Kent D. Young, under appointment by order of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD275980) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed in part and remanded with directions. Kent D. Young, under appointment by order of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Daniel Rogers, Adrianne S. Denault and Christopher P. Beesley, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Kyle Stephen Landybraun of transporting a controlled substance for sale (Health & Saf. Code, § 11352, subd. (a); count 1), and possession of a controlled substance for sale (Health & Saf. Code, § 11351; count 2). The jury also found him guilty of simple possession of a controlled substance, a lesser included offense of count 2. (Health & Saf. Code, § 11350; count 3.) In bifurcated proceedings, Landybraun admitted he had suffered a prior strike conviction for assault with a deadly weapon. (Pen. Code, §§ 667, subd. (b)-(i), 245, subd. (a)(1), 1192.7, subd. (c)(8).) The court sentenced him to eight years in state prison on count 1 and stayed the sentence on counts 2 and 3 under Penal Code section 654.
Landybraun contends the court erroneously: (1) failed to give a unanimity instruction on counts 1 and 2; and (2) admitted into evidence text messages downloaded from his cell phone, which were hearsay that did not satisfy any exceptions and no evidence showed who sent him the text messages or that he replied to them. He further contends the detective's testimony about the technology used to download the text messages was inadmissible because the detective was not an expert on that subject, and no evidence showed the technology was reliable as required under the Kelly-Frye line of cases. (See People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly); Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye).) Landybraun raises other claims to preserve for federal court review. He contends the search of his cellphone was based on an unconstitutionally overbroad electronic probationary search condition previously imposed on him, thus the fruits of that search must be suppressed; by failing to apply the "plain error" standard of review as federal courts do, California state courts deprive defendants of their constitutional rights to equal protection; and, the count 1 conviction must be reversed because the prosecutor impermissibly amended the information during closing arguments. As to all contentions, Landybraun concedes he did not raise the claims in the trial court, but argues we should nevertheless address the merits because his trial counsel was ineffective for failing to raise them below and the claims assertedly raise solely legal questions on undisputed facts.
The People contend Landybraun's claims are forfeited and, alternatively, they fail on the merits. They correctly contend that we should strike the sentence on the lesser included offense conviction because "multiple convictions may not be based on necessarily included offenses." (People v. Ortega (1998) 19 Cal.4th 686, 692.)
We agree Landybraun's arguments are forfeited because he failed to object at trial. (People v. Larson (2011) 194 Cal.App.4th 832, 836 ["Normally, the failure to object forecloses consideration of the issue on appeal"], citing People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14.) We nonetheless address Landybraun's contentions on the merits and reject all of them; accordingly, we need not address the ineffective assistance of counsel claims. We affirm the judgment in part and remand with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
On March 12, 2018, police went to a motel to investigate complaints of narcotics activity. While in the motel lobby, they saw Landybraun leaving the manager's office and going into a parked car.
Police lawfully searched Landybraun's backpack under a Fourth Amendment waiver and found drug paraphernalia, a medical marijuana card, and a baggie containing 23 prescription pills for OxyContin; five were for 15 milligrams and 18 were for 20 milligrams. Landybraun also was carrying a cellphone when police contacted him. Police arrested Landybraun and he gave them the password to access his cell phone.
A detective testified that later that same day she downloaded the contents of Landybraun's cell phone, including text messages, into a readable report on a compact disc using a software program from Cellebrite called "UFED Touch." (UFED stands for Universal Forensic Extraction Device.) The detective testified that using Cellebrite requires "connect[ing] [the cell phone] to a computer that has this UFED Touch software on it. The software tells me exactly what to do. It displays a step-by-step process of how to download the cell phone. [¶] Once the cell phone is completely downloaded, I put it into a report form, a readable form, and then I put the download and the report onto a CD, and I return that to the investigator along with the cell phone." The detective was trained in downloading cell phone data using the Cellebrite program in a four-hour class. Moreover, as part of her duties, she had downloaded data from more than 50 cellphones using that technology.
Another police officer testified he reviewed the Cellebrite report the next day, and it showed that approximately two weeks before his arrest, Landybraun sent and received several text messages addressing whether he had OxyContin pills for sale and at what price. Specifically, on March 5, 2018, responding to a question via text message, Landybraun told someone that he had 24 OxyContin pills, six of which were for 15 milligrams and the remaining 18 were for 20 milligrams. The officer opined that Landybraun possessed the pills for sale.
On March 5, 2018, someone sent Landybraun a message asking, "How many oxies?" Landybraun responded, "6 of the 15 milligrams and 18 of the 20 milligrams." The original sender then asked, "How much you want for each of them?" Landybraun replied, "The 20 [milligrams] are 20 [dollars], the 15 [milligrams] are 15 [dollars]." The original sender asked, "Can we make some kind of deal?" Landybraun responded, "How much does the person want?" Later that day, someone sent Landybraun a message, "Can we still do the Xanax." Landybraun responded, "I have OCs," meaning OxyContin, or the brand name for oxycodone. On March 7, 2018, someone asked Landybraun, "How much to get them all?" Landybraun replied he had 18 of the 20-milligram pills and 6 of the15-milligram pills. A message with dollar signs was received by Landybraun. Landybraun replied, "340 for the 20 [milligrams]. You get the rest." In other words, Landybraun would sell the eighteen 20 milligram-pills he had for $340 (instead of $360). Landybraun then sent another message stating, "70 for the 15 [milligrams]," meaning he would sell the six 15-milligram pills for $70 (instead of $90).
The defense did not present any trial evidence. However, defense counsel stated this theory of the case in closing arguments: "There's nothing in these [text messages] showing that [Landybraun] intended to sell. . . . [I]f he intended to sell, based on the People's theory that he has the same pills this entire time, he would have sold those pills. We have no agreements. We have nothing to show that any pills were sold. That tells you he didn't intend to sell them." Defense counsel further argued to the jury regarding the transportation charge: "We're only focusing on March 12th. Nothing to show that [Landybraun] possessed these pills to sell on March 12th, that he intended to sell these pills on March 12th. Because of that, he didn't transport these pills for sale on March 12th."
I. Unanimity Instruction
Landybraun contends the court erroneously failed to give the jury a unanimity instruction, which was necessary because the evidence showed he sent the text messages on three different dates between February 21, 2018, and March 12, 2018. Landybraun argues that absent the instruction, "there was a very real risk that the jury could divide as to which acts within th[at] time period . . . constituted the offense." A. Background
During discussions outside of the jury's presence, the prosecutor told the court she would amend the transportation charge to specify it applied only to March 12, 2018. The parties also discussed whether a unanimity instruction was needed for the charge of possession of a controlled substance with intent to sell. The court agreed with the prosecutor's theory that Landybraun had continuously possessed the pills and therefore concluded the instruction was not needed. The court read the following jury instruction: "It is alleged that the crime alleged in Count 1 occurred on March 12th, 2018. And the crime alleged in Count 2 occurred on or between February 21st and March 12th, 2018."
This colloquy occurred between the court and the prosecutor:
"[The court:] I'm going to watch as best I can to be sure that you're crystal clear each time . . . that the only pills we're talking about are the ones that [Landybraun] was found with, that he possessed them either—I mean, he possessed them on [March 12, 2018,] but he also possessed those exact same pills on the earlier dates when there was discussion about those pills.
"[Prosecutor:] Oh, yeah, Your Honor. I have no other evidence to suggest there were any other pills. I mean, all the evidence corroborates the fact that it's those pills.
"[The court:] The problem is we have to make sure the jurors understand that, and they don't assume that, since [Landybraun] has these other text messages about selling, 'Well, maybe he didn't intend to sell the ones he has right now, but the ones he talked about five days earlier, he intended to sell those.' That's where I think the risk is, and I don't think the unanimity instruction is going to solve that. So that's my—my take on it at this point. After we've had argument, though, if I see something, I'm going to reserve the ability to make a modification to the instruction after discussion [with] counsel."
Landybraun's counsel raised the same defense to all of the charges: "There's nothing to show that [Landybraun's] out there selling pills. We have no calls. We don't even know who these people are. If he was out selling pills, we would have something to show that. Again, it's important because it shows he doesn't have the intent because, if we believe what the government is saying, he had the opportunity and the means to do so. But he doesn't do it. That tells you he doesn't have the intent to sell." B. Applicable Law
We review instructional error claims de novo. (People v. Lueth (2012) 206 Cal.App.4th 189, 195; People v. Hernandez (2013) 217 Cal.App.4th 559, 568.) "As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.] There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct or a series of acts over a period of time' [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (People v. Jennings (2010) 50 Cal.4th 616, 679; accord, People v. Williams (2013) 56 Cal.4th 630, 682; People v. Ervine (2009) 47 Cal.4th 745, 788 (Ervine).) C. Analysis
The continuous-course-of-conduct exception to the unanimity instruction applies to the possession charge because Landybraun possessed the OxyContin pills continuously during a two-week period. At one point, he stated in a text message that he had 24 pills. When he was arrested, he had 23 pills, including the same number of 20-milligram pills he had referred to in the text messages. Moreover, Landybraun's defense to the various acts was the same: he did not intend to sell the pills, as evidenced by the fact that when he was arrested he was not carrying "pay-and-owe journals" or other indicia of drug dealing. There is no rational basis by which the jury could have distinguished between the acts constituting different possession offenses.
As to the transportation charge, no unanimity instruction was required because the prosecutor specifically argued that crime occurred only on March 12, 2018, when police saw Landybraun moving from one place to another, arrested him, and discovered he had been carrying drugs. The court instructed the jury about the specific date of the transportation charge. (People v Lueth, supra, 206 Cal.App.4th at p. 196.) But even if a unanimity instruction were required, the court's failure to give one was harmless beyond a reasonable doubt under the prejudice standard set forth in Chapman v. California (1967) 386 U.S. 18 because on this record, the jury would have had no basis for doubting that the transportation charge occurred on one date, and the possession charge involved continuous conduct such that there was no need to specify those dates on which he possessed the drugs and others when he did not. The defense counsel's above-cited arguments reinforced for the jury that the transportation charge referred only to events occurring on March 12, 2018. Accordingly, we conclude the court was not required to instruct the jury about unanimity, and it did not err by declining to do so. (Ervine, supra, 47 Cal.4th at p. 788; Thompson, supra, 160 Cal.App.5th at pp. 224-226.)
II. The Cellebrite Report Was Admissible and Not Hearsay
Landybraun contends the court erroneously admitted the Cellebrite report, which was hearsay and not subject to the exceptions based on the timeliness requirement of public records or a party's admission. The People counter that there was no error because the text messages were not hearsay; rather they "were verbal acts in which the senders inquired about whether Landybraun had pills for sale, and in which they made offers to purchase pills. The relevance of these text messages did not lie in the truth of what was stated, but in that the statements (or questions) were made at all." They alternatively argue Landybraun's outgoing messages were admissible into evidence as a party admission.
We conclude the trial court did not abuse its discretion by permitting the detective's testimony based on the Cellebrite report because it was not hearsay. " 'Hearsay evidence,' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" (Evid. Code, § 1200, subd. (a)), and "[e]xcept as provided by law, hearsay evidence is inadmissible" (Evid. Code, § 1200, subd. (b)). But out-of-court statements may be admitted for a nonhearsay purpose—i.e., to establish something other than the truth of the matter asserted in the statement. (People v. Hill (1992) 3 Cal.4th 959, 987, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Thus, a statement that is offered to help explain a person's "state of mind and conduct" and is not offered for the truth of the matter asserted, is not hearsay. (Hill, at p. 987; accord, People v. Livingston (2012) 53 Cal.4th 1145, 1162.)
The Cellebrite report was not hearsay because at trial it was used circumstantially, that is, as evidence of Landybraun's conduct from which the jury was asked to draw an inference that he possessed and transported the controlled substances for the purpose of sale and not for personal use. In People v. Nealy (1991) 228 Cal.App.3d 447, which is instructive, the court stated, "During the course of [a] search warrant's execution, [the police officer] answered the telephone. Over appellant's objection that the content of the conversation was hearsay, [the officer] testified that the caller asked for appellant by her first name and inquired about purchasing a 'dove.' [The officer], who was experienced in the nomenclature used during cocaine sales, indicated that a 'dove' was a '$20 piece of rock cocaine.' Over appellant's hearsay objection, [the officer] also testified that he returned two telephone calls to numbers recorded on [a beeper found in the location.] Both people asked for appellant by her first name and wanted a 'dove.' " (Id. at p. 450.) The appellate court found that the requests to purchase narcotics were not hearsay. They were not considered for the truth of the matters asserted, but were admissible as circumstantial evidence to show that the cocaine seized was commercially held, rather than for personal use.
Landybraun argues, "The admission of the text messages, without authenticating the identity of the sender and recipient was error." However, the identity of those who sent text messages to Landybraun is of no moment because the text messages are used merely to show that the reason Landybraun possessed the drugs was for sale. More important was his direct responses informing the questioners what drugs he had for sale, how many, and at what price. The sent text messages were linked to Landybraun by the fact they were found on his cellphone, which police accessed by using his password. There was no evidence indicating anyone else controlled his phone during the relevant time period. Further, Landybraun's text messages were responsive to the questions his would-be customers asked, and were later largely corroborated by the number of pills found in his possession upon his arrest. In any event, Landybraun's text messages would be admissible under the hearsay exception for a party admission. (Evid. Code, § 1220; People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.)
III. The Detective Did Not Provide Expert Testimony about Cellebrite Technology
Landybraun contends the court erroneously allowed the detective to offer expert opinion testimony regarding the Cellebrite technology used to download the text messages from his cellphone because the detective was not qualified as an expert, as her training on that technology was limited to a four-hour in-service class. He further contends that no evidence showed that the Cellebrite technology was reliable under a "Kelly-Frye" analysis.
We reject this contention as the detective was not required to provide expert testimony regarding how the Cellebrite technology worked, and the detective did not opine about the technological means by which the data download occurred. Instead, she essentially testified based on her experience that attaching a phone to a computer equipped with a certain software resulted in a display of the information contained in the phone, and she identified the type of technology she used to download the material from Landybraun's cell phone. The idea that text messages may be downloaded from a cell phone is familiar to a lay person. In short, the detective's testimony was not of matters so "beyond common experience" that her qualification as an expert was required. (See Evid. Code, § 801.)
The detective's testimony did not require a Kelly-Frye analysis, which applies to (1) expert testimony concerning a technique, process or theory new to science and to the law; and (2) unproven techniques or procedures that are presented as infallible, such as in the analysis of physical data. (People v. Johnson (2006) 139 Cal.App.4th 1135, 1148 (Johnson) [use of database search to identify potential suspects, followed by DNA analysis, was a mere "investigative technique" for law enforcement rather than independent evidence presented to the jury of the defendant's guilt, and therefore not subject to Kelly-Frye].)
The detective's testimony about the Cellebrite technology was aimed at merely describing the machines she used to download text messages from Landybraun's cell phone, not to analyze the data downloaded or draw any scientific conclusions from them. The detective testified she had received special training to learn to use the Cellebrite machine, and had used it at least 50 times before. Furthermore, the testimony described law enforcement's investigative technique of downloading text messages, as opposed to independent evidence of Landybraun's guilt. Moreover, the essential point of Kelly-Frye and its progeny is to guard against a jury's inclination to give considerable weight to scientific evidence presented with a "misleading aura of certainty." (Johnson, supra, 139 Cal.App.4th at p. 1147; Kelly, supra, 17 Cal.3d at pp. 31-32.) The detective's testimony was not expert witness testimony or even scientific evidence; and there was no "misleading aura of uncertainty," since the reliability of the Cellebrite process was confirmed by the fact messages from Landybraun's phone were corroborated by his earlier statement he had 24 OxyContin pills, as well as the evidence he was arrested with 23 pills in his possession, that mostly matched the dosages he had earlier discussed via text message.
IV. Probation Condition and Fruits of the Electronic Search
Landybraun contends the police searched his cell phone under an unconstitutionally overbroad electronic probationary search condition and therefore the fruits of that search must be suppressed. He relies on In re Ricardo P. (2019) 7 Cal.5th 1113, which the California Supreme Court decided during the pendency of this appeal. Initially, we regard Landybraun's challenge to the probation condition as untimely. When Landybraun was arrested, he was already under the properly imposed probation condition. "A criminal appeal must generally be filed within 60 days of the making of the order appealed. . . . [¶] An order granting probation and imposing sentence, the execution of which is suspended, is an appealable order. . . . [¶] In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citation.] Thus, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421.)
Furthermore, at trial Landybraun did not bring a motion to suppress the evidence, and thus this claim is also forfeited for that reason. This case is like People v. Oldham (2000) 81 Cal.App.4th 1, 11-14, in which the defendant had argued in the trial court that his father lacked the authority to consent to a search of a bedroom in a shared apartment. The defendant was deemed to have forfeited an appellate argument that the scope of the father's consent did not extend to closed containers inside the bedroom. (Ibid.) "Because the prosecution did not have fair notice of such issue below or the opportunity to present responsive evidence to such challenge, leaving the matter unaddressed and unanalyzed, [defendant] cannot now raise it." (Id. at p. 15; see also People v. Lewis (1999) 74 Cal.App.4th 662, 673 [challenge to warrantless home arrest did not preserve issue regarding knock-notice requirement].) Landybraun's failure to challenge the scope of the search in the trial court similarly deprived the prosecution of fair notice and the opportunity to present a response.
In any event, the search was lawful under Landybraun's unchallenged probation condition that his electronic devices be subject to search by law enforcement. Penal Code section 1546.1, subdivision (c)(10) permits the government to search an electronic device as a condition of probation unless federal law otherwise forbids the search. (Pen. Code, § 1546.1, subd. (c)(10) [government may search electronic device as condition of probation].)
The Fourth Amendment of the federal Constitution prohibits unreasonable searches and seizures. " 'In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.' " (People v. Macabeo (2016) 1 Cal.5th 1206, 1213, quoting Riley v. California (2014) 573 U.S. 373, 382 (Riley).) The burden is on the People to establish that an exception applies by a preponderance of the evidence. (Macabeo, at p. 1213.) The exception applicable here is for the general search-waiver condition of probation. (People v. Sandee (2017) 15 Cal.App.5th 294, 300.)
As a probationer, Landybraun was subject to reasonable probation terms that reduced his expectation of privacy. (In re Kacy S. (1998) 68 Cal.App.4th 704, 711 ["a probationer's expectations of privacy are diminished by his probation status and are subordinated to governmental activities which reasonably limit the right of privacy"].) By accepting probation with a search and seizure condition, a defendant is voluntarily waiving his right to privacy under the Fourth Amendment and consenting in advance "to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term." (People v. Robles (2000) 23 Cal.4th 789, 795.) "A probationer's consent is considered 'a complete waiver of that probationer's Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner.' " (People v. Medina (2007) 158 Cal.App.4th 1571, 1576.)
We reject Landybraun's claim of facial overbreadth, which he bases on Riley, supra, 573 U.S. 373 and California appellate court opinions including People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), holding such conditions to be unconstitutionally overbroad. The question at issue in a facial overbreadth challenge to an electronic search condition is whether the search condition permitting searches of a probationer's computers and/or recordable media, in the abstract, and not as applied to the particular probationer, is insufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (In re Sheena K. (2007) 40 Cal.4th 875, 885 [appellate claim that the language of a probation condition is unconstitutionally vague or facially overbroad "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts"].) Given the nature of such a challenge, it is "difficult to sustain." (Williams v. Garcetti (1993) 5 Cal.4th 561, 577.) We review it de novo. (People v. Guzman (2018) 23 Cal.App.5th 53, 64; Appleton, at p. 723.)
Landybraun urges us to follow Appleton, supra, 245 Cal.App.4th 717. In Appleton, the defendant, who met his minor victim through a social media application for smartphones, pleaded no contest to false imprisonment by means of deceit. (Id. at p. 719.) Though the court found the state had an interest in preventing the defendant from "us[ing] social media to contact minors for unlawful purposes" (Id. at pp 721, 727), the court held in part based on Riley, supra, 573 U.S. 373, that a general electronics device search condition was unconstitutionally overbroad "as worded . . . ." (Appleton, at pp. 724-727.) Given the limited justification for the condition, the Appleton court struck the condition and remanded the matter to the trial court to craft a narrower condition. (Id. at pp. 719, 727.) We point out that in Appleton, the defendant objected to the electronic search condition in the trial court (id. at p. 725), thus permitting an as-applied challenge to the condition. By contrast, Landybraun failed to object below and therefore his as-applied challenge is forfeited. (In re Sheena K., supra, 40 Cal. 4th at p. 885 ["Applying the rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions"].)
Even if the warrantless search of a probationer's electronic devices "significantly burdens privacy interests" (In re Ricardo P., supra, 7 Cal.5th at pp. 1122-1123, citing Riley, supra, 573 U.S. at p. 393 and Cal. Const., art. 1, § 1), we nonetheless reject Landybraun's facial overbreadth claim. We cannot say a condition requiring a probationer to submit to a warrantless search of his cell phone is necessarily or always unconstitutional in the abstract. In appropriate cases a broad electronics search condition would be warranted as a useful, reasonable and constitutional tool to deter or discover criminal activity. In sum, we hold that monitoring of electronic devices is not unconstitutional as a matter of law, and accordingly reject Landybraun's claim that the challenged probation condition is facially unconstitutional.
V. Plain Error Rule Not Used in California State Courts
Landybraun contends "California's failure to apply a 'plain error' standard of review comparable to the one used in federal court deprives defendants charged with crimes in California state court of equal protection of the law, as guaranteed by the [F]ifth and [F]ourteenth amendments." Landybraun acknowledges the California Supreme Court rejected this claim in People v. McKinnon (2011) 52 Cal.4th 610, 641, fn. 20.) We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
VI. The Information Was Not Amended
Finally, Landybraun contends his conviction for transportation of a controlled substance for sale must be reversed because the prosecutor "constructively amended the information during closing argument." He specifically claims the prosecutor repeatedly argued to the jury that the acts supporting that charge "occurred between February 21, 2018[,] and March 12, 2018." Landybraun contends the prosecutor made this argument "even though the trial court amended Count 1 of the information before closing arguments to allege only a date of March 12, 2018."
Landybraun points to these arguments made by the prosecutor to support his contention:
"How do you know that [Landybraun is] transporting for sale? He's not using. There's no evidence whatsoever that he's using any of the pills. He's actively trying to sell the pills. Okay? You see multiple text messages shortly before his arrest indicating he's trying to sell the pills. And he gives two different people price quotes. Gives you a discount if you buy in bulk. The pills are with him so that he can sell them, not so that he can use them. And that's what the evidence shows."
"You're not being asked to determine if he possessed the drugs with the intent to sell at the time of his arrest. You're asked to determine if he possessed the drugs with the intent to sell them between February 21st and March 12th. Those are the dates of the text messages. Okay?
"You are asked to determine that, for Count 1, which is the transportation [charge], because the transportation has to be for purposes of sale [sic]. And my argument is, [Landybraun] has these drugs because he's selling them. They are not his. He's trying to make money off of them. And so when he's transporting them, if he has them with him just to sell, that is transporting for sale.
"And you must consider all of the evidence in this case, including the text messages. Okay? You, as jurors, have a duty to consider all of the evidence."
As a factual matter, we conclude the prosecutor did not constructively amend the information. Consistent with the prosecutor's assertions to the court during in camera proceedings and with the jury instruction, the prosecutor argued the transportation charge was based on Landybraun's actions that occurred on one specific date, while the possession charge was based on his actions occurring between February 21, 2018, and March 12, 2018.
The court is directed to strike Landybraun's conviction for simple drug possession. The judgment is otherwise affirmed. The court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. DATO, J.