Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 30395, John D. Kirihara, Judge.
Alison E. Kaylor, 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, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Harris, J. and Levy, J.
A jury found appellant White guilty of unlawful possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) The parties stipulated that appellant had a prior felony conviction, so the only issue at the jury trial was possession of the firearm. Allegations of two prior prison terms (§ 667.5, subd. (b)) were bifurcated from the possession charge. After the jury found appellant guilty of the section 12021, subdivision (a)(1) charge, appellant admitted the truth of the prior prison term allegations. The court sentenced appellant to a term of three years and four months, consisting of 16 months for the possession and one additional year for each of the two section 667.5, subdivision (b) prior prison term enhancements. The gun appellant was convicted of possessing was described at trial as a stolen “stainless steel Colt .45 semiautomatic Gold Club Edition” pistol, but was never offered into evidence. A deputy testified at trial, without objection, that appellant’s acquaintance, Leonard Russell Rouse, had told the deputy Rouse “thought [appellant] had sold it to someone for $150” prior to appellant’s arrest.
All further statutory references are to the Penal Code unless otherwise stated.
APPELLANT’S CONTENTIONS
Appellant contends: (1) even though he did not request a unanimity instruction (CALCRIM No. 3500), the trial court erred in not giving such an instruction on the court’s own initiative, and (2) the prosecutor committed misconduct by stating in his argument to the jury that appellant was “responsible for that gun being on the street.” As we shall explain, there was no error in not instructing the jury with CALCRIM No. 3500, and appellant waived his claim of prosecutorial misconduct by failing to raise the issue at trial.
FACTS
Two witnesses testified at trial. These were appellant’s acquaintance Rouse and Deputy Sheriff James Dayton. Rouse testified that he had been convicted “last year” of second degree burglary and receiving stolen property. Rouse admitted having spoken to Deputy Dayton when Dayton “came over asking about some gun that was stolen out of Delhi,” but denied having seen appellant with the gun and denied telling Dayton that he (Rouse) had seen appellant with the gun. Rouse then was impeached by Deputy Dayton’s testimony about statements Rouse had made to Dayton during Dayton’s investigation of the stolen gun.
Dayton testified that on November 21, 2006 he got “information … about the gun.” About a week and a half later, Dayton spoke to Rouse on “5th Avenue in Delhi, right around the corner from his house.” Rouse’s house was on El Capitan Way in Delhi. Rouse told Dayton that Rouse knew appellant, and that Rouse had seen appellant with the stainless steel Colt .45 at Rouse’s house. Dayton also testified that “everything he [Rouse] described about the gun I was looking for matched perfectly.”
Deputy Dayton then spoke to appellant on December 16, 2006. This was “two and a half, three weeks” after Dayton had spoken to Rouse. Dayton testified without objection that he wanted to speak to appellant because “I was gathering information that he was in possession of the gun I was looking for.” Dayton described the gun as a “stainless steel Colt .45 semiautomatic Gold Club Edition” pistol. Dayton was asked “What did Mr. White tell you about it?” Dayton answered: “He told me he had it at a house on Myers Street in Delhi tucked in his waistband. He said he was just flossing it.” Dayton was asked “What does ‘flossing’ mean?” Dayton answered: “I didn’t know either. I had to ask him. It means showing off.” Dayton asked appellant if appellant knew where the gun was. Appellant told Dayton that he (appellant) thought the gun was with someone named Jamie Neal from Turlock. Appellant’s description of the gun matched the description Rouse had given of the gun. Dayton wanted to get the gun back, but he never found it.
I.
NO UNANIMITY INSTRUCTION WAS REQUIRED
CALCRIM No. 3500 states:
“The defendant is charged with _________<insert description of alleged offense> [in Counts __] [sometime during the period of ________ to __________}.
“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.”
In People v. Russo (2001) 25 Cal.4th 1124, 1132, the court stated:
“In a criminal case, a jury verdict must be unanimous. (People v. Collins (1976) 17 Cal.3d 687, 693 [131 Cal.Rptr. 782, 552 P.2d 742]; see Cal. Const., art. I, § 16 [expressly stating that ‘in a civil cause three-fourth of the jury may render a verdict’ and thereby implying that in a criminal cause, only a unanimous jury may render a verdict].) The court here so instructed the jury. (See CALJIC No. 17.50.) Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281 [182 Cal.Rptr. 354, 643 P.2d 971].) Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Castro (1901) 133 Cal. 11, 13 [65 P. 13]; People v. Williams (1901) 133 Cal. 165, 168 [65 P. 323]; CALJIC No. 17.01; but see People v. Jones (1990) 51 Cal.3d 294 [270 Cal.Rptr. 611, 792 P.2d 643].)
“This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ (People v. Sutherland (1993) 17 Cal.App.4th 602, 612 [21 Cal.Rptr.2d 752].)”
Appellant here was tried on, and found guilty of, one count of possession of a firearm by a felon. He was alleged to have had “in his possession and under his custody and control a certain firearm, to wit: a Colt .45 pistol ….” The People demonstrated that he possessed this particular pistol, and the jury found him guilty of the charged crime.
Appellant argues that because there was evidence he had possessed this particular Colt .45 handgun at two different locations (at the house on Myers Street in Delhi where he had been “flossing” it, and at Rouse’s house on El Capitan Way in Delhi), this was evidence of two separate crimes and therefore a unanimity instruction was required. We do not agree. Evidence that witnesses saw a convicted felon every day for five consecutive days in possession of a particular firearm would not result in five convictions for violating section 12021. The cases cited by appellant in support of his argument that the court was required to give a unanimity instruction involve situations where there was evidence of more than one crime of possession.
In People v. Wolfe (2003) 114 Cal.App.4th 177, the defendant lived in a trailer with his mother. Six different firearms were found in various locations inside the trailer. The defendant was convicted of one count of possession of a firearm with a qualifying misdemeanor. (§ 12021, subd. (c)(1).) The defendant’s mother testified that all of the guns were hers, and gave explanations as to how she had acquired each one. A deputy testified that the defendant had told him “‘[m]y guns are in the light fixture[s] above the kitchen….’” (People v. Wolfe, supra, 114 Cal.App.4th at p. 181.) Three of the guns were found in a “cutout” portion of a fluorescent light fixture in the kitchen ceiling. The appellate court noted that some jurors may have found defendant guilty based on their belief he possessed certain of the guns, while other jurors may have believed he did not possess those particular guns, but did possess some of the other guns. (Id. at p. 185.) A unanimity instruction was therefore required, but none had been given.
Similarly, in People v. Crawford (1982) 131 Cal.App.3d 591, the defendant was convicted of possession of a firearm by a felon after four handguns were found in a home where he was arrested. He was arrested at 5:30 a.m., and at that time two other individuals were found in the same house. No unanimity instruction was given at the defendant’s trial, and “[t]he information did not specify which gun(s) defendant was charged with possessing.” (Id. at p. 595.) The appellate court agreed with the defendant that a unanimity instruction was required. “Guns were in different parts of the house; the evidence showed unique facts surrounding the possessory aspect of each weapon.” (Id. at p. 599.)
This court faced a situation somewhat analogous to Wolfe and Crawford in People v. King (1991) 231 Cal.App.3d 493, where methamphetamine was found in various locations inside a home, and there was evidence that the home was occupied by more than one person. The defendant was found guilty of possession of methamphetamine for purposes of sale. No unanimity instruction was given at the defendant’s trial. We found this was error, and noted that there was “evidence as to each unit from which a reasonable juror could find that it was solely possessed by a person or persons other than the defendant ….” (Id. at p. 501.) In the case presently before us, however, the evidence was that one person (appellant) possessed one firearm (the Colt .45 handgun). The court thus did not err in not giving a unanimity instruction.
II.
APPELLANT’S CLAIM OF PROSECUTORIAL MISCONDUCT WAS WAIVED
“A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.” (People v. Thornton (2007) 41 Cal.4th 391,454; People v. Lopez (2008) 42 Cal.4th 960, 966.) Appellant raised no objection here to the prosecutor’s comment that appellant “was responsible for that gun being on the street.” Perhaps this was because the jury heard evidence, without objection, that appellant had sold the gun, and because appellant’s trial counsel argued that the jury should not convict appellant because the People had not offered the gun into evidence. In any event, any perceived impropriety in the prosecutor’s argument could have been addressed easily and effectively if appellant had objected. He did not.
DISPOSITION
The judgment is affirmed.