Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA094053. Michael A. Cowell, Judge.
James Koester, 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, Senior Assistant Attorney General, Chung L. Mar, Kenneth N. Sokoler, and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
It is a special crime to furnish marijuana to children. Mark Dailey broke this law four times by furnishing marijuana to four seventh- and eighth-graders. So said the prosecution and so said the jury. We affirm Dailey’s convictions and sentence.
I
The information charged Dailey with four counts. Each count accused Dailey, when he was 18 or older, of furnishing marijuana to a minor under 14 years old. (Health & Saf. Code, § 11361, subd. (a).) Each count alleged the crime occurred between November 1, 2005 and January 5, 2006. None of the counts named a victim.
The prosecutor’s opening statement promised testimony from four children: Levi, Daniel, Kyle, and Eli. (The prosecutor used their full names. We need not repeat these identifications here.) The prosecutor said the boys would testify that Dailey gave them marijuana and smoked it with them. Defense counsel’s opening statement framed the issue in the case. The defense agreed Dailey did smoke marijuana with the boys. The defense also agreed the boys were younger than 14. The issue rather was whether Dailey was the source of the marijuana. The prosecution said he was. The defense said he was not. From the outset, then, Dailey’s defense was that the marijuana came from someone other than him.
The four boys did testify. We summarize this testimony.
(1) Levi is in eighth grade. Dailey sold marijuana to him when Levi was 12. Together they then would smoke the marijuana out of a pipe or an apple. An apple? “Yeah, we would poke a hole through the top of it and through the side to connect and it would pretty much be a pipe.” Dailey sold Levi marijuana five or six times. Levi described these sales: “I would go up to [Dailey] and I would ask him for the marijuana. I’d give him the money and he would just take it out either of his pocket or jacket pocket, and give it to us.” Dailey communicated with Levi using the website MySpace. What is MySpace? “It’s an internet blogging, like a web – that everyone can connect, if you want friends and stuff.” On MySpace, Dailey used the screen name “Misunderstood Inhaler.” Dailey emailed Levi through MySpace. One of Dailey’s messages to Levi included the news that “I’LL HAVE SOME BUD WHEN I GO TO WORK AT 6:00. PEACE MAN. MARK.” Dailey and Levi agreed that “bud” means marijuana. In another MySpace email, Dailey told Levi “DOGGY, HIT ME UP AFTER SCHOOL TOMORROW, DON’T FORGET. PEACE, LATER.” This email was about buying marijuana from Dailey.
(2) Daniel was in eighth grade. He was 13 during these events. He, Levi, and Kyle bought marijuana from Dailey by “all pitch[ing] in money and giv[ing] it to Levi and then he’d go talk to Mark [Dailey].” From about 30 feet away, Daniel witnessed Levi get the marijuana from Dailey.
(3) Kyle was 12 years old. Kyle smoked marijuana with Dailey, Levi, Daniel, and Eli. Kyle testified, without objection, that Levi told Kyle that Levi got the marijuana from Dailey.
(4) Eli was a 12 year old in seventh grade during these events. Eli saw Dailey bring out the marijuana, which Eli then smoked with Dailey. Dailey gave Eli marijuana to smoke “like once or twice.”
The prosecutor also called a law enforcement officer who interviewed Dailey after his arrest. Dailey denied selling marijuana, the officer said, but admitted giving the boys marijuana.
Dailey testified in his defense. He was 21 during these events. He thought the boys were between 12 and 14. Dailey met them when Levi and Daniel approached Dailey in a park and asked to buy marijuana, “[m]aybe the stereotypical thing about skateboarders, because I had my skateboard with me.” Dailey claimed “I only smoked with them. I never actually brought any myself, but I have smoked with . . . them several times.” Dailey smoked marijuana with all four boys. Sometimes it was with one of the boys alone, but “most of the time it wasn’t only one of them that I smoked with.” Dailey smoked with the boys at various locales, including one place Dailey described as “an iconic set up behind Toys R Us . . . a little secluded walkway.” According to Dailey, it was good to smoke in a stairway because “[i]t’s secluded, these’s no wind so the lighter doesn’t go out. It’s – there’s something called hot-boxing, whenever you’re inside an enclosed area if you smoke marijuana the smoke stays in the enclosed area which causes you to actually get more high as opposed to smoking alone.”
Dailey’s trial defense was that, even though he smoked marijuana with the boys, the boys did not get marijuana from him. What then was the marijuana’s source? Dailey claimed the boys supplied it. “Usually Levi would bring [the marijuana]. Sometimes Eli, or [Kyle’s brother] Eric. Eric brought a lot. But Kyle and Daniel themselves did not bring it too much.” Also, Dailey and the boys “pitched in”:
Q Did you have any [marijuana] of your own?
A Sometimes I would pitch in with them to purchase marijuana. But no, for the most part I didn’t bring any of my own, because I don’t like to walk around with marijuana on me. If I’m going to buy it I’m going to smoke it within a relatively short time.
Q “Pitching in,” can you describe what that phrase means?
A It’s kind of like any business proposition. Whenever you’re going to buy something – if you go to Costco you buy it wholesale. If you buy a lot of it, it’s cheaper that way. So whenever – like let’s say if I wanted to buy a gram of marijuana that would cost me $20. But if I wanted to buy a gram and somebody else wanted to buy a gram, et cetera, we pitch in $100 and get seven grams. You get two grams free that way. The more you pay the more you get.
Q So by saying you were pitching in with the other boys, are you saying that all of you would pool your money together and buy the marijuana?
A Yes, sir.
Q Who would do the buying?
A Pretty much could be anybody. Could be Levi, me. I bought it off of somebody before also, but for the most part, let’s say I were to pitch in with Eli, Eli and I would both get separate sacks. We’d get the discount for pitching in the same amount of money and we would get two sacks, because I don’t like to bring a scale with me. I learned my lesson the last time with that one.
Q Let’s talk about the last time. . . . You have a prior conviction for possession of marijuana for sale, correct?
A Yes, sir.
Q That was a felony conviction back in July of 2005?
A Yes, sir.
Q So having already been arrested once you don’t want to be caught with a stash on you or with a scale?
A Exactly.
Q Now, approximately – if you know, how many times did you smoke marijuana with any one of the boys in the stairwell?
A The stairwell alone, probably at least 20, maybe at least 30 times.
Dailey smoked marijuana with the boys elsewhere, including at Kyle’s house. How many times there? “At least twice a week for two or three months. So like between 30 and 40, 50 times maybe. I don’t know, a lot.”
In closing argument Dailey’s attorney said Dailey “explained on several occasions how the marijuana was provided. He pooled his money with the other boys and they bought in bulk. . . . So if Mark Dailey is chipping in his money as an equal with these other four boys, that’s not furnishing.” The prosecutor did not take on this claim of “that’s not furnishing.” Instead, the prosecutor argued Dailey in truth had sold marijuana to the boys.
After the prosecution rested, Dailey moved to dismiss the count relating to Kyle. (Pen. Code, § 1118.1.) Dailey’s counsel stated: “It appears that the way that it’s charged it’s one count per [boy], although the [boys] are not specifically named in the . . . [i]nformation. [¶] Referring specifically to Kyle . . ., it appears that [Kyle] testified that he smoked weed on one to two occasions with Mr. Dailey. However, it was Levi that provided the marijuana. [¶] I would suggest that . . . considering that testimony that one count should be dismissed, whatever count would correlate to [Kyle].” The court denied the motion. The court found the prosecution had enough evidence that Dailey provided marijuana to all four boys, including Kyle, to support a conviction on that count, should the jury render a verdict of guilt.
The jury returned four guilty verdicts after deliberating for 110 minutes. The verdict forms did not name victims or violation dates.
At sentencing, a probation report summarized Dailey’s record. There was the 2005 felony conviction for possessing marijuana for sale that Dailey mentioned in his trial testimony and also admitted at sentencing. As part of the same 2005 case, Dailey also had a felony conviction for possessing an exotic weapon. (Pen. Code, § 12020, subd. (a)(1).) He had also suffered a 2006 felony conviction for possessing drugs (Health & Saf. Code, § 11377, subd. (a)) and a 2004 misdemeanor conviction for child molestation. (Pen. Code, § 647.6, subd. (a); all further section references are to the Penal Code.) Dailey was on probation for all of these offenses when he furnished the marijuana to Levi, Daniel, Kyle, and Eli. The court also considered the parties’ written sentencing memoranda. The prosecutor recommended an upper term on count one and consecutive terms for the other counts and probation violations, noting that “[e]ach count referred to a separate minor.” Dailey’s sentencing memorandum recommended a middle term on count one and concurrent terms on all other counts and probation violations. The parties’ sentencing memoranda also discussed Dailey’s past convictions and probation grants. Several relatives spoke in Dailey’s behalf. Dailey’s counsel objected to the court considering any aggravating factors not found true by the jury, citing Blakely v. Washington (2004) 542 U.S. 296.
The court discussed aggravating and mitigating circumstances. There were three aggravating factors: (1) Dailey had a leadership role; (2) he had numerous or increasingly serious prior convictions; and (3) he was on probation when he reoffended. The one mitigating factor was “that he voluntar[il]y acknowledged wrongdoing, but he did so in a misguided sense that he was making . . . an exculpatory statement, saying, ‘I didn’t sell it to them, I merely gave it to them.’ Undoubtedly not realizing it’s the same offense under the law . . . .”
Finding that aggravation outweighed mitigation, the court imposed a seven-year upper term on count one. The court then imposed consecutive terms of 20 months (one-third of the five-year middle term) on each of counts two through four because each count involved a separate victim. This yielded an aggregate 12-year term. The court imposed no added time for the three probation violations. The court terminated all three probation grants.
II
Dailey says the trial court erred. He argues the court should have instructed sua sponte that, on each count, the jury had to agree unanimously on which of the possible criminal acts proved guilt. (See CALJIC No. 17.01 (Fall 2007-2008 ed.; all further CALJIC references are to that edition); CALCRIM Nos. 3500-3502 (Fall 2007 ed.; all further CALCRIM references are to that edition.).) Dailey thus would fault the trial court for failing to give a “unanimity instruction.”
We quote two common versions of a unanimity instruction to illustrate this issue. First we edit CALJIC No. 17.01 for relevance: “The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction on Counts 1–4 may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts as to each count. However, in order to return a verdict of guilty to any count, all jurors must agree that he committed the same act or acts as to that count. It is not necessary that the particular act agreed upon be stated in your verdict.” Second, we similarly edit CALCRIM No. 3500: “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 committed.”
There was no error. There was no need for a unanimity instruction on these facts. A unanimity instruction is not required when the defendant offers the same defense to the different acts constituting the charged crime, so no juror could have believed he committed one act but disbelieved that he committed the others. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) The Stankewitz decision offered this rule as a dictum. It is a sensible dictum. When no juror could believe the defendant committed one act but disbelieve the defendant committed the others, then a demand for jury unanimity about various acts is a moot point. (See People v. Schultz (1987) 192 Cal.App.3d 535, 539-540 [unanimity instruction unnecessary unless there is evidence on which reasonable jurors could disagree as to which act the defendant committed].) Perhaps for that reason the CALJIC use note approvingly quotes this Stankewitz dictum. (Use Note to CALJIC No. 17.01, p. 1218.)
Dailey indeed raised the same defense to all acts that could have constituted the charged crimes. The court and both parties tried the case under the theory that each of the four counts applied to one of the four boys. True, the court did not list a different and specific victim on each of the four verdict forms. But from opening statements on, both sides presented the case on the theory that each count related to one of the four boys. Indeed, Dailey’s Penal Code section 1118.1 motion to dismiss was made only as to “whatever count would correlate to [Kyle].” And all four counts in the information alleged that Dailey furnished marijuana to minors “[o]n or between November 1, 2005 and January 5, 2006.”
Each boy then testified that Dailey provided him with marijuana. Dailey, however, denied it. His defense was that he never provided marijuana to any of the boys, and that the boys’ contrary testimony was error or fabrication. Dailey did not dispute specific instances recounted by the boys by admitting some and denying or explaining others. There was no issue here about a sale on Day X but no sale on Day Y. Rather the case came down to whether the jurors would accept or reject Dailey’s testimony as it applied to all four boys. Thus these facts did not call for a unanimity instruction.
In any event, any error in failing to give a unanimity instruction as to the count related to Kyle was harmless under any standard of prejudice. “The erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors concerning the different specific acts proved is not reasonably possible.” (People v. Napoles (2002) 104 Cal.App.4th 108, 119; ibid. at p. 119, fn. 8 [split in authority whether such error is reviewed under People v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v. California (1967) 386 U.S. 18, 24, standard of prejudice; error harmless under either standard].)
Any error was harmless because, as discussed, Dailey’s defense was that he never supplied marijuana to the boys. He did not dispute some but not all of those acts, and thus there was “no reasonable likelihood of juror disagreement as to particular acts[.]” (People v. Napoles, supra, 104 Cal.App.4th at p. 120.)
III
Dailey contends that the consecutive sentence on the count about Kyle must be stayed under section 654, which bars multiple punishment for one act violating multiple criminal statutes. Dailey argues that, because Kyle obtained the marijuana from Levi after Levi bought it from Dailey, Dailey had only the one intent to sell to Levi and thus lacked intent to provide marijuana to Kyle. This is incorrect.
“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . . .” (§ 654, subd. (a).)
“Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [¶] As a general rule, the sentencing court determines the defendant’s intent and objective under section 654.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268, internal quotations and citations omitted.) “We review the court’s determination of [the defendant’s] separate intents for sufficient evidence in a light most favorable to the judgment, and presume in support of the court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence.” (Id. at p. 271, internal quotations and citation omitted.)
All the boys were present when Dailey sold marijuana to Levi that all the boys shared. According to Dailey, they repeatedly smoked as a group. Dailey admitted that he smoked marijuana with all four boys. Sometimes it was with one of the boys alone, but “most of the time it wasn’t only one of them that I smoked with.” How many times? “In the stairwell alone, probably at least 20, maybe at least 30 times.” “Daniel wasn’t present as much as Levi, Kyle, and Eli. . . . Daniel, probably I’d say about ten times total anywhere.” How many times at Kyle’s house? “At least twice a week for two or three months. So like between 30 and 40, 50 times maybe. I don’t know, a lot.”
The court reasonably could infer from this evidence that Dailey intended to provide marijuana to all the boys, including Kyle. This evidence sufficiently supports the court’s imposition of a consecutive term for the count related to Kyle, a separate victim.
IV
We reject Dailey’s contention that the court erred in imposing the upper term under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. People v. Black (2007) 41 Cal.4th 799, 805-806, 812-820, held that prior convictions and related facts involving a defendant’s recidivism, such as being on probation, need not be found by a jury under Blakely and Cunningham. These factors make the defendant eligible for an upper term sentence. Black also held that, as long as at least one aggravating factor is proven in a manner that satisfies Cunningham, the defendant is eligible for the upper term, and any additional fact-finding done by the court does not violate Cunningham. Black is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We reject Dailey’s arguments in his reply brief that Black was wrongly decided.
Dailey admitted one alleged prior felony conviction. The probation report revealed two additional felony convictions, as well as another misdemeanor conviction. The report also showed Dailey was on active probation in three cases when he committed the current crimes. Dailey’s written sentencing memorandum conceded these recidivist factors. The court cited Dailey’s prior convictions and his probation status as two of the three aggravating factors warranting the upper term. Those two factors justify the court’s decision.
V
We affirm the judgment.
We concur: PERLUSS, P. J., WOODS, J.