because Officer Cooney had previously arrested Brevard while he was in the van. Detective Armstrong also testified about the execution of the search warrant on the house, during which the men, including Brevard, found in the rear courtyard of the property were detained. Detective Armstrong testified, when he approached Brevard, Brevard told him he was on probation and had done nothing wrong. When Detective Armstrong told another officer Brevard had been seen putting objects into the van, Brevard stated, “The blue van is not mine. I came in the Cadillac.” Asked by Armstrong if he could search the Cadillac, Brevard gave his consent.
Detective Armstrong’s testimony was contradicted by Brevard. Brevard testified he drove the Cadillac to the location and did not go near the van, which belonged to his brother. According to Brevard, he was searched twice at the house before Detective Armstrong searched him a third time and took his car keys. Brevard, who had been handcuffed, stated he had never given anyone permission to search any of the cars. Moreover, the van, driven by his brother, arrived on the street after he had entered the house. Elisa Vazquez, who lived on the street and recognized Brevard, corroborated Brevard’s assertion the van arrived after the officers had begun searching the house.
The court denied the suppression motion. After expressing doubts about Brevard’s account, the court stated, “the district attorney has persuaded me, not by much, but just enough to meet the burden justifying what occurred here, both from a legal basis and on a factual basis as well.”
iii. Substantial evidence supports the trial court’s denial of the motion
It is undisputed in this case Brevard was detained from the moment the police entered the courtyard to execute the search warrant for the house. His detention, however, was not illegal because the police’s entry into the house was made pursuant to a warrant. The warrant had been issued based on reports of ongoing drug-related activity at the house. The police were therefore justified in detaining the individuals found at the location until the house had been searched. (See Michigan v. Summers (1981) 452 U.S. 692, 700-702 [101 S.Ct. 2587, 69 L.Ed.2d 340]; People v. Glaser, supra, 11 Cal.4th at pp. 369-371.)
Detective Armstrong testified Brevard was not free to leave.
Moreover, contrary to Brevard’s arguments, the search in question was not authorized as a search incident to arrest or because Officer Cooney observed him hiding suspicious items in his car. The trial court denied the motion to suppress based on Detective Armstrong’s testimony Brevard had consented to the search. The court acknowledged it was making a credibility determination in favor of the People (“not by much”) that consent had been obtained. Indeed, Brevard’s own testimony, while troubling, contained inconsistencies that led the court to weigh the testimony in the People’s favor.
Consent, of course, is an exception to the Fourth Amendment’s proscription against warrantless searches. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [93 S.Ct. 2041, 36 L.Ed.2d 854].) On appeal our role in reviewing the trial court’s determination of this issue is limited. When the question of voluntariness is determined in the first instance by the trial court, we defer to the trial court’s factual findings, upholding them if they are supported by substantial evidence. (People v. Jenkins, supra, 22 Cal.4th at p. 973 [“[w]e defer to [the trial court’s] implied factual determination, which is supported by substantial evidence”]; see People v. Memro (1995) 11 Cal.4th 786, 846; People v. James (1977) 19 Cal.3d 99, 107 [power to judge credibility, weigh evidence and draw factual inferences is vested in trial court].)
“Where a consensual encounter has been found, police may inquire into the contents of pockets [citation]; ask for identification [citation]; or request the citizen to submit to a search [citation]. It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.” (People v. Franklin (1987) 192 Cal.App.3d 935, 941; see Florida v. Bostick, supra, 501 U.S. at p. 434-435 [officers may make request to search as long as they do not convey message compliance is required]; People v. Gallardo (2005) 130 Cal.App.4th 234, 238.)
Brevard alternatively argues the circumstances surrounding his detention and consent to search the Cadillac were sufficiently oppressive to vitiate any consent he might have given. Brevard has not articulated any evidence, however, supporting the contention he was pressured or intimidated into consenting to the search of the Cadillac. The trial court’s finding of consent to the search of the Cadillac was supported by substantial evidence, and the motion was properly denied.
5. The Court May Have Erred in Failing To Give a Unanimity Instruction, But Any Error Was Harmless
A defendant is entitled to a verdict in which all 12 jurors concur beyond a reasonable doubt as to each count charged. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; accord, People v. Maury (2003) 30 Cal.4th 342, 422 [“[a] requirement of jury unanimity typically applies to acts that could have been charged as separate offenses”]; People v. Mota (1981) 115 Cal.App.3d 227, 231 [“‘“where there are multiple acts placed before a jury, each being a separate chargeable offense in itself, the prosecution must elect the act on which the charge will stand,” or otherwise “the jurors [might] range over the evidence at will and pick out any one of the offenses upon which to found its verdict”’”].) In cases involving alleged possession of narcotics for sale, a unanimity instruction is required when: (1) “actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space”; (2) “there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant”; and (3) the People have not elected to rely on only one of the individual units. (People v. King (1991) 231 Cal.App.3d 493, 501-502.) If a case requires use of the unanimity instruction, the court must give it sua sponte. (See People v. Hefner (1981) 127 Cal.App.3d 88, 97.)
CALCRIM No. 3500 provides: “The defendant is charged with [in Count __] [sometime during the period of___ to ___]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
Brevard contends the prejudice caused by the court’s omission of CALCRIM No. 3500 is demonstrated by the following questions posed by the jury: “For Charge # 1, can it be found to be true (guilty) if only the drugs in the Cadillac are considered? Or, do the drugs in both the Cadillac and Blue van need to be involved? [¶]... For Charge # 2, same question—assuming we agree the amount of cocaine in the Cadillac was enough to be ‘intended for sale’? [¶] In other words, must we consider all the drugs found—or can we base our judgment on a portion of the drugs found?”
Whatever confusion the jury expressed, however, was resolved by the court’s response to these questions: “The answer is... it’s your job to figure out what the facts are in the case.... If you decide that the evidence proves beyond a reasonable doubt that Mr. Brevard was in possession of all of these drugs, those are the facts. If you decide the evidence proves beyond a reasonable doubt that he was only in possession of the drugs in the Cadillac, then those are the facts. You then take the facts, and if it’s that he was only in possession of the drugs in the Cadillac, you go to the instructions, look at the instructions and decide does that evidence prove beyond a reasonable doubt that he’s guilty. You have to decide he knowingly possessed these items to prove that he’s guilty of transporting and does it prove beyond a reasonable doubt that he’s guilty of possession for sale. If the... drugs that you decide he’s in possession of prove the charges, one or both, then he’s guilty. If it doesn’t, he’s not guilty. So I hope that answers the question. If it doesn’t, send me another question in writing.”
After the jury left the room, the prosecutor questioned the court’s response, stating it had been his understanding the court would tell the jury they could base a conviction on either the drugs found in the Cadillac or the drugs found in the van. The court explained that had been his intent, and Brevard’s counsel stated, “That’s what it sounded like to me.” When the prosecutor said, “I didn’t hear that,” the court agreed to make the point more clearly to the jury. When the jury had reassembled, the court stated, “[T]he lawyers didn’t think I had been clear enough in my answer.... [T]o try to simplify it a little bit, yes, you can base it on a portion of the drugs.... [Y]ou have to decide what portion, if any, he was in possession of. If you decide it was only the drugs in the Cadillac, you base your decision on that. If you decide all of it, you base your decision on that. You might decide it doesn’t prove beyond a reasonable doubt he’s in possession of any of it, but you can base it on a portion of it if that’s what you decide the evidence is.”
In other words, the court provided jurors with an alternative explanation that instructed them they could consider the drugs found in the Cadillac separately from the drugs found in the van. By convicting Brevard of transportation and possession of drugs for sale but failing to convict him on the weapons count or the firearm-use allegations, the jury in effect revealed it had convicted him solely on the basis of the drugs found in the Cadillac. This analysis, in fact, is entirely consistent with the evidence presented at trial. The defense succeeding in impeaching the People’s evidence tying Brevard to the van. On the other hand, Brevard was not only seen arriving at the location in his Cadillac by Officer Cooney, but also by his own witness, his friend Marvin Henson. Thus, whether we view the court’s statements as curative of any potential error in omitting CALCRIM No. 3500 or, equally validly, as rendering any error harmless in effect, the result is the same. (See People v. Norman (2007) 157 Cal.App.4th 460, 466 [“[t]he failure to give a unanimity instruction may be harmless error if we can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense”].)
As Brevard acknowledges, there is a split of authority on the applicable standard of review for instructional error of this type between application of the reasonable probability standard of People v. Watson (1956) 46 Cal.2d 818, 836, and the more demanding, harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [cases cited therein].) Under either of these standards, we conclude the court’s supplemental instruction rendered harmless the original omission of CALCRIM No. 3500.
Having found no error, necessarily there was not cumulative error by the trial court that denied Brevard a fair trial.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J. JACKSON, J.