Opinion
C083679
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. EDWARD STEVEN DEBBS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE005587)
Following a jury trial, defendant Edward Steven Debbs was convicted of possession of methamphetamine for sale (Health & Saf. Code, § 11378). The trial court sustained a strike allegation and sentenced defendant to a six-year state prison term.
On appeal, defendant contends the trial court prejudicially erred in failing to give a unanimity instruction. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Crime
At around 2:20 a.m. on March 16, 2016, Sacramento Police Officer David McDonald contacted Margaret Strand in a Pep Boys parking lot on Northgate Boulevard in Sacramento. Strand, who was setting up camp behind the store, admitted to possessing methamphetamine and a glass smoking pipe. She handed over the pipe and a folded-up napkin containing 0.59 grams of methamphetamine. Asked where she got the methamphetamine, Strand handed over a piece of paper with the name "Ed" and the phone number "825-0426" written on it.
After Officer McDonald issued her a citation, Strand agreed to call Ed. Using an application that concealed his phone number, Officer McDonald called the number and had Strand use the phone on speaker mode. Strand said into the phone, "This is Margaret, the one you sold to earlier in the day by the recycling center." A man replied, "Yes," and said he remembered her. He asked Strand where she was; Strand replied she was at the Pep Boys parking lot. The man told Strand he would be there shortly. After the conversation was over, Officer McDonald told Strand to stay in the general area while he waited for the suspect to show up.
From his vantage point in a Foods Co. parking lot across the street, Officer McDonald called his partner, Officer Stegner, who arrived soon thereafter. When no one showed up after about 15 minutes, Officer McDonald returned to the Pep Boys parking lot. Strand described Ed to Officer McDonald and said he drove a white van. Strand called Ed again and asked where he was; the man replied that he was at the place where they met earlier that day. After they hung up, Strand told Officer McDonald she previously met Ed at the recycling center in the Foods Co. parking lot.
Officer McDonald radioed Strand's description to Officer Stegner, who was near the recycling center. Officer Stegner said he just saw a white van come around the corner and make a U-turn into the area. Officer McDonald drove over and saw the white van, which he followed while running a records check on the license plate number. The van stopped near one of the recycling center stalls and defendant got out.
Officer McDonald stopped his patrol car and got out; he told defendant one of his taillights was not working and asked for identification. After defendant presented identification, Officer McDonald asked for, and received, consent to pat defendant down. The frisk revealed a hard object, which defendant admitted was a methamphetamine pipe. Officer McDonald took the glass pipe, placed defendant in handcuffs, and asked if he had anything else that was illegal. Defendant replied, "more meth." A further patdown revealed an aluminum pill box containing 1.73 grams of methamphetamine in defendant's pants pocket.
Officer McDonald placed defendant in the patrol car and then searched the van. The van was an older model, with no seats in the back. Gloria Ortiz was lying down in the back of the van, in which clothes and blankets were scattered about. Behind and within reach of the driver's seat was a plastic baggie with a ripped corner that contained 0.37 grams of methamphetamine. Two other baggies containing methamphetamine residue were also behind the driver's seat. Napkins in the front of the van matched the napkin containing the methamphetamine in Strand's possession.
Officer McDonald testified that defendant's voice matched the voice he heard in the phone conversation with Strand. A cell phone was found in defendant's pocket. Officer McDonald dialed the number Strand gave him, and defendant's phone rang.
Officer John Montoya testified as an expert on possession for sale of methamphetamine. He found that 1.7 grams of methamphetamine is a salable amount. A typical user would use two to three grams of methamphetamine a day. And the 1.7 grams and 0.59 grams are usable amounts of methamphetamine. When buying and selling drugs, the precise names of the drugs are often not used. Sellers will frequently package drugs in plastic baggies or corners torn from plastic grocery bags.
Procedural Facts
Defendant was charged with possession of methamphetamine for sale in count one (Health & Saf. Code, § 11378), and with possession of methamphetamine (id., § 11377, subd. (a)) in count two. The trial court instructed the jury that count two was a lesser included offense of count one. It did not give a unanimity instruction.
During closing argument, the prosecutor argued, when discussing the elements of the simple possession offense, that "in order for you to find defendant guilty, you don't have to—you just have to find that he possessed at least one of these two items. You don't have to prove . . . he possessed both of them. For example, if you find that he possessed the 1.7 but didn't possess the [0].37, that's still okay. That's still enough. But he did possess this small amount. It was right under his seat. It was right there. It was right within arm's distance."
Defendant represented himself at trial. His defense centered on the chain of custody for the methamphetamine found on his person and in the van, claiming the police tampered with both packets of methamphetamine, and they were not properly tested. He also argued there was no evidence he knew about the packet of methamphetamine found behind the driver's seat.
DISCUSSION
Defendant contends a unanimity instruction was required because the prosecutor argued that either the methamphetamine in the van or on his person could support a conviction. He argues that the failure to do so lowered the prosecution's burden of proof and constituted prejudicial error.
The unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all jurors agree he committed. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In a prosecution for narcotics possession, a unanimity instruction is required 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. (People v. King (1991) 231 Cal.App.3d 493, 501-502.) Among the factors to be considered in determining whether the instruction is needed are whether the defendant raised separate defenses to separate narcotic items and whether there is conflicting evidence over ownership of the items. (People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071 (Castaneda).)
The drugs in defendant's possession are not so separated by time or space to warrant a unanimity instruction. The canister containing 1.73 grams of methamphetamine was found on defendant when he was detained after exiting the van, and he admitted that it was his. The other methamphetamine was found soon thereafter, behind and within reach of the driver's seat of the van defendant drove. The case defendant primarily relies upon, Castaneda, is inapposite, as it involves an appreciably greater separation of the contraband alleged to be in the defendant's possession. (See Castaneda, supra, 55 Cal.App.4th at pp. 1069-1070, 1071 [defendant's son testified heroin found on television set was his, and the defendant claimed police planted heroin found in his pocket at police station].)
Even if we assume a unanimity instruction is required, the error is harmless even under the Chapman standard of beyond a reasonable doubt. (People v. Hernandez (2013) 217 Cal.App.4th 559, 576-577 [noting split of authority as to whether Chapman or Watson standard applies to erroneous omission of unanimity instruction (id. at p. 568, fns. 6 & 7)].)
Under Chapman, 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 the defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. (People v. Thompson (1995) 36 Cal.App.4th 843, 853 [error harmless where the defendant presented unitary defense that all six guns belonged to his mother].) Where the defendant offered the same defense to all criminal acts and the jury's verdict implies that it did not believe the only defense offered, failure to give a unanimity instruction is harmless error. (People v. Diedrich (1982) 31 Cal.3d 263, 283.)
There was overwhelming evidence of defendant's guilt. Defendant was identified as the person who answered Strand's pretext call to make another purchase of methamphetamine, and the phone number used to make the call belonged to the phone found in his possession. Of the two packets of methamphetamine, one was clearly defendant's—the container of 1.73 grams found on defendant that he admitted to owning. The baggie with 0.37 grams of the drug was found in the van where Ortiz was lying down. While defendant argued in closing that he did not know about the methamphetamine in the back of the van, defendant was much more closely associated with this packet than Ortiz. It was found within arm's reach of the driver's seat that defendant occupied before leaving the van, while Ortiz was not within arm's reach of it when she was found.
The primary focus of the defense centered on the chain of custody and failure to test the two packets. Defendant called five witnesses, all related to his defense that police tampered with the two packets and they were not tested. He called the criminalist who tested the packets, the officer who collected evidence at the scene, a person who works at the Sacramento Police Property Department, a department employee who gave the packets to the criminalist, and Officer McDonald, whom defendant questioned about the field test he conducted and about his trips to the evidence and property locker in this case. The jury rejected this defense and found defendant guilty of the greater offense of possession for sale (count one). We are convinced beyond a reasonable doubt that the jury would reach the same conclusion had it been given a unanimity instruction.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. HULL, J.
Chapman v. California (1967) 386 U.S. 18 705; People v. Watson (1956) 46 Cal.2d 818.