Opinion
F072206
03-03-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN ALLAN CASTILLEJA, Defendant and Appellant.
Jeffrey J. Gale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. SF017818A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Jeffrey J. Gale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
-ooOoo-
Defendant/appellant Juan Allan Castilleja (Castilleja) was convicted of illegal possession of ammunition, misdemeanor possession of hydrocodone, and riding a bicycle at night without a headlight, an infraction. He argues his conviction for possession of ammunition must be reversed because the trial court failed to give a unanimity instruction. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The information charged Castilleja with possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1)), misdemeanor possession of hydrocodone (Health and Saf. Code, § 11350, subd. (a)), and the infraction of driving a bicycle at night without a headlight (Veh. Code, § 21201, subd. (d)(1)). The possession of ammunition count also alleged Castilleja had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
This count was originally charged as a felony, but was reduced to a misdemeanor after the passage of Proposition 47.
Deputy Sheriff Arthur Santore was on duty on the night in question. Around midnight, he observed two men riding bicycles without headlamps. Santore conducted a traffic stop. One of the two gentlemen was Castilleja. Santore arrested Castilleja after discovering an active warrant for Castilleja's arrest. When Santore searched Castilleja, he located a bullet (right pant pocket) and five pills containing hydrocodone (left pant pocket).
Santore described the pills as Vicodin. The parties stipulated the pills were hydrocodone. --------
Castilleja told Deputy Santore that before he left his house, he grabbed some change from a jar and put it in his pocket. Later, he realized his girlfriend's hydrocodone must have also been in the jar, and he accidentally grabbed it with the change. Castilleja said the previous day he found the bullet in his father's backyard and picked it up so a child would not find it. Castilleja said he put the bullet in his pants pocket and forgot it was there.
Castilleja testified in his defense. On the night in question, he was walking his bike with a friend because the bike had a flat tire when several police cruisers pulled up to the two men. Castilleja admitted he told Deputy Santore he found the bullet in the backyard of his father's house. Three young children also live at the house. Castilleja testified that when he found the bullet, he gave it to his girlfriend, and she put it away. Castilleja gave the bullet to his girlfriend because he was a convicted felon and was not allowed to have ammunition.
He explained that on the day in question, he and his girlfriend spent the day in Bakersfield completing various tasks. When they got home, Castilleja showered. An argument ensued between Castilleja and his girlfriend. Castilleja decided to leave the house. He needed some cigarettes, so as he was leaving, he reached into his girlfriend's purse, grabbed a handful of change, and put it in his pocket. He left on his bicycle, but got a flat tire. He was not aware he grabbed the pills out of his girlfriend's purse until he was stopped by the police. He was surprised the bullet was still in his pocket.
Deputy Santore testified in rebuttal that Castilleja was riding his bicycle when he first saw him.
Our summary of closing argument will focus on the possession of ammunition count. The prosecutor argued the only element he felt was at issue was whether Castilleja knowingly possessed the bullet when it was found in his pocket. The prosecutor argued that the evidence and common sense established Castilleja knowingly possessed the bullet. He also argued Castilleja did not lawfully possess the bullet so he could safely dispose of it.
Defense counsel argued Castilleja's possession of the bullet was lawful because he met each of the elements of the defense.
In his rebuttal argument, the prosecutor argued Castilleja fabricated the story about giving the bullet to his girlfriend, which the jury should reject. He also pointed out Castilleja's girlfriend did not testify to confirm Castilleja's story about the bullet.
The jury found Castilleja guilty as charged in the information. In a bifurcated proceeding, the trial court found two of the prior prison allegations true, but found the third allegation did not meet the statutory requirements. The trial court sentenced Castilleja to the upper term of three years for the possession of ammunition count, and enhanced that sentence by two years for the two prior prison terms. Eight months consecutive was imposed for two separate matters, for a total prison term of five years and eight months.
DISCUSSION
Castilleja argues the trial court erred when it failed to instruct the jury with CALCRIM No. 3500, the unanimity instruction. His argument is directed only at the possession of ammunition count.
"In a criminal case, a jury verdict must be unanimous.... Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132, original italics.) " 'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' [Citation.]" (Ibid., original italics.)
A unanimity instruction is required when the jurors could disagree which act a defendant committed and yet convict him of the charged crime. (People v. Beardslee (1991) 53 Cal.3d 68, 93.) "A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.]" (People v. Maury (2003) 30 Cal.4th 342, 422-423.) A unanimity instruction "is not required when the acts are so closely connected in time as to form part of one transaction. [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, 875, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 364-365.) Where the evidence shows a single discrete crime but leaves room for uncertainty as to exactly how that crime was committed, or the defendant's precise role, the jury does not have to unanimously agree on the theory by which the defendant is guilty. (People v. Russo, supra, 25 Cal.4th at p. 1132.)
"The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. [Citation.] If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. [Citation.] Other typical examples include the rule that, to convict a defendant of first degree murder, the jury must unanimously agree on guilt of a specific murder but need not agree on a theory of premeditation or felony murder [citation], and the rule that the jury need not agree on whether the defendant was guilty as the direct perpetrator or as an aider and abettor as long as it agreed on a specific crime [citation]." (People v. Russo, supra, 25 Cal.4th at pp. 1132-1133.)
We review claims of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Castilleja argues two discrete crimes occurred. The first occurred on the day he found the bullet and put it in his pocket. The second occurred when he discovered the bullet in his pocket when he was stopped by Deputy Santore. We disagree.
Castilleja admitted both on the stand and to Deputy Santore that he found the bullet in his father's backyard and picked it up. Castilleja told Santore he put the bullet in his pocket. At trial, he claimed he gave the bullet to his girlfriend. However, if Castilleja gave the bullet to his girlfriend, there is no explanation for how that bullet ended up in his pocket. Castilleja testified he accidentally picked up the hydrocodone pills when he grabbed some change from his girlfriend's purse. Then, according to Castilleja, he put the pills and change into his pocket. However, Santore testified that while the change and pills were in one pants pocket, the bullet was found in the other pants pocket. Therefore, the theory that Castilleja accidentally picked up the bullet when he grabbed the change must be rejected.
The only theory supported by the evidence was that Castilleja put the bullet in his pocket, and it stayed there until it was found by Deputy Santore. And this is the theory argued by the prosecutor during closing argument. In addition, the prosecutor argued Castilleja's defense of temporary possession to dispose of the bullet must be rejected for several reasons. But that argument did not create a separate and distinct crime, it merely urged the jury to reject the affirmative defense proposed by Castilleja.
The evidence at trial unequivocally established Castilleja picked up the bullet and never gave it to his girlfriend, or anyone else, until it was discovered by Deputy Santore. There was only one discrete crime. There was no credible evidence to support the theory the bullet left Castilleja's possession after he found it and then somehow it reappeared in his pocket. The only issue at trial was whether the jury found sufficient evidence to support Castilleja's affirmative defense. Accordingly, the trial court was not required to give the unanimity instruction, and we reject Castilleja's argument.
The cases cited by Castilleja, People v. Crawford (1982) 131 Cal.App.3d 591 (Crawford), People v. Wolfe (2003) 114 Cal.App.4th 177 (Wolfe), and People v. Hernandez (2013) 217 Cal.App.4th 559 (Hernandez), do not aid his argument.
In Hernandez, the defendant broke up with his girlfriend after a confrontation the girlfriend described as violent. A few days later, the girlfriend was at her home with some friends when the defendant appeared. The girlfriend's testimony was inconsistent about whether the defendant was armed. One of the occupants called the emergency operator and reported the defendant fired shots at the house, although at trial, the caller claimed this was a false report. Officers investigating the report could find no evidence a gun had been discharged at or near the house. Moreover, a short while before the alleged shooting, the vehicle in which the defendant was riding had been stopped for a traffic violation. When the officer learned both the driver and the defendant were on parole, he searched the vehicle and both men. No firearms or ammunition were found.
The defendant was stopped driving a different vehicle approximately one hour later. A search of the vehicle located a fully loaded revolver under the hood of the vehicle.
The defendant argued at trial there was no evidence he fired a gun at his girlfriend's residence and no evidence he owned the vehicle he was driving when the firearm was found and, therefore, there was insufficient evidence he had control of the firearm.
The defendant was convicted of unlawful possession of a firearm and ammunition. During closing argument the prosecutor referred to both the incident at the girlfriend's house and the stop of the vehicle in arguing the defendant possessed a firearm and ammunition. The trial court did not give a unanimity instruction. The appellate court held this failure was error requiring reversal of the convictions. The appellate court noted the prosecutor never elected which incident on which the firearm count was based, and had argued the defendant possessed a firearm in both instances. Since the evidence revealed two discrete acts of possession, either of which could have constituted the charged offense, a unanimity instruction was required. (Hernandez, supra, 217 Cal.App.4th at pp. 570-571.)
Hernandez is inapposite because in this case, unlike Hernandez, there were not two discrete acts. The evidence established there was only a single bullet that was at all relevant times in Castilleja's possession. This is not a situation where the jury could have found Castilleja possessed the bullet at his father's house, but did not possess it when stopped by Deputy Santore, or vice versa. There was a single, continuous act of possession that constituted a single crime.
Crawford, supra, 131 Cal.App.3d 591 and Wolfe, supra, 114 Cal.App.4th 177 are inapposite for a different reason. In each case, the evidence established there was more than one item that could support a conviction of the charged crime. In Crawford, two handguns were found in the bedroom with the defendant and his girlfriend when he was arrested, and two were found in a different bedroom. He was convicted of possession of a firearm by a felon, but the jury was not instructed that they must agree on which firearm the defendant actually possessed. The appellate court held this was error. (Crawford, supra, 131 Cal.App.3d at p. 596.)
Similarly, in Wolfe, supra, 114 Cal.App.4th 177, officers found several firearms in the home that the defendant shared with his mother. He was convicted of a single count of illegal weapons possession. The appellate court held the failure to give a unanimity instruction to ensure the jury agreed which firearm was possessed by the defendant was error. (Id. at p. 185.)
Here, there was only a single bullet. The jury was not faced with having to decide which of several bullets were actually possessed by Castilleja. Crawford and Wolfe are inapposite.
DISPOSITION
The judgment is affirmed.