Opinion
NOT TO BE PUBLISHED
Superior Court County No. BA341822/BA335293 of Los Angeles, Richard J. Oberholzer, Judge
(Retired Judge of the Kern S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Leonardo Dinoci Lyons appeals from the judgment following his conviction by jury of selling codeine, possession for sale of clonazepam, and possession for sale of codeine. (Health & Saf. Code, § 11352, subd. (a), 11375, subd. (b)(1), 11351.) The jury also found the allegations of appellant's prior conviction pursuant to section 11370.2, subdivision (a) to be true. The trial court found that he was in violation of probation in Los Angeles Superior Court case No. BA335293. It sentenced appellant to three years in prison (a three-year low term for selling codeine, with concurrent middle terms of two years and three years, respectively, for possession for sale of clonazepam and codeine), and a concurrent three-year term in prison in case No. BA335293. Appellant contends that there is not sufficient evidence to support his conviction of clonazapem for sale, that the court committed multiple errors during voir dire that deprived him of due process, and that it failed to give jurors a necessary unanimity instruction concerning the sale of codeine. We reverse in part, affirm in part, and remand for resentencing.
All statutory references are to the Health and Safety Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
The area surrounding the Rite Aid drug store at 5th and Broadway Streets in Los Angeles is known for illegal prescription drug sales. The Los Angeles Police Department (LAPD) Central Division monitors the area with surveillance cameras. At trial, the prosecution presented a portion of the surveillance video showing 5th and Broadway Streets during a period of approximately 14 minutes on June 9, 2008. Appellant appeared throughout the video. He was wearing a buttoned shirt with a pocket, long pants with a zipper, and a belt that was unbuckled much of the time. He appeared to put something in a layer of clothing under his pants. He pulled up his pants, put something that looked like folded paper, possibly money, in a shirt pocket, zipped his pants, adjusted his pants, moved his shirttails, and sometimes removed what looked like paper money from his shirt pocket. Appellant also opened a small bottle and poured out small items, possibly pills, as if counting or retrieving one or two items. He dropped a pill at least once; another man appeared to pick it up. Two other men each approached appellant at least twice. One of them, a man in a dark T-shirt and a dark baseball cap, appeared to get pills from appellant twice; the first time he did so, he put something small in his mouth and walked away.
On June 9, 2008, after viewing the beginning of the just-described video, LAPD Officers Adalberto Corona, Alicia Castro, and an officer described only as Officer Isaa, went to 5th and Broadway Streets. Appellant was there, with the man in a dark T-shirt and dark baseball cap. While holding money in his left hand, appellant placed a white pill in the other man's hand and walked away.
The officers arrested appellant and the man who received the white pill. Corona searched both men. Appellant was wearing long pants, with a pair of shorts underneath. He had a total of $33 in bills, including several $1 and $5 bills, with some in his left shirt pocket, and others in his hand. He had a green prescription bottle with 16 codeine pills in his front left pants pocket and a white prescription bottle with 83 clonazepam pills in his front left shirt pocket. The prescription label on each bottle bore appellant's name. In searching the other arrestee, Corona found a round white pill in his pocket, and a bottle of pills with a codeine prescription label bearing the arrestee's name in a bag.
LAPD Officer Josh Skeber testified as an expert regarding illegal prescription drug sales. He received informal training concerning such sales from LAPD narcotics officers. In addition, Skeber had monitored the area around 5th and Broadway Streets for illegal prescription drug sales for over 13 months. The street value of the pills, including codeine, ranges from $1 to $5. People selling prescription drugs illegally in this area often stand on the corner for hours, wearing layers of clothing, looking furtively from one side to another. Buyers walk toward the sellers and exchange cash for pills in hand-to-hand transactions.
After reviewing the police reports, the laboratory reports, the surveillance video, and speaking with Corona, Skeber opined that appellant possessed the bottles of prescription medication for sale. He based his opinion on multiple facts: Appellant possessed them in a location known for illegal prescription drug sales; his jacket pocket had different denominations of currency; he wore layered clothing, as drug sellers often do, in order to carry different denominations of currency in certain pockets and different pills in certain pockets; and the video showed him counting different denominations of currency while opening the prescription bottles. In addition, the man wearing the dark shirt and cap returned to appellant several times; and drug addicts typically return to the seller several times to buy more pills.
In reaching his opinion that appellant possessed the prescription medications for sale, Skeber also relied on facts specific to each medication.
The following specific facts led him to conclude that appellant possessed codeine for sale: Corona found a codeine pill in the pocket of the man who was arrested with appellant. Skeber's opinion was not altered by the fact that the same man also carried a codeine prescription bottle bearing his own name, where his prescription bottle was stored in a separate location (his bag) from the pocket where Corona found the codeine pill. With respect to the white bottle, Skeber relied on the following specific facts in concluding that appellant possessed its contents for sale: The quantity of pills remaining in the bottle did not correspond with the quantity that should have been there if appellant had followed the directions on the prescription label. In one portion of the video, as appellant held a white bottle, another man gave him something that appeared to be paper currency. The white bottle contained clonazepam.
Appellant called Officer Castro to testify. Castro witnessed the final transaction on the video. She saw appellant hand the pill to the other man. She also saw him try to give the other man some money.
DISCUSSION
Sufficient Evidence Supports the Possession for Sale of the Clonazepam Conviction
Appellant claims that there is not sufficient evidence to support the finding that he had the requisite intent to sell the clonazepam in his possession. We disagree.
On appeal, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Hughes (2002) 27 Cal.4th 287, 370; People v. Ceja (1993) 4 Cal.4th 1134, 1138.) Conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. Where the evidence is sufficient to justify a reasonable inference that the requisite intent existed, the finding of intent by the trier of fact will not be disturbed on appeal (People v. Ferrell (1990) 218 Cal.App.3d 828, 834), even if contrary findings might also be reasonable. (People v. Lewis (2001) 25 Cal.4th 610, 643-644.)
"Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character." (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.)
In challenging the sufficiency of the evidence to support the finding that appellant possessed the clonazepam for sale, appellant relies largely on the fact that expert witness Skeber responded that he would not think that appellant possessed clonazepam for sale if the video did not portray him receiving money in exchange for clonazepam. Appellant acknowledges that expert opinion is not required to support a conclusion that a defendant possessed drugs for the purpose of sale (People v. Doss (1992) 4 Cal.App.4th 1585, 1596), and that "some evidence may have supported a conclusion that [appellant] possessed the clonazepam for sale." He nonetheless argues that "'some evidence' is not enough."
The record contains far more than "some evidence" that appellant possessed the clonazepam for sale. For example, the video shows that he loitered for at least 14 minutes in an area known for illegal prescription drug sales, as he counted or folded something that looks like paper currency and opened his clonazepam and codeine bottles many times. His belt was often unbuckled, and hanging down on one side, with his pants open. He frequently opened his pants, arranged his shirttails, and appeared to deposit something "inside" his pants, or in an interior layer of clothing, instead of using his pants pocket. He also appeared to remove items from the same places. On occasion, he appeared to drop a pill to the ground, which was sometimes picked up by another person. Sometimes another person appeared to throw something to the ground. A couple of people approached appellant repeatedly, including the man who was arrested with him. During an earlier transaction, that man appeared to consume a pill immediately upon receiving it from appellant. After appellant's arrest, officers found that he was wearing a pair of shorts under his long pants. The officers recovered paper currency from appellant's shirt pocket and his hand; they found the bottle of codeine in the pocket of his pants and a bottle of clonazapem in his shirt pocket. The clonazepam bottle held fewer pills than it should have if appellant had followed the directions on the prescription label. There is sufficient evidence that appellant possessed the clonazepam for sale.
Voir Dire Issues
Beyond a Reasonable Doubt Standard and Presumption of Innocence
Appellant makes two related contentions that the trial court's voir dire constituted reversible error and violated his right to due process of law by undermining the presumption of innocence and the beyond a reasonable doubt standard. We disagree.
"The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence-that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.' [Citation.]" (In re Winship (1970) 397 U.S. 358, 363.) Due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged." (Id. at p. 364.)
Appellant cites several segments of voir dire in arguing that the trial court undermined the presumption of innocence by arguing with prospective juror 1415 on the second day of jury selection. He also notes that on the day before, the court had asked prospective jurors what verdict they would return if forced to give one before hearing the evidence. It questioned one juror as follows:
"The Court: In People versus Lyons, give me a verdict right now. Guilty or not guilty?
"Juror 3534: No thank you.
"The Court: What do you need? Are we just all walking around guilty in our country?
"Juror 3534: Innocent until proven guilty.
"The Court: Innocent until proven guilty. What country is that? Right here. This one right here. A person is innocent until proven guilty. They are presumed to be innocent. What is the problem with giv[ing] me a verdict? Have you heard anything that would convince you of the guilt?
"Juror 3534: Without the guilt he is innocent.
"The Court: He is not innocent.
"Juror 3534: Until proven guilty.
"The Court: He is not guilty."
The following excerpt from the October 31, 2008, voir dire contains questions and comments that appellant now challenges:
"The Court: That is where we are at. Remember earlier we said we want you to come in--maybe I didn't say that. We don't want you to come in as airheads, nothing at all upstairs. We don't want you to come in and assume anything in this case. We don't want you to assume that he is guilty. We don't want you to assume that he is innocent. Is he innocent?
"Juror 1415: Well, yeah until proven guilty.
"The Court: He is innocent?
"Juror 1415 I mean I don't know anything about the case.
"The Court: How can you tell us he is innocent, then?
"Juror 1415: I am not saying he is innocent. I am saying I might not be able
"The Court: Okay. I would like you to be a juror in this country. It is understanding what it is all about and what your role is as a juror. [¶] You don't know if he is innocent and I don't know if he is innocent. Nobody up here in this jury should know whether he is innocent or not. At the end of the trial you may not know either. You are going to make a determination mf whether or not... the prosecutor, has convinced you of the guilt of the defendant. We said before that [defense counsel] doesn't have to do anything. [¶] Although we don't know if he is innocent, we are going to presume that he is innocent. That doesn't mean that he is. We are going to presume that he is innocent. The reason we presume that he is innocent is to require someone to [prove] his guilt. [The prosecutor] has to do that."
Appellant asserts that the prosecutor also disparaged the presumption of innocence in voir dire by making the following statements: "We talked a bit about the presumption of innocence. Any defendant in any criminal case is presumed innocent.... [I]f I was arrested and put on trial, I would be presumed innocent. It doesn't actually mean that I didn't commit the crime."
In making a related claim that the trial court undermined the presumption of innocence and the beyond a reasonable doubt standard, appellant cites portions of the court's October 31, 2008 comments to another juror. Juror 1132 had just responded to a question by defense counsel by stating that he would rather a guilty person go free than convict an innocent person. Defense counsel asked him to explain his answer. As he did so, the court commented as follows:
"The Court: I don't want to go too far into this. I don't want this jury--I didn't like the answer to the question. I don't think it is a good answer. The reason is I think people who are guilty should be found guilty and people who are not guilty should be found not guilty. If it is not proved beyond a reasonable doubt it should be not guilty. [¶] Instead of saying I think a guilty person should go free, I don't like that. You don't have anything to do with people going free or not free. Secondly, I think people--guilty people should be found guilty. I am not going to find a person not guilty because I think guilty people should go free to protect other people. That is not the mindset. [¶] If I am convinced beyond a reasonable doubt, it is guilty. If [you are] not convinced beyond a reasonable doubt it is not guilty."
The jury was impaneled on Friday, October 31, 2008. Later that day, the trial court gave the jury opening instructions, both sides made opening statements, and the prosecution called one witness. The presentation of evidence resumed and concluded on Monday. On Tuesday, before the jury started its deliberations, the court instructed it concerning the beyond a reasonable doubt standard of proof and the presumption of innocence, with CALCRIM No. 220, the standard instruction, as follows:
"The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] 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. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
Appellant relies on inapposite cases, including People v. Travers (1891) 88 Cal. 233, in arguing that the trial court's comments concerning the presumption of innocence constitute reversible error. In Travers, the court gave the jury a formal instruction that read: "During the argument of this case your attention has been called to a number of cases in which it was claimed that juries had improperly convicted the defendants. While it is true that innocent persons have been convicted in the past, there is no proof in this case of any such fact, and you are not justified in considering such matters in determining the guilt or innocence of this defendant.... If all criminals must go free because there is a possibility of jurors making mistakes, society might as well disband." (Id. at p. 236.) Travers concluded that the instruction was "clearly erroneous" for two reasons: First, because "of its apparent hostility to the defendant [because jurors] would be very apt to get the impression from it that the court considered the defendant one of the 'criminals' alluded to, and feared the jury would fail to convict him on account of 'sympathy or prejudice.' In the second place, it is objectionable as an argument in favor of the prosecution on the weight of evidence, and thus was an invasion of the province of the jury." (Id. at p. 237.)
In People v. Olsen (1905) 1 Cal.App.17, 19-20, the defendant cited Travers in claiming that the court's comments regarding circumstantial evidence "during the impaneling of the jury" constituted prejudicial error. (Id. at p. 20.) Olsen concluded that the challenged comment was not prejudicial because it "could not have had any other effect than to impress upon the minds of the jurors the fact that circumstantial evidence was to be considered and that conviction could be had on such evidence." (Ibid.) It also noted that in contrast to the Travers defendant who challenged a jury instruction, the Olsen defendant was attacking a comment that the court made "during the impaneling of the jury." (Ibid.) As in Travers, appellant claims that the court misinformed the jury concerning the presumption of innocence. Here, in contrast, the challenged comments are not in a jury instruction, nor do they contain phrases comparable to those in Travers. E.g., "'If all criminals must go free because there is a possibility of jurors making mistakes, society might as well disband.'" (People v. Travers, supra, 88 Cal. At p. 236.)
Appellant also complains that the court told a juror, "We don't want you to assume he is innocent, " although the presumption of innocence "is better characterized as an 'assumption' that is indulged in the absence of contrary evidence, " according to the United States Supreme Court. (Taylor v. Kentucky (1978) 436 U.S. 478, 483, fn. 12.) However, in the same segment of voir dire, the court stated, "We are going to presume he is innocent." When viewed in context, the court's comments did not undermine the presumption of innocence.
Appellant relies on two inapt cases in which reviewing courts reversed convictions based upon the trial court's erroneous comments during voir dire: People v. Johnson (2004) 119 Cal.App.4th 976 (Glen Johnson) and People v. Johnson (2004) 115 Cal.App.4th 1169 (Danny Johnson). In each of these cases, the trial court misstated the burden of proof during jury voir dire by equating it with everyday decision-making in a juror's life. (Glen Johnson, at pp. 978-984; Danny Johnson, at p. 983.) Appellant does not claim that the court below committed that particular error.
Appellant further complains that the court erred by stating it "'didn't like' the juror's answer that it is better for a guilty person to go free than for an innocent person to be convicted, " and it "essentially contradicted, or at best, told jurors to disregard this fundamental principle that lies at the root of the presumption of innocence and the reasonable doubt standards." Relying on Glen Johnson and Danny Johnson, appellant argues that such error compels reversal per se. Glen Johnson concluded that where the "court's tinkering with the statutory definition of reasonable doubt, [which] lowered the prosecution's burden of proof below the due process requirement of proof beyond a reasonable doubt, ... [t]he error 'unquestionably qualifie[d] as "structural error"' and compel[led] reversal per se. [Citations.]" (Glen Johnson, supra, 119 Cal.App.4th at pp. 985-986.)
Structural errors affecting the framework of an entire trial exist only in a very limited class of cases. (See Johnson v. United States (1997) 520 U.S. 461, 468-469.) This is not one of them. Unlike the comments of the Danny Johnson and Glen Johnson trial courts, the comments of the court below did not suggest that the reasonable doubt standard is the same standard people customarily use in making everyday decisions. (Danny Johnson, supra, 115 Cal.App.4th at p. 1172; Glen Johnson, supra, 119 Cal.App.4th at p. 983.) Here, the error is amenable to the harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 24.
Although the trial court's critique of the juror's answer relating to the presumption of innocence and its attack upon that presumption are reprehensible errors, we conclude that those errors were harmless beyond a reasonable doubt. The record contains overwhelming evidence of appellant's guilt, including a video of his drug transactions, and the testimony of officers who observed them. In addition, the court correctly instructed the jury regarding the presumption of innocence and the beyond a reasonable doubt standard with CALCRIM No. 220. (See Victor v. Nebraska (1994) 511 U.S. 1, 5.) We must presume it followed the instruction. (People v. Nguyen (1995) 40 Cal.App.4th 28, 37.) Further, the court stated during voir dire that the burden of proof was on the prosecution, and that the jurors were required to presume that he was innocent. It also advised the jurors during voir dire "if it is not proved beyond a reasonable doubt [the verdict] should be not guilty." The court's erroneous comments concerning the presumption of innocence were harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
Impartial Jury
Appellant also argues that the trial court committed reversible error when it berated a juror for her candid admission of bias, suggested she lacked "control over the intellectual part of [her] brain, " and that "she should go someplace else and [not] sit on a jury in this country." We disagree.
A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; Irvin v. Dowd (1961) 366 U.S. 717, 722; In re Hitchings (1993) 6 Cal.4th 97, 110.) "'"Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced." [Citations.]'" (People v. Nesler (1997) 16 Cal.4th 561, 578.)
Code of Civil Procedure section 223 provides in part as follows: "In a criminal case, the court shall conduct an initial examination of prospective jurors. The court may submit to the prospective jurors additional questions requested by the parties as it deems proper.... Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases.... Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause."
In arguing that the trial court's questioning of juror 1415 constitutes reversible error, appellant cites the following segment of the October 31, 2008 proceedings:
"The Court: If you are going to be a fair juror, you've got to be fair to both sides. Don't pick out the defendant and say I am going to be fair with the defendant and not the people. That is not what our system is about in this country. It is about being fair to both sides. [¶] Oftentimes people say I can be fair and only think of the defendant. No. There are two adversaries in this courtroom. You shouldn't be taking sides for one or another. Even at the end of the trial you are not going to be taking sides. You are not going to be an advocate[] for one side or another. [¶] You are letting your emotions... control your thought process. Maybe you don't have control over the intellectual part of your brain and say no, I am not going to let emotions take over my decisions. [¶] Logically it makes no sense. You want everybody else on this jury to obey a law. But because of someone's age I can't find them guilty. That doesn't make a whole lot of sense, does it?
"Juror 1415: Right.
"The Court: Does it sound logical to you?
"Juror 1415: It does.
"The Court: It does? Because of their age we shouldn't enforce the law?
"Juror 1415: No. It doesn't, but, I don't know. I don't know how to explain myself.
"The Court: Maybe you can't be a juror and that is okay. Maybe you can't be a juror. If you don't really understand our system of justice, or if you don't want to participate in it as the rules state that you participate, then you go someplace else and don't sit on a jury in this country. That doesn't mean you kept [sic] can't sit as -- you can't live in this country. You just can't sit as a juror.
"....
"The Court: Remember the question I asked a juror earlier. If you had an important decision to make in your life, would you want someone to make it for you?
"Juror 1415: No.
"The Court: That is a usual indication you think your judgments are right. That is what it comes down to. If you feel that way, it means I think I am right. It means you can sit as a juror. [¶] Now, I don't know. Maybe there are certain judgments you have to make in life that you don't want to make. I don't know. That is only in your mind. That is why you have to be able to tell us whether or not you can comply with the rules that we have as being a juror and whether you can."
In addition, the prosecutor and defense counsel each questioned juror 1415 about perceiving appellant differently based on his age. Juror 1415 responded, "Yes, I would" when defense counsel asked, "If I was representing someone who is 20, you might see the case differently than with my client?" Juror 1415 was excused later when defense counsel exercised a peremptory challenge.
In claiming that this portion of voir dire compels the reversal of his conviction based on the denial of his constitutional right to trial by an impartial jury, appellant relies on two inapposite cases, People v. Mello (2002) 97 Cal.App.4th 511 and People v. Abbaszadeh (2003) 106 Cal.App.4th 642. Both cases involved the same judge who told jurors on voir dire to "dream up" a reason (Mello, at p. 514) or "do whatever [they had] to do to get off the jury" (Abbaszadeh, at p. 646) if they harbored racial bias but were reluctant to admit it. The court's admonishment in each case made it impossible to know whether the seated jurors were fair and impartial. (Mello, at pp. 517-518; Abbaszadeh, at p. 647.) In each case, the court concluded that the error violated the defendant's right to due process by denying him a fair and impartial jury. (Mello, at pp. 518-519; Abbaszadeh, at pp. 646-647.) Contrary to the courts in Mello and Abbaszadeh, the trial court below instructed jurors not to lie by admonishing them to answer "honestly and truthfully." Here, the questions that the prosecutor and defense counsel addressed to juror 1415 suggest that they shared the court's concern that she could not view the evidence impartially.
Appellant acknowledges that the trial court's statements were not as egregious as those in Mello. We reject his claim that the court's statements to juror 1415 deprived him of an impartial jury.
Unanimity Instruction
Appellant contends that his sale of codeine conviction must be reversed because the trial court failed to give the jury the CALCRIM No. 3500 unanimity instruction. We agree.
The state Constitution guarantees criminal defendants a unanimous jury verdict on a specific charge. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132.) When a conviction on a single charge could be based on evidence of two or more discrete criminal acts, all jurors must agree that the defendant committed the same act. Unless the prosecution elects to rely upon a single criminal act, the trial court has a sua sponte duty to instruct the jury that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific act. (Russo, at p. 1132; CALCRIM No. 3500.)
In closing argument, the prosecutor identified three events as sales, and identified their locations on the video, as follows:
"At four minutes, you'll see the male white show up for the first time.... [¶]... [H]e's looking for the police because he's about to buy prescription pills illegally. [T]hat tell[s] you, the defendant sells prescription pills illegally. [¶] About three minutes later, ... you actually see the defendant give pills to the male white...."
The prosecutor also argued that at "10 minutes and 28 seconds, you can see the male white again... [y]ou'll just see hands and money in the upper left-hand corner of the video. And counting the money. And that's the buyer. The male white... 11 minutes and 45 seconds you can see in front, pills out, the pill bottle.... There's this time period where they wait.... [T]here's a three minute gap before the actual transaction where the pills take place.... [¶]... And 11 minutes and 50 seconds you see the defendant pour the pills and give it to the buyer. [¶] [At] 12 minutes, 58 seconds, you see the officers arrive on scene."
The prosecutor further argued that "I believe around 11 minutes and 12 seconds you can see another buyer, you can see to be sure.... Ten minutes 13 seconds, that's when you see the other buyer.... [A]nd there you will see them actually exchange the pills again too."
Respondent claims that no unanimity instruction was required because the prosecutor elected to rely upon a single criminal act for the sale of codeine--the last sale in the video. The prosecutor argued that "Officer Corona told [the jury] that he saw [appellant] take one codeine pill and place it in the buyer's hand and Officer Corona arrested that buyer with that codeine bill." Referring to the sale of codeine charge, defense counsel stated, "[t]he [District Attorney] is apparently, from his argument, he is apparently saying the last thing you see in the video is the sale."
When read as a whole, the record does not indicate that the prosecution elected to base its sale of codeine charge upon the last sale in the video. For example, during rebuttal argument, the prosecutor again referred to multiple sales: "For those 15 minutes there on the video.... [¶] What else was he doing if he wasn't selling these pills... ?" The prosecutor further argued that appellant was "constantly seen counting money after he gives people the pills. Why is he going to be giving strangers on the street his pills... unless he is selling them to them[?] After you see him give away pills, he is counting money." The prosecutor did not make an election to rely on a single act for the sale of codeine. The trial court erred by failing to give a unanimity instruction.
The courts are divided concerning the proper standard for reviewing prejudice for failure to give a unanimity instruction. (People v. Matute (2002) 103 Cal.App.4th 1437, 1448-1449.) Some courts apply the state law standard of People v. Watson (1956) 46 Cal.2d 818, 836, reasoning that the right to a unanimous verdict derives from the state constitution. (People v. Vargas (2001) 91 Cal.App.4th 506, 562.) Other courts apply the standard of Chapman v. California, supra, 386 U.S. at p. 24, reasoning that failure to give a unanimity instruction lessens the prosecutor's burden of proof, thereby violating the federal constitutional right to due process. (People v. Wolfe (2003) 114 Cal.App.4th 177, 188.)
Appellant was prejudiced under either standard. The error was not harmless beyond a reasonable doubt, because appellant presented a different defense as to the final transaction --Officer Castro's testimony that she saw appellant try to give money to the "buyer." That evidence gave the jury a rational basis for distinguishing between that transaction and the others on the video. When considered with the evidence that the purported buyer in that transaction was carrying his own prescription bottle of codeine, a juror could have harbored a reasonable doubt that the last transaction was a sale. Thus, it is also reasonably probable that appellant would have obtained a more favorable verdict for the selling codine charge had the unanimity instruction been given. (See People v. Laport (1987) 189 Cal.App.3d 281, 283-284.)
DISPOSITION
Appellant's conviction of selling codeine is reversed. We remand this case for resentencing. In all other respects, the judgment is affirmed.
GILBERT, P.J., Concurring.
I reluctantly concur. In view of the evidence and correct jury instructions given to the jury at the conclusion of the trial, Leonardo Dinoci Lyons' case was heard by an impartial jury. Nevertheless, I must speak to the trial judge's insulting, hectoring comments to juror 1415. These gratuitous remarks were unnecessary, unprofessional, and harmful to our system of justice. They serve to denigrate the sacrifice and commitment made by jurors called upon to hear evidence and render verdicts in a variety of cases. Moreover, the judge's skewed explanation of the presumption of innocence came close to jeopardizing the integrity of the trial.
It is expected that a trial judge address jurors and all who appear in court, in whatever capacity, with civility and dignity. Unfortunately, that is not what happened here.
YEGAN, J. Concurring and Dissenting Opinion
I respectfully dissent. I agree that certain of the trial court's remarks concerning the presumption of innocence and proof beyond a reasonable doubt were inappropriate. Assuming that these remarks were erroneous, there was no miscarriage of justice occasioned thereby as the jury was correctly instructed on these principles at the conclusion of the case.
I disagree that there has been a miscarriage of justice with respect to the sale of codeine in count three. Any error with respect to the failure to give a unanimity instruction is harmless. The crime was captured on video tape and the officer saw appellant give a single codeine pill to the buyer in exchange for money. The buyer then placed that single pill in his pocket. That same codeine pill was seized by the police. In my view, no instruction on unanimity will change the jury verdict.