Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR167952
Margulies, J.
A jury convicted defendant Lamont Patterson of the unlawful possession of a firearm, ammunition, and a firearm silencer that were found in a search of his home pursuant to a search warrant. Defendant contends that the trial court prejudicially erred by: (1) denying his motion to suppress evidence based on an improper search warrant, (2) declining to dismiss a juror who lived across the street from defendant, (3) failing to give a unanimity instruction in connection with the ammunition possession count, and (4) giving a special hearsay instruction in connection with the testimony of a defense witness. We modify the judgment to stay the concurrent sentence imposed for the ammunition possession charge, and affirm the judgment as so modified.
I. BACKGROUND
Defendant was charged by an amended information with the following drug and weapons offenses arising out of a search of his home: possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count 1), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 2), being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1); count 3), possession of a firearm silencer (Pen. Code, § 12520; count 4), and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b); count 5). Defendant pleaded not guilty to all counts in the amended information.
A. The Search Warrant and Affidavit
On June 2, 2003, a search warrant was issued authorizing the search of: (1) three addresses, 1517 Lincoln Street in Berkeley, 128 Grubstake Place in Vallejo, and 497 7th Street in Oakland; (2) two vehicles, including a 2001 Nissan; and (3) defendant’s person. The search warrant covered electronic data processing and storage devices, computers, and computer systems, as well as documents, devices, and supplies used in or evidencing the fabrication of identification, counterfeit currency, and other counterfeit instruments.
The facts stated in the affidavit supporting the search warrant may be summarized as follows: The affiant, Todd Sabins, was a Berkeley Police Department detective with an extensive background in identity fraud crimes. In 2001, Sabins began a joint investigation with the United States Secret Service into an identity fraud ring. During the course of his investigation, Sabins developed information that defendant was involved in the manufacturing of credit cards and identification at 1517 Lincoln Street in Berkeley, and that he was supplying others with items to commit fraudulent purchases. Sabins averred that defendant maintained three primary addresses at 1517 Lincoln Street in Berkeley, 128 Grubstake Place in Vallejo, and 494 7th Street in Oakland.
Sabins stated that he received information from a confidential informant (“X”) who had been deemed to be reliable in the past. X had been involved in criminal activity in the past and had knowledge of the various processes by which fraud is committed. X had previously provided information that led to the felony arrests of numerous individuals.
In a confidential attachment to his affidavit, Sabins stated that X had first-hand knowledge of the residence at 1517 Lincoln Street and had observed defendant in the process of manufacturing identification and gift certificates, using a computer system. X reported that defendant worked with his brother using a laptop to produce the documents. X explained that defendant and his brother took their computer to their homes and offices overnight and returned with it to do the printing. X also stated that there was a room in the Lincoln Street residence that contained a scanner, printer, laminator, paper, laminates, and other items used to fabricate fraudulent documents. X stated that defendant was married to Brandi Harris and that they purchased a residence at 128 Grubstake in Vallejo.
The attachment was ultimately released to the defense with redactions.
Sabins declared that within 72 hours of preparing the affidavit, X provided him with a falsified California driver’s license as a sample of the documents defendant and his brother were manufacturing. X also gave Sabins a handwritten note with the name and physical description that was on the driver’s license, which X had taken from the bag in which defendant kept his laptop. Sabins confirmed that the license was counterfeit. Within the same 72-hour period, X observed inside the Lincoln Street residence numerous pieces of paper containing personal information of others as well as credit card numbers. X had seen defendant use the papers to manufacture fraudulent documents.
X was present when defendant received deliveries from FedEx, the United States Postal Service, and Airborne Express that contained fraudulent documents. X provided Sabins with a U.S. Priority Mail receipt that X took from defendant within 72 hours of the preparation of the affidavit. The receipt had the name Roy Johnson in the “From” box. According to X, defendant often used that name as an alias. X provided Sabins with a plastic bag containing an “ ‘Astra’ ” scanner, which defendant and his brother had placed outside the residence near garbage cans. X reported that the scanner was used by them in fabricating fraudulent items. Sabins declared that he contacted FedEx and found that “between 03/03 and 04/03” FedEx had made three deliveries to the Lincoln Street address, and each delivery was in a different name, including, Roy Johnson, Ray Johnson, and Lamont Patterson.
On May 14, 2003, Sabins drove by the Lincoln Street residence. He saw defendant washing a car in the driveway and he observed defendant enter the front door without knocking. On May 21, 2003, a Vallejo police officer observed a vehicle in the driveway at 128 Grubstake that was registered to Randy Brown or Brandi Harris at 1517 Lincoln Street.
Based on all of the foregoing information, and his experience and training, Sabins opined that defendant was involved in manufacturing fraudulent identity documents. Sabins observed that persons involved in such activity tend to keep evidence of their crimes within their residences and vehicles, and that such persons often keep multiple residences for storing purchased goods and manufacturing fraudulent documents, as well as avoiding detection by law enforcement and competitors. Sabins concluded that there was reasonable cause to believe that evidence of defendant’s fraudulent activities would be found at all three of the locations specified in the warrant.
Before his preliminary hearing, defendant filed motions to: (1) traverse the search warrant and suppress evidence based on false statements and omitted material information in the supporting affidavit, and (2) quash the warrant and suppress evidence on the ground that the warrant was unsupported by probable cause. Both motions were denied.
B. Trial Evidence
Trial commenced on May 8, 2006. Defendant stipulated that he had previously been convicted of a felony as charged in counts 2 and 3.
1. Prosecution Case
On June 5, 2003, Berkeley Police Officer Brian Wilson, accompanied by a number of Vallejo police officers, searched defendant’s residence at 128 Grubstake Place in Vallejo, pursuant to a search warrant. Defendant was the only person present. The residence contained four bedrooms. Wilson searched the upstairs master bedroom and found a loaded Ruger .22-caliber handgun with an extension device attached to its barrel in a shoe box sitting on a shelf located above the clothing in the closet. There were 10 rounds of ammunition in the gun. The gun’s serial number had been erased. No fingerprints could be lifted from the weapon.
A driver’s license issued to defendant’s wife, Brandi Harris, was on a dresser in that room. The police recovered a number of items of indicia of residence from a dresser in the master bedroom, including an envelope addressed to defendant at 128 Grubstake Place, a Target statement to defendant, two credit cards and a credit union card in defendant’s name, and an automobile insurance policy issued to “Mr. Randy Brown” (an admitted alias used by defendant) for a 2001 Nissan GXE.
Wilson found marijuana and a Ziploc baggie containing 4.55 grams of cocaine on a desk in a downstairs bedroom. There was a plate on the desk containing what appeared to be cocaine residue. Next to the cocaine was an empty box for a nine-millimeter Jennings pistol, as well as some nine-millimeter Ruger ammunition. Also on the desk was a hotel discount card in the name of Randy Brown.
Wilson searched a locked Nissan Maxima, license plate No. 4VRK144, parked in front of the house. The officer obtained the key to unlock the vehicle from United States Secret Service Agent Kim Podsiadly. Wilson found a loaded nine-millimeter Jennings pistol inside a black bag on the rear passenger seat floorboard. The serial number on the pistol matched that on the Jennings box found in the downstairs bedroom. The pistol also was loaded with the same type of ammunition found on the desk. Inside the black bag were two pieces of mail addressed to Randy Brown. Department of Motor Vehicle records showed the car was registered to defendant.
Agent Podsiadly participated in the search. Podsiadly seized a set of keys from the top of a dresser in the master bedroom, and defendant said the keys belonged to the vehicle parked in front of the residence. The agent gave the keys to Wilson to search the Nissan.
The police were unable to locate the person to whom the pistol was registered.
Brian Hester, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, testified as an expert on firearm silencers. Hester examined the device attached to the barrel of the pistol found in defendant’s master bedroom closet and opined that it was a silencer.
2. Defense Case
Brandi Harris Patterson (Harris) testified that she lived with defendant at 128 Grubstake at the time of the search. Harris had three children living with her, ages one, four, and eight. She testified that the gun found in the shoe box in the master bedroom closet was hers. She said the gun belonged to an ex-boyfriend who had left it in her apartment, along with other belongings, when he moved out. She brought it with her when she moved into the home on Grubstake, thinking it would be a good idea to keep it for protection since defendant often worked late nights and she was home alone with the children. She kept the gun on her side of the closet on the shelf above where her clothes hung.
Harris testified that defendant’s nephew, Terry Stewart, stayed in the downstairs bedroom while he was having problems at home. Harris never possessed or used cocaine, and she never saw defendant use it. The Nissan was not operable. They kept the keys to that car on the kitchen counter with all the other keys.
The defense called Terry Stewart, who took the stand outside of the presence of the jury, and invoked his Fifth Amendment right not to testify. After the court found Stewart to be unavailable, the defense was permitted to call Terry Hicks, a defense investigator who had interviewed Stewart on May 5, 2006, the Friday before the first day of trial. According to Hicks, Stewart told him that at the time of the search he was staying at defendant’s home temporarily because of friction between him and his wife. He stayed in the downstairs guest bedroom. The drugs, ammunition, and other items found in the guest bedroom belonged to him, and the gun found in the car was also his. He originally kept it in the guest bedroom. Stewart told defendant that he had a gun but defendant told him he did not allow guns in the house, so Stewart put it in the car.
3. Rebuttal
Officer Wilson testified that he surveilled the house on the morning of the search and never saw a Black male leave the house. He did not find male clothing in the downstairs bedroom or any indicia of Stewart’s presence in the house. Inspector John Paul Williams of the Alameda County District Attorney’s Office testified that he surveilled the house at different times of day and night on more than 10 occasions during the two months preceding the search and never saw a Black male other than defendant coming and going from the house.
C. Verdict, Sentence, and Appeal
Defendant changed his plea on count 5 from not guilty to no contest on the first day of trial. The jury convicted defendant of counts 2, 3, and 4, and deadlocked on count 1. The court eventually dismissed count 1.
The court sentenced defendant to the two-year midterm on count 2, a consecutive eight-month term on count 4, and a concurrent two-year term on count 3. Defendant timely appealed.
II. DISCUSSION
Defendant makes the following primary contentions on appeal: (1) the evidence collected at the Vallejo residence must be suppressed because the search warrant was based on misrepresentations in the supporting affidavit and was issued without probable cause, (2) the trial court violated defendant’s constitutional rights by failing to excuse a juror after learning during trial that the juror had lived across the street from the Vallejo residence, (3) the trial court committed prejudicial error by failing to give a unanimity instruction applicable to the ammunition possession count, and (4) the trial court prejudicially erred by giving a special instruction on hearsay evidence requested by the prosecution.
A. Validity of Search
Defendant concedes that after losing on his pretrial motions to suppress before a magistrate, he failed to take a step that was required in order to preserve his challenge to the legality of the search for appellate review—renewing the motion in the trial court. (See People v. Lilienthal (1978) 22 Cal.3d 891, 896–897.) Rather than seek to raise the search issue per se on this appeal, defendant maintains that his conviction must be reversed because his trial counsel rendered constitutionally ineffective assistance of counsel by failing to preserve the issue for appellate review. Defendant argues, and we will assume for purposes of our analysis, that he would in fact be entitled to a reversal based on ineffective assistance of counsel if his challenge to the validity of the search was meritorious. (See People v. Hart (1999) 74 Cal.App.4th 479, 486–487 [“[i]f the search was invalid, failing to preserve the issue constituted deficient performance when measured against the standard of a reasonably competent attorney”].)
1. Veracity of Supporting Affidavit
In Franks v. Delaware (1978) 438 U.S. 154 (Franks), the United States Supreme Court held that a defendant has a limited right under the United States Constitution to challenge the validity of a search warrant by controverting the factual allegations made in the affidavit in support of the warrant. As explained in People v. Luttenberger (1990) 50 Cal.3d 1 (Luttenberger), Franks held that a defendant is constitutionally entitled to a postsearch evidentiary hearing on the veracity of the warrant affidavit if he first makes a substantial preliminary showing that (1) the affidavit includes one or more false statements made knowingly and intentionally, or with reckless disregard for the truth; and (2) the false statements were material to the finding of probable cause. (Luttenberger, at p. 10.) This rule recognizes that without some permissible inquiry into the veracity of material statements in the supporting affidavit, Fourth Amendment protections would be ineffective in guarding against police perjury or recklessness in seeking search warrants. (Franks, at p. 169.)
Luttenberger held that in cases where the supporting affidavit is based on the statements of a confidential informant, and the defendant has offered evidence casting doubt on the veracity of material statements made by the affiant, the defendant is entitled to limited discovery of facts that might support his request for an evidentiary hearing into police bad faith or recklessness. In order to protect the confidential informant’s identity, as well as the defendant’s Fourth Amendment interests in such cases, the court held that the magistrate should conduct an in camera interview of the affiant and/or the confidential informant, and review any relevant documents, in order to investigate and report to the defendant whether any facts exist contradicting material representations made in the affidavit, or constituting material omissions from it. (Luttenberger, supra, 50 Cal.3d at pp. 21–24.) Here, the trial court conducted in camera interviews of Officer Sabins and X, and ordered the prosecution to disclose to the defense records of X’s felony convictions and misdemeanors involving moral turpitude, as well as the existence of any case pending against X at the time of the affidavit.
In connection with a subsequent motion for reconsideration of the order denying the motion to traverse, the magistrate also interviewed Officer Williams of the Alameda County District Attorney’s Office in camera and reviewed a sealed affidavit for a search warrant prepared by Officer Williams in a related case.
This court has independently reviewed the sealed transcripts of the in camera hearings and the unredacted confidential attachment.
Defendant maintains he made a substantial preliminary showing that the affidavit contained recklessly false representations or material omissions in three respects: (1) the affidavit omitted the fact that the police paid X approximately $800 for X’s services; (2) the affidavit deliberately created the false impression that defendant maintained three residences; and (3) assuming X was his sister, as defendant speculates, the affidavit omitted relevant information about her criminal activity and motive to lie.
We do not believe that the omission of the fact that X was paid $800 was material given the totality of the facts that tended to substantiate the reliability of X’s information. Sabins’s affidavit did not attempt to portray X as someone who should be deemed reliable because of X’s altruistic or disinterested motive in coming forward. He asserted that X was reliable because X had been involved in criminal activity in the past, was knowledgeable about the means of committing fraud, had already been instrumental in providing information leading to numerous felony arrests, and had produced property and information that corroborated information developed through an existing investigation. That X had some ulterior motive in cooperating with the police would have been obvious to an experienced magistrate reviewing the affidavit. As stated in U.S. v. Strifler (9th Cir. 1988) 851 F.2d 1197, 1201 (Strifler), “[i]t would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive.” In Strifler, the panel found that the failure to include in the affidavit that the informant was given immunity and paid between $1,500 and $2,000 for information was not a material omission. (Id. at pp. 1200–1201.)
Moreover, the quality and detail of the information X provided further validated X’s reliability: (1) X was able to provide Sabins with a highly detailed description of defendant’s criminal activities, including the computer equipment he used, and the fact that materials arrived by commercial carrier delivery to the Lincoln Street residence; (2) Sabins confirmed that FedEx had made three deliveries to the address in the previous 30 days in three different names, two of which were known aliases of defendant; (3) X was able to provide a false driver’s license, and documents containing third party credit card information to Sabins, which X represented had been taken from the Lincoln Street residence; and (4) X had detailed knowledge of personal matters pertaining to defendant including the fact that he worked with his brother in the criminal enterprise, that he owned a house in Vallejo with Brandi Harris, that he used specified aliases, and that he was employed as a bail bondsman at a specific business location in Oakland.
Given the totality of the facts bearing on X’s reliability, the fact that X had been paid $800 for the information does not materially impeach the probable cause showing made in Sabins’s affidavit. (See People v. Bradford (1997) 15 Cal.4th 1229, 1297 [materiality is evaluated based on whether the totality of the circumstances establish good cause for the search].)
The affidavit stated that defendant “maintained three primary addresses. The addresses are 1517 Lincoln St., Berkeley, 128 Grubstake Pl., Vallejo and 494 7th St., Oakland.” Later, in the opening paragraph of a nine-paragraph “conclusion” section of his affidavit, Sabins also asserted that persons involved in fraud and counterfeiting “tend to keep evidence of their crimes within their residences” and often “keep multiple residences” for storage of goods or manufacturing of fraudulent documentation and to avoid detection by law enforcement or competitors. Defendant argues that the allegation of multiple residences was both central to the showing of probable cause, and false, since defendant submitted evidence in his motion to traverse that: (1) his only residence was 128 Grubstake Place in Vallejo, and (2) the Lincoln Street residence was his mother’s home and had been so for 40 years.
That the Lincoln Street residence may in fact have been owned and lived in by defendant’s mother at the time the search warrant was executed does not support the substantial preliminary showing required by Franks. The affidavit and confidential attachment did not claim that defendant owned the Lincoln Street property or that he used it at his primary residence. The affidavit asserted, and substantiated through direct police observation, that defendant had full access to the residence during the daytime, had registered his car at that address, and was receiving FedEx packages there. X asserted only that defendant and his brother used it as a staging site for their fraudulent activity by maintaining equipment and supplies there, manufacturing fraudulent documents there, and receiving deliveries of documents there. Far from implying that defendant lived at the property, X was quoted in the redacted confidential attachment as telling officers that defendant and his brother “take the [laptop] computer to their homes or offices overnight and return with it to do the printing.” In the context of the affidavit as a whole, the disclosure of the fact that defendant’s mother owned and lived in the house would not have materially affected the probable cause showing made in the affidavit and confidential attachment. The fact that the affidavit referred at one point to defendant’s employer’s address as one of three primary addresses “maintained” by defendant adds no weight to defendant’s argument because the affidavit elsewhere makes clear that this was defendant’s place of employment.
Sabins averred that he personally observed defendant washing a silver car parked in the driveway of the Lincoln Street residence and entering the front door of the residence without knocking. He stated that a Vallejo officer had observed a silver vehicle parked at the 128 Grubstake property that was registered to defendant or Brandi Harris at the Lincoln Street address.
Defendant’s final argument is that the affidavit’s omission of relevant information about X’s criminal activity and motive to lie made out a sufficient preliminary showing of falsity to support his right to an evidentiary hearing under Franks. This argument is based on a supposition that X was defendant’s sister who allegedly had personal reasons for falsely implicating defendant in criminal activity, drug addiction issues affecting her credibility, undisclosed past criminal activity, and a pending matter for which she may have received assistance in exchange for her services to the police. Having reviewed the sealed transcripts of the trial court’s in camera hearings, we find no abuse of discretion in the trial court’s rejection of this argument.
The trial court properly denied the motion to traverse the warrant.
2. Probable Cause
Defendant contends that even if the allegations in the affidavit are taken as true, the affidavit was not sufficient to establish probable cause to search his Vallejo residence in that: (1) the affidavit asserted in conclusory fashion that X had firsthand knowledge of the residence at 1517 Lincoln Street, but provided no facts showing how X came to have access to the house or the circumstances under which X and defendant came to be there at the same time; (2) none of the physical evidence provided by X could reliably be connected to defendant; (3) the information the police obtained from FedEx contradicted the allegations of the warrant; and (4) the warrant set forth no specific facts alleging that criminal activity was taking place at 128 Grubstake Place.
“ ‘[T]he magistrate’s order issuing the warrant may be set aside only if the affidavit as a matter of law, does not establish probable cause.’ ” (People v. Fernandez (1989) 212 Cal.App.3d 984, 986, quoting People v. Campa (1984) 36 Cal.3d 870, 878.) It is well settled that a magistrate’s determination of probable cause is to be paid great deference by reviewing courts. (People v. Spears (1991) 228 Cal.App.3d 1, 17.) The defendant bears the burden of establishing the invalidity of a search warrant. (People v. Garcia (2003) 111 Cal.App.4th 715, 720.) Further, even assuming that a warrant affidavit fails to set forth sufficient facts to support a finding of probable cause, the evidence will not be suppressed unless the affidavit was so lacking in indicia of probable cause that it would be unreasonable for the officer to rely on the magistrate’s determination. (See People v. Camarella (1991) 54 Cal.3d 592, 606–607; People v. Leonard (1996) 50 Cal.App.4th 878, 886.)
The affidavit in this case included detailed information from a confidential informant with a proven track record of providing information leading to felony arrests. X knew personal details concerning defendant and personally witnessed him engaging in the fabrication of fraudulent documents at the Lincoln Street location. X’s detailed allegations dovetailed with information that had previously been developed through an independent police investigation linking defendant to the same type of activity X had observed, at the same location. Police surveillance substantiated defendant’s repeated presence at the location and access to the home. X’s allegations were backed up by tangible physical evidence of the manufacture of fraudulent instruments that X retrieved from the Lincoln Street location. These facts were more than sufficient to establish probable cause that evidence of fraudulent activity could be found in the Lincoln Street residence.
The specific facts pertaining to how X had obtained access to the location or was able to observe defendant’s activities there would have been superfluous to the probable cause showing. At the same time, including such information might have risked compromising X’s identity. Regarding defendant’s claim concerning the physical evidence, it is true that the police took X’s word for how the items were obtained and did not test them for defendant’s fingerprints or handwriting. Although this left open a theoretical possibility that X obtained the fake driver’s license and papers containing the names and personal information of third parties from another source, or personally created them, such a scenario seems highly improbable in that it would have ended up incriminating X instead of defendant if the search proved to be fruitless. The issue in this context is not whether the physical evidence would have been self-authenticating if offered against defendant at trial but whether such evidence—when added to all of the other information the police had obtained from X and through its own investigation—tended to reinforce X’s reliability. There is no question that it did.
We perceive no contradiction between Sabins’s information concerning the three FedEx deliveries in the previous 30 days and X’s statement that defendant was distributing “mass quantities” of false documents through the use of FedEx and three other commercial carriers. First, even one reasonably sized package can contain a large quantity of documents. Second, FedEx was only one of four carriers that defendant was alleged in the affidavit to be using. Third, the information Sabins obtained from FedEx concerned only its package deliveries to Lincoln Street. That would not in any way reflect the number of packages sent by defendant in that time period, which could have been picked up for shipment at many different locations by any one of the four commercial carriers mentioned. Finally, although it might not be unusual for a person to receive three FedEx deliveries in a month, it would be unusual to receive them in three different names at a residence that was not the recipient’s home or place of employment. The FedEx evidence was fully consistent with and reinforced the incriminating information furnished by X.
It is true that, according to X’s information, the fraudulent manufacturing was all taking place at the Lincoln Street location. However, as noted earlier, X stated that defendant was using a laptop computer that he took with him when he left Lincoln Street to go home or to his office. That information, as well as Sabins’s statement—based on his training and experience and consistent with common sense—that persons involved in counterfeiting “tend to keep evidence of their crimes within their residences and vehicles” was sufficient to support a search of defendant’s Vallejo residence.
The supporting affidavit in this case showed probable cause for the search in issue on this appeal. Defendant has failed to meet his burden of demonstrating that the trial court erred in denying his motions to suppress evidence.
B. Retention of Juror No. 5
1. Facts
On the first day of trial, Juror No. 5 informed the court that he might have been living very close to defendant’s Grubstake residence in 2003. Under questioning by the court, the juror stated that he could not tell the exact location of the residence in question during jury selection. He later realized that the residence where he was living with his parents was across the street from defendant’s Vallejo residence. The juror stated that it was possible that he saw defendant or Harris, but did not believe he had ever spoken to them. The juror did not know anyone named Terry Stewart and he could not recall seeing a 35-year-old Black male at the residence.
The court asked whether the juror would have any problems continuing as a juror, knowing that the incident occurred in that neighborhood. The juror responded: “I believe I can be fair, but, yes, it does concern me that it possibly could have happened. . . . I don’t know what is really going on yet, but the fact that something could have happened—I mean, I had my kids and I know there are a lot of kids in the street that play, so if something was found in the vehicle, yes, that concerns me . . . .” After asking the juror to step outside the courtroom, the court asked defendant’s counsel whether the juror should be discharged. Counsel responded: “I don’t want to create problems for you. My analysis would be to let him go. Even though I like him, it’s just, you know, his parents lived there. I don’t know. Just it’s going to be really hard for him not to talk about it. . . . I’m going to leave it up to the Court. I’m not die-hard one way or the other, but if I had my choice, I’d say let him go.” Later, the court asked defense counsel, “You want me—from an overabundance of caution, you want me to release him . . . yes or no? Or are you just leaving it up to me?” Counsel responded, “I’m leaving it up to you.” The court allowed Juror No. 5 to remain on the jury.
2. Analysis
Defendant contends that his counsel’s initial statement that Juror No. 5 should be excused was sufficient to require his removal and that the court erred by not removing him. Defendant further maintains that the court had a duty to follow up with further inquiries after a videotape was played that showed the front of defendant’s Grubstake Place house and his car, which might have jogged Juror No. 5’s memory.
In our view, defendant forfeited his objection to the retention of Juror No. 5. The court asked both sides to state their positions on the removal of the juror. By expressly declining to request that Juror No. 5 be removed and, instead, inviting the court to make its own decision without guidance from the defense side, the defense invited the very outcome of which it now complains. A party cannot leave a ruling up to the court in that fashion and then turn around on appeal and claim that the court prejudicially erred by making it. A contrary ruling would invite the defense to indulge in calculated ambiguity in order to create potential appellate issues during the trial instead of cooperating fully with the court in ensuring appropriate rulings on the issues that arise. It was also not up to the court, based on pure speculation that the videotape might have jogged the juror’s memory about something, to reopen the inquiry after the tape was played.
Defendant’s fallback position, that his “counsel’s failure to challenge the obvious bias of this juror deprived [him] of effective assistance of counsel,” is also unpersuasive. The juror was not obviously biased. He stated that he believed he could be fair. He was certain he had never spoken to defendant or his wife. He was not sure if he had ever seen them before. Defense counsel commented that he liked the juror and thought he was “an honest guy” and “a very nice fellow.” Although the juror expressed a general concern about neighborhood safety, the facts in evidence showed that the guns were inside the house and in a black bag inside a locked car, and there was no evidence of any violent acts or drug dealing by defendant or his wife. On this record, Juror No. 5’s possible inability to perform a juror’s functions was not such a “ ‘demonstrable reality’ ” (People v. Holt (1997) 15 Cal.4th 619, 659) that we can say that any reasonable defense counsel would have requested his removal.
C. Failure to Give Unanimity Instruction on Count 3
Because there was evidence of two different guns admitted at trial, the parties agreed to instruct the jury under CALJIC No. 8.74 that in order to find defendant guilty of gun possession in count 2, it must unanimously agree on which gun defendant possessed. The special verdict form given to the jury under count 2 asked the jury to make separate findings as to whether defendant possessed the “Jennings 9 mm” and the “Sturm Ruger 22 Cal. handgun.” But, in deciding on jury instructions and verdict forms, the parties did not address the fact that there had also been evidence of two separate types of ammunition found in three locations—the .22-caliber ammunition found in the handgun in the shoebox, the nine-millimeter ammunition found in a downstairs bedroom, and the nine-millimeter ammunition loaded in the gun found in the car. The verdict form for count 3 simply asked the jury to determine whether defendant was guilty or not guilty of possession of ammunition by a felon, and no unanimity instruction was given as to that count. According to defendant, the trial court had a sua sponte duty to give the same type of unanimity instruction and modified verdict form with respect to count 3, the ammunition possession count, as it had provided on count 2. (See People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 [when the prosecution does not make an election to rely on a specific act to support a conviction, the trial court has a sua sponte duty to instruct the jury on unanimity].)
Assuming for the sake of analysis that the trial court did have a sua sponte duty to give a unanimity instruction and modified verdict form on count 3, any error in that regard was harmless beyond a reasonable doubt. Although the jury in this case could not reach a unanimous verdict that defendant possessed the nine-millimeter gun found in the Nissan, it did decide unanimously that he possessed the .22-caliber handgun found in the upstairs bedroom closet. There was no dispute about the fact that the .22-caliber handgun was loaded with ammunition when it was found. The only factual dispute in the record was whether defendant exercised control over the loaded handgun, or whether Brandi Harris had placed the gun there unbeknownst to defendant. On that state of the record, there can be no reasonable doubt that the jury would have reached the same verdict on count 3 had it been given a unanimity instruction and modified verdict form on that count. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 188 [finding that the failure to give a unanimity instruction on a gun possession charge based on multiple guns was harmless beyond a reasonable doubt where the jury’s verdict showed unequivocally that the jury disbelieved the unitary defense theory that all of the guns belonged to a co-habitant].)
Defendant argues in the alternative that if the jury’s verdict on count 3 could only have been based on the ammunition contained in the .22-caliber Ruger handgun, then the concurrent term imposed under count 3 violates the proscription against multiple punishment in Penal Code section 654, and must be stayed. (See People v. Lopez (2004) 119 Cal.App.4th 132, 138 [when ammunition possession charge is based exclusively on ammunition found loaded into a firearm, section 654 prohibits imposing separate, unstayed sentences for ammunition possession and possession of the firearm].) We agree, and will modify the judgment to stay the sentence for count 3.
A claim based on Penal Code section 654 may be raised for the first time on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.)
D. Hearsay Instruction
Defendant objects to a special instruction on weighing the credibility of hearsay evidence that was given by the trial court in connection with the testimony of defense investigator Terry Hicks recounting his interview with Terry Stewart. The challenged instruction was given at the prosecution’s request, after the prosecution had sought unsuccessfully to exclude Hicks’s testimony on the grounds that Stewart’s statements were not trustworthy or reliable. Defendant argues that the instruction impermissibly singled out specific evidence and invited the jury to find that evidence not credible.
Based in part on language in People v. Lucas (1995) 12 Cal.4th 415, 462, the trial court instructed the jury as follows: “In determining the weight or credibility of any out-of-court statement, you may consider all the surrounding circumstances in which that statement was made, including but not limited to the following: the time when the statement was made; the person to whom the statement was made; the relationship of the declarant—that’s the person making the statement—to any parties in this case or any other witnesses; any motive or bias at the time the statement was made; the extent to which the statement is consistent or inconsistent with other credible evidence that you may have heard; the nature, extent and timing of the disclosure of the statements to the prosecution or to the defense; the extent to which the statement is against the declarant’s penal interest. The declarant, one more time, is the statement [sic]. This instruction primarily refers to Mr. Hicks’ testimony yesterday regarding an interview he had with someone named Terry Stewart. Terry Stewart would be the declarant. He’s the out-of-court person who made the statement allegedly. The value you give that statement is for your determination, but you should consider the factors in this instruction, because this is an accurate statement of the law that you should consider in determining whether or not you believe the statement. That’s the bottom line.”
In our view, any error in giving the subject instruction was harmless because it is not reasonably probable that the jury would have rendered a more favorable verdict in the absence of the instruction. Stewart’s statements were relevant only to the charges based on the allegations that the cocaine and the nine-millimeter gun and ammunition found in the downstairs bedroom and the Nissan were defendant’s. The jury’s verdict shows that at least some members of the jury credited Stewart’s out-of-court statements that the items found in these locations belonged to him, not to defendant. On the other hand, the credibility or lack of credibility of Stewart’s statements could have had no bearing on the jury’s determination that the loaded .22-caliber handgun belonged to defendant. Therefore, it is not reasonably probable that defendant would have achieved any better result had the jury not received an instruction on that issue.
III. DISPOSITION
The judgment is modified to stay the two-year sentence on count 3 pending finality of the judgment and service of the sentence for count 2, such stay to become permanent upon the completion of the sentence for count 2. The trial court is ordered to prepare an amended abstract of judgment to reflect this modification and to forward the amended abstract to the Department of Corrections. As so modified, the judgment is affirmed.
We concur: Stein, Acting P.J., Swager, J.