Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI802508, John M. Tomberlin, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P.J.
A jury convicted defendant Sherry Lynn Pinto (Pinto) of being a felon in possession of a firearm (Pen. Code § 12021, subd. (a)(1)) and of being a felon in possession of ammunition (§ 12316, subd. (b)(1)). Pinto admitted the allegation that she served a prior prison term under section 667.5, subdivision (b). The trial court sentenced Pinto to three years in state prison. On appeal, Pinto argues that the trial court erred when it: 1) responded to a jury question without specifically instructing the jury that it could not find Pinto guilty based on an earlier, uncharged incident; and 2) failed to sua sponte give a specific unanimity instruction where the evidence showed Pinto possessed a gun and ammunition on two separate dates, but the People charged only the possession on the second date. As discussed below, we reject Pinto’s contentions and conclude the trial court committed no error.
All section references are to the Penal Code unless otherwise indicated.
Facts and Procedure
On October 18, 2008, Pinto was arguing and fighting with her father, Anthony Pinto (Anthony), in a parking lot. Pinto went to her car and pulled a gun out of a black backpack. Pinto’s girlfriend, Amela Smith (Smith), grabbed Pinto’s wrist, told her to put away the gun and said, “Let’s get out of here.” Anthony called 911 to report the incident. While Sheriff’s Deputy Justin Snyder was interviewing Anthony at his home, Smith called Anthony on the telephone. As Deputy Snyder listened in, Anthony said to Smith that Pinto would have shot him if Smith had not stopped her. Smith replied “I don’t think she would have.”
Anthony described the gun to Deputy Snyder as a black.38 or.357 caliber Smith and Wesson handgun.
Deputy Snyder searched Smith’s apartment and, in the bedroom Smith and Pinto shared, found a black bag on top of a dresser. Inside the bag was a box containing.38-caliber ammunition. Smith identified the dresser as belonging to Pinto.
About two weeks before the October 18 incident with the gun, Pinto’s sister Gina had visited Pinto at Smith’s apartment. Pinto took a black gun out of a case and asked if Gina wanted to touch it. Gina also saw a container of bullets in the gun case.
During jury deliberations, the jury sent three notes to the court. The first note asked for a read back of testimony regarding the October 18th incident, specifically “Transcripts of the testimony of Anthony Pinto w/the interview w/the Officer Snyder.”
The second note asked “From a legal standpoint do we have to believe she had a gun in her possession at the exact time of the incident or is it sufficient to agree she had possession of a gun two weeks prior (or some time earlier)? During a lengthy discussion as to whether “on or about October 18, 2008” meant both incidents or only the later, charged incident, the defense asked the court to include an instruction “that says the possession two weeks earlier is not charged?” The court declined, but offered to talk about further instructions if the jury questioned the answer upon which the court had decided. The court then gave the following written instruction to the jury: “To find the defendant guilty as to Count 1, you must find beyond a reasonable doubt that she possessed, either actually or constructively, a firearm on or about October 18, 2008.”
The discussion took place at the end of the court day on March 4, 2009, and continued on the morning of March 5, 2009.
The jury then sent a third note asking for a read back of testimony regarding the October 18, 2008 incident, specifically the testimony of Deputy Snyder regarding his interview with Anthony and the phone call between Anthony and Smith. Later that day, the jury returned with a guilty verdict on both counts. Pinto admitted the prior prison term allegation. On April 3, 2009, the trial court sentenced Pinto to three years in state prison, consisting of two years for the gun possession, two years for the ammunition possession, to be served concurrently, plus one year for the prior prison term.
On March 23, 2009, Pinto filed a motion for new trial based on the jury instruction issues raised in this appeal. On March 27, 2009, the trial court denied the motion without further argument. This appeal followed.
Discussion
Response to Jury Question
Pinto first argues that the trial court violated her constitutional right to a unanimous jury when it declined to specify in response to the jury’s second question that it could not convict her based on her possession of the gun two weeks before the October 18, 2008 incident.
The People respond that the trial court’s answer to the jury question is a correct statement of the law and that, further, the jury’s subsequent question focusing on the October 18, 2008, incident indicated the jury was no longer confused.
We review claims for instructional error under an independent or de novo standard of review. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on other grounds in People v. Hill (1988) 17 Cal.4th 800, 823.)
Pinto cites to People v. Gavin (1971) 21 Cal.App.3d 408 (Gavin) as controlling here. In Gavin, the appellate court found that the “court’s instructions misled the jury to defendant’s prejudice” under circumstances that bear some similarity, but are not identical, to those in the present case. (Gavin, at p. 411.) In Gavin, the jury heard evidence that the defendant possessed amphetamine tablets on two separate dates, September 27 and October 24, but the People charged defendant with possession on the later date only. Less than three hours into deliberations, the jury returned with four requests, including “Please read instructions dealing with the time element involved when referring to ‘on or about.’” The fourth request was for a read back of testimony regarding the possession on the earlier date.
The jury was brought into the courtroom and the following instruction was re-read to the jury, CALJIC No. 4.71 (3d ed.): “When, as in this case, it is alleged that the crime charged was committed ‘on or about’ a certain date, if the jury finds that the crime was committed it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date.” (Gavin, supra, 21 Cal.App.3d at p. 416.) At that point, a juror asked “Your Honor, the question is what do we mean by, ‘about, ’ in length of time? Days, or minutes?” (Ibid.) The trial court conferred with counsel. Defense counsel expressed concern that the charge concerned the possession on October 24, but that the jury “apparently are struggling” with the evidence that defendant possessed drugs on September 27. The trial court read to the jury the definition of “on or about” from Black’s Law Dictionary: “‘On or about; a phrase used in reciting the date of an occurrence or conveyance, or the location of it; to escape the necessity of being bound by the statement of an exact date or place; approximately; about; without substantial variance from; near.’” (Id. at p. 417.) The court then read back to the jury the testimony about defendant’s drug possession on September 27. One hour and forty minutes after resuming deliberations, the jury found the defendant guilty.
The appellate court concluded that the ‘on or about’ instruction given by the trial court was confusing to the jury “in the context of this case” (Gavin, supra, 21 Cal.App.3d at p. 418) “where the jury indicated it was willing to consider convicting the defendant for the uncharged offense.” (Gavin, at p. 419.)
Here, nothing indicates the jury was willing to consider convicting Pinto of the uncharged gun possession on the earlier date. This is because, unlike the jury in Gavin, the only read back the jury requested was of Deputy Snyder’s testimony regarding his interview with Anthony and the phone call between Anthony and Smith. This testimony concerned Pinto’s gun possession October 18, not the earlier date of the uncharged offense. To the contrary, the jury in Gavin voted to convict only after reviewing evidence of the uncharged crime. Further, it appears the jury in the present matter did not struggle as much with the concept of “on or about, ” as did the jury in Gavin. This is in part because the trial court here answered the jury’s question more clearly than did the trial court in Gavin. Here, the trial court answered “To find the defendant guilty as to Count 1, you must find beyond a reasonable doubt that she possessed, either actually or constructively, a firearm on or about October 18, 2008.” This was far more helpful than the court’s answer in Gavin because it mentioned the date of the charged offense, but not the uncharged offense. Further, this apparently answered the jury’s question because they did not inquire further. To the contrary, the trial court in Gavin merely re-stated CALJIC No. 4.71 (3d ed.): “When, as in this case, it is alleged that the crime charged was committed ‘on or about’ a certain date, if the jury finds that the crime was committed it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date.” (Gavin, supra, 21 Cal.App.3d. at p. 416.) This instruction does not even mention the date of the charged offense. This manifestly did not resolve the jury’s confusion, because then a juror asked “Your Honor, the question is what do we mean by, ‘about, ’ in length of time? Days, or minutes?” (Ibid.) This indicates the jury in Gavin was laboring over whether a 30-day gap constituted “on or about.” The trial court did not clear things up when it merely gave the definition of “on or about” from Black’s Law Dictionary set forth above. Thus the factual “context” of the Gavin case significantly differs from the context of this case.
To conclude, we find that the present case is easily distinguished from Gavin because this jury in no way indicated that it was willing to consider convicting Pinto of the earlier, uncharged, offense and because the trial court’s answer to the jury’s question was sufficiently informative. The trial court did not deny Pinto her rights to a 12-person unanimous jury.
Sua Sponte Duty to Give Specific Unanimity Instruction
Pinto contends that because she was charged with possession on only one date, but the evidence potentially established possession on two different dates, the trial court committed prejudicial error in failing to give Judicial Council of California Criminal Jury Instruction, CALCRIM No. 3500, the unanimity instruction, sua sponte. We disagree.
A criminal defendant is entitled to a verdict in which all 12 jurors concur as a matter of due process under the state and federal Constitutions. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In any case in which the evidence would permit jurors to find the defendant guilty of a crime based on two or more discrete acts, either the prosecutor must elect among the alternatives or the court must require the jury to agree on the same criminal act. (Id. at pp. 1132-1133.) Where it is warranted, the court must give the instruction sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) The omission of a unanimity instruction is reversible error if, without it, some jurors may have believed the defendant guilty based on one act, while others may have believed him guilty based on another. (Russo, supra, 25 Cal.4th at p. 1133.)
Here, the trial court was not required to give the unanimity instruction sua sponte because the prosecution elected to have the jury consider convicting Pinto of the possession only on the later date. This election took place during closing argument. In closing argument, the prosecution focused entirely on the incident that took place on October 18. At the outset, the prosecution specified that the crime took place on October 18, and that the jury only needed to decide which witnesses it believed as to the incident on that date. “Basically what happened in this case, it was essentially two different versions. The first version is that the defendant and Anthony Pinto got into an altercation and defendant pulled out a black.38 caliber revolver. Second version is the defendant and Anthony Pinto got in an altercation and defendant knocked Anthony Pinto’s glasses off his face and that he just thought maybe she was getting a gun. It’s one of those two stories.”
The prosecution then spent the rest of its argument bolstering the credibility of the witnesses who supported the first version and undermining the credibility of the witnesses who supported the second version. The prosecution repeatedly referred exclusively to this single incident that took place on October 18: “The day of the incident, ” “that day” “this incident, ” “On the day of the incident, ” “on the day of the incident” “on the day of the incident” “two weeks prior to this incident” “that day, ” and “on the day of this incident”.
The only context in which the prosecution referred to Gina’s testimony about seeing Pinto possess a gun two weeks earlier was as circumstantial evidence of Pinto’s possession on October 18 and to support Anthony’s description of the gun to Deputy Snyder on the day of the incident. “That description [given by Anthony to Deputy Snyder on the day of the incident] happens to match the description given by Gina Pinto.” “Her statement corroborates Mr. Pinto’s description of the gun, and it just so happens that the box that was found by Deputy Snyder and brought into court here is the same box that Gina Pinto said she saw on the day the defendant showed her the gun and that inside that box that she showed her the gun was the box of bullets.” “The black box is consistent with Gina Pinto’s description or is the box that she saw the gun in two weeks prior to this incident. The ammunition is consistent with the gun described by Anthony Pinto and Gina Pinto and was identified as the box of bullets seen by Gina Pinto in that box on the previous occasion.”
Based on our close reading of the prosecution’s closing arguments, we cannot conclude that some jurors may have believed Pinto guilty based only on the incident in which Pinto showed Gina the gun, while others may have believed him guilty based only on the incident in which she pointed a gun at her father. The prosecution quite clearly told the jury that they were to weigh the conflicting testimony of the various witnesses regarding the later incident, while it discussed Gina’s testimony regarding the earlier incident only to support and corroborate the testimony regarding Pinto’s possession of the gun on the later date. For these reasons, we conclude that the trial court had no sua sponte duty to instruct the jury specifically on unanimity.
Disposition
The trial court’s judgment is affirmed.
We concur: RICHLI J.MILLER J.