Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF120290A, John I. Quinlen, Judge.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel Bernstein, Enid Camps, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury found Alfonso Ochoa guilty of possession for sale of methamphetamine. The court imposed a two-year prison sentence. On appeal, he argues (1) insufficiency of the evidence, (2) prejudice from the lack of a sua sponte unanimity instruction, (3) prosecutorial misconduct in argument to the jury, and (4) confrontation clause error from the admission of evidence of laboratory procedures through a witness who did not perform those procedures. Finally, he requests (5) an independent review of the sealed proceedings on the issue of whether the court’s order denying disclosure of the identity of the confidential informant was error. We affirm the judgment.
BACKGROUND
On September 25, 2007, the district attorney filed an information charging Ochoa with possession for sale of a controlled substance (methamphetamine) on August 2, 2007. (Health & Saf. Code, § 11378.) On February 22, 2008, a jury found him guilty as charged. On May 16, 2008, the court imposed a two-year prison term.
DISCUSSION
1. Sufficiency of the Evidence
Ochoa argues insufficiency of the evidence. The Attorney General argues the contrary.
The record shows execution of a search warrant on a Bakersfield house where a team of detectives found Ochoa and a female adult in the northwest bedroom. A detective asked Ochoa, who was lying on the bed with just a towel around his waist, if he had pants he would like to put on. Ochoa said yes and directed him to a pair of jeans in the hallway. Holding them up, the detective asked Ochoa, “Are these your jeans?,” and he replied, “Yes.” The detective observed that the jeans “fit him. He was able to buckle the jeans. The length appeared to be the right length.” The detective informed him he was under arrest for possession for sale of methamphetamine.
A small baggie containing a white substance was in the coin pocket of the jeans. Asked about the item in the coin pocket, Ochoa said it was his. Asked about the quantity, he said it was a dime’s worth, which is often referred to as a dime bag and which usually means $10 worth of contraband. The detective asked him if he purchased methamphetamine in a dime-bag quantity. He replied, “No. I usually buy larger portion [sic] and put them in smaller portions.”
When the detective asked Ochoa about other items found in the house – another baggie of methamphetamine, a gram scale, and a smoking pipe in the bedroom and yet another baggie of methamphetamine in the kitchen – he referred to the house as his and said everything in his house was his. In reply to a hypothetical involving like facts, the detective opined that if one person were in possession of those items he or she would be in possession for sale. On the basis of his training and experience, the detective opined that Ochoa was a “street-level narcotics dealer.” Ochoa admitted he sold small amounts of methamphetamine to support his own habit.
Laboratory analysis showed the baggie in the coin pocket contained 0.38 grams, the baggie in the bedroom contained 1.07 grams, and the baggie in the kitchen contained 3.55 grams, for a total of 5.0 grams, of methamphetamine. Each of those quantities was a “usable amount” - an amount potentially capable of being manipulated for use in the manner intended whether or not an amount capable of getting a person high.
CALCRIM No. 2302 (“Possession for Sale of Controlled Substance”) “captures all of the elements of the crime.” (People v. Montero (2007) 155 Cal.App.4th 1170, 1177.) The court so instructed the jury:
“The defendant is charged with possession for sales of methamphetamine, a controlled substance, in violation of 11378 of the Health and Safety Code. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant unlawfully possessed a controlled substance; that he knew of its presence; that the defendant knew of the substance’s nature or character as a controlled substance; when the defendant possessed a controlled substance, he intended to sell it. The controlled substance was methamphetamine. And the controlled substance was in a usable amount.
“Selling for the purposes of this instruction means exchanging methamphetamine for money, services, or anything of value.
“A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.
“The People do not need to prove that the defendant knew which specific controlled substance he possessed, only that he was aware of the substance’s presence [and] that it was a controlled substance. Two or more people may possess something at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it either personally or through another person.”
Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence – credible and reasonable evidence of solid value – that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Prince (2007) 40 Cal.4th 1179, 1251.) That standard, which applies to circumstantial and direct evidence alike, requires us to presume in support of the judgment the existence of every fact a reasonable trier of fact reasonably could have deduced from the evidence. (Prince, supra, at p. 1251.) By that standard, our review of the record persuades us that a sufficiency of the evidence of the crime of possession for sale of methamphetamine is in the record. (Ibid.) Ochoa’s insufficiency of the evidence argument simply asks us to reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)
2. Unanimity Instruction
Ochoa argues prejudice from the lack of a sua sponte unanimity instruction. The Attorney General argues the contrary.
By state constitutional mandate, the jury must consist of 12 jurors, and the verdict must be unanimous, in a felony prosecution. (Cal. Const., art. I, § 16; People v. Mickle (1991) 54 Cal.3d 140, 178.) Ochoa argues, primarily in reliance on People v. King (1991) 231 Cal.App.3d 493 (King), that the court erred by not instructing with CALCRIM No. 3500. In King, a search yielded 3.59 grams of methamphetamine in three different locations in appellant’s home – 2.5 grams in a baggie in a purse in the living room, 0.33 grams in a syringe in the purse, and 0.76 grams in a baggie in a ceramic statue in the kitchen. (Id. at pp. 497-499.) Prosecution evidence showed that the purse with the 2.5 grams in a baggie and the 0.33 grams in a syringe was someone else’s. (Id. at p. 499.) “Appellant’s defense came through the testimony of her boyfriend,” who claimed that he gave her $1,000 for the rent, that he lived there with her, and that the 0.76 grams of methamphetamine in the statue was his. (Id. at p. 498.) On that record, we held that, “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,” a unanimity instruction “must be given to assure jury unanimity.” (Id. at pp. 501-502, italics added.)
In relevant part, CALCRIM No. 3500 (“Unanimity”) provides: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
Here, on the other hand, Ochoa cites to no evidence in the record as to each unit of methamphetamine “from which a reasonable jury could find that it was solely possessed by a person or persons other than” him. (King, supra, 231 Cal.App.3d at p. 501.) The Rules of Court require “[e]ach brief” to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rules 8.204(a)(1)(C), 8.360(a).) He merely cites to evidence in the record that “the bedroom appeared to be inhabited by a woman,” that a detective “had to go outside the bedroom to find pants for [him] to wear,” and that the woman lying next to him on the bed admitted “she had a drug problem.” His reliance on King is misplaced.
A “unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’” (People v. Russo (2001) 25 Cal.4th 1124, 1135.) “In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Ibid.) Here, in contrast to the record in King, Ochoa did not present distinct defenses as to the three different units of methamphetamine. Instead, as his attorney’s argument to the jury shows, his common defense to all three was reasonable doubt. No unanimity instruction was necessary.
Subsumed under his instructional argument, but with neither the citation to authority nor the “separate heading or subheading” that the Rules of Court require, Ochoa complains about “the prosecutor’s multiple misstatements of the law during his closing argument.” (Cal. Rules of Court, rules 8.204(a)(1)(B), 8.360(a).) Since we have no duty to address arguments that are improperly presented, we interpret his casual presentation as a lack of reliance on his “multiple misstatements” complaint. (In re Keisha T. (1995) 38 Cal.App.4th 220, 237, fn. 7; In re David L. (1991) 234 Cal.App.3d 1655, 1661.) We do address Ochoa’s challenge to other comments by the prosecutor in briefing that complies with the Rules of Court. (Post, part 3.)
3. Argument to the Jury
Ochoa argues prosecutorial misconduct in argument to the jury. The Attorney General argues that Ochoa forfeited his right to appellate review by failing to object and, alternatively, that there was no error and that error, if any, was harmless.
Preliminarily, we turn to the Attorney General’s forfeiture argument. A timely objection to purported prosecutorial misconduct is necessary to preserve the right to appellate review. (People v. Coddington (2000) 23 Cal.4th 529, 595, overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) Here, the record shows no objection. Ochoa forfeited his right to appellate review.
Even were the issue before us, the comments Ochoa challenges are innocuous. The prosecutor asked jurors to imagine “you’re the child that has a lemon-aid stand, and you get your mom to buy your stuff,” and even if “you may not be planning to sell it next week or the next week,” still “you’re keeping that lemon-aid around,” for, “[e]ventually, if an opportunity comes up, you’re going to sell it.” No matter “when his next sale was coming,” he argued, Ochoa kept his methamphetamine around “and was going to intend to sell it if the opportunity came” since he “has these things for sale when he needs to sell them.” Just as a convenience store has “no guarantee” the entire inventory will sell on a specific day, he argued, so a seller who kept paraphernalia and narcotics together “intended to sell if the opportunity came up.”
Ochoa argues that the prosecutor’s comments misled the jury by substituting a “vague requirement of knowledge” for intent to sell and by conflating speculation with intent to sell. We disagree. Although he “singles out words and phrases, or at most a few sentences, to demonstrate misconduct, we must view the statements in the context of the argument as a whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) So viewed, the argument shows no reasonable likelihood that the jury misconstrued or misapplied the prosecutor’s comments. (People v. Lewis (2009) 46 Cal.4th 1255, 1304, citing People v. Clair (1992) 2 Cal.4th 629, 662-663.)
4. Confrontation Clause
Ochoa argues confrontation clause error from the admission of evidence of laboratory procedures through a witness who did not perform those procedures. The Attorney General argues that Ochoa forfeited his right to appellate review by failing to object and, alternatively, that there was no error and that error, if any, was harmless.
Preliminarily, we turn to the Attorney General’s forfeiture argument. An objection to a purported confrontation clause violation is necessary to preserve the right to appellate review. (People v. Burgener (2003) 29 Cal.4th 833, 869.) Here, the record shows no confrontation clause objection. “‘No procedural principle is more familiar to [the United States Supreme Court] than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’” (United States v. Olano (1993) 507 U.S. 725, 731.) Ochoa forfeited his right to appellate review.
Even were the issue before us, Ochoa has no right to relief. First, an expert may testify about laboratory tests without violating the defendant’s Sixth Amendment rights even if the witness was not the expert who performed those tests. (People v. Bowman (2010) 182 Cal.App.4th 1616, 1618.) In Bowman, we rejected Ochoa’s argument that Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [174 L.Ed.2d 314; 129 S.Ct. 2527]) overruled People v. Geier (2007) 41 Cal.4th 555, on which we relied. (Bowman, supra, at p. 1618.)
Second, Ochoa independently identified the contraband at his house. After he was informed he was under arrest for possession for sale of methamphetamine, he admitted that the white substance in the coin pocket of his jeans was his. Asked about how much was there, he said a dime’s worth, which is often referred to as a dime bag and which usually means $10 worth of contraband. Asked if he purchased methamphetamine in a dime-bag quantity, he admitted that he usually bought larger portions that he divided into smaller portions. Asked about methamphetamine and paraphernalia found elsewhere in the house – the baggie, gram scale, and smoking pipe in the bedroom and the baggie in the kitchen – he admitted that the house was his and that everything inside was his. On that record, confrontation clause error, if any, in the admission of evidence of laboratory procedures was harmless beyond a reasonable doubt. (See Geier, supra, 41 Cal.4th at p.608.)
5. Confidential Informant
Ochoa requests an independent review of the court’s in camera proceedings on the issue of whether the court’s order denying disclosure of the identity of the confidential informant was error. The Attorney General, though not opposing the request, argues that no review is necessary since the affidavit in support of the search warrant shows probable cause for issuance of the warrant. Our independent review satisfies us that the court’s order denying disclosure of the identity of the confidential informant was well within the scope of the court’s sound discretion. (See People v. Hobbs (1994) 7 Cal.4th 948, 975-976.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Ardaiz, P.J., Levy, J.