Opinion
F061907
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. MARTIN VALENCIA YANEZ, Defendant and Appellant.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. BF131289A)
OPINION
THE COURT
Before Levy, Acting P.J., Gomes, J. and Dawson, J.
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
This is an appeal from a judgment entered after a jury trial. Defendant Martin Valencia Yanez contends the trial court erred in failing to instruct the jury with CALJIC No. 17.01, the unanimity instruction. We conclude the court did not err, and we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On March 9, 2010, defendant was at the home of Alex Ramirez when police officers arrived to execute a search warrant. They found heroin and packaging and sales materials in the house. The officers asked defendant if they could search his pickup truck, which was parked in front of the house. Defendant consented. The officers told defendant to remove his pit bull, which was aggressively protecting the interior of the truck, so they could search. Defendant unlocked the car and removed the dog, chaining it to a nearby fence. A narcotics dog sniffed the outside of the truck and alerted to the front wheel-well. An officer opened the hood of the truck and searched the engine compartment. He discovered two pieces of heroin, weighing approximately 16 grams, hidden in the fuse box. When another officer asked defendant about the heroin found in the fuse box, defendant said it consisted of two pieces that Ramirez had given to defendant to be delivered. The officer testified that defendant said "he goes to a lot of places to deliver heroin."
As relevant here, defendant was charged by information with one count of possession of heroin for sale, a violation of Health and Safety Code section 11351. A jury found him guilty of violation of Health and Safety Code section 11351. On February 15, 2011, the court sentenced defendant to the upper term of four years in prison.
DISCUSSION
On appeal, defendant contends the evidence established two possible crimes, based on possession of the heroin in the house and the heroin in defendant's truck. Because the prosecutor did not elect one or the other crime as the basis for the prosecution, defendant contends, the court was required to instruct the jury that it must unanimously agree that defendant committed the same criminal act. Defendant cites People v. Norman (2007) 157 Cal.App.4th 460, 464, and numerous other cases in support of this proposition.
Such an instruction is typically given in the form of CALJIC No. 17.01, which provides, in part: "The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction ... may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty ..., all jurors must agree that [he] [she] committed the same" acts or omissions.
Defendant's contention fails because the trial record clearly establishes that the prosecutor elected only the heroin in defendant's truck as the basis for prosecution. Accordingly, there was no possibility for jurors to disagree about the factual basis for convicting defendant. Thus, in his argument to the jury, the prosecutor focused entirely on defendant's admitted knowledge of the heroin in defendant's truck. In going through the elements of the crime, the prosecutor reiterated that the knowledge element was satisfied by defendant's statement to the police that he knew about the presence of the heroin. Defendant only admitted such knowledge with respect to the heroin in the truck. Finally, in addressing the issue of possession, the prosecutor stated: "It is important to note that the heroin does not have to be on his physical person. It just has to be somewhere he can control, has an ability to get to. It is his truck, he opens it with the key, it's in the fuse box in that truck." There was no similar discussion of the heroin found inside the residence—and no similar evidence concerning defendant's knowledge of that heroin at trial.
It is true, as defendant contends, that the prosecution introduced evidence concerning the items found in the house. This evidence—heroin, balloons for packaging heroin, a digital scale—appears to have been introduced merely to help show that the heroin in the truck was possessed for sale, rather than for personal use. And, as defendant also contends, the prosecutor presented the jury with an alternative theory of defendant's guilt as an aider and abettor of Ramirez. Defense counsel, who did not request a unanimity instruction, apparently perceived the prosecutor's argument to be that defendant had aided and abetted the crime of possession that Ramirez committed inside the house. This clearly was an erroneous interpretation of the prosecutor's argument: Defendant testified at trial that he had lent his truck, or given his keys, to Ramirez, implying that Ramirez was going to use the truck to deliver the heroin that was found in the fuse box. The prosecutor argued that this act—lending the truck to Ramirez— constituted aiding and abetting Ramirez's possession of the heroin in the truck. Thus, neither the evidence of heroin inside the house nor the evidence of Ramirez's use of the truck results in a different conclusion concerning the requirement for a unanimity instruction.
There was no requirement for a unanimity instruction based on the evidence that defendant directly possessed the heroin in the truck or, instead, aided and abetted Ramirez's possession of the heroin in the truck. "[D]efendant's conduct as an aider and abettor or as a direct perpetrator could result only in one criminal act and one charge. [Citation.] 'Under these circumstances, "[j]urors need not unanimously agree on whether the defendant is an aider and abettor or a principal even when different evidence and facts support such conclusion."' [Citations.]" (People v. Maury (2003) 30 Cal.4th 342, 423.)
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Finally, even if the court erred in failing to give a unanimity instruction, that failure is harmless beyond a reasonable doubt. (See People v. Deletto (1983) 147 Cal.App.3d 458, 473.) There was no evidence defendant lived at the house or had possession or control of contraband in the house. It would be irrational for a juror to conclude defendant possessed the heroin in the house, when there was no such evidence, and also to conclude defendant did not possess the heroin in the truck, when he admitted possession of that heroin to the arresting officer.
DISPOSITION
The judgment is affirmed.