Opinion
A122124.
6-26-2009
THE PEOPLE, Plaintiff and Respondent, v. WALLIS S. WILLIAMS, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted defendant Wallis Williams of transportation of cocaine (count one) (Health & Saf. Code, § 11352, subd. (a)) and possession of cocaine for sale (count two) (Health & Saf. Code, § 11351). On appeal, defendant contends that the trial court erred by: (1) denying her posttrial Marsden motion for appointment of substitute defense counsel to bring a motion for a new trial; (2) failing to instruct the jury sua sponte on the requirement of unanimity as to count two; and (3) failing to stay the sentence on count two pursuant to Penal Code section 654. We affirm.
People v. Marsden (1970) 2 Cal.3d 118.
All statutory references are to the Penal Code unless otherwise specified.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence Presented at Trial
Customs officials in Los Angeles inspected a package from Peru that was addressed to defendant in Ukiah. In the package were toothpaste-like tubes containing a substance that tested positive for cocaine.
Law enforcement officials made a "controlled delivery" of the package to defendant at the Ukiah address. Robert Nishiyama, a special agent supervisor with the California Department of Justice, Bureau of Narcotics Enforcement, posed as a postal employee and delivered the package to defendants door. Agent Nishiyama testified that, when defendant answered the door, she asked why he had not left the package in her mailbox "like all of the others." Agent Nishiyama asked defendant if she was Wallis Williams; defendant confirmed her identity. Agent Nishiyama told defendant she had to sign for the international package, and defendant did so.
Ukiah Police Officer Peter Hoyle conducted surveillance of defendants home during the controlled delivery. After Agent Nishiyama delivered the package, Officer Hoyle saw defendant appear from behind the house carrying a pink handbag and a brown cardboard box. She walked out from behind the carport and into the street and looked around in a "furtive" manner. Defendant then disappeared from Officer Hoyles view.
Shortly after delivering the package, Agent Nishiyama returned to defendants home with other officers and executed a search warrant. They found the delivered package, which had not been opened, on the kitchen counter. When the officers entered, defendant was carrying a black purse. In the black purse was defendants identification as well as a small green change purse; in the change purse was a red and gray capsule containing cocaine, as well as a cigarette lighter with a false bottom containing cocaine. Officers found small amounts of cocaine on the bathroom counter and in a bathroom drawer, as well as a few plastic baggies containing cocaine in a hidden compartment of a fake rock outside the house. Officers found $2,700 cash in the house. They found cocaine-snorting tubes.
In the next-door neighbors yard, Officer Hoyle found the pink purse and brown cardboard box that he had seen defendant carrying earlier. The box contained two scales. The pink purse contained approximately 132 red and gray capsules similar to the one found in the black purse defendant was carrying, as well as toothpaste-type tubes with Spanish writing on them, similar to the tubes found in the package from Peru. In total, police recovered almost one and one-half pounds of suspected cocaine.
Matthew Kirsten, a California Department of Justice criminalist, tested 10 of the 35 bags of suspected cocaine found at defendants home; all 10 bags contained cocaine. Kirsten opined that the remaining bags contained cocaine.
Agent Nishiyama, testifying as an expert, opined that the cocaine in the package delivered to defendant was possessed for sale, based on the quantity, the source country, and the method of packaging. He also opined that the cocaine in the pink purse was possessed for sale because it was found with scales and had been broken down into capsules. Agent Nishiyama opined that defendant was a "high-level" dealer who received cocaine from the source country and delivered it in bulk to another dealer.
The police arrested and interviewed defendant. Mendocino County Sheriffs Deputy Robert Moore testified defendant appeared evasive. Deputy Moore testified defendant told him that she knew the delivered package contained cocaine from Peru and that it was not the first such package she had received. Defendant said she would be killed if she told the police anything.
Defendant testified that, when Agent Nishiyama delivered the package, she told him she did not want it and that she would return it to the post office. She denied receiving similar packages and denied telling the police she had received similar packages. Defendant testified she had received the green coin purse as a gift from her neighbors handyman and did not know it contained cocaine. She denied there was cocaine in her bathroom; she thought the powder on the bathroom counter might have been bleach from coloring her hair. Defendant testified that the pink purse and brown box found in the neighbors yard did not belong to her and that she had not put them there. Defendant denied telling police she was afraid she would be killed if she talked. She claimed investigators told her she would die in jail, and she responded by saying, "I dont know anything. So you might just as well kill me now."
B. The Verdict and Sentencing
The jury convicted defendant on both counts in the information—transportation of cocaine (count one), and possession of cocaine for sale (count two). The court sentenced defendant to three years imprisonment on count one, and a consecutive one-year term on count two, for a total of four years. Defendant appealed.
II. DISCUSSION
A. The Marsden Motion
1. Background
After her conviction but before sentencing, defendant asked the court to appoint substitute counsel to file a motion for a new trial on the ground that her trial counsel had been ineffective. Defendant initially made this request in a letter to the court entitled "Motion for New Trial." In her letter, defendant asserted that her counsel had failed to investigate certain matters, failed to call certain witnesses who defendant claimed would have provided helpful testimony, and failed to prepare defendant to testify. Defendant also claimed counsel advised her to "deny/forget" a question the police had asked her.
The court held a Marsden hearing, at which defendant stated she believed the result of the trial showed that counsel should have conducted additional investigation. Defendant claimed counsel failed to call witnesses, failed to prepare defendant to testify, and encouraged her to fabricate testimony. Defendants trial counsel responded to these arguments and explained his decisions as to which witnesses to call and which avenues of investigation to pursue. Counsel stated that defendant had repeatedly tried to get him to tell her what to say in her testimony, but that he had refused to do so. Counsel told the court his office would not file a motion for new trial on the basis of his alleged incompetence. At the conclusion of the hearing, the court denied the Marsden motion, finding that a failure to replace counsel would not impair defendants right to assistance of counsel.
2. Analysis
Under Marsden, a trial court should appoint substitute counsel "whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).) This standard applies regardless of whether the Marsden motion is made before or after trial. (Ibid.) We review the trial courts denial of the Marsden motion for abuse of discretion. (Ibid.; Marsden, supra, 2 Cal.3d at p. 123.)
At the outset, we reject defendants argument that the trial court erred by failing to appoint independent counsel to assist her in arguing the Marsden motion itself. Although some trial courts have appointed separate counsel to press Marsden claims, courts are not required to do so, and defendant was not entitled to independent counsel here. (People v. Hines (1997) 15 Cal.4th 997, 1024-1025; People v. Memro (1995) 11 Cal.4th 786, 858-859; Smith, supra, 6 Cal.4th at p. 695 ["We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant."].)
Defendant also appears to assert that, because she submitted a letter to the court entitled "Motion for New Trial," the court erred by failing to rule on that motion. This argument fails as well. First, although the title defendant used for her letter was "Motion for New Trial," the letter itself asked for appointment of counsel to assist in presenting a new trial motion, and the trial court correctly construed the letter as a Marsden motion rather than as a new trial motion. Second, even if defendant had filed a new trial motion on her own, she was not entitled to submit or obtain a ruling on such a motion, because she was represented by counsel. (See People v. Clark (1992) 3 Cal.4th 41, 173 [motions of parties represented by counsel may only be filed by counsel, except motions regarding representation, such as Marsden motions]; People v. Harrison (2001) 92 Cal.App.4th 780, 788-789 [same].)
Finally, the trial court did not commit a "clear abuse" of discretion in denying defendants request under Marsden for appointment of substitute counsel to bring a new trial motion. (See Smith, supra, 6 Cal.4th at p. 696.) Once it received defendants motion, the court properly held a Marsden hearing, at which it permitted defendant to articulate her complaints about defense counsel, inquired into the issues raised, and required defense counsel to respond. Most of the contentions defendant raised amounted to disagreements with her trial counsel on questions of trial tactics, including which witnesses and defenses to present. "We do not find Marsden error where complaints of counsels inadequacy involve tactical disagreements." (People v. Dickey (2005) 35 Cal.4th 884, 922; accord, People v. Welch (1999) 20 Cal.4th 701, 728-729.) To the extent there was a credibility question between defendant and counsel (as to defendants claim that counsel encouraged her to fabricate testimony or as to other matters), the court was "`entitled to accept counsels explanation." (Smith, supra, 6 Cal.4th at p. 696.)
B. The Unanimity Instruction
Defendant contends the trial court committed reversible error by failing to instruct the jurors, sua sponte, that they had to agree unanimously on the specific act that supported the charge of possession of cocaine for sale in count two. Defendant argues that, because there was no unanimity instruction, the jurors could have convicted her on count two even if they disagreed as to which of the several units of cocaine at issue (e.g., the cocaine in the package from Peru, in the pink purse, in the green coin purse) she possessed for sale. We conclude that the failure to give a unanimity instruction was not reversible error.
The court did give a unanimity instruction, CALCRIM No. 3500, in connection with count one: "The defendant is charged with transporting and/or importing cocaine in Count One of the Information. [¶] 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 she committed or you all agree that the People have proved all acts presented beyond a reasonable doubt."
When a defendant is charged with a criminal act, but the evidence tends to show more than one such act, "either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado); accord, People v. Napoles (2002) 104 Cal.App.4th 108, 114 (Napoles).) However, the 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, 423 (Maury); accord, People v. Beardslee (1991) 53 Cal.3d 68, 93.) Moreover, a failure to give a unanimity instruction is harmless where the facts provide no basis for juror disagreement: "Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if [she] committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted [her] of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless." (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson); see also People v. Schultz (1987) 192 Cal.App.3d 535, 539 [where facts provide no basis for juror disagreement, some cases hold no unanimity instruction is required, while others hold a failure to instruct is harmless].)
In cases involving alleged possession of narcotics for sale, 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, 501-502 (King ).) Factors to be considered in determining whether a unanimity instruction is necessary 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 (Castaneda ).) In King and Castaneda, the defendants presented separate defenses as to discrete units of narcotics, so there was a risk that different jurors voted to convict based on different acts of possession. (King, supra, 231 Cal.App.3d at pp. 500-502 [defendant claimed methamphetamine in another womans purse belonged to that woman, and methamphetamine in a decorative statue belonged to her boyfriend]; see Castaneda, supra, 55 Cal.App.4th at pp. 1070-1071 [defendant claimed one unit of heroin belonged to his son and other unit was planted by police].)
Here, although the police found separate units of cocaine in different locations in and near defendants home, the prosecutions theory was that defendant possessed for sale all of the cocaine found in and near her home. In closing argument, the prosecutor repeatedly mentioned the total amount of cocaine found in all locations—almost one and one-half pounds—to support his argument that defendant was guilty of possession for sale. As defendant notes, the prosecutor did list several of the different units of cocaine, stating: "Its in her house. Its in her purse. Its been delivered to her house. Shes been seen holding the purse, the pink purse." However, the prosecutor did not argue that the jury should base a conviction on count two on just one of these units of cocaine. Instead, the prosecutor argued that the key task for the jury was to resolve the credibility dispute between the law enforcement witnesses and defendant.
Moreover, defendant did not present distinct defenses as to the different units of cocaine; there was no conflicting evidence as to who owned the cocaine; and there was no "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[.]" (King, supra, 231 Cal.App.3d at pp. 501-502; see Castaneda, supra, 55 Cal.App.4th at pp. 1070-1071.) Instead, defendant presented the same basic defense as to all of the different units of cocaine, denying any knowledge of the cocaine or why it was in and near her house. Defendant denied that the package from Peru was hers, denied knowing there was cocaine in her green coin purse, denied there was cocaine in her bathroom, and denied any knowledge of the pink purse and brown box found in her neighbors yard. The defense did not present a theory as to who owned the cocaine; in closing argument, defense counsel disclaimed any contention that the cocaine belonged to defendants neighbor.
Accordingly, the evidence, arguments and defenses presented in this case did not provide a basis for the jurors to distinguish between the different alleged acts of possession. (See Maury, supra, 30 Cal.4th at p. 423; Thompson, supra, 36 Cal.App.4th at p. 853; Schultz, supra, 192 Cal.App.3d at p. 539.) Instead, the jurys verdict reflects that it resolved the basic credibility dispute against defendant and therefore would have convicted her of all of the acts of alleged possession for sale. (See Thompson, supra, 36 Cal.App.4th at p. 853.) A unanimity instruction therefore was not required (see Maury, supra, 30 Cal.4th at p. 423; Schultz, supra, 192 Cal.App.3d at p. 539); alternatively, the failure to instruct was harmless. (See Thompson, supra, 36 Cal.App.4th at p. 853.)
As the parties note, there is a split of authority as to whether the applicable harmless error standard for failure to give a unanimity instruction is the state law standard in People v. Watson (1956) 46 Cal.2d 818, or the federal constitutional standard in Chapman v. California (1967) 386 U.S. 18. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [collecting cases].) For the reasons discussed in the text, we conclude any error here was harmless under either standard.
C. Section 654
Defendant contends the consecutive sentence for count two should be stayed pursuant to section 654. We disagree.
Section 654 "bars multiple punishment not only for a single criminal act but for a single indivisible course of conduct in which the defendant had only one criminal intent or objective. [Citations.] We review under the substantial-evidence standard the courts factual finding, implicit or explicit, of whether there was a single criminal act or a course of conduct with a single criminal objective." (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603 (Moseley).)
Here, the trial court found that the two offenses charged against defendant—transportation of cocaine and possession of cocaine for sale—had independent objectives. Defendant asserts there is evidence "only of a single, indivisible objective: to facilitate the sale of cocaine." We disagree, and hold that substantial evidence supports the finding of separate objectives.
Offenses involving different elements of narcotics trafficking often have different objectives for purposes of section 654. For example, in People v. Goodall (1982) 131 Cal.App.3d 129 (Goodall), the court upheld separate sentences for (1) possession of chemicals with intent to manufacture PCP, (2) possession of PCP for sale, and (3) manufacture of PCP. (Id. at pp. 135-136, 146-148.) The trial court could reasonably conclude the defendants had three separate objectives: "(1) to manufacture PCP; (2) to sell the PCP they had manufactured, if they could find a buyer; and (3) to manufacture more PCP with the ingredients not used up in step (1)." (Id. at p. 147.) The appellate court emphasized that "[t]he manufacturing and selling elements in this process clearly involve separate objectives. It would not be proper to subsume the manufacturing into the selling as merely incidental to a single objective of selling the ultimate product for profit." (Id. at pp. 147-148.) Similarly, in Moseley, the defendant was convicted of (1) possessing methamphetamine for sale, and (2) maintaining a place for selling, giving away or using a controlled substance. (Moseley, supra, 164 Cal.App.4th at pp. 1599-1600.) The Court of Appeal held that substantial evidence supported the trial courts implicit finding of separate objectives; although both crimes were committed "for the purpose of sale[,]" the defendants purpose in possessing methamphetamine was to sell that methamphetamine (i.e., his "current inventory"), while his purpose in maintaining a place was to facilitate the sale of his "future inventory." (Id. at p. 1604; see also People v. Green (1988) 200 Cal.App.3d 538, 541, 543-545 (Green) [evidence supported implied findings of separate objectives for (1) simple possession of cocaine (for the purpose of personal use), (2) maintaining a place for selling, giving away or using cocaine (for the purpose of selling cocaine to others and using it with them), and (3) using a fortified building designed to suppress law enforcement entry (for the purpose of manufacturing and packaging cocaine in a place difficult for police to enter)].)
Here, the evidence supports the trial courts finding of separate objectives. Defendants objective in possessing the cocaine (count two) was to sell it; this conclusion is amply supported by the quantity of cocaine involved and expert testimony. As to count one, the evidence supported a conclusion that one of defendants objectives was to facilitate the transportation of cocaine from Peru into the United States. Even if defendant also intended that some or all of the transported cocaine ultimately would be sold to others, we conclude that, under the circumstances of this case, it would not be proper to collapse the transportation and selling elements and treat them as incidental to a single objective of ultimately selling the cocaine. (See Goodall, supra, 131 Cal.App.3d at pp. 147-148.) Moreover, the evidence supported a conclusion that defendants transportation of cocaine from her house to her neighbors yard was motivated by the separate criminal objective of concealing the cocaine from the police.
In re Adams (1975) 14 Cal.3d 629 (Adams), cited by defendant, is distinguishable. The Supreme Court found in Adams that the defendants simultaneous transportation of several drugs was motivated by the single objective of delivering them to a single recipient. (Id. at pp. 632, 635.) Here, in contrast, the evidence supports a conclusion that defendants acts—transportation and possession of cocaine—were different elements in the process of trafficking cocaine and were motivated by separate criminal objectives. (See Goodall, supra, 131 Cal.App.3d at pp. 147-148; Moseley, supra, 164 Cal.App.4th at pp. 1599-1600, 1604; Green, supra, 200 Cal.App.3d at pp. 541, 543-545.)
III. DISPOSITION
The judgment is affirmed.
We concur:
Margulies, J.
Graham, J.