Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06WF1468, Thomas M. Goethals, Judge.
Correen Ferrentino, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
John Randal Widly appeals the judgment entered following conviction by jury of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1) and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, count 2). The trial court suspended imposition of sentence and placed Widly on formal probation for three years under the terms and conditions of Proposition 36.
Widly argues the trial court violated his constitutional rights to due process and the presentation of an adequate defense, and the provisions of Penal Code section 1009, by permitting the prosecutor to make a midtrial amendment of the information that changed the date of the offense from “on or about February 28, 2006” to “on or between January 1, 2005 and February 28, 2006.” The amendment followed Widly’s testimony that while he had no knowledge of the presence of methamphetamine in his pants pocket at the time of his arrest, he might have put that same methamphetamine in his pant’s pocket sometime before August 2005. Widly further contends the court compounded the error by also failing to sua sponte instruct the jury with Judicial Council of California Jury Instructions, CALCRIM No. 3500, the standard unanimity instruction, and by improperly modifying CALCRIM No. 207 to add the amended dates.
All further unspecified statutory references are to the Penal Code.
We conclude that Widly’s challenge to the prosecutor’s midtrial amendment of the information was waived by trial counsel’s failure to object to the amendment on the grounds asserted in this appeal. Nevertheless, we find no basis for a reversal of the judgment on this ground because Widly suffered no prejudice as a result of trial counsel’s failure to object. Pursuant to section 1009, the trial court “may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings . . . unless the substantial rights of the defendant would be prejudiced thereby . . . .” Here, the trial court acted within its broad discretion by permitting the prosecutor to amend the information to conform to evidence adduced at trial.
On the other hand, we agree with Widly’s instructional error claim, at least with respect to jury unanimity. Because the facts that prompted the midtrial amendment also established more than one discrete act of unlawful methamphetamine possession, the trial court committed what has been called “the most common kind of instructional error in criminal cases” by failing to sua sponte instruct the jury with a unanimity instruction. (People v. Norman (2007) 157 Cal.App.4th 460, 467 (Norman).) Moreover, we conclude the absence of a unanimity instruction amounts to reversible error because without it, we cannot determine whether the jury unanimously agreed on the factual basis for the verdict. Therefore, the judgment must be reversed as to count 1, and the case remanded for a new trial on that count. In all other respects, the judgment is affirmed.
I
FACTS
The Crime
During the early morning hours of February 28, 2006, Fountain Valley Police Officer Shawn Walker stopped a white Ford Escort with expired registration tags on Harbor Boulevard in Fountain Valley. Walker approached the driver of the Escort, Widly, and asked for identification and proof of registration. Widly produced a valid California driver’s license, but could not produce proof of registration because, as he informed Walker, the car belonged to his friend.
Walker called for backup while Widly sat in the car. When Fountain Valley Police Officer Pat Estes arrived two or three minutes later, Walker directed Widly to get out of the Escort and sit on the curb. Walker asked Widly for consent to search the Escort, but Widly refused to give his consent, explaining that he did not want to consent to a search of someone else’s car. Walker told Estes to keep an eye on Widly while he entered the Escort in search of proof of registration. As Walker opened the driver’s door, leaned over the seat, and reached for the glove box, he noticed what looked like a glass pipe wedged between the driver’s seat and the center console. It did not appear to Walker as if anyone had tried to hide the pipe, and the four-inch long glass pipe was the type of pipe Walker knew people frequently used to smoke methamphetamine. Upon closer inspection, Walker saw a small amount of methamphetamine residue in its bowl.
Walker asked Widly about the pipe, but Widly claimed he did not know the glass pipe was in his friends car and that it did not belong to him. Walker then asked Widly for consent to search his person. Widly consented, and Walker found a small plastic bag containing approximately 69 milligrams of methamphetamine in the right front coin pocket of Widly’s pants. Widly also denied knowing that he had methamphetamine in his pants pocket. Walker estimated, based on his experience as a police officer with over 300 drug-related arrests, that the amount of methamphetamine he found in Widly’s pants pocket was enough for “three to four uses.”
Walker arrested Widly and transported him to the Fountain Valley police station, where Walker advised him of his constitutional rights as required by Miranda v. Arizona (1966) 384 U.S. 436. During his Mirandized statement, Widly admitted knowing about the glass pipe in his friend’s car, but he claimed it belonged to someone else. However, he continued to denial knowing anything about the methamphetamine in his pants pocket, although he admitted using methamphetamine “in the past.” Widly also told Walker that he did not normally buy methamphetamine because his friends would give it to him for free, and that he smokes methamphetamine when he has it.
In May 2006, the Orange County District Attorney filed a two-count complaint, charging Widly with felony possession of methamphetamine and misdemeanor possession of controlled substance paraphernalia “on or about February 28, 2006[.]” Walker was the sole witness at the November 9 preliminary examination. His preliminary hearing testimony consisted of substantially the same facts as his trial testimony, which covered the traffic stop, detention, arrest, and statements made by Widly. On November 21, an information was filed charging Widly with felony possession of methamphetamine and misdemeanor possession of controlled substance paraphernalia “[o]n or about February 28, 2006.”
The Trial
After the presentation of the prosecution’s evidence, which consisted of Walker’s testimony and the testimony of Officer Estes, Widly testified on his own behalf. Widly recounted details from the traffic stop, explaining that he and a former roommate had traded cars the day before his arrest. He claimed to have offered the vehicle registration to Walker before Walker searched the car. He also testified that he did not see the glass pipe between the driver’s seat and center console, although he claimed to have driven approximately 100 miles and spent several hours in the car. He denied consenting to either search, and he denied having any knowledge of the presence of methamphetamine in his pant’s pocket.
Widly testified that he was ‘very surprised” when Walker found the plastic bag containing methamphetamine in his pant’s coin pocket. He explained that it had been several months since he had worn that particular pair of pants because his family had packed his possessions and put them in storage six or seven months before his arrest. Defense counsel asked, “Do you know how it could have come to be there?” Widly responded, “[I]t’s possible that I had it there sometime prior to August,” explaining that it was in August 2005 that he voluntarily enrolled in a four-week drug rehabilitation program at a San Clemente treatment facility. Defense counsel queried, “Okay. So it’s your testimony that this baggie that was found in these pants was in your pocket or was there for a time prior to your entering rehab?” Widly responded, “I could only assume that because I — I literally had no recollection of that baggie, and it wouldn’t be uncommon that I would have a baggie on me prior to that time.” Widly adamantly denied using methamphetamine after “coming out of rehab,” claiming it had been “surprisingly easy” for him to quit.
The prosecutor pursued the topic by engaging Widly in the following colloquy during his cross-examination: “[The prosecutor]: Mr. Widly, earlier I asked you when you had worn those pants, and you said certainly worn them 2005 prior to going into rehab, correct? [¶] [Widly]: Most likely had, yes. [¶] Q. And you were using methamphetamine, you said, for about the year period up to August, beginning of August, 2005, correct? [¶] A. Correct.”
After Widly’s direct examination, Walker testified as a rebuttal witness and contradicted Widly’s statements that he offered the vehicle registration slip at the same time he proffered his driver’s license. Walker also reiterated that the glass pipe was clearly visible to him when he entered the car, and further stated that Widly had never mentioned going through a drug rehabilitation program at the time of his arrest. Walker also testified that he had interpreted Widly’s references to how he got and used methamphetamine as relating to his current, not past, use of the drug.
Widly also testified as a rebuttal witness. During a recess of the proceedings, he took several photographs of the Escort’s interior. These photographs demonstrated that there was a nearly one-inch gap between the car’s driver’s seat and its center console. Widly further testified that he bought the Escort from his friend in May 2006.
During closing arguments, Widly’s trial counsel emphasized the fact that his client had completed treatment for methamphetamine addiction in August 2005, and that there was no evidence he was using methamphetamine in February 2006. Counsel pointed to the absence of evidence that Widly was under the influence at the time of his arrest to support this argument, and further argued that his client’s apparent sobriety at the time of his arrest was also consistent with his ignorance of the methamphetamine in his pants pocket and the glass pipe in his friend’s car.
II
DISCUSSION
Amended Information
After Widly’s direct testimony and Walker’s rebuttal testimony, and during a subsequent discussion about jury instructions between the court and counsel, the prosecutor stated, “Your Honor, the People have a motion. . . . [¶] . . . [¶] Pursuant to Penal Code section 1009, we would ask to amend the information as follows: [¶] To conform to proof, to basically change the date of the offense based on the evidence at trial to allege the period on or between January 1st, 2005, and February 28th, 2006.”
Widly claims the amendment, which changed the time of the offense from “[o]n or about February 28, 2006”, to “[o]n or between January 1, 2005 and February 28, 2006,” violated section 1009 and his constitutional rights to due process and the presentation of a defense. Specifically, Widly contends the amendment changed the offense from the single crime of unlawful methamphetamine possession shown at the preliminary hearing to “two separate and distinct crimes, possession of methamphetamine in August 2005 and possession of methamphetamine in February 2006.”
The Attorney General asserts trial counsel’s failure to object to the amendment on the grounds urged on appeal constitutes a waiver of the issue. We agree.
The prosecutor’s proposed amendment elicited the following colloquy between the court and defense counsel: “[The court]: “What are your thoughts?” [¶] [Defense counsel]: “I guess as to one, that would be vague as to time. I mean, it’s kind of nebulous, last year, year-and-a-half you did this. [¶] The court: Well, they can allege a nonspecific crime, and then I have to give an instruction that I don’t usually give which is one that I had actually flagged in the package. [¶] [Defense counsel]: I saw that. [¶] [Prosecutor]: 207 maybe. [¶] Yes. 207. [¶] The court: It is 207. And its pretty clear that according to CALCRIM No. 207 and the related use notes, they can allege time speaking in general either ‘on or between’ manner as long as the jury unanimously finds that the offense happened within the statute of limitations[] period. [¶] [Defense counsel]: Well, then we’re stuck.” When the court advised defense counsel that “absent a more specific objection” the motion would be granted, counsel replied, “Submit it.”
Generally, the defendant’s failure to “object to the amendment of the information or ask for a continuance,” waives the right to assert the error on appeal. (People v. Collins (1963) 217 Cal.App.2d 310, 313; People v. Spencer (1972) 22 Cal.App.3d 786, 799 [claim that the court erred in ordering the filing of an amended information cannot be raised for the first time on appeal.]; see also People v. Carrasco (2006) 137 Cal.App.4th 1050, 1056; People v. Carbonie (1975) 48 Cal.App.3d 679, 691; People v. Walker (1959) 170 Cal.App.2d 159, 163-164.) In our estimation, counsel’s comments that the proposed amendment was “vague as to time” and “kind of nebulous” do not serve as the functional equivalent of a proper objection on grounds the proposed amendment violated section 1009, much less some as yet unidentified constitutional provision. Moreover, trial counsel failed to move for a continuance (which may be granted when the defendant demonstrates prejudice), or otherwise explain how the amendment would adversely affect his client’s substantial rights. Consequently, trial counsel waived the right to challenge the trial court’s ruling on the grounds asserted in this appeal.
Widly tacitly acknowledges that his trial attorney’s statements may not have preserved the right to appeal the court’s ruling. Consequently, he also asserts, in the alternative, that trial counsel’s failure to object constitutes ineffective assistance of counsel. To demonstrate ineffective assistance of counsel, the defendant must show (1) counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability the result would have been different absent the error. (In re Rensendiz (2001) 25 Cal.4th 230, 239; Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Based on our review of the record, there is no reasonable probability of a more favorable result had counsel specifically objected on the grounds that the amendment violated section 1009 and/or constitutional principles of due process and a fair trial.
“Section 1009, of the Penal Code provides that leave may be granted to amend an information to charge any offense ‘shown by the evidence taken at the preliminary examination.’ This may be done in the discretion of the court at any time during the trial provided defendant’s substantial rights are not prejudiced. [Citation.]” (People v. Hernandez (1961) 197 Cal.App.2d 25, 31, fn. omitted.) Further, when the proposed amendment concerns the substantial rights of the defendant, the trial court may nevertheless permit the amendment after a reasonable continuance, as long as the actual offense is not changed from that shown by the evidence at the preliminary hearing. (People v. Burnett (1999) 71 Cal.App.4th 151, 165; see also 4 Witkin & Epstein, Cal. Criminal Law (3d. ed. 2000) Pretrial Proceedings, §§ 217-218, pp. 422-425.) Ultimately, “section 1009 protects a defendant’s right to due process.” (People v. Pitts (1990) 223 Cal.App.3d 606, 903-904; see also People v. Birks (1998) 19 Cal.4th 108, 129.) And, an amendment that charges an offense not shown by the evidence taken at the preliminary examination violates the defendant’s substantial rights. (People v. Witt (1975) 53 Cal.App.3d 154, 164-165.).
Section 1009 provides, in pertinent part, “An indictment, accusation or information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, . . . unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination . . . .”
Widly contends the amendment, which simply changed the date of the offense, actually charged a new offense not established by evidence at the preliminary hearing. However, there is no requirement that the accusatory pleading allege a precise time, “except where the time is a material ingredient in the offense.” (§ 955.) Language such as “On or about February 28, 2006” includes any unspecified time on or about February 28, 2006, so long as Widly’s possession fell within the three-year statute of limitations. (Pen. Code, § 801; Health & Saf. Code, § 11377, subd. (a); People v. Mack (1959) 169 Cal.App.2d 825, 829.) Here, the information charged Widly with possession of methamphetamine “on or about February 28, 2006.” At the preliminary hearing, Walker testified to the facts surrounding Widly’s arrest, and he was the sole witness at the hearing. At trial, Widly testified, in essence, that while he had no knowledge of the presence of the methamphetamine in his pant’s pocket on February 28, 2006, he probably put that same methamphetamine in his pocket sometime before August 2005. Consistent with the presentation of this evidence, the trial court permitted the prosecutor to amend the information, but the amendment did not add new counts or charge an offense somehow different from the one established at the preliminary hearing. Consequently, the amendment did not violate section 1009.
“The essential elements of unlawful possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character.” (People v. Martin (2001) 25 Cal.4th 1180, 1184-1185, fn. omitted.) Widly’s knowledge of the presence of the methamphetamine in his pant’s pocket was the sole issue at trial. The amendment enlarged the time period for that possession to conform to his testimony, but did not materially alter the nature of the accusation against him. Because the original information and the amended information alleged the same crime, there is no merit to Widly’s due process claim.
Moreover, the amendment did not alter Widly’s defense. He consistently challenged the knowledge element of the possession charge, regardless of the time period alleged. For example, defense counsel argued, “Don’t confuse yourself with the dates. [There is] [n]o evidence that he possessed it on any other date but this date. And his testimony is he didn’t know it was in his pocket or he would have gotten rid of it. He didn’t know the pipe was in the car at all because it was not his vehicle.” Widly claims foreknowledge of the amendment would have altered his decision to testify, but there is scant evidence to support his claim. His testimony proffered a possible explanation for the presence of methamphetamine in his pocket. Logically, his explanation included knowledge of the substance, but even in this explanation Widly did not unequivocally admit knowing possessing of methamphetamine. In truth, Widly’s testimony was nothing more than a reassertion of the same affirmative defense he had claimed since his arrest. Based on our review of the record, Widly cannot demonstrate prejudice as a result of his trial counsel’s failure to articulate a specific objection to the amendment on either constitutional ground asserted on appeal.
Instructional Error
Widly contends the trial court erred by amending a standard instruction, CALCRIM No. 207, and failing to give CALCRIM No. 3500, the standard unanimity instruction. With respect to his first contention, the court amended CALCIRM No. 207 to read as follows: “It is alleged that the crime occurred on or between January 1, 2005 and February 28, 2006. The People are not required to prove that the crime took place exactly on a particular date, but only that it happened during that time period.” Widly claims the court erred by modifying the standard instruction. However, we have concluded that the trial court acted within its discretion by permitting the prosecutor to amend the information and allege a time period rather than a specific date. (See § 955.) Therefore, the court’s modification of CALCRIM No. 207 to reflect the amendment was also appropriate. However, we agree with Widly’s contention that the court erred by failing to give a unanimity instruction on its own motion.
The standard instruction reads as follows: “It is alleged that the crime occurred on [or about] ___ <insert alleged date>. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.” The use notes refer to Penal Code section 955 as the statutory authority for the instruction. (Judicial Council of California Criminal Jury Instructions (2006 ed.) CALCRIM No. 207, vol. I, pg. 29.)
The California Constitution protects the right of every criminal defendant to a unanimous jury verdict. (Cal. Const., art. I, § 16; People v. Jones (1990) 51 Cal.3d 294, 321.) For a conviction to be valid, jurors must “unanimously agree [the] defendant is criminally responsible for ‘one discrete criminal event.’” (People v. Thompson (1995) 36 Cal.App.4th 843, 850.) Thus, when the evidence shows more violations of a crime than is charged, a unanimity instruction serves to ensure jurors’ agreement as to the facts underlying a conviction. (People v. Burnett (1999) 71 Cal.App.4th 151, 173.) “‘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.]” (Norman, supra, 157 Cal.App.4th at p. 464-465.) As stated in People v. Deletto (1983) 147 Cal.App.3d 458, “The 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.” (Id. at p. 472.)
There are at least two ways the jurors could have viewed the evidence in this case and reached a guilty verdict: (1) Widly knowingly possessed methamphetamine on February 28, 2006; and (2) Widly knowingly possessed the same methamphetamine between January 1, 2005 and August 2005. Moreover, the prosecutor did argue a conviction for possession of methamphetamine could rest on evidence Widly knowingly possessed the drug on “February 28, 2006,” or on “any day of the year any time in 2005.” Because the evidence supported more than one discrete act of possession of methamphetamine and the prosecutor argued more than one theory to the jury, the court had a sua sponte duty to give CALCRIM No. 3500 or an equivalent unanimity instruction. (Norman, supra, 157 Cal.App.4th at p. 466; see also People v. Castaneda (1997) 55 Cal.App.4th 1067, 1071 (Castaneda); People v. King (1991) 231 Cal.App.3d 493, 501-502 (King).)
CALCRIM No. 3500 provides: “The defendant is charged with <insert description of alleged offense> [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.”
The Attorney General found a third way to view the evidence, i.e., that Widly knowingly possessed the same methamphetamine from January 1, 2005 through February 28, 2006. The Attorney General posits this continuous possession scenario in an effort to circumvent the requirement for a unanimity instruction because no unanimity instruction is required where the charged offense involves evidence of a “continuous course of conduct.” (People v. Thompson (1984) 160 Cal.App.3d 220, 224-225.) However, the prosecutor’s “any day of the year” statement cannot be interpreted as an argument for “continuous possession” because Widly did not have actual or constructive possession of the pants for several months before his arrest.
The Attorney General also attempts to distinguish Castaneda and King on the grounds that both cases involved separate quantities of a controlled substance and the defendants in each case asserted more than one defense. In Castaneda, the jury convicted the defendant of one count of possession of heroin notwithstanding the fact that officers executing a search warrant for Castaneda’s ex-wife’s home found one stash of heroin taped to the back of a television, a second stash taped to the top of the same television, and a third stash in Castaneda’s right front coin pocket. In King, officers searching a residence held jointly by two women found powdered methamphetamine and a syringe loaded with liquid methamphetamine in a women’s purse, and another plastic bag that contained additional powdered methamphetamine inside a decorative statue on a shell over the kitchen sink. Both cases were reversed on appeal because the trial courts failed to give a unanimity instruction. (Castaneda, supra, 55 Cal.App.4th at p. 1071; King, supra, 231 Cal.App.3d at pp. 501-502.)
We acknowledge the facts of this case differ from the facts in Castaneda and King. However, multiple separate quantities of drugs aside, the defendants in Castaneda and King did not exactly assert different legal defenses. Rather, the defendants sought to explain how individual stashes of drugs could be in areas they frequented and yet not be in their possession, and they attempted to do so through the testimony of the purported “true” owners of the drugs. We agree that cases involving multiple drug stashes and several other people to blame may be easier to distinguish from those cases where no unanimity instruction is required. (See People v. Russo (2001) 25 Cal.4th 1124, 1132-1133 [the evidence shows one discrete crime and only disagreement as to exactly how that crime was committed].) However, the duty to instruct on jury unanimity rests not on the presence of multiple stashes or readily available scapegoats, it rests on evidence of more than one discrete criminal act where a single crime is charged. Consequently, we reject the Attorney General’s attempt to distinguish this case from Castaneda and King.
Nevertheless, our conclusion that the trial court erred by failing to give a finding of instructional error does not end the inquiry. Although neither party addresses the issue (the Attorney General does not even address the possibility of error), 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 stringent, harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [cases cited therein].) Without extensive discussion, primarily because many other courts have already discussed the issue and it cannot be finally resolved here, we apply the more stringent standard. Therefore, the conviction must be reversed unless we find the error harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.)
Generally, “[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] 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. Thompson (1995) 36 Cal.App.4th 843, 853.)
We first note that the jury deliberated for less than one hour before returning its verdict. Although we could interpret the verdict as a wholesale rejection of Widly’s defense, we decline to do so. While Widly’s overall defense was lack of knowledge, defense counsel focused his argument on facts relevant to the arrest date. For example, counsel argued, “[t]he amount of meth in the baggie is all but nothing. It looks like a flat baggie that stuck in your pocket, your coin pocket, if you have one, on your pants. You know, that’s not a pocket that you typically notice . . . It wouldn’t suggest itself. It’s a bump. There’s a bulge there. It’s nothing. Just like as wide as a postage stamp.” This particular explanation for Widly’s lack of knowledge could not logically apply to possession of methamphetamine in 2005 because, as Widly explained, prior to August 2005 he frequently used methamphetamine. Any possession at that time would have been with knowledge of the drug, regardless of the amount or packaging materials. Thus, counsel’s hypothesis that Widly simply didn’t realize what he had in his pocket applies solely to his possession on February 28, 2006.
Here, the evidence presented at least two discrete criminal acts of possession, the prosecutor argued guilt could be based on either, and defense counsel effectively addressed only one of these acts in closing argument. In light of the evidence presented, the arguments of counsel, the time the jury took to consider the matter, and the instructions as a whole, we cannot say beyond a reasonable doubt that the jury agreed on the single act constituting possession of methamphetamine. Therefore, the conviction on count 1 must be reversed. (Norman, supra, 157 Cal.App.4th at p. 466; Castaneda, supra, 55 Cal.App.4th at p. 1071.)
III
DISPOSITION
The conviction on count 1, possession of methamphetamine, is reversed and the case remanded for a new trial. In all other respects, the judgment is affirmed.
WE CONCUR: BEDSWORTH, J., MOORE, J.