Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06HF0920, Craig E. Robison, Judge.
Catherine White, 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, Barry Carlton, Sabrina Y. Lane-Erwin and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Appellant was convicted of receiving stolen property, as well as possessing methamphetamine and drug paraphernalia, and received a two-year prison sentence. He challenges the receiving count on the basis the court failed to instruct the jury it had to unanimously agree as to which item of stolen property he received. He also contends the possession counts must be reversed due to insufficient evidence and instructional error. Finding no basis to disturb the judgment, we affirm.
FACTS
Appellant was a part-time temporary worker at the Horiba Corporation in Irvine. In his work as a tax accountant, he sometimes mailed checks along with the tax documents he prepared. However, he did not have authority to prepare the checks himself. Other employees handled that responsibility, using a check machine that was located in the accounting department where appellant worked.
The check machine contained a signature plate that printed the company president’s name onto the checks. The signature plate was locked into the machine and could only be removed by using a key that was kept in the desk of Lois Sue, a clerk in the department. Along with that key, Sue kept a key to a filing cabinet that was located near the check machine. The filing cabinet was usually kept locked because it contained company checks and other important documents. Appellant was not authorized to use key for the check machine or the key to the filing cabinet.
Appellant’s assignment with the company was nearing its completion on Friday, May 19, 2006. That night, Sue locked everything up before leaving the office, including the filing cabinet. She noticed that there was a folder full of signed checks inside the cabinet and that the signature plate was locked into the check machine. Per her usual routine, she put the keys for the cabinet and the signature plate in her desk.
The following day, Saturday the 20th, appellant went into the office. After working all afternoon and into the evening, he left at about 8:30 p.m. A short time later, he was stopped by Irvine Police Officer Mark Andreozzi for a Vehicle Code violation. Appellant consented to a search of his person and car. In his right front pocket, Andreozzi found the signature plate to the check machine. Appellant said he used the plate in his work as a tax accountant and it contained his signature.
Andreozzi had no reason to disbelieve him, but then he found a glass pipe on appellant’s dashboard that had some methamphetamine residue on it. He also found a plastic container behind the passenger seat that had 169 milligrams of methamphetamine in it. Appellant admitted to Andreozzi that he had used methamphetamine before, including three weeks earlier, on his birthday.
The last thing Andreozzi noticed in appellant’s car was a box full of paperwork on the back seat. Inside the box were voided checks from the Horiba Corporation, as well as the folder full of signed checks that Sue had locked in the filing cabinet the day before. Andreozzi left the box and the signature plate in the car, which was impounded, and arrested appellant for the pipe and methamphetamine.
When Sue got to work on Monday the 22nd, the keys to the filing cabinet and signature plate were in her desk. But they were not in the place where she had left them. She also discovered that the folder full of signed checks was missing from the filing cabinet, and the signature plate was not in the check machine. The police were called, and those items were promptly retrieved from appellant’s car and returned to the company.
Appellant testified he went into the office on Saturday the 20th to finish up some late tax filings. He worked on them all day, and by 8:30 p.m. he had a box full of filings that he intended to rush off to the post office for mailing. Appellant testified that while putting the filings in the box, he inadvertently picked up the folder with the signed checks and put it into the box. He also claimed that as he was leaving the office, he saw the signature plate out on a desk, near some voided checks. Knowing these items were not supposed to be just lying around, he took them for safekeeping with the intention of returning them to the office on Monday morning.
In closing argument, the prosecutor argued appellant could be convicted of receiving stolen property based on his possession of 1) the folder with the signed checks; 2) the signature plate; or 3) the voided checks. The prosecutor told the jurors they did not have to agree on which particular item of stolen property appellant received. Defense counsel argued appellant was not guilty of receiving stolen property because, although he took all three of the items in question, he did not intend to steal them.
I
Appellant contends the court had a sua sponte duty to instruct the jurors that in order to convict him of receiving stolen property, they had to unanimously agree on which item of stolen property he received. We disagree.
“In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) There is an important exception to this rule, however: No election or unanimity is required “when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) “[C]ourts have found a continuing course of conduct where the wrongful acts were successive, compounding, interrelated, [or] aimed at a single objective.” (People v. Sanchez (2001) 94 Cal.App.4th 622, 632.)
Here, the acts in question occurred at virtually the same time and place. The folder full of signed checks, the signature plate and the voided checks were all located in the area where appellant worked, and by his own admission, appellant took all of them as he was leaving the office. Not only were the takings contemporaneous, they were interconnected in the sense that appellant took both company checks and the signature plate that is used in the check printing process. Although the signature plate was supposed to be used with the check machine, it could also be used like a simple ink stamp, apart from the machine. This all suggests appellant took the items to carry out some sort of check fraud scheme for the single objective of personal monetary gain.
At trial, appellant claimed he took the items under different circumstances, in that he took the folder full of signed checks by accident, and he took the signature plate and voided checks with the intent to return them. But even if that were true, his defense with respect to all the items was exactly the same, i.e., he lacked the requisite intent to steal. The variations on that core defense were not significant given the interrelated nature of the takings. In fact, looking at the evidence as a whole, there was no reasonable basis for the jury to distinguish between the takings. The evidence established all of the items were locked up in the office on Friday evening, appellant came into the office on Saturday, and he had the items with him when he was arrested that night. Either he stole all the items, as the prosecution alleged, or he didn’t steal any of them, as appellant alleged. There was no room for the jury to conclude he stole some of the items, but not others. Therefore, a unanimity instruction was not required.
II
Appellant also contends there is insufficient evidence he possessed a “usable amount” of methamphetamine. That is not the case.
In assessing the sufficiency of the evidence to support a criminal conviction, we review the record in the light most favorable to the judgment and presume the existence of every fact the jury could reasonably deduce from the evidence. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; People v. Bloom (1989) 48 Cal.3d 1194, 1208.) We must affirm the conviction if “the evidence is such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bean (1988) 46 Cal.3d 919, 932.)
In order to convict a defendant of possessing a controlled substance, the prosecution must prove, inter alia, the substance was “‘in a quantity usable for consumption or sale.’” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242; see also People v. Rubacalba (1993) 6 Cal.4th 62, 66 [substance must be “in a form and quantity that can be used”].) Evidence that the defendant possessed “blackened residue or a useless trace” of a controlled substance will not suffice in this regard. (People v. Rubacalba, supra, 6 Cal.4th at p. 66; see, e.g., People v. Leal (1966) 64 Cal.2d 504, 512 [overturning narcotics conviction where defendant possessed “a minute crystalline residue of narcotic useless for either sale or consumption”].) However, “[n]o particular purity or narcotic effect need be proven.” (People v. Rubacalba, supra, 6 Cal.4th at p. 66.)
Officer Andreozzi testified that in addition to finding methamphetamine residue on the pipe in appellant’s car, he also found 169 milligrams of methamphetamine in a plastic container. The methamphetamine was comprised of “a white crystalline substance” and a “white solid substance,” which Andreozzi described as a “fibrous chunk.” Thus, there was more than the “minute crystalline residue” that was found insufficient in Leal, supra, 64 Cal.2d at p. 512.
In Leal, the Supreme Court cited several cases in which drug convictions have been upheld based on the possession of lesser amounts of narcotics than appellant had in this case. (See Leal, supra, 64 Cal.2d at pp. 506-508.) And in the post-Leal cases of People v. Bianez (1968) 259 Cal.App.2d 76, 79-81 and People v. Garcia (1967) 248 Cal.App.2d 284, 288-291, the courts found the useable amount requirement satisfied in the defendants’ possession of 20 and 200 milligrams of narcotics, respectively. (See also People v. Fradiue [upholding narcotics conviction where defendant possessed 20 milligrams of heroin].) These decisions reduce appellant’s contention that his possession of 169 milligrams of methamphetamine was not a useable amount for sale or consumption to an academic discussion.
True, Andreozzi’s opinion the 169 milligrams constituted a usable quantity was based on the erroneous assumption that a usable quantity is “any amount that can be manipulated.” But that testimony was superfluous given the amount in question. It did not detract from the fact that appellant had a methamphetamine pipe on his dash board and a chunk of methamphetamine stashed away behind his passenger seat. Drawing all inferences in favor of the judgment, there is sufficient evidence to support the jury’s determination appellant possessed a useable amount of methamphetamine.
III
Lastly, appellant contends the court gave prejudicial instructions on the charge of possessing drug paraphernalia. Again, we disagree.
“It is unlawful to possess . . . any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking” a controlled substance, such as methamphetamine. (Health & Saf. Code, § 11364, subd. (a).) The trial court’s instructions permitted the jury to find appellant guilty of this offense if he possessed an object that could be used to smoke a controlled substance. Appellant argues this was erroneous because the statute requires proof that the object in question is actually used for smoking. In his view, the court should have instructed the jury that it could not find him guilty of possessing drug paraphernalia unless it was shown his actual purpose for possessing the pipe was to smoke methamphetamine.
Even if appellant is correct, such an instruction would not have benefited him. Andreozzi testified that based on his training and experience, the smoking device in appellant’s car was a methamphetamine pipe. He also testified the pipe had methamphetamine residue on it. These are both questions properly addressed by expert opinion. And, appellant admitted to the officer that he had smoked methamphetamine before. Nor was there evidence the pipe was used for anything other than smoking methamphetamine. It is thus clear the evidence went beyond proving the pipe was capable of being used for smoking methamphetamine and established it was in fact possessed for that purpose. Therefore, any instructional error that occurred was harmless under any standard of review. The judgment must be affirmed.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J. MOORE, J.