Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF120823A, Kenneth C. Twisselman II, Judge.
Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Vartabedian, J., and Kane, J.
Appellant, Obie Deshawn Alexander, appeals from the judgment entered on a jury verdict convicting him of six counts stemming from traffic stops in October and December 2007. The October 1, 2007, incident and the first three counts are relevant to this appeal. Appellant was convicted of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1), count one), transportation of marijuana while armed with a firearm (Health & Saf. Code, § 11360, subd. (a); Pen. Code, § 12022, subd. (a)(1), count two), and possession of marijuana for sale while armed with a firearm (Health & Saf. Code, § 11359; Pen. Code, § 12022, subd. (a)(1), count three). The December 9, 2007, traffic stop resulted in convictions of possession of marijuana for sale, transportation of marijuana, and resisting arrest. The court imposed an aggregate prison term of seven years and awarded 283 days of custody credit.
Appellant contends (1) the court erred in failing to provide sua sponte a unanimity instruction regarding the possession of a firearm by a felon count and (2) he is entitled to an additional day of custody credit. We will order the judgment modified to reflect an additional day of presentence custody credit and will otherwise affirm.
FACTS
At about 4:30 p.m. on October 1, 2007, Bakersfield Police Officer Eric South stopped appellant’s car for speeding and playing loud music. Officer South noticed the strong odor of marijuana coming from the vehicle and asked appellant if he had anything illegal. Appellant admitted he had marijuana. Officer South searched appellant and found 80 grams of marijuana, a digital scale, and $869 in various denominations. A search of the vehicle turned up a second digital scale and a loaded.25-caliber pistol under the driver’s seat.
Appellant was arrested. When Officer South retrieved the pistol and placed it in the trunk of his patrol car, appellant asked him what he had put in the trunk. Officer South told him it was a firearm. Appellant claimed the pistol was not his, he didn’t know where it came from, and he had just gotten the car that day. Officer South said the gun would be tested for fingerprints and it would be detrimental to appellant’s case if he was lying. Appellant then said he had handled the gun about a week earlier when an unknown individual had shown it to him in the area of 31st Street and San Dimas. Appellant told Officer South he “didn’t know the guy” who showed him the gun, nor did he know how the gun got in the car. Officer South testified he did not pursue the identity of “the guy” because, in his opinion, “the guy” did not exist.
The police had stopped appellant driving the same car twice before.
DISCUSSION
1. No Unanimity Instruction was Required
Appellant claims the evidence showed two acts that may have formed the basis for the count one possession of a firearm conviction. The jury could have found him guilty based on his October 1, 2007, possession of the firearm under the seat of the car or based on his self-described handling of the gun a week earlier. Thus, absent an election by the prosecutor, the trial court was obligated to give the jury a unanimity instruction, such as CALCRIM 3500, in connection with that charge. We are not persuaded.
Where the evidence shows more than one factual basis for a conviction, the prosecution must elect one act to prove the offense or the court must instruct the jury that it must unanimously agree on one particular act as the offense. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) When the prosecution fails to elect one act, the court is obligated to instruct the jury of the unanimity requirement sua sponte. (People v. Curry (2007) 158 Cal.App.4th 766, 783.)
In this case, no unanimity instruction was necessary because the evidence, the prosecutor’s argument, and the verdict form made clear the firearm charge was based solely on appellant’s possession of the firearm found in the car on October 1, 2007. First, there is no substantial evidence of two firearm possessions. Appellant’s admission to Officer South that his prints may be on the gun, which was found under the seat of the car he was driving because he had handled the gun a week prior when an individual on the street showed it to him, is not substantial evidence that appellant possessed a handgun on another date. The jury was instructed that evidence of a person’s admission is by itself insufficient to convict. Because there was no evidence that appellant possessed a gun on any date before October 1, 2007, jurors could not have convicted appellant of count one if any of them had concluded that the only act of knowing possession occurred prior to then.
Second, the October 1, 2007, possession was the sole act the prosecution relied upon for count one. The prosecutor argued appellant’s admission that he handled the gun was not to show that he possessed it then, but to show that he was familiar with the gun found under his seat and had initially lied when he said he knew nothing about the weapon. The prosecutor argued:
“The evidence shows that the firearm was found underneath the driver’s seat of the vehicle defendant was driving … which means he had access to it; he had control over it; he had possession over it. [¶] Now, the question is did he know that that firearm was there…. [¶] … [¶] He goes from I don’t know anything about that weapon, just got that car today, to, okay, well, I have seen the gun before. Then it goes to, well, yeah, my prints might be on that gun. It means he’s had that weapon in his hand…. [¶] … [¶] So what defendant is suggesting, ladies and gentlemen, that somehow that weapon got into his car without his knowledge even though he’s seen it and handled it. I believe the only reasonable inference to draw from the facts that were proven here from the circumstantial evidence is that he put it in his car. He put it in his car fully loaded. And he knew it was in his car, and he knew it was loaded. There’s no other reasonable conclusion to that…. [¶] … [¶] So I don’t see that there would be any reasonable ground at this point to assume that somebody who now you know had the gun in his hand, who has seen it before and then lies about it and then lies about the car, did not know that that weapon was in his car. Ladies and gentlemen, the evidence clearly shows otherwise. A loaded firearm in a car with a convicted felon. [Pen. Code section] 12021[, subdivision] (a)(1) is proven by those facts.”
Third, the verdict form specifies the October 1, 2007, acts as the factual basis for count one. Appellant contends the form is ambiguous because it states count one occurred “on or about October 1, 2007.” He asserts his admission that he handled the gun about a week earlier falls within that “on or about” verdict. We disagree; there was no reasonable possibility of juror disagreement on the act that constituted count one. The evidence, the prosecutor’s argument, and the date on the verdict form made clear that count one was based on appellant’s possession of the gun found in the car he was driving on October 1, 2007. The cases appellant cites are distinguishable.
In People v. Davis (2005) 36 Cal.4th 510, the court held that a unanimity instruction was required in a prosecution for robbery of a female victim, Boyd, where the evidence disclosed two distinct takings: the taking of the male victim’s car from Boyd and the taking of Boyd’s rings from her person. The prosecutor told the jury they could rely on either theory to convict defendant of the Boyd robbery. Some jurors may have had a reasonable doubt as to whether Boyd was still alive when the intent to take her rings was formed while other jurors may have had a doubt about whether she was in possession of her companion’s car. Thus, the trial court’s failure to give the unanimity instruction was prejudicial. (Id. at pp. 560-561.)
Likewise, in People v. King (1991) 231 Cal.App.3d 493, in a house with several occupants, officers found methamphetamine in a baggie stuffed inside a ceramic statue, in a baggie and in a syringe inside a purse. While the evidence indicated that the purse was not defendant’s, the prosecutor argued “‘more than one person can possess an item.’” (Id. at p. 499.)This court held, where actual or constructive possession is based on two or more individual units of contraband reasonably distinguishable by a separation in time or space and a reasonable jury could find that each unit was solely possessed by persons other than the defendant, a jury unanimity instruction must be given, unless the prosecution makes an election. (Id. at pp. 501-502.)
In both Davis and King, the jurors might reasonably have disagreed as to the particular act the defendant committed that constituted the charged offense. The same is not true here. And, the prosecutor argued a single theory of unlawful possession to the jury.
Moreover, even assuming a unanimity instruction was required, appellant cannot show prejudice. Failure to provide a unanimity instruction when warranted is subject to a harmless error analysis. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185.) While courts differ on which standard of review to apply (People v. Smith (2005) 132 Cal.App.4th 1537, 1545), this court employs the Chapman v. California (1967) 386 U.S. 18, 24 “harmless beyond a reasonable doubt” standard. (People v. Gary (1987) 189 Cal.App.3d 1212, 1218.)
The jury found in connection with the possession for sale and transportation of marijuana counts, the principal was armed with a.25-caliber semi-automatic handgun. Appellant was the only person in the car when it was stopped on October 1, 2007, and the prosecutor argued that appellant personally possessed the firearm while it was under the seat of the car he was driving. Thus, the verdicts on the firearm enhancements, combined with the evidence and prosecutor’s argument, show that the jurors unanimously concluded beyond a reasonable doubt that appellant possessed the handgun on October 1, 2007. Even if some jurors also believed appellant possessed the gun on another occasion, there is no reasonable doubt that the verdict on count one would have been the same if the court had provided a unanimity instruction. (See People v. Wolfe, supra, 114 Cal.App.4th at p. 188.)
Appellant submits there is evidence of prejudice in that, during deliberations, the jury asked whether appellant “posses[sed]” the gun if he controlled the car but did not know the gun was beneath the seat. He contends the note showed at least one juror questioned whether the prosecution had established that he was aware of the gun under the car seat. Thus, this juror or jurors could have “nonetheless convicted [appellant] based on his alleged admission of ‘handling’ the gun a week earlier.” We find this argument equally speculative because it requires at least one juror to accept appellant’s inherently improbable statements to Officer South as credible evidence of an earlier possession.
In his reply brief, appellant adds the elements of the enhancement are different from the elements of count one. Thus, on these facts and the instruction given, the jury might have believed the enhancement true if he (1) knowingly carried a firearm or (2)the firearm was available for offensive or defensive use regardless of whether he knew of its presence. We disagree.
Regarding the Health and Safety Code section 12022, subdivision (a)(1) firearm enhancement, the prosecutor argued to the jury, “[y]ou just have to find he had [the gun] in his car and it was available for him to use and he knew it was available for him to use.” (Italics added.) Further, the jury was instructed that armed with a firearm means “knowingly to carry a firearm or have it available for offensive or defensive use.” No reasonable juror could have interpreted the instruction to mean that a weapon is available for use if the user is unaware of its presence.
2. Additional Custody Credit
Appellant claims he is entitled to one additional day of presentence custody credit for a total of 284 days. As the People concede, appellant is correct. A defendant is entitled to credit for each day in custody including the dates of arrest and sentencing. (Pen. Code, § 4019.) The law views partial days as full days. (In re Jackson (1986) 182 Cal.App.3d 439, 442-443.) Appellant was credited with seven days for his time in Kern County Jail between December 9, and December 16, 2007. Appellant should have been credited with eight days for this stay, bringing his total presentence custody credit to 284 days.
In two places in his brief, appellant miscalculates the total number of custody credits and requests a total of 283 days. We construe the request to be for 284 days.
Apparently, the trial court has not responded to appellant’s request to correct the error.
DISPOSITION
The judgment is modified to award appellant one additional day of custody credit. The total presentence custody credit is modified accordingly to reflect a total of 284 days. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.