Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge, Super.Ct.No. FBA009231
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Raul Juan Serafin appeals from a jury conviction for possession of methamphetamine for sale in violation of Health and Safety Code section 11378 (count 1), and transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a) (count 2). He argues his conviction should be reversed because there is insufficient evidence he possessed methamphetamine for sale, and the trial court prejudiced his defense by not giving the jury a unanimity instruction. Defendant also contends his sentence is unconstitutional because the trial court imposed an aggravated term in violation of his right to a jury trial.
FACTUAL AND PROCEDURAL HISTORY
On the morning of May 14, 2006, an officer stopped a pickup truck for minor traffic violations after observing it travel approximately 10 to 15 feet. He approached the vehicle on the driver’s side and directed the driver to get out of the vehicle. As the driver was exiting the vehicle, the officer noticed a baggie hanging out of the driver’s shirt pocket. Because the officer had reason to believe the baggie contained methamphetamine, he arrested the driver.
While the officer’s attention was still focused on the driver, defendant, who was the only passenger in the vehicle, got out and started walking toward the officer while putting his hands in and out of his pockets. For safety reasons, the officer told defendant to remove his hands from his pockets. He complied after the officer repeated the request. The officer then asked defendant whether he had methamphetamine in his pocket, and defendant responded affirmatively. As a result, the officer searched defendant’s pockets and found a baggie containing a white crystal substance that he believed was an “8 ball,” or about three grams of methamphetamine. The officer arrested the defendant and then searched the vehicle and found “19 individually packaged baggies” of methamphetamine on the floor of the pickup truck directly behind the driver’s seat. Each baggie weighed approximately one ounce or contained 28.5 grams. The baggies were inside a paper bag, the paper bag was inside a canvas bag, but the zipper on the canvas bag was open. Inside the vehicle, the officer also found two scales that he determined had been used to measure methamphetamine, as well as some empty baggies.
The officer also found defendant in possession of cash in the amount of $500 and a motel room key. When asked about the motel room key, defendant told the officer it was his. The officer then asked defendant whether there was anything in the room he “should know about,” and defendant replied “just a scale.” Defendant also told the officer the key was for the Economy Inn located just north of the traffic stop. He gave the officer permission to search the room.
The officer questioned defendant once more at the police station. He asked defendant whether he knew what methamphetamine was and whether the white substance found in his pocket was methamphetamine. Defendant replied “yes” to both questions. Defendant also told the officer he sold it “just a little bit” for about $100.
At trial, the arresting officer was the key witness for the People. Defendant elected not to present an affirmative defense. The jury convicted defendant of both charges.
ANALYSIS
I. Sufficiency of the Evidence
Defendant contends there is insufficient evidence to establish the knowledge element of both the sales and transportation elements of the charges as to the 19 baggies of methamphetamine “hidden” or “well-concealed” in the bag behind the driver’s seat. According to defendant, the evidence merely establishes his presence in the vehicle as a passenger, which is not enough to establish he knew about the 19 baggies. He also claims the presence of the motel key on his person does not justify an inference he owned any of the items in the room, particularly when the officer opined the driver was the one who rented the room.
“It is the prosecution’s burden in a criminal case to prove every element of a crime beyond a reasonable doubt.” (People v. Cuevas (1995) 12 Cal.4th 252, 260, citing In re Winship (1970) 397 U.S. 358.) “To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the ‘substantial evidence’ test. Under this standard, the court ‘must 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. Cuevas, supra, at p. 260, quoting People v. Johnson (1980) 26 Cal.3d 557, 578, italics added by People v. Cuevas.) “In reviewing a jury’s determination, we view the whole record in a light most favorable to the verdict, drawing all reasonable inferences and resolving all conflicts in support of the jury’s verdict. [Citation.] We must uphold the verdict unless it clearly appears that upon no hypothesis whatever is there sufficient evidence to support it.” (People v. Massie (2006) 142 Cal.App.4th 365, 371.)
“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. [Citation.] Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. [Citation.] The crimes can be established by circumstantial evidence and any reasonable inferences drawn from that evidence.” (People v. Meza (1995) 38 Cal.App.4th 1741, 1746-1747.) “Where the circumstances support the trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant’s innocence.” (Id. at p. 1747.)
The record before us sufficiently supports the jury’s conclusion that defendant was not simply a passenger who was just present in the vehicle for a brief time to purchase a supply of methamphetamine from the driver for personal use. Despite the fact that the larger quantity of 19 baggies was located on the floor directly in back of the driver, arguably out of defendant’s immediate view, the evidence strongly suggests defendant was in the vehicle to assist the driver in the sale and transportation of methamphetamine.
Regardless of who actually rented the room, the key for room 217 of the Economy Inn, which was found on defendant’s person, convincingly connected him to the contents found inside the room shortly after he was arrested. All but one of the items located in the room were indicative of sales rather than mere possession for personal use. In the room, the officer found “MSM,” which the officer testified is typically mixed with pure methamphetamine in order to increase the quantity for sale. The officer also found plastic baggies and digital scales that he opined are associated with the sale of methamphetamine. The room also contained items commonly used for surveillance—a “walkie-talkie” and binoculars. The officer testified these items are commonly used in methamphetamine sales operations. A clear glass smoking pipe was the only evidence taken from the room associated with personal use.
The officer testified the amount of methamphetamine found in defendant’s pocket, which weighed approximately three grams, had a street value of approximately $100 and was large enough to indicate defendant possessed it for sale. According to the officer, the typical dosage for a methamphetamine addict is only about one-fifth of a gram. Of course, the officer also opined the 19 baggies found directly in back of the driver’s seat were packaged for transportation and sales. Scales commonly used to measure methamphetamine for sale were also found inside the vehicle, along with some empty baggies typically used for packaging. In addition, defense counsel stated in his closing argument that defendant smokes methamphetamine “a lot.” The officer testified that defendant told him he sold methamphetamine “just a little bit” to make a little money.
Viewing the evidence in the light most favorable to the judgment, we conclude a jury could reasonably infer from all of the facts and circumstances that defendant knowingly possessed the 19 baggies containing methamphetamine, found directly behind the driver’s seat, for transportation and sale. We therefore conclude there is sufficient evidence to support a conviction as to both of these charges.
II. Unanimity Instruction (CALJIC No. 17.01)
Defendant argues the trial court committed prejudicial error by failing to sua sponte instruct the jury with CALJIC No. 17.01. Defendant contends CALJIC No. 17.01 was necessary to protect his right to a unanimous verdict because the jury could have found him guilty even if they did not reach agreement as to which individual unit of methamphetamine he actually or constructively possessed when arrested.
CALJIC No. 17.01 reads as follows: “The defendant is accused of having committed the crime of [in Count ]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count ] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count ], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.” The record indicates the jurors were generally instructed that their “verdict in each count must be unanimous.”
“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citation.] A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (People v. Maury (2003) 30 Cal.4th 342, 422.) A unanimity instruction is required when (1) “actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space”; (2) “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”; and (3) the People have not elected to rely on only one of the individual units. (People v. King (1991) 231 Cal.App.3d 493, 501.) Factors to be considered in determining the necessity for a unanimity instruction include whether the defendant raised separate defenses to different units of narcotics, and whether there is conflicting evidence of ownership. (People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071.)
Based on defense counsel’s closing argument, it is apparent defendant was relying on different defenses to the “8 ball” found in his pocket and the “19 baggies” separately located in the canvas bag in back of the driver’s seat. With respect to the “8 ball” in defendant’s pocket, defense counsel conceded all elements of the lesser included offense of possession for personal use, which includes the requisite knowledge. By contrast, defense counsel’s closing argument establishes defendant disputed knowledge of the 19 baggies found on the floor inside the bag in back of the driver’s seat based on its separate location and the surrounding circumstances.
To support the theory defendant lacked knowledge of the 19 baggies, defense counsel argued the circumstances demonstrated the driver was undeniably the drug dealer in the scenario, and defendant was simply a high-volume addict purchasing for personal use. Citing the brief period of time the vehicle was observed by the officer prior to the traffic stop, counsel suggested defendant may have gotten into the pickup truck just prior to the time the officer spotted it only for the purpose of purchasing what was found in his pocket. He referred the jury to telltale signs of methamphetamine addiction apparently shown on photographs of defendant and the driver taken shortly after the incident. In contrast to the driver, he argued defendant’s picture showed signs of methamphetamine addiction, such as bumps on the face and irritated eyes.
Defense counsel further challenged the opinion of the officer that the quantity of methamphetamine in defendant’s pocket was large enough to infer defendant possessed it for transportation and sales rather than personal use. Compared with the larger amounts found in the 19 baggies and on the driver’s person, defense counsel argued the amount in defendant’s pocket was small enough to suggest personal use. He argued an addict such as defendant, who admitted he smoked methamphetamine “a lot,” would be likely to purchase more than a single dose at a time, and the amount found in defendant’s pocket was within the range an addict might purchase on a single occasion to avoid frequent visits to his dealer.
The arresting officer testified the baggie in defendant’s pocket was “considerably smaller” than the one found on the driver’s person.
Defense counsel’s closing argument also focused on the separate location of the bag, which was arguably out of defendant’s immediate view, and cited an absence of evidence, such as a name tag or other identification in or on the bag, to prove defendant had any connection to or control over it. Finally, defense counsel disputed the People’s theory that defendant’s involvement in transportation and sales was evident based on the motel room key found on his person and the items commonly associated with sales found inside the room. Defense counsel cited an absence of evidence, such as fingerprints and receipts, to show who actually rented and occupied the room at the Economy Inn.
As outlined in the previous discussion, the circumstantial evidence of defendant’s involvement in sales and transportation is strong; and in our view, it is strong regardless of the methamphetamine found in defendant’s pocket. Although unlikely given this strong evidence of guilt, some of the jurors could have disbelieved other evidence and inferred defendant did not know about the 19 baggies found on the floor in the bag behind the driver’s seat, and he only possessed the methamphetamine in his pocket for personal use. Based on this possibility, the jury should have been instructed with CALJIC No. 17.01 to ensure unanimity. However, instructional errors of this type are subject to harmless error analysis. (People v. Wolfe (2003) 114 Cal.App.4th 177, 188.)
The appropriate standard for harmless error analysis was set forth by the Supreme Court in Chapman v. California (1967) 386 U.S. 18, 23 (Chapman). Under Chapman, reversal is not warranted unless there is a reasonable possibility the challenged error contributed to the conviction. (Ibid.) For the reasons outlined in the previous discussion on the sufficiency of the evidence, it is our view the evidence indicating defendant was involved in the sales and transportation of methamphetamine is so strong that the jury would have reached the same verdict even if the trial court had given the unanimity instruction set forth in CALJIC No. 17.01. We therefore conclude the trial court’s failure to instruct the jury with CALJIC No. 17.01 was harmless.
III. Constitutionality of Upper Term Sentence
As a result of the jury’s verdict, the trial court sentenced defendant to an aggravated term of three years in state prison on count 1, possession of methamphetamine for sale, and an aggravated term of four years on count 2, transportation of methamphetamine. The three-year term on count 1 was stayed pursuant to Penal Code section 654, subdivision (a).
Relying on the Supreme Court’s recent decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), defendant argues the trial court violated his constitutional right to a jury trial by imposing an aggravated, upper term sentence based on facts not found true by a jury. However, at least two of the aggravating factors the trial court relied on in imposing the upper term were within the “prior conviction” exception to the constitutional rule as set forth by the Supreme Court in Cunningham. (People v. Black (2007) 41 Cal.4th 799, 811-820 (Black II).) Referring to the probation officer’s report, the trial court cited “numerous” prior convictions defendant has incurred as an adult and noted the increasing seriousness of these multiple offenses. In addition, the trial court relied on information in the probation officer’s report indicating defendant was on a grant of probation when he committed the current offenses. Under these circumstances, a defendant is not “legally entitled” to the middle term sentence, and the upper term is therefore the “statutory maximum” that a trial court may impose based on aggravating factors without the need of a jury verdict. (Id. at pp. 820-821.) Nor is it constitutionally significant that in imposing the upper term the trial court also relied on other aggravating circumstances to justify imposing the upper term on both counts. (Ibid.) In short, the trial court in this case did not violate defendant’s constitutional right to a jury trial by imposing the upper term. Because we conclude there was no constitutional violation, harmless error analysis is unnecessary.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.