Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA282780, William C. Ryan, Judge. Affirmed.
William D. Farber, 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, Assistant Attorney General, Theresa A. Patterson and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
CROSKEY, J.
Defendant and appellant Willie Jones appeals from a judgment after a jury trial in which he was convicted of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and battery on a peace officer (Pen. Code, § 243, subd. (c)(2)). At defendant’s arrest, he was in possession of several different bindles of cocaine base, yet he was charged with a single count of possession for sale. Defendant contends that the trial court therefore erred in failing to instruct the jury sua sponte on unanimity in the language of CALJIC No. 17.01. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 29, 2005, a narcotics task force was conducting surveillance in an area of downtown Los Angeles known for very heavy use of rock cocaine. Los Angeles Police Department Officer Salvadore Reyes was conducting observations in the area. He observed defendant riding his bicycle toward a parked car in a parking lot. Based on his experience, Officer Reyes suspected that defendant might have conducted a drug sale nearby, and was coming to the car to retrieve the drugs. Officer Reyes drove his unmarked car into the lot as well, and parked behind defendant. Defendant then opened the driver’s side door of his car, and entered it. Officer Reyes saw defendant reach toward the glove box. Defendant then exited the car holding in his hand two plastic bindles that appeared to contain rock cocaine. Defendant waved to another man, and the man began to approach. Officer Reyes immediately radioed to the “chase units” and advised them to take defendant into custody. As the police cars entered the lot, someone yelled, “Jump out,” which means “undercover police.” Defendant quickly reentered his car and hid.
Officer Sucha Singh and his partner Officer George Mejia arrived in response to Officer Reyes’s call. As they arrived, Officer Reyes drove away. Officer Singh ordered defendant out of his car. At first, defendant failed to respond, but eventually he complied. Defendant was belligerent and uncooperative. He was arrested, handcuffed, and placed in the back of Officer Singh’s patrol car. Officer Singh did not search defendant before seating him in the patrol car. Defendant had been extremely uncooperative, and the officers were more concerned about handcuffing him. Additionally, they feared that another person or a weapon might have been in defendant’s car, so their first concern was securing defendant and the area.
Defendant was placed in the back seat, on the driver’s side, of Officer Singh’s car. Officer Singh had recently arrested a woman, who was then sitting in the rear passenger seat of the car. Officer Singh had searched the woman, and had ensured there were absolutely no drugs in her possession. While defendant was in the back seat of the police car, Officer Singh observed him moving from side to side. Officer Singh thought defendant might have been trying to drop drugs in the car, so he looked through the window over defendant’s shoulder. Defendant was holding a plastic baggie containing a white substance in his hand. Then, while his hands were handcuffed behind his back, defendant flicked the baggie away. Officer Singh informed Officer Mejia that defendant was “tossing” the drugs. The officers then removed defendant from the car. Officer Singh checked inside the car and recovered the tossed item -- a baggie containing over six grams of cocaine base. Officer Singh also recovered a razor blade from the car. The razor blade had blood on it.
Officer Singh admitted on cross-examination that he had not searched her “private parts” for drugs. The exact scope of Officer Singh’s search is unclear. Officer Singh had the woman empty her pockets and turn them inside-out. Officer Mejia believed that was the extent of the search, and that the woman was not “patted down.”
Defendant had blood on his fingers. Officer Singh found $130 in various denominations in defendant’s front pants pocket. Another arresting officer, Officer David Chapman, recovered a bindle containing over two grams of cocaine base in defendant’s left shirt sleeve. Four one-dollar bills were also found in defendant’s sleeve. Officer Mejia recovered one-half gram of cocaine base from defendant’s left hand, and an additional off-white solid resembling cocaine base from the rear seat of the police car in which defendant had been sitting. In addition, officers searching defendant’s car found marijuana in the ashtray, and $173 in small bills in the trunk.
Each bindle recovered was given an item number by police; there were four in total. Officer Mejia testified that the cocaine he recovered from defendant’s hand was item number 2, and that the item he recovered from the rear seat of the police car was item number 4. The criminalist did not testify as to any chemical tests conducted on item number 4.
A typical purchase of rock cocaine is .02-.05 grams and sells for between $2 and $5. Defendant’s trunk contained one ten-dollar bill, 24 five-dollar bills, and 43 one-dollar bills.
Detective Ronald Hodges was the supervisor in control of the undercover narcotics unit, and was on the scene of defendant’s arrest. Detective Hodges opined that defendant possessed the cocaine base for sale, based on: (1) the quantity of drugs seized; (2) the presence of the razor blade, which is used to cut rock cocaine into smaller pieces; (3) the fact that defendant did not have any drug use paraphernalia; and (4) the large amount of small bills in defendant’s possession.
After defendant’s arrest, he was taken to jail for booking. During the process, his handcuffs were removed to enable him to sign necessary papers. At that time, defendant stood up and, without warning, punched Detective Hodges in the head. Detective Hodges, who had done nothing to provoke the blow, was propelled into a standing fan and the wall. It took at least four officers, one of whom used a taser, to subdue defendant.
Defendant was charged by information with possession for sale of cocaine base, battery on a police officer, and resisting an executive officer (Pen. Code, § 69). It was also alleged that defendant had suffered a prior serious felony conviction within the meaning of Penal Code section 1170.12, and a prior conviction of possession for sale of cocaine base within the meaning of Penal Code section 11370.2.
Prior prison term allegations within the meaning of Penal Code section 667.5 were initially alleged but subsequently dismissed.
Defendant proceeded in pro. per. at trial. His defense was based on the premise that all of the officers were lying, and, specifically, that Detective Hodges was the motivating force in framing him. Defendant introduced the testimony of two other jail inmates awaiting trial, and a third man with prior narcotics convictions, to the effect that Detective Hodges falsely arrested people, used unnecessary force, planted evidence, and threatened innocent people. Defendant’s witnesses also testified that Officer Reyes had planted evidence. Finally, defendant challenged the observations of Officer Reyes with evidence that Officer Reyes could not have seen him open the driver’s side door of his car, as that door was broken.
Defendant was convicted as charged. In a bifurcated proceeding, the jury found the prior conviction allegations to be true. Defendant was sentenced to 12 years, 4 months in prison, calculated as follows: For possession for sale of cocaine base, the middle term of four years, doubled for the strike, plus an additional three years for the prior possession for sale enhancement; plus a consecutive 16 month sentence for the battery, calculated as of one-third of the middle term, doubled. Sentence on the resisting count was stayed under Penal Code section 654. Defendant filed a timely notice of appeal.
CONTENTIONS ON APPEAL
On appeal, defendant contends that the trial court erred by failing to instruct the jury on unanimity in the language of CALJIC No. 17.01, with respect to the possession for sale count. Defendant argues that the prosecution introduced evidence of three separate and distinct acts of possession for sale of cocaine base: (1) possession for sale of the bindles Officer Reyes saw defendant remove from his car; (2) possession for sale of the bindle Officer Singh saw defendant toss in the police car, which was subsequently recovered from the police car; and (3) possession for sale of the bindles recovered from defendant’s person when he was removed from the police car. We conclude the evidence relates only to a single act of possession for sale, and that the unanimity instruction was therefore not required.
DISCUSSION
Defendant argues that the trial court erred by failing to instruct the jury on unanimity in the language of CALJIC No. 17.01. “ ‘Th[e] requirement of unanimity as to the criminal act “is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.” ’ ” (People v. Wolfe (2003) 114 Cal.App.4th 177, 187.) Thus, a unanimity instruction “must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor has not relied on any single such act.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)
CALJIC No. 17.01, as modified to apply to this case, provides, “The defendant is accused of having committed the crime of possession for sale of cocaine base. The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction 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. However, in order to return a verdict of guilty, all jurors must agree that he committed the same act or acts. It is not necessary that the particular act agreed upon be stated in your verdict.” Defendant’s failure to request this instruction does not foreclose his argument on appeal; the trial court is obligated to give the instruction, where necessary, on its own motion. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
“[N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. ‘The “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.’ ” (People v. Dieguez, supra, 89 Cal.App.4th 266, 275.) Similarly, the unanimity instruction is not required “ ‘where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place.’ ” (People v. Wolfe, supra, 114 Cal.App.4th at p. 184.)
Thus, “in a prosecution for possession of narcotics for sale, where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and 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, absent an election by the People[,] CALJIC No. 17.01 must be given to assure jury unanimity.” (People v. King (1991) 231 Cal.App.3d 493, 501-502.) In People v. King, defendant was charged with possession for sale of methamphetamine. There were two different locations in defendant’s house where methamphetamine was found – in a purse belonging to another woman, and hidden in a decorative statue. Defendant offered different defenses as to each unit of methamphetamine – the drugs in the purse belonged to the purse’s owner, and the drugs in the statue belonged to her boyfriend. As the two units of methamphetamine were separated in space and there was evidence from which a reasonable jury could have concluded each unit was possessed by a person other than defendant, the unanimity instruction was required. (Id. at pp. 498-499, 501-502.) Similarly, it was error not to give CALJIC No. 17.01 in a prosecution for possession of heroin where the prosecution relied on both: (1) a bindle of heroin found taped to the back of a television, which defendant claimed was his son’s; and (2) heroin found in defendant’s pocket after his arrest, which defendant claimed was planted by police. (People v. Castaneda (1997) 55 Cal.App.4th 1067.)
These cases are to be contrasted with People v. Wright (1968) 268 Cal.App.2d 196. In Wright, police spotted a car with four youths in it parked in a high crime area. When an officer approached the car, one of the passengers jumped out and ran to the edge of a nearby cliff, throwing a package off the cliff. The package opened, dispersing 10 to 15 hand-rolled cigarettes. When police searched the car, they found an additional three hand-rolled cigarettes in the back seat of the car. The next morning, police recovered two of the cigarettes from the cliff face. Both the cliff cigarettes and the cigarettes found in the car contained marijuana. (Id. at p. 197.) Defendant, who had been sitting in the front passenger seat, argued that a unanimity instruction was required. The court disagreed. “The act of possession here was not fragmented as to time or space. The evidence showed all of the marijuana came from the car, some of it remained there and some was thrown over the cliff. [¶] The issue is not whether [defendant] possessed each narcotic item found in the area, but whether [he] possessed a usable amount of marijuana at the time and place charged.” (Id. at p. 198.) The court held that “it was not necessary to instruct the jury its members must all agree which specific items of narcotics [defendant] possessed so long as they all agreed at the time and place he possessed, separately, jointly or constructively, a usable amount of marijuana.” (Ibid.)
The instant case is indistinguishable from Wright. To the extent defendant argues that the prosecution relied on three separate acts of drug possession, defendant confuses the offense with the subsequent evidence of it. Defendant was charged with a single act of possession for sale: the possession for sale of cocaine base defendant possessed in the parking lot at the time of his arrest. That defendant subsequently attempted to dispose of the cocaine base (in the police car) or hide it (about his person) does not transform his possession of the drug into multiple separate crimes. This is apparent when one considers defendant’s contention that his possession of the cocaine base spotted by Officer Reyes is different from his possession of the cocaine base he tossed in the police car or hid in his sleeve. The drugs observed by Officer Reyes did not vanish into the air; they were the same drugs subsequently recovered by police.
Attempting to fit the facts of this case into the framework of King and Castaneda, defendant argues he had a different defense to each purportedly separate possessory act. Although defendant’s general defense was that the officers were lying, he notes that each possession was proven by different officers, so suggests that the jury might have believed some officers and disbelieved others. The argument is meritless. While it is true that several different officers were involved in defendant’s arrest, defendant’s defense was based on the single unified theory that Detective Hodges, the supervising officer, had directed the other officers to plant the drugs on defendant. In short, as this prosecution was based on a single possession of a quantity of cocaine base for sale, not individual possessions distinguishable by time and/or space, and defendant offered a single defense to the possession, no unanimity instruction was required.
Additionally, defendant argues that, as to the cocaine base recovered from the police car, he offered the unique defense that this particular bindle might have been possessed by the female arrestee already in the car. Officer Singh testified not only that he recovered the bindle from the car, but that he also saw defendant with that bindle in his hand, flicking it away. Thus, if the jury were to accept defendant’s argument that the bindle Officer Singh recovered from the police car had, in fact, been possessed by the woman, the jury would have also had to accept defendant’s argument that the officer was intentionally lying, which was identical to his defense with respect to every other bindle recovered.
We note that Detective Hodges did not himself recover any of the cocaine base; all of the evidence of drug possession came from other officers. Indeed, all of the cocaine base in this case was recovered by Officers Singh, Mejia, and Chapman. Defendant introduced no evidence suggesting any of them had committed any prior improprieties, and, indeed, presented the jury with no reasonable basis to disbelieve any one of them as opposed to the others.
DISPOSITION
The judgment is affirmed.
We Concur: KLEIN, P. J. KITCHING, J.