Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. BLF4387, David B. Downing, Judge. Affirmed with directions.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of one count each of bringing heroin and methamphetamine into prison (Pen. Code, § 4573), and one count each of conspiring to bring heroin and methamphetamine into prison (§ 182, subd. (a)(1).) In bifurcated proceedings, the trial court found that defendant had suffered four priors for which he served prison terms. (§ 667.5, subd. (b).) He was sentenced to prison for 7 years. He appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potentially arguable issues and requesting this court to undertake a review of the entire record.
All further statutory references are to the Penal Code unless otherwise indicated.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
After conducting our independent review of the record, we affirm the judgment.
Facts
During calls to his girlfriend on March 30, April 2 and April 4, 2007, defendant arranged to have her bring drugs into Ironwood Prison, where he was an inmate. On April 7, when defendant’s girlfriend entered the prison to visit him, she was searched, pursuant to a warrant, and she removed from her vagina five balloons, two containing methamphetamine and three containing black tar heroin.
Discussion
Defendant’s convictions were supported by substantial evidence.
His Marsden motion was properly denied.
People v. Marsden (1970) 2 Cal.3d 118.
At the beginning of voir dire, the trial court listed for the potential jurors the witnesses who were expected to testify, noting that most of them were from Ironwood Prison. The trial court then asked the potential jurors about their contacts with the prison. Defendant calls our attention to an incident that occurred at the end of voir dire which might have indicated to potential jurors that he was a prison inmate. However, by then the “cat was out of the bag.” Additionally, there was no way this case could have been tried without reference to the fact that defendant was a prison inmate.
Finally, contrary to defendant’s assertion, People v. Russo (2001) 25 Cal.4th 1124 (Russo) does not require that a jury agree with whom defendant was conspiring in order to convict him of that crime. Moreover, each of the overt acts alleged in connection with the conspiracies involved only defendant’s girlfriend, and no third party. Therefore, in order to convict defendant, the jurors had to find that an overt act involving defendant’s girlfriend, and no one else, occurred, and that she was a conspirator.
Russo held that the jury did not have to unanimously decide which of the overt acts alleged had been committed. Therein, the California Supreme Court also noted, “The evidence here showed but one agreement, and hence but one conspiracy--the agreement by defendant and at least one other person (Morris or Andrews or both [for both of whom the jury had deadlocked on conspiracy charges]) to murder [the victim]. . . . [¶] . . . Disagreement as to who the conconspirators were . . . does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy. . . . [¶] . . . Here, the jury clearly had no doubt that defendant . . . was guilty of conspiring with someone to murder [the victim]. . . . The jury’s inability to reach a conspiracy verdict as to either Morris or Andrews suggest at least some juror or jurors had a doubt whether either was a conconspirator. . . . However, the jury could reasonably have agreed that defendant conspired with at least one of them and that some conspirator committed some overt act in furtherance of the conspiracy.” (Id. at pp. 1135-1136, italics added.) Defendant does not state who else might have been involved in the conspiracy to have drugs brought into the prison, but it is clear from the evidence that it was his mother. However, even if she was also a coconspirator, under the language in Russo, it did not matter. And, of course, as stated in this opinion, the jury necessarily found at least one overt act occurred, and that act involved defendant’s girlfriend.
We have concluded our independent review of the record and find no arguable issues.
Disposition
The trial court is directed to add to the minutes of the sentencing hearing and the abstract of judgment the fact that defendant’s sentence was to run consecutive to the sentence he was serving at that time. In all other respects, the judgment is affirmed.
We concur: RICHLI, J., MILLER, J.