Opinion
C054892
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. RODELFO ALA DEVENECIA, Defendant and Appellant.
Not to be Published
A jury convicted defendant Rodelfo Ala Devenecia of possession of more than 28.6 grams of marijuana. (Health & Saf. Code, § 11357, subd. (c).) On appeal, defendant contends the trial court failed to instruct the jury on the requirement of a unanimous verdict and on a lesser included offense. We agree with defendant that the trial court failed to instruct on unanimity, and we reverse. Because we reverse on the unanimity instruction, we do not address defendants remaining claim.
Hereafter, undesignated section references are to the Health and Safety Code.
BACKGROUND
On October 7, 2003, officers executed a search warrant at 9370 Rogers Road in the County of Sacramento. The search occurred at night and involved a helicopter, a police dog, and a number of officers. The property, a 20-acre parcel, included an occupied house, an unoccupied house under construction, a barn, and a trailer. The search uncovered 11 distinct amounts of marijuana in various locations on the property.
Inside the occupied house, officers located eight packages of marijuana. On the stairway near the front door, officers located 14.6 grams of marijuana in a sandwich-sized Ziploc bag. Beneath the stairway, they discovered a black plastic garbage bag containing 617.9 grams of marijuana. The occupied house contained three bedrooms—two upstairs and one downstairs. Inside one of the upstairs bedrooms, an officer found two plastic Ziploc bags of marijuana weighing, respectively, 25.6 grams and .8 grams. The second upstairs bedroom contained no marijuana; however, a trail of fresh marijuana leaves led from this bedroom, down the stairs, out the front door, and to the unoccupied house. In the downstairs bedroom, an officer located one sandwich-sized plastic bag containing 40.2 grams of marijuana, another bag containing 26.7 grams, a film canister containing .6 grams, and a fourth quantity of one gram.
Inside the trailer, officers located 28.8 grams of marijuana under a mattress.
From the helicopter flying overhead, an officer saw a person moving hurriedly from the occupied house to the unoccupied house while carrying something. This officer informed the canine officer, who had his police dog search the unoccupied house for human scent. Defendant was discovered in a crawl space underneath the house. Inside the crawl space, officers located approximately 21 pounds of fresh marijuana plant material and a plastic bag containing 104.8 grams of dried marijuana.
The 104.8-gram sample is mistakenly referred to as 111 grams throughout the appellate record.
In an interview with the police, defendant indicated that he lived in one of the upstairs bedrooms of the occupied house. This was the same bedroom from which the trail of marijuana leaves initiated, leading from the bedroom, down the stairs, out the front door, and to the crawl space. Defendant stated the marijuana in the crawl space belonged to him. He claimed it was for his "personal use" and that he smoked "pounds [of marijuana] a week."
Officers encountered six other persons on the property: three inside the trailer, one outside the barn, and two in the proximity of the occupied house. James Krausek was in the downstairs bedroom of the occupied house; Joseph Markiewicz was standing outside.
Defendant was charged with one felony count of possession of marijuana for sale in violation of section 11359.
The defense at trial maintained that defendant did not live on the Rogers Road property. On the night of the search, defendant had arrived shortly before the police in order to check on the property for his mother, the property owner. Joseph Markiewicz testified that the marijuana found in the crawl space belonged to him, and that he had hidden it there so defendant would not find out he had marijuana on the premises.
The jury convicted defendant of the lesser included offense of possession of more than 28.6 grams of marijuana in violation of section 11357, subdivision (c). He was sentenced to Proposition 36 drug-treatment probation and ordered to serve 150 days in jail.
DISCUSSION
Failure to Give a Unanimity Instruction
A. A unanimity instruction is required
A unanimous verdict is required for a defendant to be convicted by jury of a criminal offense. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where the defendant is charged with a single criminal act, but the evidence presented at trial is sufficient to convict him of more than one such act, a risk arises that the jurors may convict him despite failing to agree unanimously on which act occurred. (People v. Smith (2005) 132 Cal.App.4th 1537, 1540 (Smith).)
This risk exists in situations where the evidence is fragmented as to time or space. Evidence is fragmented as to space when, as here, the offense charged is possessory, and more than one contraband item may be viewed as within the defendants possession. (People v. Crawford (1982) 131 Cal.App.3d 591, 595, 599 (Crawford); People v. King (1991) 231 Cal.App.3d 493, 501 (King).)
In Crawford, the defendant was convicted of one count of being a felon in possession of a firearm. (Crawford, supra, 131 Cal.App.3d at p. 593.) Four guns were introduced into evidence: one found at the foot of defendants bed; another found in his bedroom closet; and two found in a different bedroom—one on each side of the bed in which defendants housemate was sleeping. (Id. at pp. 594-595.) The information did not specify which of these guns defendant was charged with possessing. (Id. at p. 595.) At trial, the defendant asserted he had no knowledge of the gun found at the foot of his bed, and his girlfriend testified the gun in the closet belonged to her. (Ibid.) Additionally, reasonable inferences could be made that the two remaining guns were possessed by defendants housemate. Because the "[g]uns were in different parts of the house" and "the evidence showed unique facts surrounding the possessory aspect of each weapon," the court held that a unanimity instruction should have been given. (Crawford, supra, at p. 599, see id. at pp. 599-600.) The court reversed the conviction, noting that even "one too many guns" in relation to the charges is too many for harmless error. (Id. at p. 600.)
In King, the defendant was convicted of possession of methamphetamine for sale. (King, supra, 231 Cal.App.3d at p. 495.) The police found three amounts of methamphetamine in defendants residence: a Ziploc bag and a syringe containing methamphetamine were found in the living room in a purse previously used by a third party, and a smaller bag of methamphetamine was concealed within a ceramic statue above the kitchen sink. (Id. at p. 497.) At trial, defendants boyfriend testified the methamphetamine in the ceramic statue belonged to him. (Id. at p. 498.) Because there was "conflicting evidence concerning ownership of the statue and its contents and reasonable inferences could be drawn that [defendant] did not have knowledge of or possession and control over the purse," there was a risk that the defendant "was found guilty based on a combination of different criminal acts determined in each case by less than all 12 jurors." (Id. at p. 500.) King concluded: "[I]n a prosecution for possession of narcotics for sale, 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, absent an election by the People [a unanimity instruction] must be given to assure jury unanimity." (Id. at pp. 501-502.) The court reversed the conviction. (Id. at p. 502.)
The court noted that the same rule would apply to the lesser included offense of illegal possession of a controlled substance. (King, supra, 231 Cal.App.2d at p. 502, fn. 1.)
As in Crawford and King, the evidence presented at the instant trial included several items sufficient for a reasonable jury to convict defendant of the charged offense—possession of marijuana for sale (§ 11359)—or the lesser included offense of simple possession (§ 11357, subd. (c)). The evidence included 11 samples of marijuana found in various areas on the property. Five of the samples individually weighed more than 28.6 grams and thus were independently sufficient to support defendants conviction. Additionally, defendants conviction could be supported by a number of combinations containing those samples weighing less than 28.6 grams. In fact, here there were significantly more items sufficient to convict defendant than the four guns in Crawford or the three methamphetamine samples in King. As in Crawford, the information did not specify which particular sample(s) of marijuana defendant was charged with possessing.
Also similar to Crawford and King, the evidence surrounding these several items demonstrated unique possessory aspects such that all of the items could reasonably be viewed as solely possessed by persons other than defendant. In Crawford, a jury reasonably may have concluded that one gun belonged to the girlfriend, according to her testimony, and that two others belonged to the housemate who was sleeping beside them. In King, it reasonably could have been inferred that the drugs in the ceramic statue belonged to the boyfriend, according to his testimony, and that the drugs in the purse belonged to the woman who had previously used it.
In defendants case, the marijuana found in the stairway may be viewed as solely possessed by any person with access to this common area of the house. A reasonable juror may have concluded the possessor to be defendants brother, who had keys to an upstairs bedroom and who police observed going to and from the property in the months preceding the search, or either James Krausek or Joseph Markiewicz, both of whom lived in the house and were contacted there on the night of the search.
The marijuana found in the bedrooms may be viewed as possessed by persons other than defendant as well. The marijuana found in the downstairs bedroom may be attributed to Krausek, because there was testimony Krausek lived in this bedroom, and in fact it was in this room that police contacted Krausek and found paperwork in his name. As for the marijuana found in the upstairs bedroom, a reasonable juror may have concluded that it belonged to defendants brother. Defendants brother, who had been arrested prior to the search, possessed a key to this room, his name appeared on envelopes located there, and another controlled substance with which he was associated, methamphetamine, was found inside this room.
The marijuana in the trailer reasonably may be viewed as possessed by the two persons contacted inside the trailer.
Finally, the trail of marijuana leaves and the marijuana found under the crawl space reasonably may have been attributed to Markiewicz, who testified he was the one who dragged the marijuana from the upstairs bedroom to the crawl space.
Given these facts, a unanimity instruction was required to assure that all 12 jurors convicted defendant of possessing the same distinct amount of marijuana. Also, if four guns in Crawford, and three methamphetamine samples in King required a unanimity instruction, 11 distinct samples of marijuana certainly must do so here.
B. Contrary to the Peoples argument, the prosecution did not make a valid election
To assure unanimity, one of two things must happen: the prosecution either must elect the particular criminal act upon which the charge rests, or the trial court must give an appropriate unanimity instruction. The judge has a sua sponte duty to instruct on unanimity should the prosecution fail to make an election, regardless of whether an objection is made. (People v. Jones (1990) 51 Cal.3d 294, 307, 321-322 (Jones).)
In order for the prosecution to make a valid election, it must inform the jury of the specific act upon which the charge is based and inform the jury of its duty to arrive at a unanimous decision based upon that act. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539 (Melhado).) This statement "must be made with as much clarity and directness as would a judge in giving instruction." (Melhado, supra, at p. 1539.)
The People contend the prosecutor made an election by emphasizing during closing argument the marijuana found in the crawl space. In line with the reasoning in Melhado, we disagree. A prosecutors mere emphasis upon a specific act during closing argument is insufficient to communicate an election to the jury. (Melhado, supra, 60 Cal.App.4th at p. 1536.)
In Melhado, the defendant was charged with one count of making a terrorist threat (now referred to as a criminal threat) in violation of Penal Code section 422. (Melhado, supra, 60 Cal.App.4th at p. 1532.) The evidence showed three possible threats, occurring around 9:30 a.m., 11:00 a.m., and 4:30 p.m. (Id. at p. 1533.) Defendant argued on appeal that the trial court erred in failing to give a unanimity instruction. (Id. at p. 1532.) The People countered that none was needed because the prosecution made an election by emphasizing the 11:00 a.m. threat during closing argument and referring to the other threats "only as embellishments." (Id. at p. 1535.) The Melhado court acknowledged that it was "possible to parse the prosecutions closing argument in a manner which suggests that more emphasis was placed on the 11:00 a.m. event than on the others." (Id. at p. 1536.) The court nonetheless held that such emphasis is not sufficient for a prosecutorial election because it "did not directly inform the jurors of [the prosecutors] election and of their concomitant duties [to unanimously find the 11 a.m. threat]." (Ibid.)
In the instant case, it is also "possible to parse the prosecutions closing argument" and claim the argument emphasizes the marijuana found under the crawl space. Much of this closing argument focused upon the marijuana discovered under the crawl space. In fact, at one point, the prosecution went so far as to state, "Where is the marijuana in this case found? The marijuana is found under the unoccupied residence." While this statement directed jurors attention to the marijuana found in the crawl space, it did not inform them of their constitutional duty to unanimously base their verdict solely upon this marijuana. This statement, even combined with the greater amount of time spent discussing the marijuana found in the crawl space, was not made with "as much clarity and directness as would a judge in giving instruction." (Melhado, supra, 60 Cal.App.4th at p. 1539.)
During its closing argument, the prosecution further muddled any attempt to elect the crawl space marijuana by referencing the marijuana found in other areas and by failing to distinguish it as excepted from verdict consideration. In fact, a reasonable juror may have viewed the prosecutions closing argument as relying upon the marijuana found in areas other than the crawl space to establish that the elements of the offense had been met. The prosecutor listed all of the marijuana found when establishing the identity of the substance, and stated that the substance was a usable quantity and that defendant had control over the substance. Even if we assumed the prosecutor intended these references as embellishments, without a directly communicated election, the jury had no way of understanding that they could not base their verdict upon these other samples of marijuana.
The prosecution argued at closing as to the identity of the substance, "One of the other elements is: How do we know the substance is, in fact, marijuana? This is a pretty basic one. We know that, we heard from Jason Hooks from the Crime Lab, who tested the numerous items that were submitted. Those tests came back that these were, in fact, these substances were, in fact, marijuana. That included the substances that were found on the stairwell inside of the occupied residence, as well as the substances found under the unoccupied residence, where [defendant] was located. There [was] also evidence of methamphetamine, there was evidence of other marijuana, but we heard that all of these things, in fact, tested and were found to be marijuana."
Later, to establish that this was a usable quantity, the prosecution argued, "Is [this marijuana] a usable quantity? We had ample testimony with regard to that as well. When we are talking about the quantity underneath the unoccupied structure with [defendant], we are talking about 111 grams of processed marijuana bud and we are talking about 21 pounds of wet marijuana plant material. [¶] . . . [¶] . . . So, clearly, what — the marijuana in this particular case that we are attributing to [defendant] in this particular case is a usable quantity of marijuana. And as also indicated in the evidence, there [are] also usable quantities of marijuana that are located in various other places on the property; in the trailer, there is some marijuana located in there, in Mr. Krausets room, there is marijuana located in there, I believe in the locked upstairs bedroom, there is marijuana located up in there."
For the element of control, the prosecution stated "that [defendant] has access to that property, not only to the occupied structure, but to all of the structures."
Under the standard articulated in Melhado, the prosecutions emphasis in argument on the marijuana found in the crawl space did not amount to a prosecutorial election.
C. This failure constituted prejudicial error
Although courts of appeal are split regarding the standard of prejudice to be applied for failure to give a unanimity instruction, this court has consistently applied the standard of harmless beyond a reasonable doubt pronounced in Chapman v. California (1967) 386 U.S. 18, 24 . (Smith, supra, 132 Cal.App.4th at pp. 1545-1546; People v. Deletto (1983) 147 Cal.App.3d 458, 472.) We apply that standard today.
In order to find the error to be harmless beyond a reasonable doubt, we must find that disagreement among the jurors regarding the specific acts was not reasonably possible. (Smith, supra, 132 Cal.App.4th at p. 1546; People v. Napoles (2002) 104 Cal.App.4th 108, 119.) No disagreement is possible where defendants various acts were indistinguishable such that the jury equally would have convicted defendant of any and all acts, or where the defendant presented a unitary defense applying equally to all the acts. (People v. Diedrich (1982) 31 Cal.3d 263, 283; Jones, supra, 51 Cal.3d at p. 307; People v. Gordon (1985) 165 Cal.App.3d 839, 855-856, overruled on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292 and People v. Frazer (1999) 21 Cal.4th 737, 765.) In such cases, "the jury resolved the basic credibility dispute against the defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed." (Jones, supra, 51 Cal.3d at p. 307.)
Here, the various quantities of marijuana were not indistinguishable such that the jury would have convicted defendant of possessing any and all of these samples. As explained earlier, a number of reasonable inferences could have been made attributing each of the amounts of marijuana located in the occupied house and the trailer to someone other than defendant, and the evidence showed unique facts surrounding the possession of the various marijuana amounts. Other persons were associated with the bedrooms in the occupied house and the trailer in which marijuana was found, and a number of persons could be associated with the marijuana found in the common areas of the house.
Nor did defendant have one unitary defense that applied equally to all of the marijuana found. Defendant presented four witnesses at trial: his mother, Markiewicz, and two defense investigators. His mother, the owner of the property at 9370 Rogers Road, testified that defendant did not live at the property. On the night of the search, she sent him there to check on things. Defendants mother and Markiewicz testified that Markiewicz and James Krausek lived on the property. Markiewicz further testified that the marijuana in the crawl space was his. He hid it because he did not want defendant to know he kept marijuana on the property. The defense investigators testified that there was more than one crawl space on the property and that Markiewicz had admitted in an investigatory interview that he hid the marijuana under the same crawl space from which the police recovered the marijuana.
Significantly, Markiewicz consistently denied knowledge of any of the marijuana found on the property other than that in the crawl space. Thus, the testimony and evidence concerning defendants key witness related only to the marijuana found in the crawl space; the same is true of the defense investigators testimony. Defendants mothers testimony did not specifically address any of the quantities of marijuana, as she stated that she never went inside of the occupied house, and she was not questioned regarding the contents of the trailer or the crawl space.
Markiewicz also testified that he possessed about a quarter of a pound of marijuana inside a safe in the unlocked upstairs bedroom. However, no sample matching that description was taken into evidence that night or presented at trial.
Because the testimony of Markiewicz and the investigators addressed only the marijuana found in the crawl space, and various possessory inferences reasonably may have been made regarding the other quantities of marijuana, it cannot be said that defendant had one unitary defense equally applicable to all of the marijuana found, or that a jury equally would find him guilty of possessing any and all of the marijuana.
Recently, in Smith, we discussed the significance of the standard of harmless beyond a reasonable doubt in the unanimity instruction context. Under this standard, even if it is "improbable that the jury relied on different specific acts in finding defendant guilty" of one count, we still must reverse so long as such reliance remains "reasonably possible." (Smith, supra, 132 Cal.App.4th at p. 1546, italics added.)
In the present case, it is reasonably possible that one or more of the jurors disagreed upon which of the many quantities of marijuana were within defendants possession. A juror reasonably could have believed Markiewiczs testimony that the marijuana in the crawl space was his, while still concluding that defendant possessed one or more of the other quantities found in the occupied house. The prosecution argued and presented evidence that defendant had access to all of the structures on the property, including the occupied house, in which eight out of the 11 samples were uncovered. The prosecution presented much testimony referencing the marijuana found in the occupied house and the trailer and mentioned these samples at various points in closing argument. Jurors reasonably may have attributed different quantities to defendant and, because of the absence of a unanimity instruction or prosecutorial election, believed it was proper to do so.
DISPOSITION
The judgment is reversed.
We concur:
MORRISON, J.
ROBIE, J.