Opinion
G055485
12-07-2018
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE GUERRERO, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF1240) OPINION Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
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A police officer contacted defendant Enrique Guerrero and searched the vehicle he was driving. The officer found a loaded firearm under the passenger seat and additional ammunition in the trunk. The jury found Guerrero guilty of several crimes, including one count of unlawful possession of ammunition by a convicted felon.
On appeal, Guerrero argues that the trial court erred because it failed to instruct the jurors that they had to unanimously agree on which act of possession he committed: the ammunition inside of the vehicle or the ammunition in the trunk. We find that a "unanimity instruction" was not required under these facts.
Guerrero also asks this court to review a sealed portion of the record to determine if the trial court improperly failed to disclose the police officer's personnel records during a Pitchess motion. We have done so and we find no errors.
Thus, we affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
On June 9, 2015, Garden Grove Police Officer Charles Starnes was on routine patrol; he was following a green Honda Accord with a broken taillight. Starnes activated his lights and made contact with Guerrero, the driver of the car. After conducting field sobriety tests, Starnes opined that Guerrero was driving under the influence. Subsequent testing of Guerrero's blood confirmed the presence of methamphetamine.
Officer Starnes and another officer conducted a search of the Honda Accord; they found a methamphetamine pipe in the backseat. Starnes found a loaded .38 caliber handgun under the front passenger seat. There were six rounds in the magazine of the gun and one in the chamber. Starnes also found a key in Guerrero's pants. Starnes used the key to open a safe located in the trunk of the car. Inside of the safe, Starnes located an empty gun holster, which fit the gun found under the passenger seat. Starnes also located 48 rounds of .38 caliber ammunition. The ammunition matched one of the rounds found in the gun under the passenger seat. Police also located various items in the safe that belonged to Mariano N. and Jaime B.
The prosecution charged Guerrero with seven crimes: 1) felon in possession of a firearm; 2) felon in possession of a concealed firearm in a vehicle; 3) felon in possession of ammunition; 4) receiving stolen property (Mariano N.); 5) receiving stolen property (Jaime B.); 6) driving under the influence; and 7) possession of drug paraphernalia. The prosecution further alleged that Guerrero had suffered a prior strike conviction and two prison priors.
At trial, Guerrero testified that the Honda Accord he was driving is owned by his cousin and his cousin's wife. Guerrero said that he did not know that there was a handgun in the car, and that the safe did not belong to him. Guerrero testified that Officer Starnes' testimony about finding the key to the safe inside of his pocket was "untrue." Guerrero said that he never saw the ammunition (inside the car or inside the safe in the trunk) prior to the traffic stop.
At the conclusion of the evidence, the trial court dismissed count two (the concealed weapon charge) on the prosecution's motion. The jury found Guerrero guilty of the remaining counts and found true the allegations (one strike and two prison priors). The court imposed an aggregate sentence of nine years, four months in state prison.
II
DISCUSSION
On appeal, Guerrero contends that the trial court erred by failing to give a unanimity instruction on its own motion. Guerrero also asks us to review the sealed record of the Pitchess motion. A. Unanimity Instruction
The federal and state Constitutions guarantee criminal defendants the right to a jury trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) In California, a jury's verdict in a criminal cases must be unanimous. (Cal. Const., art. I, § 16.) The Judicial Council's pattern unanimity instruction informs the jurors: "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." (CALCRIM No. 3500.)
A trial court has a sua sponte duty to give a unanimity instruction when it is supported by the evidence. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) We review the failure to give a unanimity instruction de novo. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568 (Hernandez).) A court must give a unanimity instruction "if there is evidence that more than one crime occurred, each of which could provide the basis for conviction under a single count." (People v. Grimes (2016) 1 Cal.5th 698, 727.) Generally, "the possession of one item is not essential to the possession of another separate item. . . . The possession of each separate item is therefore a separate act of possession." (In re Hayes (1969) 70 Cal.2d 604, 613, dis. opn. of Traynor, C. J., italics added, abrogated on another point of law in People v. Jones (2012) 54 Cal.4th 350, 358.)
However, a unanimity instruction is not required when the defendant has committed several acts of possession within a continuing course of conduct. (See People v. Lueth (2012) 206 Cal.App.4th 189, 196.) "The unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction. [Citations.] . . . [T]he 'continuous conduct' exception [citation] applies if the defendant tenders the same defense . . . and if there is no reasonable basis for the jury to distinguish between them." (People v. Crandell (1988) 46 Cal.3d 833, 875.) That is, "'where the acts were substantially identical in nature, so that any juror believing one act to place would inexorably believe all acts took place, the [unanimity] instruction is not necessary to the jury's understanding of the case.'" (People v. Beardslee (1991) 53 Cal.3d 68, 93.)
Here, Guerrero argues that there were two distinct alleged acts of possessing ammunition (the seven rounds in the loaded handgun and the 48 rounds in the safe), which were "separated by time and space." We disagree as to the "time" part of Guerrero's argument. All 55 rounds of ammunition were found at virtually the same time in the officers' uninterrupted search of the Honda Accord. There is simply no evidence to support Guerrero's notion that he possessed the ammunition at separate, or meaningfully distinct, points in time. Under these facts, the jury had to find that Guerrero unlawfully possessed all of the ammunition at the same time, or he did not. That is, Guerrero's acts of possession were "so closely connected in time as to form part of one transaction." (See People v. Crandell, supra, 46 Cal.3d at p. 875.)
However, we do agree that the 55 rounds of ammunition were, in fact, separated by "space." Officer Starnes found some of the ammunition under the passenger seat (the seven rounds in the handgun); and Starnes found some of the ammunition in the trunk (the 48 rounds in the safe). But under these circumstances, that spatial distinction is irrelevant. The alleged acts of possession were "'substantially identical in nature'" such that any one juror who believed that Guerrero possessed any of the ammunition would "'inexorably believe'" that Guerrero possessed all of the ammunition. (See People v. Beardslee, supra, 53 Cal.3d. at p. 93.) This logical conclusion is reinforced by the fact that Guerrero tendered the same defense as to all of the unlawful possession charges (the weapon, the ammunition, and the stolen property). Guerrero argued that he had no knowledge of the gun or the contents of the safe and none of those items belonged to him. (See People v. Crandell, supra, 46 Cal.3d at p. 875.)
In sum, we find that a unanimity instruction regarding the ammunition found in two different parts of the Honda Accord was "'not necessary to the jury's understanding of the case.'" (See People v. Beardslee, supra, 53 Cal.3d at p. 93.) Thus, the trial court did not commit error by failing to give the jury a unanimity instruction.
Guerrero argues that Hernandez, supra, 217 Cal.App.4th 559, is controlling. In Hernandez, the defendant's estranged girlfriend, Jane Doe, testified that the defendant came to the front door of her house with a handgun. (Id. at pp. 563-564.) There was conflicting testimony as to whether the defendant fired the weapon at her home. (Id. at p. 565.) Jane Doe called 911; thereafter, the defendant fled by car because he was on parole. (Ibid.) Over an hour later, a police officer stopped defendant's car (a Camry) at a gas station and found a fully loaded handgun, which was situated in the car's engine compartment. (Id. at p. 566.) The prosecution charged the defendant with possession of a firearm and ammunition by a felon, but "the trial court did not give the jury a unanimity instruction." (Id. at p. 568.) The appellate court held "that the trial court's failure to give a unanimity instruction was error." (Id at p. 563.)
The Hernandez court concluded that: "On these facts, reasonable jurors could have divided on which instance of possession they used to convict defendant of the charged offenses. Some jurors may have believed defendant possessed only the firearm found under the hood of the Camry, but not at Doe's home; while others may have believed defendant possessed a firearm at Doe's home, but did not have dominion or control over the Camry. Without a unanimity instruction, the jury could have amalgamated these facts to come to the conclusion that defendant must have had possession of a firearm that night, but disagreed on which instance constituted the charged offense." (Hernandez, supra, 217 Cal.App.4th at p. 571, italics added.)
Unlike the facts in Hernandez, it was alleged that Guerrero possessed all of the items (the weapon, the ammunition, and the stolen property) at a singular point in time. Although the ammunition was discovered in two places in the vehicle, it is not reasonable to conclude that the jurors may have disagreed as to which of the 55 rounds Guerrero may have possessed. Guerrero either exercised dominion and control over all of the ammunition (as alleged by the prosecution), or he had no knowledge of the ammunition (as purported by Guerrero). There was simply no room for confusion on the part of the jury; and hence, there was no need for a unanimity instruction.
In any event, even if we were to assume that the trial court committed instructional error by failing to give a unanimity instruction, we would find it harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) In cases "where the defendant offered the same defense to all criminal acts, and 'the jury's verdict implies that it did not believe the only defense offered,' failure to give a unanimity instruction is harmless error." (Hernandez, supra, 217 Cal.App.4th at p. 577.)
Here, Guerrero's defense was that he did not know about the handgun or what was in the safe. But the jury found Guerrero guilty of possessing the handgun and possessing the stolen property found in the safe. Therefore, the jury must have unanimously rejected Guerrero's defense, and must have also logically concluded that Guerrero possessed the ammunition in the handgun as well as the ammunition in the safe. Thus, if we assume that the trial court's failure to give a unanimity instruction constituted error, the error was undoubtedly harmless beyond a reasonable doubt. B. The Pitchess Hearing
A court has broad discretion in ruling on both the good cause and disclosure components of a Pitchess motion, and its ruling will not be disturbed absent an abuse of that discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
Here, a sealed transcript of the in camera hearing was made part of the appellate record. After reviewing the transcript, we conclude the trial court did not abuse its discretion in refusing to disclose the contents of Officer Starnes' personnel file.
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. GOETHALS, J.
Pitchess v. Superior Court (1974) 11 Cal.3d. 531 (Pitchess).