Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Orange County Super. Ct. No. 07CF0693, Gary S. Paer, Judge.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant Ramiro Lopez, Jr.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Garcia.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
An amended information charged Ramiro Lopez, Jr., and Jesus Garcia in count 1 with possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and in count 2 with possession for sale of methamphetamine (id., § 11378). In count 3, Garcia was charged with simple possession of methamphetamine (id., § 11377, subd. (a)). Following a trial, the jury was unable to reach a verdict on counts 1 and 2, but found Garcia guilty on count 3. The trial court declared a mistrial on counts 1 and 2.
Counts 1 and 2 were retried to a jury, which found Lopez and Garcia guilty on both counts. The trial court placed Lopez and Garcia on three years’ formal probation with credit for time served in jail. Both appealed. We affirm.
Pursuant to California Rules of Court, rule 8.200(a)(5), Lopez joins in the issues and arguments raised by Garcia “to the extent that they are applicable to his case and accrue to his benefit.” Our analysis and resolutions of the issues and arguments raised by Lopez and Garcia apply to both of them, to the extent applicable.
Facts
I.
First Trial
A. Prosecution
Shortly past midnight on February 25, 2007, Santa Ana Police Officers Maybelline Solideo and Raul Mayorga were conducting a surveillance of the parking lot of the Food 4 Less store at the corner of First and Spurgeon Streets in Santa Ana. Solideo and Mayorga were in separate patrol cars parked, respectively, in a nearby alleyway and parking lot. They were conducting surveillance because Mayorga had suspected narcotics sales were occurring in the area.
For about an hour, Mayorga watched the parking lot of the Food 4 Less store through binoculars. He saw three people loitering in an area near a flower shop. He thought he saw two men and a woman. The two men were Lopez and Eduardo Perez. Mayorga learned later the third person—Garcia—was also a man who was a transvestite prostitute.
Mayorga watched as several people approached Lopez and appeared to have short conversations with him. Their backs were to Mayorga, so he could not see everything they did. Mayorga saw hands moving, after which Lopez appeared to direct each person to Garcia. After another short conversation, Garcia appeared to direct each person to Perez, who then would escort the person to the rear of a flower shop. The person left the rear of the flower shop alone, unescorted by Perez.
In one such instance, Mayorga saw Perez place his right hand against a wall for support, reach down, and grab an unidentified object. Mayorga saw Perez exchange something with the person, and then return to the front of the building. In another instance, the person waited at the front of the building while Perez walked to the back, grabbed an object, and returned to make an exchange. Lopez and Garcia did not leave their places while these exchanges occurred.
Mayorga observed “approximately five to six transactions” and concluded “there was some narcotic trafficking going on.” He and Solideo approached Lopez and Perez. Mayorga searched Perez and found $21 in his pocket. After handcuffing Perez and placing him in the patrol car, Mayorga and Solideo searched for narcotics in the area behind the flower shop where Perez had been seen retrieving items. They found a package containing 191 milligrams of cocaine base (a “usable” amount) and 336 milligrams of methamphetamine separately packaged in a drainage pipe on the south side of the building. The drugs were in several individual packages.
Outside a donut shop, Solideo searched Garcia and found $97 in his bra, narcotics in his underpants, and condoms. At the Santa Ana jail, Mayorga recovered 237 milligrams of methamphetamine from Garcia’s underpants.
In the over 100 possession of drugs for sale cases Mayorga had investigated, he looked for a system, typically involving a recruiter, a middleman, and a supplier. In Mayorga’s opinion, Lopez was the recruiter, Garcia was the middleman, and Perez was the supplier. Mayorga opined that Lopez, who had been standing closest to the sidewalk, recruited buyers by making contact with pedestrians as they walked past and directing an interested person to Garcia. Mayorga testified that Garcia, standing further away next to a rail, would take the money from the buyer and direct the person to Perez, who would retrieve the drugs. Mayorga did not see anyone exchange money or drugs: His opinion was based on the drugs found behind the building and the hand gestures he observed. He testified that, in his opinion, the $97 found in Garcia’s bra were from drug sales.
B. Defense
Garcia testified on his own behalf. He testified he was not involved in selling drugs but was engaged in prostitution. Garcia had been a transvestite prostitute for eight years at that same location.
Mayorga had stopped Garcia about five times in the past. He had never arrested Garcia, but would always ask if he “wasn’t tired of getting involved with guys every night” and whether he was afraid of being arrested for prostitution.
About 8:00 pm. on February 24, 2007, Garcia arrived alone at the Food 4 Less store at the corner of First and Spurgeon Streets. He wore high heeled shoes, a bra, and panties underneath a very short black dress. He had a hair extension on his head and carried a purse containing makeup and his keys. He left the area with a customer and returned about 11:00 pm. The customer paid Garcia $120 in cash, which Garcia left at his home. Between 11:00 pm. on February 24 and 12:30 am. on February 25, Garcia was approached by about 20 potential customers, but accepted only one. That customer also paid Garcia $120 in cash. Garcia used $20 to buy drugs for personal use, and used $2.75 to buy coffee and a donut, leaving $97.25.
As Garcia sat in the donut shop with his coffee and donut, Mayorga and Solideo walked in and said, “you, Garcia, and the other guy, come on out.” Garcia complied. Solideo told Garcia to put his hands against the wall, then thoroughly searched him. Garcia told Solideo that he had a little baggie of methamphetamine for personal use inside of a condom and that he had eight other condoms and money in his bra.
At the Santa Ana jail, Mayorga retrieved the methamphetamine from Garcia’s underpants. In an interview with Solideo, Garcia explained he had been a prostitute in the same area for eight years, did not sell drugs, did not have to sell drugs, was not involved with Lopez and Perez in selling drugs, and the methamphetamine in his possession was for personal use. As to the hand gestures, Garcia testified he was merely plying his trade by greeting passers-by.
II.
Second Trial
A. Prosecution
Perez testified at the second trial as a prosecution witness. He was in custody at that time.
Perez regularly sold drugs at the handicap ramp in the parking lot of the Food 4 Less store on Spurgeon Street between First and Third Streets in Santa Ana. On February 24, 2007, he arrived at the Food 4 Less store at about 9:30 pm. with cocaine base and methamphetamine for sale. The cocaine was divided into $20 packages and the methamphetamine was in bulk in a single bag. Perez weighed the packages of cocaine base with a digital scale, which he hid in a bush behind a building at the Food 4 Less store, along with any money he made. He hid the drugs in a drainage pipe behind the building.
From the drainage pipe, Perez would retrieve the kind and amount of drugs requested by a customer. On the night of February 24, business was brisk for cocaine base—he sold 10 or 15 packages of it—but he sold no methamphetamine. Perez did not need recruiters because he sold only to an established clientele who had made an appointment to see him at a particular time.
Foot traffic was heavy at Perez’s location because the Festival Hall nightclub was just a block away. About half an hour before being arrested, Perez stopped selling drugs because he noticed police officers were across the street in an alley. After Perez was arrested and placed in the patrol car, he saw Lopez being placed under arrest. Perez first met Lopez while in custody and first saw Garcia at the police station. Perez had never before seen Lopez or Garcia.
Perez testified that in May 2007, he entered into a plea bargain by which he agreed to plead guilty to possession for sale of cocaine base and methamphetamine. The factual basis for the plea, initialed by Perez, was: “In Orange County, California on February 25, 2007, I, along with Jesus Garcia and Ramiro Lopez, Jr., did willfully and unlawfully possess usable amounts of cocaine base and methamphetamine for sale.” At the second trial, Perez denied that statement was true. He testified he did not recall that part of the plea form and did not know who wrote the factual basis for the plea. He testified he was in a holding cell when his lawyer handed him the form and told him he had to initial and sign the form to receive the bargained for sentence of one year in jail.
Mayorga also testified at the second trial. Between 11:00 pm. on February 24 and midnight on February 25, 2007, he conducted a surveillance of the parking lot of a Food 4 Less store and strip mall on First and Spurgeon Streets in Santa Ana. Mayorga, using binoculars, conducted the surveillance from his patrol car parked in an auto body shop on the opposite side of First Street. At about 11:15 pm., Mayorga started watching three people who were loitering along the handicap ramp to the Food 4 Less store. One man, later identified as Lopez, was leaning or sitting on the corner of the railing. A second man, later identified as Garcia, was dressed as a woman and stood about 10 feet away in the middle of the railing. The third person, Perez, was in front of the flower shop and, at times, walked down a walkway leading to a back alley.
All the establishments in the strip mall (except for a donut shop) were closed. A large amount of pedestrian traffic was coming from the Festival Hall nightclub nearby. As Lopez leaned against or sat on the railing, he would turn his head and make conversation with people walking past. Mayorga testified, “[a]t times, he would completely turn around, put his hands on the railing, make hand movements, and I would see his head move up and down.” Sometimes Lopez waved people up the ramp or pointed up the ramp as they walked toward him, and, in one instance, Mayorga saw Lopez direct a person up the ramp to Garcia. After the person made contact with Garcia, Mayorga saw “more head nodding, more hand movements,” then “they... turned away from me, so I wasn’t able to see what was in front of them.” Mayorga saw “both the subjects head nodding, hands moving, and I saw that subject directed over to a third subject.” The person then walked over to the third subject—Perez—who was standing by the flower shop. Perez walked alone to the rear of the flower shop. Mayorga testified, “I saw him stop, turn, look in several directions, as if he was looking for somebody.... He was looking west, he looked behind him, and he looked over to his right shoulder. He got to the rear of the building, stood at the corner, put his right arm against the wall, and appeared to lean over and reach for something.” Mayorga could not see what Perez retrieved.
Perez returned to the front of the flower shop with something clenched in his fist. As Perez approached the person waiting for him, he extended his hand to make contact. The person then walked away, while Perez continued to loiter in the same spot. Mayorga watched about five or six such transactions take place. In two of the transactions, the person made contact with Garcia directly without making contact with Lopez.
Mayorga never saw Lopez, Garcia, and Perez together and never saw any one speak to another. Mayorga saw no money or contraband exchanged among them.
Mayorga at first believed Garcia was a woman. Mayorga had spoken with Garcia twice before that evening. Both times, Garcia was dressed as a woman.
Mayorga concluded the transactions he had seen were consistent with narcotics sales. He drove across First Street to the parking lot of the Food 4 Less store, where he joined Solideo and detained Perez. Mayorga searched Perez and found $21. As the officers detained Perez, Lopez and Garcia walked into a donut shop, looking back over their shoulders toward Mayorga as they entered.
After handcuffing Perez and placing him in a patrol car, Mayorga and Solideo searched the area behind the flower shop. In a drainage pipe, they found two bags containing 191 milligrams of cocaine base packaged in eight baggies and 336 milligrams of methamphetamine packaged in nine baggies.
Another police officer arrived, and he and Solideo were dispatched to the donut shop, where Lopez and Garcia were detained and searched. Officer Diaz conducted a pat down search of Lopez and found nothing. Solideo conducted a pat down search of Garcia and found $97 stuffed in his bra. Garcia said he had drugs in his underpants. Lopez, Garcia, and Perez were transported to the police station.
No money, drugs, cell phone, pay owe sheets, scales, or packaging was recovered from Lopez. The methamphetamine recovered from Garcia was in a different colored package from the methamphetamine found in the drainpipe behind the flower shop.
Mayorga testified that in his opinion the drugs found in the drainpipe behind the flower shop were possessed for sale by Lopez, Garcia, and Perez. Mayorga testified, “I base my opinion on the hour I watched the subjects, the individual roles they played, and the fact that narcotics were recovered and money was recovered.” Mayorga believed Lopez, Garcia, and Perez were a three person team consisting of a recruiter, a money collector, and a supplier. In Mayorga’s opinion, Garcia was the money collector.
B. Defense
Garcia again testified on his own behalf. He is a transvestite prostitute and for the past eight years has worked the same area around the parking lot of the Food 4 Less store at First and Spurgeon Streets in Santa Ana. The area is known for having many transsexual and transvestite prostitutes.
Garcia arrived at the Food 4 Less store at 8:00 pm. on February 24, 2007, wearing a very short dress, high heels, and a purse. He wore makeup and dirty blond colored hair extensions falling to his waist. He also carried condoms. He strolled through the parking lot plying his trade along with several other transsexual or transvestite prostitutes. He found a client, and the two went to Garcia’s home. The client paid in cash, which Garcia left at home before returning to the Food 4 Less parking lot about 11:00 pm.
Garcia soon found another client, and they went this time to the client’s house a few blocks away. This client paid Garcia $120 in cash and drove him back to the Food 4 Less parking lot. Garcia resumed walking back and forth across the parking lot, where “there were a lot of men, there were a lot of cars honking.” He attracted attention to himself by “[w]alking around half naked and with a skirt and bra only” and by smiling and saying “hi” when car horns honked. A total of about 40 men approached Garcia for sex that evening, but only two had enough money.
Garcia had made contact with Mayorga about five times before February 24, 2007—three times in the Food 4 Less parking lot. Garcia was never dressed like a man when he had contact with Mayorga, but each time was dressed “like a prostitute.”
From the $120 received from the second client, Garcia bought $20 in drugs from an unkempt homeless man by the soda machines, then went to the donut shop and bought a coffee and a donut for $2.75. At the donut shop, he was detained and searched. The police found $97, and, in the patrol car, Garcia said he had methamphetamine in his underpants.
Garcia testified he knew of Perez only after being arrested, and insisted, “I do not know him. I do not know him.” Garcia never sold drugs and had no drugs for sale that evening. The money Garcia had in his bra “came from selling my body, not from selling drugs.”
Discussion
I.
The Trial Court Did Not Err by Denying Lopez and Garcia’s Motion for Acquittal in the First Trial.
At the close of the prosecution’s case in chief in the first trial, Lopez and Garcia jointly moved for acquittal on counts 1 and 2 pursuant to Penal Code section 1118.1. The trial court denied the motion. Garcia argues the trial court erred in denying the motion for acquittal in the first trial and, therefore, the second trial violated the double jeopardy clause of the federal Constitution and was proscribed by Penal Code section 1118.2.
Under Penal Code section 1118.1, a defendant can move for a judgment of acquittal based on insufficiency of the evidence before submission of the case to the jury. (See People v. Hatch (2000) 22 Cal.4th 260, 269, fn. 5 [section 1118.1 gives the defendant “the power to move for an acquittal for insufficient evidence as a matter of law”].) A judgment of acquittal entered pursuant to an order granting a motion under section 1118.1 bars further prosecution for the same offense. (Pen. Code, § 1118.2.)
“‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.”’ [Citation.] ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ [Citations.] The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.]” (People v. Stevens (2007) 41 Cal.4th 182, 200.)
We independently review a trial court’s ruling under Penal Code section 1118.1 as to the sufficiency of the evidence to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1213.) “We also determine independently whether the evidence is sufficient under the federal and state constitutional due process clauses.” (Ibid.)
First, we address the Attorney General’s assertion Lopez and Garcia forfeited a double jeopardy defense based on denial of the motion for acquittal by failing to enter a plea of once in jeopardy before the second trial commenced. (See Pen. Code, §§ 1017, subd. 4, 1023; People v. Scott (1997) 15 Cal.4th 1188, 1201.) As Garcia explains, he and Lopez had no double jeopardy defense to assert in the second trial because the trial court denied their motion for acquittal in the first trial and the discharge of a deadlocked jury does not create a double jeopardy prohibition. (People v. Fields (1996) 13 Cal.4th 289, 300 (Fields).) We agree and find no forfeiture of a double jeopardy defense.
B. Liability Under an Aiding and Abetting or Conspiracy Theory
Lopez and Garcia were charged in count 1 with possession for sale of cocaine base and in count 2 with possession for sale of methamphetamine. “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. Each of these elements may be established circumstantially.’” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)
Garcia argues the prosecution failed to present evidence at the first trial to show he exercised dominion or control over the drugs Perez kept for sale in the drainpipe behind the flower shop. However, criminal liability for possession for sale of a controlled substance may be based on actual or constructive possession. (People v. Morante (1999) 20 Cal.4th 403, 417.) “Constructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another.” (Ibid.)
Garcia next argues the prosecution failed to present evidence at the first trial to show he aided or abetted Perez in exercising dominion or control over the drugs kept for sale. An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense. (People v. Avila (2006) 38 Cal.4th 491, 564.) Aider and abettor liability requires proof the aider and abettor acted with knowledge of the perpetrator’s criminal purpose and with an intent or purpose of committing the offense, or of facilitating its commission. (People v. Beeman (1984) 35 Cal.3d 547, 560.) The aider and abettor’s presence at the scene of the crime, companionship with the principal, and conduct before and after the offense are among the factors that may be considered in determining whether the defendant had the requisite knowledge and intent. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
“It also is established that one may be guilty of conspiring to possess for sale or to transport a controlled substance without physically possessing it.” (People v. Morante, supra, 20 Cal.4th at p. 418.) A conspiracy is an agreement by two or more persons to commit any crime. (Pen. Code, § 182, subd. (a)(1).) A conviction for conspiracy requires proof of (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. (Pen. Code, §§ 182, subd. (b), 184; People v. Morante, supra, 20 Cal.4th at p. 416.) “The elements of conspiracy may be proven with circumstantial evidence, ‘particularly when those circumstances are the defendant’s carrying out the agreed upon crime.’” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024 1025.)
C. Mayorga’s Testimony
Mayorga’s testimony constituted sufficient evidence to establish liability against Lopez and Garcia under an aiding and abetting or conspiracy theory. Mayorga testified he watched the parking lot area around the Food 4 Less store with binoculars for about an hour from a distance of about 600 feet. He saw three people loitering in an area near a flower shop. He thought he saw two men (Lopez and Perez) and a woman (Garcia). Lopez and Garcia were standing next to each other. Mayorga saw several people approach Lopez and appear to have short conversations with him. Mayorga saw hands moving, after which Lopez “ma[d]e a hand signal” which appeared to direct each person to Garcia, who was standing by a railing. After another short conversation, Garcia “[p]oint[ed] fingers, extended kind of in a discreet way” toward Perez, who then would escort the person to the rear of the building. The person left the location alone. In one such instance, Mayorga saw Perez place his right hand against a wall for support, reach down, and grab an unidentified object. Mayorga saw Perez exchange something with that person, and then return to the front of the building.
After watching five to six such transactions occur, Mayorga concluded Lopez, Garcia, and Perez were “working in unison” and decided to approach them.
Mayorga testified the system by which drugs are sold involves a recruiter, a middleman or money man, and a supplier. He explained the system is used “[s]o that person does not have any money on him at the time. So there’s one person that’s going to have money and the other person—if the timing is right, one person will be caught with [the] drugs, the other one will be caught with [the] money. They don’t want to be caught with both. That would indicate sales.” In Mayorga’s opinion, Lopez was the recruiter, Garcia was the middleman, and Perez was the supplier.
Mayorga’s opinion was not “baseless,” as Garcia argues, but was based on Mayorga’s observations and experience as a police officer. Garcia does not question Mayorga’s experience or qualifications for offering those opinions. Mayorga had conducted over 100 investigations involving possession of drugs for sale, and formed his opinion after watching five to six transactions involving Lopez, Garcia, and Perez.
II.
Garcia’s Conviction on Count 2 Does Not Warrant Reversal of the Conviction on Count 3.
In the first trial, the jury found Garcia guilty on count 3 for simple possession of methamphetamine. In the second trial, the jury found Garcia guilty on count 2 for possession for sale of methamphetamine. Garcia argues his conviction on count 3 in the first trial must be reversed based on the conviction on count 2 in the second trial because the juries were never instructed to distinguish between the methamphetamine found on Garcia and the methamphetamine found in the drainage pipe.
A defendant may not be convicted of both an offense and a necessarily included lesser offense based on the same act. (People v. Pearson (1986) 42 Cal.3d 351, 355.) In People v. Magana (1990) 218 Cal.App.3d951, 954, the defendant was convicted of possession of controlled substances for sale and simple possession based on the same contraband. The Attorney General argued reversal was unnecessary because the jury could have based the conviction for simple possession on the defendant’s possession of some of the controlled substances, while the conviction of possession for sale could have been based on the possession of the remaining drugs. (Ibid.) The Court of Appeal rejected that argument and reversed the conviction for simple possession, stating: “While perhaps theoretically true, a serious defect in the People’s argument is that the jury was never alerted to the possibility of such a subtle division of the contraband. Consequently we can only presume the convictions for possession for sale and the conviction for simple possession were based on the same evidence.” (Ibid.)
Garcia argues that in this case, similarly to People v. Magana, no distinction was ever drawn between the methamphetamine found on him and the methamphetamine found in the drainage pipe behind the flower shop. A unanimity instruction was not given. (See People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 [“if the prosecution shows several acts, each of which could constitute a separate offense, a unanimity instruction is required”].) Thus, Garcia argues it must be presumed the juries convicted him of simple possession and possession for sale based on the same evidence.
“When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.] The duty to instruct on unanimity when no election has been made rests upon the court sua sponte. [Citation.]... [¶] “‘It is established that some assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows.’ [Citation.] By giving the unanimity instruction the trial court can ensure that a defendant will not be convicted when there is no agreement among the jurors as to which single offense was committed. [Citation.]” (People v. Melhado, supra, 60 Cal.App.4th at p. 1534.)
Counts 2 and 3 alleged in the information did not distinguish between the methamphetamine found on Garcia and the methamphetamine found in the drainpipe. Although a unanimity instruction was not given at the first trial, the prosecution elected to rely on the methamphetamine found on Garcia as the basis for count 3. In closing argument, the prosecution argued count 3 was undisputed because it was based on the methamphetamine found in Garcia’s underpants. During the first trial, Garcia testified and conceded he had methamphetamine in his underpants when the police officers detained him. Garcia’s counsel stressed the difference between the methamphetamine found on Garcia and the methamphetamine found in the drainpipe, arguing: “Mr. Garcia told you why he had a package of methamphetamine on him. Mr. Garcia told you where he got it. Told you how much he paid for it. Told you what he was going to do with it. [¶] And I agree with the district attorney. There’s no dispute as to count 3. I won’t tell you something you probably won’t expect a defense attorney to say. Count 3 you are probably going to convict him. You probably should convict him because the evidence is there as to count 3; there’s no dispute there. It’s not at issue. I’ll tell you right now, it’s not at issue. Find Mr. Garcia guilty of count 3, you are doing your job.”
The jury in the first trial was therefore alerted to the difference between the methamphetamine found in Garcia’s panties and the methamphetamine found in the drainpipe, and was told only the former was the basis for count 3. If, however, a unanimity instruction was required in the first trial, failure to give one was harmless. “The failure to give a unanimity instruction may be harmless error if we can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense.” (People v. Norman (2007) 157 Cal.App.4th 460, 466; see Chapman v. California (1967) 386 U.S. 18.) Given Garcia’s testimony and the closing argument of the prosecution and Garcia’s counsel, we conclude beyond a reasonable doubt the jury unanimously agreed to find Garcia guilty on count 3 based on the methamphetamine found in his panties.
III.
Garcia’s Conviction on Count 3 Does Not Warrant Reversal of the Conviction on Count 2.
For similar reasons, Garcia argues the conviction on count 2 in the second trial must be reversed due to the conviction on count 3 in the first trial. Citing Fields, supra, 13 Cal.4th 289 and People v. Greer (1947) 30 Cal.2d 589 (Greer), overruled on another ground in Fields, supra, at page 308, footnote 6, Garcia argues the conviction in the first trial on the lesser included offense of simple possession barred prosecution in the second trial on the greater offense of possession for sale because no distinction was drawn in the first trial between the methamphetamine found on Garcia and the methamphetamine found in the drainpipe.
In Greer and Fields, the Supreme Court held that when a defendant is convicted on a lesser included offense and the jury is discharged, double jeopardy bars prosecution on the greater offense based on the same facts: “As we explain, once the verdict of guilty on the lesser included offense was received by the trial court and recorded, and the jury was discharged, defendant stood convicted of the lesser included offense within the meaning of [Penal Code] section 1023. Pursuant to that statute, when an accused is convicted of a lesser included offense, the conviction bars a subsequent prosecution for the greater offense.” (Fields, supra, 13 Cal.4th at p. 305, citing Greer, supra, 30 Cal.2d at pp. 596 597.)
Garcia did not enter a plea of once in jeopardy before the second trial commenced. His claim of a double jeopardy violation therefore “is ‘technically’ not cognizable on appeal.” (People v. Scott, supra, 15 Cal.4th 1188, 1201.)
Nor does Garcia’s double jeopardy claim have merit. As we have explained, the distinction was drawn in the first trial between the methamphetamine found on Garcia and the methamphetamine found in the drainpipe. We concluded beyond a reasonable doubt the jury in the first trial convicted Garcia of simple possession in count 3 based on the methamphetamine found on him. Consequently, double jeopardy did not prohibit prosecution in the second trial for possession for sale based on the methamphetamine found in the drainpipe behind the flower shop.
Garcia asserts some jurors in the first trial might have considered the methamphetamine found on Garcia in voting (and deadlocking) on count 2 for possession for sale. If that were the case, retrial of count 2 based only on the methamphetamine found in the drainpipe would not violate double jeopardy because discharge of a deadlocked jury does not bar retrial. (Fields, supra, 13 Cal.4th at p. 300.)
At the first trial, the court and counsel considered count 2 to be based only on the methamphetamine found in the drainpipe. The court asked defense counsel and the prosecution whether they were requesting a lesser included offense instruction for simple possession for the cocaine base and methamphetamine found in the drainage pipe. All responded “no.” The trial court then stated, “[l]et me just also say that the court is not providing that instruction because the court does not believe that there is evidence to support a lesser included simple possession instruction as to count 1 and count 2. Count 1 and count 2 refer to the cocaine base and methamphetamine found in the drainage pipe, and there just isn’t any evidence that would support the idea that those amounts of drugs were for personal use.”
IV.
The Trial Court Did Not Err by Failing to Instruct on the Lesser Included Offense of Simple Possession in the Second Trial.
Garcia argues the trial court erred in the second trial by failing sua sponte to instruct on simple possession as a lesser included offense of possession for sale. However, as Garcia’s counsel argued, and the trial court found, the evidence did not support a lesser included offense instruction.
A trial court has a sua a sponte duty to instruct on all lesser included offenses having support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) “[T]he court is not obliged to instruct on theories that have no such evidentiary support.” (Ibid.) Simple possession of a controlled substance is a lesser included offense of possession for sale of the same controlled substance. (People v. Oldham (2000) 81 Cal.App.4th 1, 16.)
During jury instruction discussions in the second trial, the court asked defense counsel, “[a]nd dealing with the issue of lesser-included offenses is it your position that you do not want straight possession?” Lopez’s counsel replied, “[t]hat’s correct” and explained, “[e]ffectively it is an all or nothing proposition in this case. Either the jury decides that my client was involved in the transactions or they decide that he had nothing to do with it. Particularly inasmuch as he had nothing on him, neither money nor drugs nor anything else.” The trial court stated: “All right. And I tend to agree with you. There really is no supportable theory of straight possession since the facts are that your client was detained with nothing on him, no scales, cash, pay owes.” Garcia’s counsel joined in the decision not to instruct on simple possession. The trial court then stated: “All right. For the same reason, everyone appears to be in agreement. It is all or nothing. I believe the whole theory of the case is these two defendants were aiding or involved in selling drugs. So, them just possessing drugs really is not supported by anything. So those lesser includes will not be given.”
The trial court’s analysis was correct. There was no evidence Garcia or Lopez had possession of the drugs in the drainpipe for personal use. Either they had constructive possession of those drugs for purposes of selling them, or they were innocent of the charges.
V.
Failure to Give a Unanimity Instruction in the Second Trial Was Harmless Error.
Garcia argues his conviction on count 2 in the second trial must be reversed because the trial court’s failure to give a unanimity instruction meant the second jury might have found him guilty of possession for sale without agreeing whether the basis for the conviction was the methamphetamine found on him or the methamphetamine found in the drainage pipe.
As we have explained, the trial court has a sua sponte duty to give a unanimity instruction when “‘the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows.’ [Citation.]” (People v. Melhado, supra, 60 Cal.App.4th at p. 1534.) A unanimity instruction is designed to prevent the jury from convicting the defendant without all jurors agreeing the defendant committed any single offense. (Ibid.)
The information did not allege whether count 2 was based on the methamphetamine found on Garcia or the methamphetamine found in the drainpipe. At the second trial, only counts 1 and 2, both for possession for sale, were tried. Count 1 was possession for sale of cocaine base; count 2 was possession for sale of methamphetamine. There was evidence at the second trial of two separately chargeable acts of possession of methamphetamine: Possession of the methamphetamine found in Garcia’s underpants and (constructive) possession of the methamphetamine found in the drainage pipe. Indeed, Garcia was separately charged, and could not be convicted again, for possession of the methamphetamine found on his person because he was found guilty of simple possession of that methamphetamine in the first trial.
Garcia relies on People v. Crawford (1982) 131 Cal.App.3d591, in arguing a unanimity instruction was required. In People v. Crawford, the court reversed a conviction for the crime of felon in possession of a firearm based on failure to give a unanimity instruction because four different handguns were introduced into evidence at trial. The jury was instructed that to find the defendant guilty, it had to find he possessed “‘one or more handguns,’” but were not instructed it had to agree unanimously as to which handgun or handguns the defendant possessed. (Id. at p. 595.) The Court of Appeal concluded a unanimity instruction was required because “[t]he acts of constructive possession involving the four guns are different.... Guns were in different parts of the house; the evidence showed unique facts surrounding the possessory aspect of each weapon.” (Id. at p. 599.)
A unanimity instruction should have been given in this case. “So we have this advice for trial judges: in a criminal case, put CALCRIM No. 3500 on your list of standard instructions to give, then ask yourself: ‘Is there some reason not to give this instruction in this case?’” (People v. Norman, supra, 157 Cal.App.4th 460, 467.)
“The failure to give a unanimity instruction may be harmless error if we can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense.” (People v. Norman, supra, 157 Cal.App.4th at p. 466; see Chapman v. California, supra, 386 U.S. 18.) We conclude the error in failing to give a unanimity instruction was harmless.
The second trial was focused entirely on the cocaine base and methamphetamine found in the drainpipe. The prosecution did not raise the issue of the methamphetamine found on Garcia and did not question Mayorga on the subject on direct examination. On cross-examination, in response to questions from Garcia’s counsel, Mayorga testified briefly that Garcia “had informed us” that “[h]e had a baggie of methamphetamine in his underwear.” The small, green baggie of methamphetamine recovered from Garcia was identified and received in evidence as exhibit E. Mayorga testified the baggie recovered from Garcia was a different color from the baggies of methamphetamine found in the drainpipe. Garcia’s counsel emphasized this difference in packaging as demonstrating the drugs found on Garcia were not purchased from Perez.
In closing argument, the prosecutor did not mention the methamphetamine found on Garcia, and Garcia’s counsel distinguished between the methamphetamine in the drainage pipe, which was for sale, and the methamphetamine found on Garcia, which was not. Garcia’s counsel argued: “Number one, the defendant possessed a controlled substance. In this case we’re talking about methamphetamine and the cocaine for sale. And we know Mr. Garcia didn’t possess those items. The defendants knew of its presence. We know that the drugs found, Eduardo Perez said, were for sale, were found in that drainage pipe in the back of the building and they were packaged differently than the single methamphetamine pack that Mr. Garcia had.”
In the second trial, neither the jury instruction on the elements of possession for sale nor the verdict form specified the basis for count 2. But the conspiracy instructions identified the alleged overt acts in furtherance of the conspiracy as being only actions related to selling the cocaine base and methamphetamine found in the drainpipe.
In People v. Norman, supra, 157 Cal.App.4th 460, the Court of Appeal reversed a conviction for receiving stolen property because the failure to give a unanimity instruction was not harmless. The information in that case charged the defendant with receiving stolen property and theft of “‘approximately 300 pieces’” of mail. (Id. at p. 465.) The prosecution asserted the defendant committed two separate thefts: the theft of mail found in a stolen car, and the theft of mail from an apartment complex. The prosecution made no election as to which acts constituted theft and, during closing argument, specifically argued both thefts supported conviction. (Ibid.) The Court of Appeal concluded the trial court was required to give a unanimity instruction sua sponte and the failure to do so was prejudicial: “We cannot say beyond a reasonable doubt that the jury agreed on the act(s) constituting theft. There was no direct evidence that defendants had stolen the mail found in the car. And mail stolen from the apartment complex was never found. A jury could easily divide on which scenario constituted the crime of theft.” (Id. at p. 466.)
Here, in contrast, the prosecution did not argue the methamphetamine found on Garcia could serve as the basis for a conviction for possession for sale. To the contrary, the prosecution assiduously avoided even mentioning the methamphetamine found on Garcia. When the methamphetamine on Garcia was mentioned during the second trial, it was by Garcia’s counsel to emphasize that methamphetamine was for personal use and was packaged differently from that being sold. Given the testimony, closing arguments, and jury instructions in the second trial, we conclude beyond a reasonable doubt the jury unanimously agreed to find Garcia guilty on count 2 based on the methamphetamine found in the drainage pipe.
VI.
Failure to Instruct the Jury on Accomplice Testimony Was Harmless Error.
Garcia argues Perez testified as an accomplice, and, therefore, the trial court erred by failing to instruct the jury sua sponte on the need for corroboration and to view Perez’s inculpating statements with caution. (CALCRIM Nos. 334, 225.)
“When the evidence at trial would warrant the jury in concluding that a witness was an accomplice of the defendant in the crime or crimes for which the defendant is on trial, the trial court must instruct the jury to determine if the witness was an accomplice.” (People v. Hayes (1999) 21 Cal.4th 1211, 1270 1271.) In addition, when the prosecution calls an accomplice to testify, the court must instruct the jurors sua sponte to distrust the accomplice’s testimony. (People v. Williams (1988) 45 Cal.3d 1268, 1314.) Failure to instruct on accomplice testimony is harmless error if the record includes sufficient corroborating evidence. (People v. Whisenhunt (2008) 44 Cal.4th 174, 215; People v. Cook (2006) 39 Cal.4th 566, 601.) “The rationale for instructing a jury to view with caution an accomplice’s testimony that incriminates the defendant is the accomplice’s self-interest in shifting blame to the defendant. [Citation.] Not giving such instructions, however, is harmless, even if erroneous, when there is ‘ample evidence corroborating the witness’s testimony.’” (People v. Cook, supra, 39 Cal.4th at p. 601.)
The Attorney General argues accomplice instructions were not required because Perez’s trial testimony exonerated Lopez and Garcia. The prosecution called Perez in the second trial to testify regarding a conspiracy among Lopez, Garcia, and him to sell drugs. But rather than inculpate Lopez and Garcia, Perez exonerated them by testifying he was selling cocaine base by himself. Perez denied ever knowing Lopez and Garcia or seeing them on the night in question. The prosecution used Perez’s change of plea form for impeachment as a prior inconsistent statement under Evidence Code sections 770 and 1235. Perez did not recant, but confirmed his trial testimony and testified the change of plea form was false.
Although Perez did not testify as an accomplice, his change of plea form could be construed as a form of accomplice testimony subject to corroboration requirements. Corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, so long as it tends to implicate the defendant by relating to an act that is an element of the crime. (People v. Davis (2005) 36 Cal.4th 510, 543; People v. McDermott (2002) 28 Cal.4th 946, 986.) Corroborating evidence need not corroborate the accomplice as to every fact to which the accomplice testifies (People v. Davis, supra, 36 Cal.4th at p. 543), and need not establish every element of the charged offense (People v. McDermott, supra, 28 Cal.4th at p. 986). Corroborating evidence is sufficient if, without aid from accomplice testimony, it “‘“tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth.”’” (People v. Davis, supra, 36 Cal.4th at p. 543; see People v. Williams (1997) 16 Cal.4th 635, 680 681.)
As Garcia points out, the prosecutor argued extensively that Perez’s change of plea form was evidence of Garcia’s and Lopez’s guilt.
Mayorga’s testimony met that standard for corroboration. Between 11:00 pm. on February 24 and midnight on February 25, 2007, Mayorga conducted a surveillance of the parking lot of a Food 4 Less and strip mall on First and Spurgeon Streets in Santa Ana. He concluded Lopez, Garcia, and Perez were a three-person team selling cocaine base and methamphetamine consisting of a recruiter, a money collector, and a supplier. Mayorga’s testimony connected Lopez and Garcia with the commission of possession for sale, as aiders and abettors or as conspirators, in such a way as to satisfy a jury that Perez was telling the truth in the factual basis for his change of plea form. Failure to instruct the jury on accomplice testimony was therefore harmless error.
VII.
The Evidence at the Second Trial Was Sufficient to Support the Convictions.
Both Lopez and Garcia argue the evidence at the second trial was insufficient to support the convictions for possession for sale of cocaine base and possession for sale of methamphetamine. They take somewhat different approaches. Garcia argues the evidence presented at the first trial was insufficient to support the conviction, and the only additional evidence presented at the second trial was Perez’s change of plea form, which was not sufficiently corroborated as accomplice testimony. Lopez argues there was no evidence at the second trial that he exercised dominion or control over the drugs found in the drainpipe, no evidence connecting him to Perez, and little evidence connecting him to Garcia. Hence, Lopez argues, the evidence was insufficient to support the convictions of possession for sale under any theory.
Because Lopez and Garcia challenge the sufficiency of the evidence to support their convictions, we examine “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Thomas (1992) 2 Cal.4th 489, 514.) We view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier of fact reasonably could deduce from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303.) The jury, not the appellate court, must be convinced of guilt beyond a reasonable doubt; for us, “[t]he test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
The standard of review is the same when the prosecution relies on circumstantial evidence. (People v. Thomas, supra, 2 Cal.4th at p. 514.) Circumstantial evidence may be sufficient to prove the defendant’s guilt beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
The evidence in the second trial was substantially similar to that in the first trial, with the addition of Perez’s testimony and change of plea form. As the trial court commented, the case “rises and falls on an opinion” of Mayorga. In the second trial, Mayorga testified that in his opinion the drugs found in the drainpipe behind the flower shop were possessed for sale by Lopez, Garcia, and Perez. Mayorga based his opinion on “the hour I watched the subjects, the individual roles they played, and the fact that narcotics were recovered and money was recovered.” Mayorga concluded Lopez, Garcia, and Perez were a three person team consisting of a recruiter, a money collector, and a supplier. Mayorga’s testimony brought meaning to the hand gestures and nods, connecting Lopez and Garcia to Perez and each other. Mayorga’s testimony of his observations and opinions was sufficient to support the convictions under an aider and abettor or conspiracy theory.
In addition, we concluded in part VI of the Discussion section that Mayorga’s testimony corroborated the statements in Perez’s change of plea form. Although Perez exonerated Lopez and Garcia at trial, the jury was free to disbelieve Perez’s testimony and believe the change of plea form was correct.
Lopez argues the prosecution failed to present evidence at the second trial to show he exercised dominion or control over the drugs Perez kept for sale in the drainpipe behind the flower shop. But, as we have explained, criminal liability for possession for sale of a controlled substance may be based on actual or constructive possession. (People v. Morante, supra, 20 Cal.4th at p. 417.) Mayorga’s testimony established Lopez had constructive possession of the drugs in the drainpipe behind the flower shop in that Lopez was part of a three person team selling the drugs.
VIII.
Mayorga’s Opinion the Drugs Were Possessed for Sale Was Admissible.
Finally, Garcia argues the trial court erred by permitting Mayorga to testify to his opinion the cocaine base and methamphetamine “were possessed for sales” by “all three subjects.”
Mayorga’s testimony was admissible. An experienced police officer may give an opinion whether controlled substances are held for purposes of sale based on such factors as quantity, packaging, and a person’s normal use. (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862; see People v. Carter (1997) 55 Cal.App.4th 1376, 1378 [“The trial court properly admitted expert opinion testimony that defendant possessed the rock cocaine for purposes of sale”].) Garcia does not contend Mayorga did not have sufficient experience to offer his opinion or his opinion lacked foundation in the evidence.
Disposition
The judgment against Lopez and the judgment against Garcia are affirmed.
WE CONCUR: SILLS, P. J. BEDSWORTH, J.