Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC772699
McAdams, J.
A jury convicted defendant of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) Defendant admitted that he had previously suffered a drug conviction within the meaning of Health and Safety Code section 11370.2. The court sentenced defendant to five years in state prison for the conviction and the enhancement.
On appeal, defendant contends that (1) the superior court lacked jurisdiction to try him on a felony because the People did not file an information; (2) the court deprived him of due process when it excluded evidence that one of defendant’s roommates had prior convictions for possession of methamphetamine for sale; and (3) under the circumstances present here, the trial court was required to give a unanimity instruction and refused to do so. In a separate petition for habeas corpus, defendant argues that his attorney’s failure to bring a motion to suppress pursuant to Penal Code section 1538.5 constituted ineffective assistance of counsel. We affirm.
By separate order, we deny the petition.
STATEMENT OF FACTS
On the evening of July 14, 2007, San Jose Police Officer James Gonzales, along with five other officers and two sergeant supervisors, went to 1650 Tampa Street in San Jose to conduct a search of the house. As Gonzales and his fellow officers approached the address, defendant Badilla opened the front door and walked out. Gonzales met defendant midway up the driveway and asked him to wait there with an officer. Gonzales and the others announced themselves and then waited approximately 45 seconds to one minute to be let it in. Then they entered through the front door and encountered Jose Orville and Jose Badilla inside the house.
The parties stipulated that the search was lawful.
One bedroom in the house was locked, although police eventually unlocked it. Inside the room, the police found mail and items indicating that Christopher Wrenn lived there. No contraband was found in the room. A second bedroom contained Orville’s possessions. At some point, defendant went back into the living room of the house, and Gonzales asked him which one of the rooms was his. Defendant pointed to a specific room and indicated that it was his.
While defendant sat in the living room area, Gonzales conducted a search of defendant’s bedroom. In defendant’s bedroom, Gonzales found a cardboard box on the center of the bed. Loose inside the box were 13 small, one-inch by one-inch, empty plastic baggies. Also inside the box was a larger plastic bindle containing a crystal substance, and a digital scale. In addition, on the top shelf of a closet, Gonzales found a mirror “that had a crystal substance on it. Next to the mirror was a larger Ziploc bag, a pair of scissors, and a plastic grocery-type bag that had many half-moon pieces cut out of it.” The mirror was six inches by six inches in size and the loose crystalline substance was in a clump. Also on the shelf was a large pile of paperwork.
Testifying as an expert, Officer Gonzales opined that defendant did not appear to be under the influence of a controlled substance at the time of his arrest. Officer Gonzales was also asked his expert opinion on whether the bag weighing approximately seven grams was possessed for sale or for personal use, “given the fact that there were also empty Baggies, a scale, a plastic bag that was being torn out, and scissors next to it.” He opined that “[t]he amount of narcotics in the larger bag together with those other items would make me believe that the substance was being possessed for purpose of sales.” Asked for his opinion with respect to the smaller bag, Officer Gonzales offered that if he viewed the smaller amount independently of the larger amount and the other items, “[t]he second bag, which was located in the closet, is quite a bit less. That alone with nothing else would be a different opinion.” But in the context of all the other indicia, he definitely believed that “in this case both bags are possessed for purpose of sales. Just happened to be in a different location.”
He also testified that the grocery bag with cut-outs was significant because the cut out pieces were “[J]ust a very common, easy way to make a small bindle to sell a small amount of narcotics.” Using a one-gram packet of Splenda and two playing cards, Officer Gonzales demonstrated how “[d]ealers will commonly divide [methamphetamine crystals] up on a piece of glass or mirror or something smooth using a variety of things, cards, razorblades, anything sharp” to divide a gram of the drug into one-tenth of a gram quantities that can be packaged into small bindles made out of half-moon cutouts from a plastic bag. Each bindle could be divided into multiple uses. In his opinion, even these smaller amounts would be useable amounts for the purpose of getting “high.”
No cutting agent, pay-owe ledger, counter-surveillance equipment or pagers were found. A business card was found in the box on the bed but Officer Gonzales did not take it as evidence. It did not have defendant’s name on it.
Officer Gonzales also found two pieces of papers addressed to defendant in the closet. One was a pay stub made out to defendant but the address on it was not 1650 Tampa.
Defendant did not have any contraband on his person, but he did have $238 in his pocket.
Nothing illegal was found in any other room or part of the house.
After defendant was arrested, he waived his Miranda rights and was interviewed by Officer Gonzales at the jail. (Miranda v. Arizona (1966) 384 U.S. 436.) Gonzales asked defendant if the methamphetamine found in his room belonged to him, and defendant indicated that it did. Gonzales asked defendant why he would possess such a large amount in his home. Defendant responded that he had about a month’s worth of methamphetamine in his room. Asked why he had a scale, defendant said that he uses the scale to verify the amounts of methamphetamine he purchases. Asked why it was necessary for him to have the ability to package the methamphetamine so many times over, with the plastic Ziploc baggies and the grocery-type bag with the holes cut out of it, defendant did not have a response.
Christina Henry, a criminalist with the Santa Clara County crime lab tested a white crystalline material contained in a white opaque plastic baggie and in a tape-sealed piece of plastic or plastic bag. The larger quantity tested positive for methamphetamine and weighed 6.90 grams. She did not analyze the smaller quantity in the second bag. Its gross weight was 2.13 grams. Although she is also trained to examine fingerprints, the bags were not submitted to her for fingerprint analysis.
With respect to defendant’s prior conviction, Officer Barry Torres testified that on January 10, 2005, he arrested defendant for being under the influence of a stimulant and searched defendant’s house, where he found a black magnetic key holder on top of a bed that had in it two baggies, each one containing two grams of suspected methamphetamine. He also found a straw, a scale with white residue on it, and three used baggies with residue in them. In Officer Torres’s expert opinion, defendant possessed the methamphetamine for sale. The parties stipulated that defendant had pleaded no contest to possession of methamphetamine for sale and being under the influence in that case.
DISCUSSION
Lack of Jurisdiction
Relying on People v. Smith (1986) 187 Cal.App.3d 1222, defendant contends that the superior court lacked jurisdiction to try him because the district attorney did not file an information. Instead, at the conclusion of the preliminary hearing, and immediately after holding defendant to answer, counsel stipulated that the complaint could be deemed the information, the court arraigned defendant on the deemed information, and set a trial date. Defendant acknowledges that the Court of Appeal in People v. Cartwright (1995) 39 Cal.App.4th 1123 (Cartwright) approved this procedure. However, defendant argues that the “deeming” of the complaint to be an information violates the separation of powers provision of the California Constitution and Penal Code section 739, and that Cartwright is either distinguishable or wrongly decided. We reject defendant’s contentions.
An information is an accusatory pleading, made after a preliminary hearing in which it is found that there is sufficient cause to believe the defendant is guilty of a public offense. (Cartwright, supra, 39 Cal.App.4th at p. 1132.) The principal purpose of the information is to notify the accused of the charges he or she is to meet at trial. (People v. Adams (1974) 43 Cal.App.3d 697, 705.) In order to provide that notice, the Penal Code requires a defendant to be arraigned in the court in which the information is filed. (Pen. Code, § 976, subd. (a).) At arraignment, the court reads the information to the defendant and asks whether he or she pleads guilty or not guilty to the charges as set forth in it. (Pen. Code, § 988.) Failure to file an information is an irregularity of sufficient importance that the parties cannot cure the irregularity by their consent to the proceedings. (People v. Smith, supra, 187 Cal.App.3d at pp. 1224-1225.)
Prior to the unification of the trial courts, felony proceedings commenced in the municipal court with the filing of a complaint and the holding of a preliminary examination before the magistrate. (Pen. Code §§ 806, 872.) If the magistrate concluded there was sufficient evidence to hold the defendant to answer, the prosecution filed an information in the superior court within 15 days, charging the defendant with the felony offense. (Pen. Code, §§ 976, 1382, subd. (a)(1); People v. Crayton (2002) 28 Cal.4th 346.) After court unification, “the proceedings in the early stages of a felony prosecution that formerly were held in municipal court now are held in superior court, but the basic procedural steps — the filing of a complaint before a magistrate, the holding of a preliminary examination before a magistrate, and the filing of an information and arraignment on the information before a superior court judge — remain the same.” (Crayton, at pp. 358-359.)
Chapter 931 of the California Legislative Counsel’s Digest, filed with the Secretary of State on September 28, 1998, states in relevant part: “The California Constitution provides for the establishment of superior and municipal courts, as specified, in each county. SCA 4 of the 1995-96 Regular Session, as approved by the voters on June 2, 1998, provides for the abolition of municipal courts within a county, and for the establishment of a unified superior court for that county, upon a majority vote of superior court judges and a majority vote of municipal court judges within the county; provides for the qualification and election of the judges; and revises the number of jurors required in certain civil actions. [¶] This bill would make various statutory changes to implement and conform to the unification of trial courts pursuant to the constitutional amendment. The bill would also make changes to various provisions of the Code of Civil Procedure, Financial Code, Government Code, Penal Code, and Vehicle Code to conform to changes proposed by AB 310, AB 1094, AB 1211, AB 1590, AB 1754, AB 1858, AB 1927, AB 2070, AB 2134, AB 2551, SB 117, SB 752, SB 1452, SB 1558, SB 1608, SB 1638, SB 1768, SB 1850, and SB 2168, respectively, contingent upon their prior enactment.”
The Smith case on which defendant relies took place prior to court unification. There, a complaint had been filed in municipal court but at arraignment in superior court it was discovered that there was no accusatory pleading on file in that court. The matter proceeded as if the complaint was the information. (People v. Smith, supra, 187 Cal.App.3d at p. 1224.) The appellate court reversed, holding that without an information on file before it, the superior court had no jurisdiction to proceed. (Id. at p. 1225.)
The Cartwright case – like this case – took place after the unification of the trial courts. There, the magistrate, a superior court judge, deemed the complaint to be the information immediately following her determination that the defendant should be held to answer. On appeal, the defendant argued that his conviction should be reversed because no information had been filed. The appellate court distinguished Smith, pointing out that in Smith no accusatory pleading had ever been filed in the court in which the defendant was to be arraigned and the parties had attempted to cure that error after the fact. In contrast, in Cartwright, an information was filed in the court where the defendant was to be arraigned when the magistrate accepted as such the document then on file before her. (Cartwright, supra, 39 Cal.App.4th at p. 1132.)
This case is virtually indistinguishable from Cartwright. As noted above, it took place after the consolidation of the trial courts in Santa Clara County. At the conclusion of the preliminary hearing, and immediately upon the superior court judge’s order, as magistrate, binding the defendant over for trial, the parties stipulated that the court could treat the complaint already before it as the information. Defendant nevertheless maintains that this scenario violated Article I, section 14 of the California Constitution, and Penal Code section 739, because “in the absence of an information filed by the District Attorney, there can be no jurisdiction.” (Italics added.) “A filing of papers is accomplished by depositing with the proper officer at his office or at any place at which he is called upon to perform his duties the paper which is to be filed.” (People v. Ramirez (1931) 112 Cal.App. 507, 510.) The procedure employed here by the parties and the court expeditiously accomplished the “filing” of the information in the superior court. Instead of making the prosecutor go to his office, transform the document labeled “complaint,” into an identical document labeled “information,” return to the courthouse, and deposit the document with the superior court judge or clerk, the process used here permitted the prosecutor to accomplish all that by agreeing to have the existing piece of paper labeled a complaint treated as a piece of paper labeled an information. We see no violation of Article I, section 14 of the California Constitution or Penal Code section 739. Consistent with the powers conferred upon him by the state constitution, the judge here, sitting as a magistrate, presided over defendant’s preliminary hearing and held defendant to answer. (Gray v. Municipal Court (1983) 149 Cal.App.3d 373, 376.) We agree with the Attorney General that by stipulating to treat or “deem” the complaint to be the same as the information, the parties did not attempt to confer jurisdiction by stipulation. They stipulated to a fact – the existence of a document denominated an information – on which the judge, now sitting as a superior court, could properly act.
Article I, section 14 of the California Constitution provides, in relevant part: “Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.”
Penal Code section 739 provides: “When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed. The information shall be in the name of the people of the State of California and subscribed by the district attorney.”
No error occurred.
Exclusion of Evidence
Prior to trial, defendant made a written motion to introduce evidence that Christopher Wrenn, who apparently lived at the Tampa Street address but was not at home when the house was searched on July 17, 2007, had two prior convictions for possession of methamphetamine for sale. In one of those cases, Wrenn had been found in possession of two baggies of methamphetamine and a scale. Noting that Wrenn could not have planted the drugs in defendant’s room just before the police entered because he was not present, he was not a witness to the search, and the door to his room was locked, the court denied the motion on Evidence Code section 352 grounds. Defense counsel renewed his motion after learning that Wrenn had been arrested recently with methamphetamine in his pocket and charged with possession for sale. Finding that the evidence of Wrenn’s prior convictions was too attenuated to be probative and had the potential to confuse the jury, the trial court denied the motion. The trial court also opined that the introduction of Wrenn’s prior convictions would constitute propensity evidence in violation of Evidence Code section 1101.
On appeal, defendant argues that the court’s ruling was erroneous, denied him his due process right to present a defense of third-party culpability, and was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24. He contends: “The primary defense theory was that one of [defendant’s] co-tenants had planted the drugs in his room. While Mr. Wren was not present in the house at the time of the search, Jose Orville and Jose Badilla were. Insofar as the door to [defendant’s] room was unlocked, there was ample opportunity for one of the two men to place Mr. Wrenn’s drugs in the room. Thus, there was sufficient circumstantial evidence to tie Mr. Wrenn to commission of the crime.” (Italics added.) We disagree.
We review the trial court’s ruling under Evidence Code section 352 for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) “Evidence that a third person actually committed a crime for which the defendant has been charged is relevant but, like all evidence, subject to exclusion at the court’s discretion under Evidence Code section 352 if its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion. [Citation.] The decision in [People v.] Hall [(1986) 41 Cal.3d 826] guides the exercise of discretion in this context. [¶] ‘To be admissible, the third-party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.’ (Id. at p. 833.) However, ‘evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ ” (People v. Yeoman (2003) 31 Cal.4th 93, 140-141.)
Defendant acknowledges that Evidence Code section 352 gives the trial court the discretion “to exclude evidence which is ‘substantially more prejudicial than probative’ ” and faults the trial court for grounding its ruling on jury confusion. The Attorney General more accurately states the standard of review. Evidence of third party culpability may be properly excluded under Evidence Code section 352 “if its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion” (People v. Yeoman, supra, 31 Cal.4th at p. 140, italics added), and even relevant evidence may be excluded under section 352 if it “creates a substantial danger of undue consumption of time or of prejudicing, confusing or misleading the jury.” (People v. Hall, supra, 41 Cal.3d at p. 829, italics added.)
In our view, the trial court correctly concluded that the evidence of Wrenn’s convictions was properly excludable. Wrenn’s conviction were not probative because no evidence linked Wrenn to the drugs found in defendant’s room, and for that reason Wrenn’s prior convictions had the potential to confuse the jury. One of the defense theories was that Mr. Orville and/or Mr. Jose Badilla used the 45 to 60 seconds between the police officers’ announcement of their presence and their entry into the house to secrete drugs in defendant’s room. But this scenario did not support the inference that the drugs belonged to Wrenn, who was not present and whose bedroom door was locked. The evidence that Wrenn had prior convictions for methamphetamine possession did not supply the necessary link. Assuming that Wrenn was a drug dealer, it nevertheless made no sense that a drug dealer who locks his bedroom door would leave his drugs in the living room when he is out, and does not explain why Mr. Orville and defendant’s namesake Mr. Badilla would choose to protect Wrenn and implicate defendant. Here, the evidence of Wrenn’s convictions barely showed even motive or opportunity. The trial court did not abuse its discretion under People v. Hall, or Evidence Code section 352. As no state law error occurred, we need not address defendant’s claim of federal constitutional error. Our conclusion also makes it unnecessary to discuss defendant’s claim that the trial court’s secondary ruling under Evidence Code section 1101 was incorrect.
Failure to Instruct on Unanimity
Defense counsel requested that the court instruct the jury with CALCRIM No. 3500, which requires jury unanimity when the evidence shows two or more discrete acts which may constitute the crime charged. The trial court’s “tentative ruling” was to deny the request, and defense counsel did not revisit the matter after argument. On appeal, defendant relies primarily on People v. Castaneda (1997) 55 Cal.App.4th 1067 (Castaneda) for the proposition that the failure to instruct on unanimity in this case was error. We disagree.
CALCRIM No. 3500 provides, in relevant part: “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.”
In Castaneda, the defendant was charged with one count of possession of heroin. The police arrested him in a bedroom of his ex-wife’s home, which she shared with their son. The police found a small plastic bindle containing .07 grams of tar heroin taped to the back of a television set in the bedroom, and .02 grams of tar heroin on top the television. Castaneda’s pockets were emptied and searched at the scene and no contraband was found on him. However, at the police station, Castaneda was searched again, only this time the police found a plastic bindle containing 1.1 grams of tar heroin in his pocket. At trial, defendant’s son testified that the heroin found on the television belonged to him, and his ex-wife testified that defendant was not living with her but was visiting at the time of the search. In summation, Castaneda’s attorney argued that the heroin found in his pocket had been planted by police. (Castaneda, supra, 55 Cal.App.4th at p. 1070.)
On these facts, the appellate court found that the trial court’s failure to give a unanimity instruction was prejudicial error, because the evidence presented two different sets of facts under which the jury could have found the defendant guilty of the single charge. (Castaneda, supra, 55 Cal.App.4th at p. 1070.) The court reasoned: “As it was, some jurors could have found Castaneda guilty of possession based on the heroin found in his pocket, but had a reasonable doubt as to whether he possessed the heroin found on the television; while others could have thought the heroin in his pocket was planted (or otherwise had a reasonable doubt as to whether he knowingly possessed it) and based their guilty verdict on the heroin found on the television. Thus, all the jurors could have found Castaneda guilty of possession of a controlled substance without unanimously agreeing upon which act constituted the offense. This constitutes a violation of the right to a unanimous verdict in criminal cases. [Citation.] Of course it is possible that all 12 jurors agreed Castaneda possessed the heroin on the television, or the heroin in his pocket, or both. However, there is no way of knowing this; therefore, reversal is required.” (Id. at p. 1071.)
Factually, Castaneda shares some superficial similarities with this case. However, in our view, it was critical to the Castaneda court’s holding that the defendant in that case presented distinct defenses as to each of the discrete factual bases for his conviction. That is not true here. Although defense counsel argued, to the court, that a unanimity instruction should be given because “there’s evidence here that may be argued as to the methamphetamine found in the closet being for personal use and possibly the one found on the bed as for sales,” he did not argue that theory to the jury. Instead, he presented two theories to the jury: either someone planted all of the methamphetamine in his room during the 45 to 60 seconds between the police officers’ announcement of their presence and their entry into the house; or (2) all of the methamphetamine was possessed for personal use.
For example, defense counsel argued that someone in the house, most likely defendant’s roommate, Mr. Orville, had access to both the closet and the room and could have put the contraband there. He argued: “That closet was approximately two feet away from the front door only…. A person certainly within 45 to 60 seconds to an unlocked room has access to that room.” He also argued that the presence of the box on the bed suggested “that someone was in a hurry to just, if you will, dash or ditch this object without much time to conceal it.” He also suggested that the pile of correspondence on the closet shelf, from which Officer Gonzales selected three pieces of mail with defendant’s name on them, showed that the room belonged to someone else. “Who else’s names were on those pieces of mail? Unfortunately, ladies and gentlemen, we don’t know. Officer Gonzalez intentionally, deliberately decided not to collect those pieces of mail for us.”
Alternatively, defense counsel argued that there was insufficient evidence from which the jury could find that any of the methamphetamine was possessed for sale. He first pointed out there were two separate “amounts of methamphetamine found” but that the larger quantity was found in a clump and the smaller quantity was found loose on top of a mirror. From this he argued that the methamphetamine was not stored in a manner that suggested sales. “The methamphetamine was loose on a mirror. The methamphetamine was just directly on a bed unhidden.” He went on to argue the scale on the bed was there to provide a methamphetamine user with a measure of consumer protection, much the way scales are used in grocery stores to weigh produce. Thus, the thrust of defense counsel’s argument was that the loose methamphetamine on the mirror in the closet supported the inference that the larger quantity on the bed was also possessed for personal use.
Under these circumstances, a unanimity instruction was not required. The court has no sua sponte duty to instruct on unanimity if the offense constitutes a “continuous course of conduct.” (People v. Maury (2003) 30 Cal.4th 342, 423.) “This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. The second is when … the statute contemplates a continuous course of conduct of a series of acts over a period of time.” (People v. Napoles (2002) 104 Cal.App.4th 108, 115, internal quotation marks omitted; see also bench note to CALCRIM 3500.) This case presents an example of the former exception. The quantities of methamphetamine were possessed at the same time in the same room; defendant’s admission to Officer Gonzales did not differentiate between both quantities, and defendant did not defend himself at trial on the basis that the smaller quantity in the closet was possessed by him for personal use but the quantity on the bed belonged to someone else. The court did not err by declining to given a unanimity instruction.
CONCLUSION
Deeming the complaint to be an information by stipulation of the parties accomplishes the filing of an information by the district attorney, and the trial court had the jurisdiction to act on it. The trial court did not abuse its discretion under Evidence Code section 352 by excluding evidence that defendant’s roommate had prior convictions for possession of methamphetamine for sale. The trial court was not required to instruct on unanimity because the quantity of methamphetamine in the closet and the quantity of methamphetamine on the bed were so closely connected that they form part of one transaction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. Mihara, J.