Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR017164C. Edward P. Moffat, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HILL, J.
INTRODUCTION
Defendant Paul Andrew Gonzales and two codefendants were convicted of possession for sale of methamphetamine and marijuana, based on large quantities of the drugs and packaging materials found during a search of their shared residence. On appeal, defendant contends there is insufficient evidence he had possession and knowledge of the narcotics found in the residence, the court should have given a unanimity instruction, and several pattern instructions prevented the jury from considering the absence of evidence linking him to the drugs. We will affirm.
FACTS
On the morning of November 25, 2003, Madera County Deputy Probation Officer Staci LaFontaine led a multi-agency narcotics enforcement team as it executed a search warrant at a residence on Raymond Thomas Street in Madera. No one was inside or outside the three-bedroom residence when the officers entered. The residence was owned by David Beattie but had been rented to codefendant Nicholas Castillo since 2000.
Officer LaFontaine entered the kitchen and the first thing she noticed was the strong odor of marijuana. She looked up and saw a plastic bag on top of a cupboard, located above the refrigerator. The bag was not concealed in any way. The bag contained 19.92 grams of marijuana. An operational black digital scale was on top of the refrigerator. The scale contained white residue and a greenish-brown substance, believed to be, respectively, methamphetamine and marijuana. The refrigerator was about six feet high, the scale not concealed, and it was in plain view if a person was tall enough.
Officer LaFontaine testified there was a stack of mail in the kitchen in the name of codefendant Castillo, with one letter dated 2000 and addressed to Castillo at the Raymond Thomas address. There were two cell phones in the kitchen that were inoperable. There were three bedrooms in the house, and the photographic exhibits show that clothes, blankets, boxes, mattresses, and a few pieces of furniture were spread around the rooms in disarray.
On the southeast bedroom floor, there were four documents in two envelopes sent from the County of Fresno, and addressed to defendant at the Raymond Thomas street address. One document was dated November 7, 2003. There was a camouflaged-colored bullet-proof vest hanging in the closet, along with other articles of clothing. There was also a piece of Castillo’s mail on the floor, dated 1999. This bedroom also contained a mattress and numerous articles of clothing and blankets on the floor.
In the north bedroom, the officers found two inflated air mattresses, blankets, and men’s clothing on the floor. Codefendant Castillo’s identification card was on the closet floor, and a photograph of Castillo with two unknown males was pinned to the wall. There were two boxes of “Good Sense” plastic sandwich bags on a closet shelf. The boxes were not concealed in any way. One box contained a plastic bag with 83.73 grams of methamphetamine. The methamphetamine odor was very strong, and the drug was in large whole pieces instead of being broken into small amounts, which meant the methamphetamine was in pure form and had not been cut with an agent.
In the southwest bedroom, the officers found a mattress and blanket, and men’s clothing in the room and closet. A black leather wallet was on a closet shelf, and it contained codefendant Ruben Acuna’s California identification card. On the same shelf, the officers found a bag with 25.24 grams of marijuana. The bag was on top of the shelf and not concealed. The marijuana was “pure bud,” which was the part of the marijuana plant with the highest levels of THC. Under the bag of marijuana, the officers found two letters from the County of Madera sent to Acuna at another address, along with Acuna’s payroll earnings record for August 2003. The officers did not find any money or pay/owe sheets in the residence. They did not find any cutting agents or paraphernalia consistent with narcotics usage.
David Beattie, the property owner, testified he collected the rent on the first of every month. Codefendant Castillo had lived there with his girlfriend and children, and the house had been neat and normally furnished, clothes were not scattered around, and it was not trashed when the family lived there. Beattie testified that “there were other people in the residence also,” but he was unable to identify either defendant or Acuna as the other residents. Castillo stopped paying the rent around August 2003, and his girlfriend and children moved out at that time. Castillo continued to live at the residence with “other people, older gentlemen,” and there were “always people around.” Castillo was still living there when Beattie went to the house and tried to collect the rent at the beginning of November and December 2003. Castillo failed to pay the rent and moved out in February 2004.
Nancy Gallegos, Castillo’s girlfriend, testified she lived at the Raymond Thomas house with Castillo and the children. Gallegos testified that Acuna and Castillo had been friends for 13 years, and Acuna regularly visited but did not live with them. Defendant was Castillo’s cousin. Gallegos testified she moved out with Castillo and the children between August and September 2003, they moved all of their furniture and belongings, and they relocated to a residence on Ridge Way. She testified that Castillo lived with them every day at the Ridge Way house, and Castillo did not continue to live at the Raymond Thomas house as far as she was aware.
Officer LaFontaine testified Gallegos gave a different statement in December 2003, and said that she and the children moved from Raymond Thomas to the Ridge Way house a few months earlier because the prior residence was too small. Gallegos said Castillo moved with them to Ridge Way but he still kept the Raymond Thomas house, and he “stayed at both places, went back and forth in between both residences.”
Officer LaFontaine testified to her opinion that the marijuana and methamphetamine recovered from the house were possessed for purposes of sale, based upon the amount and quality of the drugs, the absence of any drug-use paraphernalia, the discovery of plastic bags as packaging materials, and the operational scale with apparent marijuana and methamphetamine residue on it. At the time of the search, the marijuana was worth $500 to $700, and the methamphetamine was worth about $1,500 to $2,000.
Officer LaFontaine believed the residence was used as a “stash pad,” a name given to residences or businesses which appear normal but are used by drug dealers to store and sell narcotics. It was common for drug dealers to keep drugs and money in separate stash pads to avoid losing both items if they are caught. It was not common for a person who kept a stash pad to let just anyone from the street to stay in that place.
“Q. Okay. [¶] Who is it that they would let come to the stash pad?
“A. Usually only other people that they’re involved in their dealings with.”
Officer LaFontaine further explained that firearms are frequently involved in narcotics trafficking, she was aware of other narcotics cases where dealers possess bullet-proof vests for protection during sales transactions, and she believed the bullet-proof vest found in the bedroom closet was used for a similar purpose. The vest could have fit all of the defendants. Officer LaFontaine conceded they did not find any pay/owe sheets in the house, but testified that not all drug dealers sell on credit.
Defendant Gonzales and codefendants Castillo and Acuna were charged with count I, possession of methamphetamine for sale (Health & Saf. Code, § 11378), with a special allegation that the amount of methamphetamine was excessive rendering the defendants ineligible for probation (Pen. Code, § 1203.073, subd. (b)(2)); and count II, possession of marijuana for sale (Health & Saf. Code, § 11359). After a joint jury trial, all three defendants were convicted as charged and the special allegation was found true. Defendant was sentenced to the midterm of two years for count I, with a concurrent two-year term for count II.
The instant appeal only involves defendant, who contends there is insufficient evidence he possessed or knew about the narcotics found in the house, the court should have given the unanimity instruction because marijuana was found in different locations, and several instructions prevented the jury from considering the prosecution’s failure to produce evidence which connected him to the drugs.
DISCUSSION
I. Substantial Evidence
Defendant contends there is insufficient evidence of his possession and knowledge of the marijuana and methamphetamine found in the house, the prosecution merely relied upon speculation that he knew about and controlled the drugs, and his convictions for possession for sale violate his federal and state due process rights.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]”’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“The essential elements of 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. Palaschak (1995) 9 Cal.4th 1236, 1242 (Palaschak); People v. Martin (2001) 25 Cal.4th 1180, 1184; People v. Johnson (1984) 158 Cal.App.3d 850, 853 (Johnson).) To establish possession, it is sufficient to demonstrate the defendant had actual or constructive possession of the contraband. (People v. Cordova (1979) 97 Cal.App.3d 665, 670 (Cordova); People v. Austin (1994) 23 Cal.App.4th 1596, 1608 (Austin), disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 867.)
“Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation]. Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]” (People v. Rushing (1989) 209 Cal.App.3d 618, 622 (Rushing).)
The elements of possession and knowledge may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (Palaschak, supra, 9 Cal.4th at p. 1242; People v. Newman (1971) 5 Cal.3d 48, 52 (Newman), overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862; Cordova, supra, 97 Cal.App.4th at pp. 669-670.)
Actual possession occurs when the defendant exercises direct physical dominion and control over the item. (Austin, supra, 23 Cal.App.4th at pp. 1608-1609.) “Constructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another.” (People v. Morante (1999) 20 Cal.4th 403, 417.) “[P]ossession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.” (Newman, supra, 5 Cal.3d at p. 52; People v. Francis (1969) 71 Cal.2d 66, 71, overruled on other grounds as recognized in People v. Thomas (1991) 231 Cal.App.3d 299, 304-306; People v. Williams (1971) 5 Cal.3d 211, 215, superseded by statute on other grounds as recognized in People v. Romero (1997) 55 Cal.App.4th 147, 152-153.) Joint constructive possession may be inferred from joint control and accessibility. (Newman, supra, 5 Cal.3d at p. 53.)
“‘[A] conviction [for unlawful possession of narcotics] will be sustained if the accused had the immediate right to exercise dominion and control over the known narcotic even though his possession is constructive [citation] or joint with that of another person. [Citations.]’” (People v. Shoals (1992) 8 Cal.App.4th 475, 495.) Proof of the opportunity to access the place where narcotics are found cannot support a finding of unlawful possession. (People v. Glass (1975) 44 Cal.App.3d 772, 776-777 (Glass).) “[M]ore than mere presence must be shown in order to prove constructive possession ....” (People v. Jenkins (1979) 91 Cal.App.3d 579, 584 (Jenkins); Johnson, supra, 158 Cal.App.3d at p. 854.)
However, “[t]he inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation],” whereas where the contraband is “located at premises other than those of the defendant, dominion and control may not be inferred solely from the fact of defendant’s presence, even where the evidence shows knowledge of the presence of the drug and of its narcotic character.” (Jenkins, supra, 91 Cal.App.3d at p. 584; Johnson, supra, 158 Cal.App.3d at p. 854.) Moreover, a factor that may support an inferential showing of joint and constructive possession includes joint occupancy of the premises where drugs are located. (People v. Poe (1958) 164 Cal.App.2d 514, 516; People v. MacArthur (1954) 126 Cal.App.2d 232, 236; People v. Williams (1953) 121 Cal.App.2d 679, 681.)
“[N]o sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant’s knowledge of the presence of a narcotic in a place to which he had access, but not exclusive access, and over which he had some control, but not exclusive control.” (People v. Redrick (1961) 55 Cal.2d 282, 287.) For example, in Glass, drugs were found under a living room couch. The defendant was in bed in the residence at 11:30 a.m., and his boots and shirt were on the floor. No other men’s clothing was found, and no documents addressed to the defendant were found in the residence. “The most that can be inferred from this evidence is that [the defendant] was a visitor at the residence on the morning of the arrest; the usual inferences that may be drawn from joint possession and control of the premises where drugs are found are impermissible in this case.” (Glass, supra, 44 Cal.App.3d at pp. 776-777.)
In the instant case, there is strong circumstantial evidence that defendant was in constructive possession and knew of the existence of the narcotics found in the house. In contrast to Glass, the evidence showed that defendant was living at the Raymond Thomas residence, based on the discovery of documents in the house which had been sent by the County of Fresno, addressed to him at the Raymond Thomas house, and dated just 18 days before the search. There was also evidence that codefendants Castillo and Acuna were living at the house. Castillo had rented the house, Acuna was his long-time friend, and the officers found documents and mail for both men in the house. Beattie, the landlord, testified that Castillo had lived in the house with his girlfriend, children, and other adults, the girlfriend and children moved out, but Castillo and the other adults continued to live in the house and they were still living there on the first of November and December 2003 when he tried to collect the rent. Castillo’s girlfriend said she moved out between August and September 2003, but admitted to Officer LaFontaine that Castillo maintained the Raymond Thomas house and stayed there.
There is also strong circumstantial evidence that the narcotics were in places of defendant’s residence where he had joint dominion and control. Officer LaFontaine testified she immediately detected the strong odor of marijuana when she entered the kitchen, the marijuana was on top of a cupboard, and it was not concealed in any way. The operational scale with marijuana and methamphetamine residue was on top of the refrigerator and it was not concealed in any way.
Defendant argues the methamphetamine, plastic bags, and additional quantity of marijuana were found in “someone else’s bedroom” rather than in his bedroom, presumably referring to the southeast bedroom where his mail was located, such that there is no evidence he was in possession or knew about the contraband. However, there is no evidence that the bedrooms were uniquely connected to any of the residents. The photographic exhibits showed the house was in general disarray. There were mattresses, blankets, pillows, and clothing spread throughout the bedrooms. The strong-smelling marijuana and operational scale were in plain view in the kitchen, the plastic bags and the strong-smelling methamphetamine were on a shelf in the north bedroom closet, and a large quantity of marijuana was in the southwest bedroom closet shelf. The closets were otherwise empty. None of the contraband was concealed, hidden, or secreted, but readily visible to anyone who was living at the house. (Cf. Johnson, supra, 158 Cal.App.3d at p. 854.)
Defendant points out that documents from Castillo and Acuna were found in the bedrooms where the methamphetamine, plastic baggies, and second bag of marijuana were located, whereas his mail was in the southeast bedroom which only contained the bullet-proof vest in the closet. But such an argument ignores the extremely strong inference that defendant, Castillo, and Acuna had joint dominion and control over the entire residence. “A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]” (Rushing, supra, 209 Cal.App.3d at p. 622.) In addition, Officer LaFontaine testified to her expert opinion that the house was being used as a “stash pad,” and explained that it was not common for a person who kept a stash pad to let just anyone from the street stay there, and the only people who could stay there would be others who were “involved in their dealings.”
Defendant challenges Officer LaFontaine’s testimony as to whether the marijuana and scale found on top of the kitchen cupboard and refrigerator were in plain view, or whether she had to look up and above the refrigerator to see those items. Defendant also challenges LaFontaine’s testimony that she immediately smelled the strong odor of marijuana when she entered the kitchen. Defendant points out that LaFontaine was impeached with her preliminary hearing testimony and her report about the search, in which she failed to mention the strong odor of marijuana, and cross-examined as to whether the marijuana and scale in the kitchen were too high to be in plain view.
On review for substantial evidence, however, the existence of conflicting inferences does not undermine the jury’s determinations of credibility and disputed factual issues. (People v. Millwee (1998) 18 Cal.4th 96, 132.) An appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Jackson (1992) 10 Cal.App.4th 13, 21; People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) LaFontaine was cross-examined on these issues and admitted she failed to mention the strong marijuana odor in her report and preliminary hearing testimony, but insisted that she detected the strong smell as soon as she entered the kitchen. LaFontaine also testified she looked up and saw the bag of marijuana. As for the scale, she testified that it was on top of the refrigerator, which was about six feet, and it would have been in plain view if she had been tall enough to see it. There is nothing inherently improbable in LaFontaine’s testimony.
Defendant also points to three Ninth Circuit cases in support of his challenge to the sufficiency of the evidence that he possessed and had knowledge of the narcotics found in the house. As defendant acknowledges, these substantial evidence cases from the Ninth Circuit are not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Moreover, the cases involved conspiracy convictions and are easily distinguished from the instant case. In United States v. Ramos-Rascon (9th Cir. 1993) 8 F.3d 704, the defendants rode in a truck that closely followed another truck which transported drugs. The defendants alertly looked around as they drove. Their truck overshot the entrance of the hotel parking lot where the deal was to take place, they reentered through another entrance, drove back through the lot, and parked near the undercover agents’ room. The defendants sat on a wall outside the hotel, “chatting desultorily” and watching passing cars intently, as the deal was consummated inside. (Id. at p. 707.) Despite six months of solid investigation, the officers had never heard of or identified the defendants as part of the conspiracy. (Id. at p. 706.) The government’s theory was the defendants were engaged in counter surveillance, and a government expert testified those engaged for counter surveillance for drug dealers commonly possess weapons and communications devices. The defendants were convicted of conspiracy to distribute cocaine and possession of cocaine with intent to distribute, even though they did not have any weapons, mobile phones, or walkie-talkies. (Id. at pp. 707-708.) The court reversed the conspiracy and possession convictions and found the government’s evidence of counter surveillance was “strongly suggestive” but insufficient to show they were engaged in wrongdoing rather than innocent behavior. (Id. at p. 710.)
In United States v. Bautista-Avila (9th Cir. 1993) 6 F.3d 1360, the defendants drove into the United States from Mexico only one minute apart from the car in which 24 kilos of cocaine were ultimately found. On the day of the drug transaction, a conspirator retrieved the keys to the car carrying the cocaine from the motel room that one of the defendants had rented and in which both defendants and another codefendant were staying. On his arrest, a conspirator confessed to law enforcement officers that both the defendants’ car and the other car were involved in the conspiracy. One defendant admitted that he gave the second defendant $5,000 to hold. The second defendant admitted that he hid the $5,000 in the dashboard of their car, which was the exact amount that one of the conspirators was to receive for participating in the conspiracy. Both defendants were arrested in the motel room where the drug transaction was to take place and directly in front of the place where both cars were parked, and they had made various attempts to conceal their identity, including renting the motel room under an assumed name. (Id. at pp. 1361-1363.) The court found it was an extremely close case and the evidence was probative of wrongdoing, but held the government failed to show that either defendant knew of the conspiracy or acted in furtherance of it, or possessed the drugs with intent to distribute. (Id. at pp. 1363-1364.) While the defendants acted like people “tangentially involved in a drug conspiracy,” their behavior was “also consistent with that of people who are unwittingly associating with individuals involved in a drug conspiracy.” (Id. at p. 1363.)
In United States v. Penagos (9th Cir. 1987) 823 F.2d 346, the only evidence to connect the defendant to a conspiracy was that he rode along with one of the conspirators. (Id. at pp. 347-348.) The court held the government failed to produce sufficient evidence the defendant engaged in counter surveillance activities or took any action in furtherance of the conspiracy. (Id. at pp. 348-350.)
We reject defendant’s reliance on these conspiracy cases since they are vastly different from the instant situation and involved different legal standards required to prove a conspiracy and acts performed in furtherance of a conspiracy.
Finally, defendant contends his convictions must be reversed based upon People v. Tripp (2007) 151 Cal.App.4th 951 (Tripp). In Tripp, the police arrested Reed, who was on probation for narcotics and subject to a search condition. Reed said he lived at a house on Balboa Drive. The officers went to the house to conduct a probation search based on Reed’s claim that he lived there, and discovered the defendant, his girlfriend, and a child were there. In one bedroom, the girlfriend and the child were sleeping in the same bed. (Id. at p. 954.) In another bedroom, the police found some white crystal powder on a nightstand next to the bed. The powder was “loose, ‘spilled out, like salt’ near the edge of the nightstand. The white powder appeared to be about the size of the head of a pen.” (Ibid., italics added.) The defendant said it was his bedroom. The girlfriend said she usually slept with defendant but sometimes fell asleep with the child. A third bedroom appeared to be used for storage, and Reed claimed he also lived in the house. (Id. at pp. 954-955.)
Tripp held there was insufficient evidence to support the defendant’s conviction for possession because there was no evidence in the house or on the defendant’s person of any type of packaging consistent with methamphetamine, no drug use paraphernalia, the powder was not purposefully hidden, no evidence the defendant used methamphetamine, and it was not found on the defendant’s person as if for his personal use. (Tripp, supra, 151 Cal.App.4th at pp. 957, 959.) Tripp held there was nothing but the miniscule amount of methamphetamine, in a house shared by two other adults, one of whom had a history of narcotics use, to link the defendant to the drugs. (Id. at p. 957.)
In contrast, there were large amounts of methamphetamine and marijuana in fairly open areas of the house where defendant, Castillo, and Acuna lived. The marijuana and scale in the kitchen were in plain view, and the odor from the marijuana was so strong that Officer LaFontaine immediately detected it. There was a large amount of methamphetamine and packaging materials in one bedroom, and a large amount of marijuana in another bedroom, such that the circumstantial evidence and inferences readily drawn therefrom support the jury’s determination that defendant was in constructive possession and had joint dominion and control of the narcotics in the house.
While the circumstances highlighted by defendant may be susceptible to an interpretation other than one supporting his possession and knowledge of the presence of the drugs, reversal is not warranted unless it appears that “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Catlin (2001) 26 Cal.4th 81, 139.) “The same standard applies to the review of circumstantial evidence. [Citation.] . . . Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) The circumstantial evidence, and the inferences drawn thereupon, support defendant’s convictions in this case.
II. The Absence of the Unanimity Instruction
Defendant next contends the court had a sua sponte duty to give the unanimity instruction, CALCRIM No. 3500, as to count II, possession of marijuana for sale. Defendant argues the prosecution relied on multiple theories as to whether the marijuana found in the kitchen or the southwest bedroom supported that count. Defendant further asserts the prosecutor failed to elect a single theory and offered multiple theories to support defendant’s guilt for count II, based either on the total amount of marijuana found in the “stash pad” house, the marijuana found in the kitchen, the marijuana in the southwest bedroom, and/or as an aider and abettor to the two codefendants.
“In a criminal case, a jury verdict must be unanimous. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In addition, the jury must agree unanimously the defendant is guilty of a specific crime. (Ibid.) “[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (Ibid.) Where no election is made, the court has a sua sponte duty to instruct on the unanimity requirement. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citation.] A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (People v. Maury (2003) 30 Cal.4th 342, 423.) A unanimity instruction is required when (1) “actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space”; (2) “there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant”; and (3) the People have not elected to rely on only one of the individual units. (People v. King (1991) 231 Cal.App.3d 493, 501-502 (King).) Factors to be considered in determining the necessity for a unanimity instruction include whether the defendant raised separate defenses to different units of narcotics, and whether there is conflicting evidence of ownership. (People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071 (Castaneda).)
A unanimity instruction is not required if the evidence shows either one criminal act or multiple acts in a continuous course of conduct. (People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1198.) “Possessory drug offenses are continuing crimes that extend throughout a defendant’s assertion of dominion and control over the drugs, even when the drugs are not in the defendant’s immediate physical presence.” (People v. Bland (1995) 10 Cal.4th 991, 995.) “Drug possession is indeed a ‘continuing’ offense, one that extends through time. Thus, throughout the entire time the defendant asserts dominion and control over illegal drugs, the defendant is criminally liable for the drug possession. [Citations.]” (Id. at p. 999.)
Defendant asserts the unanimity instruction should have been given as to count II, possession of marijuana for sale, because large quantities of marijuana were found in two different places in the house—on top of the kitchen cupboard and in a bedroom closet. Defendant relies on Castaneda and King in support of this argument. In Castaneda, the defendant was convicted of possession of a controlled substance. The police found heroin on a television set in the residence where the defendant was arrested, and also in his pants pocket when he was later searched at the jail. The defendant claimed the heroin on the television belonged to his son, and the heroin in his pocket was planted by police. Castaneda held the trial court should have given the unanimity instruction on its own motion because the two acts of possession were not identical and the defendant offered a different defense to each one. (Castaneda, supra, 55 Cal.App.4th at p. 1071.) The court held the factual circumstances required the unanimity instruction because the jury could have convicted the defendant without unanimously agreeing that he possessed either parcel of heroin. (Ibid.)
In King, a female defendant was convicted of possession for sale where methamphetamine was found in various locations inside a home, including inside of another woman’s purse. There was evidence that the home was occupied by more than one person, and the defendant’s boyfriend testified that some of the drugs belonged to him but denied ownership of the scales, pay/owe sheets, and cutting agents found in the house. (King, supra, 231 Cal.App.3d at pp. 497-500.) King held that since the prosecutor did not make an election, the unanimity instruction should have been given because there was “evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant ....” (Id. at pp. 501-502.)
In contrast to Castaneda and King, defendant herein was convicted of possession for sale of both methamphetamine and marijuana based upon all the narcotics found in the house. In closing argument, the prosecutor clearly explained to the jury that both counts were based upon the entirety of the methamphetamine and marijuana found in the house. The prosecutor discussed the details of where the separate amounts of narcotics were found, the quality and weight of each amount, the total amount found in the house, the presence of the operational scale with the drug residue and the packaging materials, and the absence of any drug-use paraphernalia, and the meaning of these evidentiary items to support Officer LaFontaine’s opinion that all the narcotics in the house were possessed for purposes of sale rather than personal use. The prosecutor also addressed the circumstantial evidence that defendant, Castillo, and Acuna lived at the house.
The prosecutor argued the house was being used as a “stash pad,” all three defendants lived in the house and had access and control over all areas, and “the evidence here demonstrates that these individuals possessed these narcotics for sale. The methamphetamine and also the marijuana.”
“[T]hese three defendants, when they were living in that house, they were living there and they were doing one thing together, they were possessing methamphetamine and marijuana for sale . . ..”
While the prosecutor discussed the discrete pieces of evidence, he clearly made an election that the charged offenses were based upon all the narcotics found in the house, and that defendant, Castillo, and Acuna jointly possessed and controlled the large amounts of marijuana and methamphetamine.
Moreover, “[t]he ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz, supra, 51 Cal.3d at p. 100.) The defendants in Castaneda and King raised different defenses to the different amounts of drugs found during the searches in those cases. (Castaneda, supra, 55 Cal.App.4th at p. 1071; King, supra, 231 Cal.App.3d at pp. 497-500.) In contrast, defendant, Castillo, and Acuna raised the same defense as to all the drugs found in the house: that the police failed to properly investigate the case because they did not try to detect any fingerprints in the house or on the contraband, and the prosecution failed to prove who lived in the house, possessed the narcotics, and/or knew the narcotics were in the house. Defendant conceded there were documents addressed to him at that house, but argued the prosecution failed to present any eyewitnesses as to whether he was staying or living there, or evidence that he had possession or control over any of the drugs found in the house, particularly since there were no drugs in the room where his mail was found. Thus, defendant raised the same defense as to all the narcotics found in the house, none of the defendants differentiated between the separate amounts of marijuana and methamphetamine found in different places.
We conclude the court did not have a sua sponte duty to give the unanimity instruction based on the prosecutor’s election and the evidence and defenses raised in this case.
III. CALCRIM Nos. 220, 222 & 223
Defendant next contends that CALCRIM Nos. 220, 222, and 223 violated his state and federal due process rights because the instructions prevented the jury from considering his defense theory about the “absence of evidence,” i.e., that the police failed to look for any fingerprints in the house or on the contraband, and failed to find indicia of sales activities, such as large amounts of cash, cutting agents, weapons, telephones, surveillance equipment, or pay/owe ledger sheets. Defendant argues the combined effect of the three pattern instructions was to tell the jurors that “they could not consider the absence of evidence, but rather they could consider only the evidence presented” in reaching a verdict.
The trial court herein gave the reasonable doubt instruction, CALCRIM No. 220, and three related instructions, CALCRIM Nos. 200, 222, and 223. CALCRIM No. 220 admonishes the jury that in deciding whether the People have proved their case beyond a reasonable doubt, “you must impartially compare and consider all the evidence that was received throughout the entire trial.” CALCRIM No. 200 tells the jury to reach its verdict “based only on the evidence that has been presented to you in this trial.” CALCRIM No. 222 states, “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom.” CALCRIM No. 223 tells the jury it “must decide whether a fact in issue has been proved based on all the evidence.”
Defendant argues these pattern instructions are flawed and deprived him of due process because they improperly told the jury that reasonable doubt must arise from evidence presented at trial and cannot be based on the absence of evidence. As defendant concedes, these contentions have been repeatedly raised and rejected by this court and other districts. (See People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093 (Flores); People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-1510 (Westbrooks); People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1239.)
As we explained in Flores, in reviewing the language of CALCRIM Nos. 220 and 222, “[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial. [Citation.]” (Flores, supra, 153 Cal.App.4th at p. 1093.) Westbrooks similarly held that CALCRIM No. 220 “merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt.” (Westbrooks, supra, 151 Cal.App.4th at p. 1509.) Westbrooks further held that the trial court “did not tell the jury that reasonable doubt must arise from the evidence presented at trial, and, given the court’s other instructions, it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating that the jury was precluded from considering any perceived lack of evidence in determining [defendant’s] guilt. [Citation.]” (Id. at p. 1510, fn. omitted.)
Defendant asserts these decisions were wrongly decided and this court should reconsider its opinion in Flores. We agree with our extensive analysis in Flores and the other cases, decline defendant’s offer to reconsider these rulings, and find there is no reasonable likelihood the jury understood the pattern instructions in the manner suggested by defendant.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.