Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA314456, Barbara R. Johnson, Judge.
Allison K. Simkin, 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, Assistant Attorney General, Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
A jury convicted defendant Heriberto Ramirez of possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)) and of four controlled substance offenses: transportation of cocaine base, transportation of methamphetamine, possession of cocaine base for sale, and possession of methamphetamine for sale (Health & Saf. Code, §§ 11352, subd. (a), 11379, subd. (a), 11351.5, & 11378, respectively). The jury also found that defendant was armed during the controlled substance offenses. (Pen. Code, § 12022, subd. (c).) In a bifurcated proceeding, the jury sustained a petition for forfeiture of $722. The court, in a nonjury trial, found allegations of a prior drug conviction and prior prison term to be true. (§ 11370.2, subd. (a), & Pen. Code, § 667.5, subd. (b), respectively.) The court sentenced defendant to a total term of nine years in state prison. Defendant appeals, and we affirm.
All undesignated section references are to the Health and Safety Code.
BACKGROUND
Prosecution
On December 20, 2006, around 10:20 a.m., Los Angeles Police Officer Kevin Raines and his partner observed a car stopped in the middle of 43rd Street in Compton blocking traffic. Defendant, the driver, was talking to a man on a bicycle next to the car. A young girl was sitting in the backseat of the car. The officers detained the two men.
Officer Raines issued a citation to the man on the bicycle and then released him. His partner, Officer Redican, spoke to defendant and then informed Officer Raines that he had discovered narcotics in the car. Officer Raines approached the car. On the right front passenger seat was a small cardboard box that contained a plastic cylinder, in which were several clear plastic baggies containing (later analysis showed) both methamphetamine and rock cocaine. Also in the box were a razor blade, a digital scale in a black leather case, $722 in cash (inside the black leather case), and several empty baggies containing residue.
Officer Redican searched defendant, and found, in his left front pants pocket, an additional 25 rocks of cocaine base wrapped in foil and weighing 4.74 grams. In defendant’s right front pants pocket, the officer found a methamphetamine pipe (the pipe could not be used to smoke rock cocaine), and in his left sock a plastic baggie containing methamphetamine. Finally, in a search of the car trunk, Officer Redican discovered a backpack that contained a large clear plastic baggie containing methamphetamine weighing 222.09 grams. Also in the backpack was a loaded handgun.
Defendant told the officers that the child was in the car because he was taking her to get some food. Also, her presence would make it less likely that the police would stop him.
In Officer Raines’ opinion, the narcotics discovered in the car were possessed for the purpose of sale. The methamphetamine found in the backpack alone had a street value of $4,000 to $8,000, depending on the quality. The value of all the narcotics was between $5,000 and $9,000. The methamphetamine found in defendant’s sock was likely for personal use. Officer Raines conceded that it was possible that a heavy user could ingest the quantity of methamphetamine discovered in the front seat in approximately two weeks, and could use the amount of rock cocaine found in defendant’s pocket in approximately 72 hours.
At the police station, after waiving his Miranda rights, defendant was questioned by Los Angeles Police Officer Steve Razo. Defendant said that he had been given the backpack and knew it contained drugs, but did not know that it contained a gun. He said that he was a drug user, and denied selling drugs. In a separate written statement, he referred to the vehicle as “my car,” although he was not the registered owner.
Like Officer Redican, Officer Razo believed that defendant possessed the large quantity of narcotics discovered in the car for sale. He did not believe it was possible that the methamphetamine in the car was possessed for personal use, because defendant did not have the appearance of a heavy user, and a heavy user typically does not have money in the sum discovered with the methamphetamine.
Defense
Defendant testified that he was addicted to methamphetamine and cocaine. He denied selling drugs when he was arrested.
He admitted having been previously convicted of conspiracy to commit commercial burglary in 2004 and sale of narcotics in 2005.
On the day of his arrest, the car he was driving stalled in the street. His eight-year-old niece, Sarah, was in the car with him. He had picked her up to buy her breakfast.
Sarah testified that she and defendant were coming back from McDonald’s when the car stalled. She denied that there were any cars behind them.
Defendant had borrowed the car from a friend who had sold him drugs earlier that morning (defendant refused to give the friend’s name). Defendant testified that he possessed the methamphetamine and rock cocaine in a cardboard box on the front seat of the car for personal use. He also had a pipe, a scale, and $722. His friend had given him the scale. It was broken, and defendant intended to try to fix it, something he liked to do when he was high. The $722 in cash was not, as testified to by Officer Raines, in the case that held the scale, but under the driver’s seat. Defendant had been paid $1,200 for painting a house two days earlier. He had spent a little more than $500 of that money to purchase the drugs from his friend. It would take him about two days to ingest the rock cocaine and a week to use the methamphetamine.
Defendant was unaware of the backpack in the trunk. He first learned about it when the officers asked him about it at the scene. Defendant told them that he knew nothing about it.
According to defendant, Detective Razo told him he had to write a statement in order for his niece to be released. Defendant first wrote that he was unaware of the backpack. Detective Razo said that in order for his niece to be released, defendant had to write something else. Detective Razo then instructed defendant to write a second statement saying that the backpack was given to him, that he did not know about the gun, and that he did not sell drugs.
Detective Razo denied that defendant wrote two statements.
DISCUSSION
Unanimity Instruction
Defendant contends that the trial court erred in not giving a unanimity instruction as to the charge of possession of methamphetamine for sale (§ 11378). According to defendant, the prosecution presented evidence of two distinct acts of possession that could support the charge. The first was the act of possessing the methamphetamine found in the cardboard box in the front seat of the car. The second was the act of possessing the methamphetamine found in the backpack in the trunk. Because “the jury could have based its conviction of appellant on either of [the two acts] without unanimously agreeing on which . . . constituted the basis for the conviction,” defendant contends that the court’s failure to instruct on unanimity pursuant to CALCRIM No. 3500 was reversible error.
We need not decide whether the failure to give a unanimity instruction was erroneous, because any error was harmless. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188 [failure to give unanimity instruction tested under Chapman v. California (1967) 386 U.S. 18, 24]; People v. Vargas (2001) 91 Cal.App.4th 506, 562 [People v. Watson (1956) 46 Cal.2d 818 is applicable standard].) At trial, defendant conceded that he possessed the methamphetamine found in the passenger compartment, but claimed that it was for personal use. He denied any knowledge of the backpack in the trunk that contained both a gun and additional methamphetamine. On appeal, defendant contends that some jurors could have believed that he possessed the methamphetamine inside the vehicle for personal use, but that he possessed the methamphetamine inside the trunk for sale. Other jurors, according to defendant, could have found that he possessed the methamphetamine in the passenger compartment for sale, and that defendant had no knowledge of the methamphetamine in the trunk. The evidence and verdicts, however, show beyond doubt that the jurors unanimously concluded that defendant knowingly possessed for sale the methamphetamine found in the trunk.
The methamphetamine in the trunk was a very large quantity -- 222.09 grams, with a street value of $4,000 to $8,000. If defendant knowingly possessed it, he did so for the purpose of sale; no evidence suggested that such a large quantity might have been possessed for personal use. The methamphetamine was contained in a clear plastic baggie, and was present in a backpack along with a firearm. Both the firearm and the methamphetamine were readily visible in the backpack to both Officers Raines and Redican. The jury unanimously found that defendant knowingly possessed the firearm. The jury convicted defendant of possession of a firearm by a convicted felon, an offense which (under the instructions given) required a unanimous finding that defendant “knew that he possessed the firearm.” The jury also found true the allegation that defendant was armed in the commission of possession of methamphetamine for sale. That allegation required a unanimous finding that defendant “carr[ied] a firearm or [had] a firearm available for use in either offense or defense,” and that defendant knew “that he [was] carrying the firearm or [had] it available.” It defies logic to suggest that any juror could have concluded that defendant knowingly possessed the gun visible in the backpack, but did not knowingly possessed the large amount methamphetamine equally visible in the same backpack. Because the jury must have unanimously found defendant possessed the methamphetamine in the trunk for the purpose of sale, defendant was not prejudiced by the lack of a unanimity instruction. The jury, of necessity, unanimously agreed on one act sufficient to support the conviction. “‘Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]’” (People v. Curry (2007) 158 Cal.App.4th 766, 783 [applying Chapman standard].)
Forfeiture Instruction
The prosecution filed a petition seeking forfeiture of the $722 found in the passenger compartment of the vehicle under section 11470, subdivision (f). Section 11470, subdivision (f), provides in relevant part that the following is subject to forfeiture: “All moneys . . . furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds traceable to such an exchange, and all moneys . . . used or intended to be used to facilitate” sale or possession for sale of a controlled substance. Under section 11488.4, the defendant has a right to a jury trial on a petition for forfeiture (subd. (i)(5)) and the government has the burden or proof beyond a reasonable doubt (subd. (i)(1)).
In a bifurcated jury trial, the jury returned a verdict finding the $722 subject to forfeiture. Defendant contends that two special instructions given by the court were argumentative because they “only cited incriminating evidence as examples of what the jury should consider when deciding whether the money was a product of a drug transaction.” We conclude that any such error was harmless, whether viewed under the Chapman or Watson standard.
The two instructions were labeled “User E” and “User I.” They stated as follows:
The jury convicted defendant of possession of cocaine base for sale and possession of methamphetamine for sale. The evidentiary basis of the convictions included testimony by Officer Raines that the $722 was discovered inside the black leather case of a digital scale. The case and scale were in a small cardboard box on the right front passenger seat which contained other evidence of drug sales: a razor blade, several clear plastic baggies containing methamphetamine and rock cocaine, and several empty baggies containing residue. In his left front pants pocket, defendant possessed 25 rocks of cocaine base wrapped in tin foil and weighing 4.74 grams. In a backpack in the trunk of the car, as we have discussed in connection with the absence of a unanimity instruction, defendant possessed a loaded handgun and a large clear plastic baggie containing methamphetamine weighing 222.09 grams.
According to Officer Raines, the $722 likely related to drug sales: “There was a large amount of U.S. currency, $722, in miscellaneous denominations. I’ve learned through my training and experience that narcotics dealers, obviously, they sell on the street. . . . For this person to possess that amount of money next to all these narcotics, it just leads me to further believe that he possessed these items for the purpose of selling them.” Officer Raines testified that the $722 was in the form of four $100 bills, thirteen $20’s, four $10’s, four $5’s, and two $1’s. Although it is not common for street users of narcotics to possess hundred dollar bills, defendant’s possession of such large denominations was not necessarily inconsistent with his being a drug seller, depending on the quantities he was selling.
The only evidence that the $722 was not intended to be used to facilitate sales or possession for sales of narcotics was defendant’s testimony that he had received $1,200 for painting a house and that he used part of that money to buy the methamphetamine and cocaine base found in the passenger compartment for personal use. In defendant’s version, the $722 was the change from his narcotics purchase, and it was under the front seat of the car (not in the black leather case containing the digital scale). In convicting defendant of possession of both methamphetamine and cocaine base for sale, however, the jury rejected defendant’s testimony. It is extremely unlikely that the jury could have found that he possessed such a large quantity of narcotics for the purpose of sale, but not possessed the $722 for the purpose of facilitating narcotics transactions. Thus, even if the two instructions defendant complains of improperly referred only to incriminating categories of evidence, that assumed error did not contribute to the jury’s finding that the $722 was subject to forfeiture.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. SUZUKAWA, J.
“To meet its burden of proof, it is not necessary for the People to prove that the Respondent-Property was exchanged in or is traceable to a specific illegal controlled-substance exchange. In other words, the People need not prove the fact of a specific sum of money or property which in turn was used to purchase or acquire a specific item of property.
“Rather, the People may show by circumstantial evidence that the Respondent-Property was exchanged in some illegal controlled-substance transaction or its proceeds traceable to money or other property exchanged in some illegal controlled-substance transaction. (Such circumstantial evidence may include large sums of unexplained currency or the absence of a legitimate source for the money or property coupled with evidence of narcotic trafficking.)”
“In deciding whether the Respondent-Property is subject to forfeiture, you should consider the evidence from a common sense of view of the realities of normal life. Among other facts, you may consider:
“1) The amount, location, denominations of currency and manner in which such currency was packaged.
“2) The absence of evidence of a legitimate source for the seized Respondent-Property;
“3) Unsubstantiated statements by the Claimant regarding his claim to the Respondent-Property;
“4) The refusal of the person from whom the seized Respondent-Property was seized to acknowledge ownership of it and/or the absence of opposition to forfeiture from such person;
“5) The evidence of illegal drug activity in the vicinity from which the seized Respondent-Property was recovered;
“6) A police officer’s expert opinion that the likely source of the seized money is illegal drug dealings;
“7) Statements regarding the source of income/property and admission regarding recent or proposed drug transactions;
“8) Admission by Claimant that a portion of his income came from drug trafficking; and
“9) Any other evidence which you believe has any tendency in reason to show that the seized property was exchanged for, was proceeds of, was furnished or intended to be furnished for or was used to facilitate an illegal narcotics transaction.”