Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF092789
BLEASE, Acting P. J.
A jury convicted defendant Tommy Lee Enos Sparhawk of possession and transportation of methamphetamine, possession of marijuana for sale and possession of a narcotics pipe. (Health & Saf. Code, §§ 11359, 11364, 11377, subd. (a), 11379, subd. (a).) The trial court found defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to prison for five years, and defendant timely appealed.
On appeal, defendant contends the trial court improperly excluded the testimony of a defense witness, misinstructed on intent, improperly allowed the jury to consider a prior crime to prove the current charges, misinstructed on unanimity, committed cumulative error and imposed an unauthorized misdemeanor sentence. The Attorney General concedes the latter point. We shall modify the judgment and affirm.
FACTS
Sutter County Deputy Sheriff Lyle Akin testified that on November 4, 2009, he stopped a pickup truck for speeding. George Lott was the driver, defendant was the front passenger, and Vicky Middleman sat in the rear seat. Defendant had six clear sandwich bags in his pants pocket, of the kind used for packaging narcotics.
Deputy Akin found a gallon-sized Ziploc bag with 106.5 grams of marijuana in the truck bed, on the “driver’s side front of the bed[.]” He also found a backpack that defendant claimed.
Defendant’s backpack contained three baggies of marijuana weighing 14.35 grams, 4.35 grams, and 3.28 grams, and one of these baggies also had 1.69 grams of concentrated cannabis. Another baggie held 29 clear baggies. The backpack also had a digital scale of the kind used in drug sales, bearing methamphetamine residue. The backpack also had a notepad, with names and dollar amounts consistent with a “pay/owe” sheet used by drug dealers.
The first page of the notebook contains names followed by telephone numbers—“RT, ” “Rita, ” “Tammy, ” “Deb, ” and “Deb [unintelligible]” — and two other names, “Dennis PV MO” and “William OXY.” The second page describes a Dell computer purchase. The key third page, labeled “gas, ” has the note “Sunday” on the side, and then reads as follows:
“Rita
2000
“Jake
1000
“Rick
1500
“Rick
1500
“
$60.00
“Rebecca
10.00
“
$70.00
“
8pm CASH”
On the floorboards between the front passenger seat and the center console, Deputy Akin found a potato chip bag that contained a pipe used for smoking methamphetamine, which had.24 grams of methamphetamine in the bowl. Behind the driver’s seat he found a box which contained defendant’s driver’s license. Defendant claimed a laptop found on top of that box, and also claimed a laptop found in the truck bed that was in a bag with his birth record and social security card.
Yuba-Sutter Narcotics Enforcement Team (“NET-5”) Agent Robert Brokenbrough testified as an expert that a person possessing the items attributed to defendant in the truck would be possessing them for sale. He also testified his opinion would not change if the marijuana in the Ziploc bag were excluded from the hypothetical, because the amount of the remaining marijuana, the scale, packaging and pay/owe sheet showed an intent to sell.
NET-5 Detective Brandon Spear testified that on August 27, 2008, he found defendant in possession of methamphetamine; defendant was arrested and prosecuted. Defendant later stipulated that he was convicted of possession of methamphetamine in that prior incident.
Richard Townsend testified as a defense witness that because of hard financial circumstances, he and defendant loaned each other money for gas as needed, and defendant kept track of these exchanges in his notebook.
However, Townsend also gave damaging testimony on cross-examination. He testified defendant did not use marijuana, but had it in his backpack for five weeks and had planned to give it to a woman he liked. This testimony tended to undermine the defense of possession for personal use. Townsend also conceded he had told an investigator defendant had the scales in order to sell methamphetamine.
The driver, George Lott, refused to testify, citing his Fifth Amendment privilege.
Vicky Middleman testified she was in the backseat, but was not eating potato chips that day and she did not tell anybody that the pipe inside the potato chip bag was hers.
Tammy Reusser testified she often gave defendant rides and he would pay gas money, and she also loaned him money and borrowed money from him, and her name and telephone number were in defendant’s notebook. Rita Elsalaymeh also testified she gave defendant rides and he owed her for gas money and recorded the debt in his notebook.
DISCUSSION
I. Exclusion of Defense Witness
Defendant contends the trial court erroneously ruled a proposed witness’s testimony was irrelevant. We agree, but find the error harmless.
After the defense rested and the parties completed an instructional conference, the defense moved to reopen to call two additional witnesses. The trial court asked for an offer of proof. Defense counsel represented that Roger Mitzel would testify he heard George Lott, the driver of the truck, claim ownership of the marijuana in the back of the truck. The court found Lott was unavailable because he had invoked his privilege against self-incrimination, and the statement Mitzel would describe might qualify as an admission against Lott’s penal interest, under Evidence Code section 1230, but an Evidence Code section 402 hearing was needed to fully address the issue.
At that hearing, Mitzel testified that after the traffic stop, he went to Lott’s house and Lott showed him a citation for possession of marijuana, and Lott said he had “rotten” or “waste” marijuana in the back of the truck, under a toolbox. Lott did not claim the marijuana found in defendant’s backpack. Mitzel visited defendant in jail, but claimed they never talked about the case, and that he never told defendant about Lott’s statement.
The trial court ruled Mitzel’s testimony was irrelevant because there was no testimony that any marijuana had been found under a toolbox. The trial court later denied a new trial motion challenging that ruling.
The testimony about where in the truck bed the Ziploc baggie containing the bulk of the marijuana was found did not render Lott’s statement irrelevant. Deputy Akin testified he found the Ziploc baggie in the “driver’s side front of the bed” of the truck. Lott’s statement admitting ownership of the marijuana in the back of the truck, albeit under a toolbox, bolstered the claim that that package of marijuana was not defendant’s package. It was relevant because it had a “tendency in reason to prove or disprove” a material fact. (Evid. Code, § 210; see People v. Alcala (1992) 4 Cal.4th 742, 790-791.)
Defendant asserts the evidentiary error denied him a defense and therefore its effect must be assessed under the Chapman standard of prejudice. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].) We disagree.
“As a general matter, the ‘[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 [], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension[.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; see People v. Lawley (2002) 27 Cal.4th 102, 154-155.)
The Ziploc baggie contained 106.5 grams of marijuana. The marijuana found in defendant’s backpack totaled less than an ounce. Lott’s statement as recounted by Mitzel did not describe a Ziploc baggie or a particular amount of marijuana, only some “rotten” or “waste” marijuana under a toolbox. This evidence, if believed, did not preclude the possibility that Lott was referring to a different package of marijuana, nor the possibility that he and defendant were in joint possession of the marijuana in the Ziploc. Thus, the excluded evidence was not a smoking gun. Further, Mitzel’s claim that he visited defendant in jail, but never talked about this case or Lott’s admission with defendant made his story dubious. The defense evidence that the notebook merely recorded gas transactions was also dubious. Defendant had six baggies in his pocket, and many baggies, a scale and several packages of marijuana in his backpack, along with a notebook containing transaction records consistent with drug sales. He also had a laptop and case in the truck bed. An expert testified that even without the marijuana in the Ziploc baggie, the amounts in the backpack and related materials showed an intent to sell. Further, defense witness Richard Townsend testified defendant did not use marijuana, further undermining the defense claim of possession for personal use.
Given the strength of the evidence showing defendant possessed marijuana for sale, excluding Mitzel’s testimony about Lott’s purported statement, was harmless because it is not reasonably probable the testimony would have changed the result.
II. Intent Instruction
Defendant contends the trial court misinstructed on intent as to possession of marijuana for sale, by instructing the jury on the concurrence of act and general intent (CALCRIM No. 250), but not instructing on the concurrence of act and specific intent (CALCRIM Nos. 251, 252). We agree the trial court erred. (See People v. Alvarez (1996) 14 Cal.4th 155, 219-220 (Alvarez).) However, we find the error harmless because the point was covered by other instructions given to the jury.
In part the trial court instructed (CALCRIM No. 250):
“The crimes charged in this case require proof of the union, or joint operation, of an act and wrongful intent.
“For you to find a person guilty of the crimes in the case, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for each crime.”
When a charged crime “requires a specific mental state” the trial court should instruct the jury with CALCRIM No. 251, or may give CALCRIM No. 252 if some crimes do not require a specific mental state. (Bench Note to CALCRIM No. 251 (2009-2010) p. 70.) Had the trial court modified one of those instructions to fit this case, the jury would have been told “that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime.”
However, in evaluating a claim of instructional error, we must consider all of the instructions given to the jury, because we presume the jury is capable of understanding and correlating the instructions. (See People v. Jablonski (2006) 37 Cal.4th 774, 831 (Jablonski); People v. Kelly (1992) 1 Cal.4th 495, 525-526; People v. Kegler (1987) 197 Cal.App.3d 72, 80.) Although a pattern instruction on the union of act and specific intent should have been given in this case, any error was necessarily harmless, because the point was covered by other instructions.
The trial court instructed (CALCRIM No. 225):
“The People must prove not only that the defendant did these acts charged, but also that he acted with a particular intent, and the instruction for each crime explains the intent and/or mental state required.”
In turn, regarding possession of marijuana for sale, the trial court instructed in part (CALCRIM No. 2352):
“To prove the defendant is guilty of this crime, the People must prove that:
“
“4. When the defendant possessed the controlled substance, he intended to sell it[.]”
Thus, the jury was instructed that the definition of each crime would describe the required “intent and/or mental state” for that crime, and that to convict defendant of possession of marijuana for sale, the jury had to find “[w]hen the defendant possessed the controlled substance, he intended to sell it[.]” The point made by the omitted instruction was adequately covered by these given instructions.
Defendant does not argue that the given instructions misstated the intent required for the crime of possession of marijuana for sale. Instead, he argues “the court did not differentiate the intent element from general intent. The jurors would likely not make this technical legal distinction on their own. The jurors likely applied the general intent instruction and focus[ed] only on whether appellant intended the prohibited act.” He also contends the trial court effectively removed the intent element from the jury’s consideration. We disagree. As stated, reading the instructions as a whole, the jury would understand the required mental state necessary to convict defendant of possession of marijuana for purposes of sale. (Cf. People v. Lee (1987) 43 Cal.3d 666, 670-675 [conflicting instructions prejudicially eliminated intent to kill element].)
Therefore, although the trial court should have instructed on the concurrence of act and specific intent, the error was harmless because the point was covered by other instructions. (See Alvarez, supra, 14 Cal.4th at p. 220.)
III. Uncharged Act Instruction
Defendant contends the trial court misinstructed the jury on the permissible inferences it could draw from the fact of defendant’s prior conviction for possession of methamphetamine. It appears the trial court misspoke when reading an instruction to the jury, but we find any error was harmless.
The People filed an in limine motion seeking to introduce evidence of defendant’s possession of methamphetamine on two prior occasions. The defense response was that one of the incidents was too remote. The trial court allowed a 2008 incident to be admitted to show defendant’s knowledge of methamphetamine, but excluded a 1993 incident.
At trial, Detective Spear testified about the 2008 incident, and defendant stipulated he had been convicted of possession of methamphetamine in that case.
The trial court gave the jury a pattern instruction stating that the jury had to find by a preponderance of the evidence that defendant committed the prior offense. The trial court continued with the instruction, as follows:
“If you decide that the defendant did commit this other crime, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not he is guilty of the crimes charged here today, and you can consider that evidence for the limited purpose of deciding whether or not the defendant knew of the use and nature of methamphetamine when he alleged acted in this case.
“Once again, let me make that clear. If you decide that the District Attorney has proven by a preponderance of the evidence that the defendant had that prior conviction from 2008, you are to consider it for deciding whether or not the defendant knew of the use and nature of methamphetamine when he allegedly acted in this case.
“In evaluating this evidence, consider the similarity or lack of similarity between the 2008 offense and these charged offenses. Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crimes.”
The court then explained that evidence defendant knew of the nature of the drug was “one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of possessing methamphetamine in this case. The People must still prove each charge beyond a reasonable doubt.”
The prosecutor emphasized in argument that the evidence was relevant to show defendant knew the nature of methamphetamine, “and that’s what you can consider it for, only to show that he has that knowledge, not to find him guilty.”
On appeal, defendant points to the part of the instruction as read to the jury, stating the jury could use the evidence “for the limited purpose of deciding whether or not he is guilty of the crimes charged here today, ” and argues this “clearly referenced a limitless use of the evidence, ” and allowed the jury to use the evidence to show defendant’s bad character and propensity towards criminality, and effectively lowered the People’s burden of proof.
The parties infer, and we agree, that the trial court misspoke, because the written instruction does not contain the language faulted by defendant.
However, as defendant concedes, the trial court immediately clarified that the jury could use the evidence to determine “whether or not the defendant knew of the use and nature of methamphetamine when he allegedly acted in this case.
“..
“In evaluating this evidence, consider the similarity or lack of similarity between the 2008 offense and these charged offenses. Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crimes.”
The trial court then instructed that the evidence was a “factor” to consider, but it was “not sufficient by itself to prove that the defendant is guilty of possessing methamphetamine in this case. The People must still prove each charge beyond a reasonable doubt.”
Reading the instructions as a whole, as well as the prosecutor’s argument, it is not reasonably likely the jury would have understood the instruction as defendant contends. (See Jablonski, supra, 37 Cal.4th at p. 831.)
Defendant also contends the trial court’s use of “crimes” allowed the jury to use the possession of methamphetamine to show defendant’s knowledge of the nature of marijuana. We disagree. As the Attorney General notes, three of the charges pertained to methamphetamine, possession of methamphetamine, transportation of methamphetamine, and possession of a narcotics pipe. Therefore, the use of the plural “crimes” was innocuous. The jury would not reasonably have interpreted the instruction to conclude that evidence of knowledge about methamphetamine would speak to knowledge about marijuana.
Because it is not reasonably probable the jury would have interpreted the instruction in the manner posited by defendant on appeal, the instruction did not allow the uncharged act evidence to be used for an impermissible purpose and did not lower the People’s burden of proof. Any error was harmless.
Because we have addressed the merits of defendant’s contention, we need not address his fallback position that trial counsel should have objected to the challenged instruction.
IV. Unanimity Instruction
During argument, defense counsel conceded defendant possessed the marijuana in the backpack, but argued that did not show intent to sell, and also argued the jury should find the marijuana found in the Ziploc baggie belonged to George Lott, the driver. On appeal, defendant contends the trial court had a duty to instruct the jury it must unanimously conclude which marijuana he possessed. He bases this on the claim that “there was a separation of two sets of marijuana and evidence from which the jurors could find Mr. Lott possessed the larger portion[.]” We find no error.
We have summarized the general rules regarding unanimity instructions as follows:
“A unanimous jury verdict is required in criminal cases. [Citations.] It has long been held that a unanimity instruction must be given where the evidence shows that more than one criminal act was committed which could constitute the charged offense, and the prosecution does not rely on any single act. [Citations.]
“Most recently, the courts have distinguished between a criminal act and a criminal event when discussing the need for a unanimity instruction. In People v. Russo [(2001] 25 Cal.4th 1124 [(Russo)], the Supreme Court summarized the rule thusly: ‘[T]he 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.” [Citation.] 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.’ [Citations.]
“Thus, a unanimity instruction is not required where the criminal acts are so closely connected as to form a single transaction or where the offense itself consists of a continuous course of conduct. [Citations.] This is because in both cases, the multiple acts constitute one discrete criminal event.” (People v. Sanchez (2001) 94 Cal.App.4th 622, 631; see People v. Gunn (1987) 197 Cal.App.3d 408, 412.)
Defendant was charged with one count of possession for sale of marijuana occurring on one day, based on the evidence adduced by the traffic stop. The People argued defendant possessed all of the marijuana with an intent to sell.
In contending a unanimity instruction was required on these facts, defendant relies on People v. King (1991) 231 Cal.App.3d 493 (King) and similar cases. In King, there was evidence of three parcels of methamphetamine in two different locations, and King denied possessing any of them. (Id. at p. 499.) On those facts, the lack of a unanimity instruction risked the possibility that “appellant was found guilty based on a combination of different criminal acts determined in each case by less than all 12 jurors.” (Id. at p. 500.) “We hold that in a prosecution for possession of narcotics for sale, where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant, absent an election by the People [a unanimity instruction] must be given to assure jury unanimity.” (Id. at pp. 501-502; see People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071 [heroin found in two places, and Castaneda offered separate defenses to each, “Thus, all the jurors could have found Castaneda guilty... without unanimously agreeing upon which act constituted the offense”]; People v. Crawford (1982) 131 Cal.App.3d 591, 594-600 [similar holding, guns found in two different places].)
But in the instant case, unlike in King, we can be sure all jurors agreed defendant possessed the packets of marijuana in the backpack, and the associated items bolstering the claim of intent to sell — the scales, 29 baggies, and notebook — because defendant conceded the backpack was his. The backpack alone was sufficient to show possession of marijuana with the intent to sell.
It is true, as defendant posits, that some jurors may have been convinced of defendant’s intent to sell by the marijuana in the backpack alone, while others may not have been convinced of his intent to sell without concluding he also possessed the larger amount of marijuana in the Ziploc baggie. But those more skeptical jurors necessarily would have agreed defendant possessed the backpack. Thus, this scenario presents merely “the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime” or a case “‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event’” but it would not require a unanimity instruction. (Russo, supra, 25 Cal.4th at p. 1135.)
V. Cumulative Error
Defendant contends the errors he identifies were cumulatively prejudicial. We disagree. The errors we have found or assumed were each harmless, and were not of the sort that would combine to cause prejudice or result in an unfair trial. (Cf. People v. Hill (1998) 17 Cal.4th 800, 844-848 [pervasive prosecutorial misconduct, combined with other trial errors, compelled reversal].) “Defendant has merely shown that his ‘“trial was not perfect — few are[.]”’” (People v. Cooper (1991) 53 Cal.3d 771, 839, quoting Darden v. Wainwright (1986) 477 U.S. 168, 183 [91 L.Ed.2d 144, 158].)
VI. Misdemeanor Sentence
The trial court imposed a time-served misdemeanor sentence on the narcotics pipe charge, in the amount of 277 days, matching the 139 days of actual custody credit and 138 days of conduct credit the trial court awarded. The People concede the maximum sentence for possession of a narcotics pipe is six months. (Health & Saf. Code, § 11364; Pen. Code, §§ 17, subd. (a), 19.) We reduce this sentence to 180 days, with credit for time served. (See Pen. Code, § 1260.)
VII. Conduct Credits
The trial court applied the version of Penal Code section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits from a prior formula. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.)
While this appeal was pending, on September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76, amending Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served, thereby eliminating the loss of one day of presentence conduct credit under the prior formula when the person served an odd number of days in custody. (Pen. Code, § 2933, subds. (e)(1), (2), (3); Stats. 2010, ch. 426, § 1.)
The amendment does not state that the new formula is to be applied prospectively. We conclude it applies retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment apply “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237.)
Accordingly, we modify the judgment to award defendant 139 days of conduct credit, instead of the 138 days awarded under the prior formula. (See Pen. Code, § 1260.)
DISPOSITION
The judgment is affirmed as modified. The trial court is directed to forward to the Department of Corrections and Rehabilitation a new abstract of judgment consistent herewith.
We concur: HULL, J., ROBIE, J.