Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F06890
ROBIE, J.
A jury found defendant Akoni Medeiros guilty of resisting a peace officer, transporting cocaine base, and possessing cocaine base for sale. Defendant admitted various prior conviction allegations. The court sentenced him to state prison.
On appeal, defendant argues the court erred with respect to the transportation charge in refusing his request for additional instructions in response to a jury query, and in failing to give an instruction sua sponte on the need for jury unanimity. He also asserts that there was cumulative prejudice from these errors sufficient to reverse the judgment. His claims do not have merit; however, he is entitled to additional presentence conduct credits. We affirm as modified.
FACTS
We will focus on the facts pertinent to defendant’s claims on appeal.
Officers patrolling in South Natomas were driving westbound after midnight. They encountered a minivan driving 15 miles per hour below the speed limit in the left lane. They followed it for about a quarter of a mile from Arden Way to the Garden Highway; two cars passed them in the right lane during this time. They initiated a traffic stop for impeding traffic.
One officer approached the passenger side and through the open window saw two people in the minivan. The passenger had a fast food hamburger wrapper in his hands. He did not see the passenger holding any sort of baggie at any point. By this time, his partner had approached the driver’s side. The driver (defendant) opened the door and began to get out; the officer directed him to remain in the car. Complying with the officer’s directive, defendant put his hands on his head and began again to get out of the car. When the officer attempted to secure defendant’s hands, the latter reached toward his side and lunged back into the van. Defendant grabbed a clear baggie with a white substance inside from the driver’s side floorboard. He reached out with it in the direction of his passenger, urging him to take it, but the passenger would not accept it. The officer on the passenger side reached through the window to grab defendant’s hand; defendant dropped the baggie into the passenger’s lap.
Defendant pushed back against the officer on the driver’s side of the car, fended him off with an arm, and started to run to the rear of the minivan. The officer needed to use force in order to gain control of defendant, bringing him to the ground and handcuffing him with his partner’s assistance. The partner returned to the passenger, who was getting out of that side of the minivan. The passenger let the baggie fall to the ground from his lap. There was a little over three grams of cocaine base in the baggie. This is enough for 16 typical uses.
Defendant denied having anything illegal on his person. He said the baggie belonged to his passenger. A search showed that defendant had close to $1,000 on his person, but no other contraband or paraphernalia. The minivan also did not have any other contraband or paraphernalia in it. A cell phone in the center console had numerous pictures of defendant in it and a text message asking to buy “whateva you got on you.” One of the officers answered a phone call (the phone had rang several times while they were there) in which the caller stated that he needed a gram. The police released the minivan to its registered owner, defendant’s wife.
DISCUSSION
I
The Transportation Instruction
With respect to the possession charge, the trial court instructed the jury that momentary possession of contraband for the purpose of abandonment or disposal is not illegal if a defendant did not have an intent to prevent the police from obtaining it. With respect to transportation, the court instructed (among other elements) that a person must know of the presence of the cocaine, and that “A person transports something if he... carries or moves it from one location to another even if the distance is short.”
The prosecutor argued that defendant had carried cocaine at least from Arden Way to Garden Highway, which was more than enough to establish transportation, and was fully aware of its presence because he was seen looking at the floorboard even before he got out of the car. Also, no one saw the passenger throw anything in that direction. He also argued defendant’s efforts to foist the cocaine on his passenger was for the purpose of evading police seizure of it in his possession. Defense counsel pointed out the absence of any direct evidence showing the presence of the cocaine on the floorboard before the car was stopped; thus, it was equally plausible for defendant to have seen the cocaine only after the minivan stopped when the passenger surreptitiously threw it toward him. Defendant undeniably possessed it after that point, but solely for the purpose of returning it to its source.
Had defendant been aware of his passenger’s possession, he would be guilty of transporting it in the car. (People v. Valerio (1970) 13 Cal.App.3d 912, 921.)
On the afternoon of its first full day of deliberations, the jury submitted a question indicating its confusion about the definition of transportation. It asked if handing contraband to another person could amount to transportation, and whether a defendant had to be aware of the presence of the contraband to be guilty of transporting it. The court referred the jury back to the transportation instructions.
The following morning, defense counsel asked the court to direct the jury to the instruction on momentary possession in order to help resolve the question about whether handing contraband to another person was transportation. The court declined because it could not imagine that any jury correctly reading the transportation instructions could find the movement from floorboard to lap to be transportation. It also found that this belated direction would unduly highlight the instruction.
That afternoon, the jury sent a message that it was at an impasse. In addition to other instructions on the manner in which the jury should proceed to resolve the impasse, defense counsel asked the court to instruct the jury that the movement of the cocaine base from the floorboard to the passenger’s lap was not transportation as a matter of law, and again asked the court to reinstruct on momentary possession. The trial court acknowledged that the former was a correct statement of the law, but thought an instruction to this effect was “out of the box.” It decided to wait and see whether there was any indication that the jury could not resolve that question on its own. Without submitting any further questions, the jury reached its verdicts the following day.
Defendant contends it was federal constitutional error to fail to give what he calls a pinpoint instruction to the jury highlighting his defense. He also argues that the court abused its discretion in failing to provide any further explanation on the jury’s point of confusion other than the direction to review the instructions on transportation.
With respect to defendant’s request for a new instruction that the facts were not sufficient to establish transportation from the floorboard to the passenger’s lap, this is not a pinpoint instruction on a legal theory of defense; it is instead an “argumentative” statement applying the law to the facts and directing the jury to draw the desired result. (People v Bolden (2002) 29 Cal.4th 515, 558; People v. Gordon (1990) 50 Cal.3d 1223, 1276.) Therefore, defendant was not entitled to have the court present this instruction to the jury.
With respect to the request for the new instruction and the request for the reinstruction as part of the court’s duty to provide further guidance to the jury on its earlier query, the term “transports” is not one that needs any definition beyond the common understanding of movement from one place to another place. (People v. Cortez (1985) 166 Cal.App.3d 994, 998-999.) As the court had already given an instruction on the point that was a full and correct statement of this principle, it had discretion to decide the manner in which it should respond to the jury’s request for clarification. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213.) It was not an abuse of discretion for the court to conclude that a reasonable jury refocused on correct instructions would eventually realize without additional advice that the movement from the floorboard to the lap within one location was not transportation (particularly where neither party had argued this theory). There being no error, we do not need to reach the question of prejudice.
II
Unanimity Instruction Request
Relying on the same erroneous argument that movement of contraband within a vehicle constitutes “transportation, ” defendant argues the court erred in failing to instruct sua sponte that the jury must unanimously agree on the act constituting transportation because the prosecutor did not make a formal election between the transportation of the cocaine in the minivan while driving and the movement of the cocaine from the floorboard to the lap. (E.g., People v. Melhado (1998) 60 Cal.App.4th 1529, 1536 [where alternative factual bases for offense, prosecution must affirmatively communicate its election to jury on which act it is relying; otherwise, trial court must instruct on need for unanimity].)
Defendant does not provide any authority to support his claim that one can “transport” drugs from the floorboard to a lap inside a vehicle. As noted in People v. Rogers (1971) 5 Cal.3d 129, a rationale for punishing transportation more harshly than possession is that “the potential for harm to others is generally greater when narcotics are being transported from place to place, rather than merely held at one location.” (Id. at p. 136, italics added.)
This harm can arise from the risk of a person operating a vehicle under the influence of the transported drug or from the flourishing of criminal trafficking itself. (People v. Cortez, supra, 166 Cal.App.3d at p. 1000 [purpose is deterring movement of drugs “from one location to another” to inhibit trafficking in drugs]; People v. Ormiston (2003) 105 Cal.App.4th 676, 683-684 [essence of offense is “the movement of controlled substances from one location to another to facilitate the purpose associated with conveyance of the drugs”].)
Since there was not more than one act of transportation in the present case, the trial court was not obligated to instruct on the need for unanimity. As we have not found any error in this regard or in his previous argument, we also necessarily reject defendant’s claim of cumulative prejudice.
III
Presentence Credits
In People v. Brown (2010) 182 Cal.App.4th 1354 (petn. for review filed Apr. 19, 2010, S181963), we recently concluded that the recent amendments to Penal Code section 4019 apply to all cases that are not yet final on appeal. Having reviewed defendant’s lengthy record of prior convictions, we conclude he is entitled to accrue work and conduct credits at a rate of two days for every four days of actual custody served. (Pen. Code, § 4019, subds. (b)(1) & (c)(1).) With 293 days of actual custody, defendant is now entitled to 292 days of conduct credits rather than 146. We also note that the abstract of judgment incorrectly totals the components of defendant’s prison term as 13 years instead of 18. We will direct the trial court to amend the abstract of judgment accordingly.
DISPOSITION
The judgment is modified to reflect an additional 146 days of presentence conduct credits. The trial court shall prepare an amended abstract of judgment reflecting the additional conduct credits and the correct total prison term and forward it to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J. BUTZ, J.