Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA074170 Hector M. Guzman, Judge.
Cannon & Harris and Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
A jury convicted defendant Alissa Marie Jones of possession of a controlled substance (cocaine) in violation of Health and Safety Code section 11350, subdivision (a). Defendant admitted that she had suffered two prior serious felony convictions, had served four prior prison terms, and had previously been convicted of violating Health and Safety Code section 11350. At sentencing, the trial court struck one of the prior convictions in the interest of justice and sentenced defendant to a five-year state prison term.
In this appeal, defendant contends that the trial court committed prejudicial error in failing to submit two pattern instructions: the unanimity instruction and the corpus delicti instruction. We conclude that any error that may have occurred was not prejudicial. In addition, defendant requests us to review the sealed transcript of the in-camera hearing conducted on her Pitchess motion to determine whether the trial court’s discovery order was an abuse of discretion. We find it was not. Lastly, defendant claims that imposition of a $30 security fee violates the constitutional prohibition on ex post facto laws. We disagree. Because we reject all claims of prejudicial error, we affirm the judgment in its entirety.
Defendant also contends that the two instructional errors amounted to cumulative error, rendering her trial fundamentally unfair. Because we reject those two assignments of error on the merits or find any error to be nonprejudicial, the claim of cumulative error necessarily fails. (See People v. Sapp (2003) 31 Cal.4th 240, 316.)
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
STATEMENT OF FACTS
1. The Prosecution’s Case-in-Chief
Los Angeles County Deputy Sheriff Nancy Veliz testified as follows. During the late morning of February 2, 2009, she was on patrol with her partner Deputy Sheriff Angelo Lopez in the area of 101st Street and Vermont Avenue. She saw defendant walking in the direction of their vehicle. Deputy Veliz made eye contact with defendant. Defendant reacted in a startled manner and dropped a glass pipe and a crumpled piece of brown paper. Defendant continued to walk. The deputies pulled their vehicle alongside of her. Deputy Lopez detained defendant while Deputy Veliz recovered the pipe and paper. The paper contained two pieces of rock cocaine weighing.07 grams, a usable amount. The pipe is the type specifically used to smoke rock cocaine.
After defendant was advised of and waived her Miranda rights, Deputy Veliz asked her where she had purchased the rock cocaine. Defendant replied that “she purchased it from a light skinned black male on Figueroa Street.”
During the stop, Deputy Veliz used the patrol car’s Mobile Digital Transmission System (MDTS) to determine the existence of any outstanding arrests warrants for defendant. Defendant, who did not have any identification on her, first gave Deputy Veliz a false name (Lynette Kelly Lyles) that was run though the system. Within a minute, defendant gave her true name and it was input into the MDTS. Deputy Veliz was sure that no other woman had been present at the scene.
When asked why she had run that name, Deputy Veliz explained: “[Defendant] must have given me that name [of Lyles] because [she] was the only individual that was there and that... I was running at the time. So it must have been that [defendant] gave me a false name prior to running her actual name.”
After transporting defendant to the sheriff’s station, Deputy Veliz used livescan to confirm defendant’s true name. Deputy Veliz did not include defendant’s initial use of a false name in the arrest report because she made the discretionary decision that it was not relevant to defendant’s arrest for possession of cocaine.
2. The Defense Case
Defendant testified on her own behalf. She conceded that she had been convicted of three felonies: robbery in 1991, robbery in 1994, and felon in possession of a firearm in 2004. She had used a false name (Livanna Colbert) in 1987 or 1988 in connection with a grand theft charge. She was on parole when arrested in this case.
On direct examination, defendant testified that at approximately 11:00 a.m. on February 2, 2009 she purchased and used cocaine at Tam’s, a restaurant on 101st Street. After smoking all of the drug, she left the restaurant, approached an unidentified woman, “and asked her could I pay her to take me home.” Defendant was carrying her glass pipe because she knew “you don’t go to jail for paraphernalia.” The woman accepted defendant’s proposal. As the two women were walking, the deputy sheriffs suddenly stopped their vehicle and approached them. Startled, defendant dropped her pipe but never dropped a piece of paper. Deputy Lopez detained the other woman who repeatedly told him “I’m not with her [defendant], I’m not with her.”
Deputy Veliz asked defendant if she possessed drugs. Defendant replied that she did not. The deputy searched her. Defendant volunteered her true name to Deputy Veliz; she never gave her a false name. After defendant told the deputy that she was on parole, Deputy Veliz handcuffed her and placed her in the patrol car. Defendant observed Deputy Veliz unsuccessfully search the area for 10 minutes for contraband.
Defendant claimed that she was never advised of her Miranda rights.
Meanwhile, Deputy Lopez, who had released defendant’s female companion, entered the patrol car and ran defendant’s name on the MDTS. Deputy Lopez told defendant that he would release her if she told him “[w]ho is the dope dealer over here.” She replied “it is a light-skinned man.”
Defendant did not throw any drugs because she had none on her when the deputies saw her. The deputies planted the cocaine that Deputy Veliz testified that she had found at the scene.
On cross-examination, defendant testified differently about her purchase and use of cocaine on the day of her arrest. She claimed that she had bought “two grams” of cocaine for $50 “about 4:00 in the morning” from a black male with “medium complexion” about “one block away” from 101st Street and Figueroa. She then returned to her hotel room and, using a pipe she had purchased earlier that morning for “a couple of dollars, ” smoked all of the cocaine. She left her room at 10:00 a.m. and went to Tam’s. After completing her meal, she left the restaurant and asked an unidentified female for a ride. During that conversation, the deputy sheriffs suddenly “swooped up.” Startled, she dropped the pipe and was soon arrested.
The defense also called Willie Williams. Williams had suffered five felony convictions: grand theft from the person (1973), possession of marijuana with intent to sell (1991), possession of cocaine base with intent to sell (1992), felon in possession of a firearm (1993), and possession of cocaine base with intent to sell (2005). Williams was not a percipient witness to the events surrounding defendant’s arrest. Instead, he testified to support defendant’s claim that Deputy Veliz had planted the cocaine on her. In that regard, Williams testified as follows.
On October 25, 2008, he (Williams) left a friend’s home to move her car. As he entered the vehicle, a patrol car approached. He exited the vehicle. Deputy Veliz and an unidentified male partner jumped out of the patrol car, pointed guns at him, and told him to freeze. Deputy Veliz searched him but found nothing. Deputy Veliz’s partner found a marijuana cigarette. Williams was charged with possession of rock cocaine based upon evidence that he claimed Deputy Veliz had planted. Williams never filed a complaint about Deputy Veliz’s alleged misconduct.
Lastly, the defense recalled Deputy Veliz as a witness to testify about Williams’ arrest. She denied that she had “stopped him because he was a male Black who happened to be in the area next to a car that was illegally parked” and that she had planted rock cocaine on him. Instead, she explained that she and her partner had initially detained Williams because they believed he was stealing the car he had entered. After learning that he was on parole, she had searched him and recovered the rock cocaine.
Deputy Veliz explained: “[Williams] entered the vehicle. As he looked over his right shoulder he saw us, exited the vehicle suddenly and... distanced himself from the vehicle.” He appeared “startled.”
3. The People’s Rebuttal
In rebuttal, the prosecutor called Deputy Lopez, Deputy Veliz’s partner. Deputy Lopez is a 12-year veteran of the Sheriff’s Department. At the time of defendant’s arrest, he had been Deputy Veliz’s training officer for three months. He corroborated her testimony about the events. He testified that when he first saw defendant, defendant looked “somewhat startled [and] surprised.” He “saw her drop a crack pipe which hit the ground, and a brown paper bindle.” He stopped the patrol car and he and Deputy Veliz exited. He detained defendant. He saw Deputy Veliz recover the dropped items which she then showed to him: a glass crack pipe and a brown paper bindle containing two pieces of rock cocaine. He never saw Deputy Veliz “plant[] any drugs on the defendant.”
Defendant was placed under arrest and read her Miranda rights. Defendant told them that “[s]he’d just got out of jail... for a similar charge, and that she would give us information regarding where she recovered the dope from if we didn’t take her to jail.” Defendant told them that “she had just purchased the dope... [s]o she hadn’t had the time to ingest it.” She explained that she “had purchased the narcotics from a male Black near Figueroa.” Refuting defendant’s testimony about the presence of another woman, Deputy Lopez testified that “[t]here wasn’t anyone walking with her. She was by herself.”
Deputy Lopez remembered that defendant gave them a name but “[w]hat name she gave us, I don’t know.” He did not remember how many times Deputy Veliz ran defendant’s name on the MDTS. He “was standing outside the [patrol car when Deputy Veliz] sat down and started running her.” He did not recall if Deputy Veliz ever stated that a name was “coming up incorrectly.” He did not know why the name Lynette Kelly Lyles had been run on the MDTS a minute before defendant’s name. First, he testified that he was “pretty sure” it happened because defendant “did not give [Deputy Veliz] her correct name initially because she didn’t want to go to jail” but then he conceded that this belief was “speculation” because he had no “factual evidence that that’s what happened.”
4. The Parties’ Closing Arguments
In closing argument, both the prosecutor and defense counsel characterized the case as a credibility contest.
The prosecutor explained that if the jury believed the two deputies’ testimony about their actions (including the recovery of the bindle of cocaine they saw defendant drop), the crime of possession of cocaine had been established beyond a reasonable doubt. If, on the other hand, the jury believed the deputies had planted the cocaine on defendant, the prosecutor stated the jury should find defendant not guilty.
For instance, the prosecutor argued: “It’s simple. She [defendant] had it in her possession. She had it in her hands, and she dropped it, and if you believe both deputies and you consider all the evidence, the photos of booking, and the pipe, and the testimony of both deputies you should vote guilty because the defendant by dropping that items knew of their presence, and she had them in her hands. So all the elements are proved.”
Defense counsel, pointing to the testimony of defendant and Williams, argued the deputies had planted the cocaine they claimed to have seen defendant drop to the ground in a paper bindle. In addition, defense counsel relied upon the fact that a name in addition to defendant’s name had been run through the MDTS to argue that another woman had been present at the scene. From that, he theorized: “[T]hey input her name and the reason why they didn’t do anything with her is because they didn’t have anything to hold her on. They knew that [defendant] dropped the pipe so at least they knew that they could stop her.” But because defendant could not be arrested simply for possessing the pipe, the deputies, according to defense counsel, decided to plant cocaine on her. Defense counsel repeatedly argued that the deputies were “not telling the truth” about the incident.
The jury deliberated less than an hour before finding defendant guilty.
DISCUSSION
A. UNANIMITY INSTRUCTION
Defendant first contends that the trial court committed prejudicial error because it failed sua sponte to submit the pattern unanimity instruction to the jury. CALCRIM No. 3500 provides: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.” Defendant urges the instruction was required because the jury could have convicted her either (1) by believing the two deputies’ testimony that they saw her drop a bindle of cocaine at 11:00 a.m. or (2) by crediting her (defendant’s) in-court testimony that she had purchased drugs earlier that day. Defendant argues that absent the instruction, the jury was not required to unanimously agree which act she committed. On this record, defendant’s argument is not persuasive.
Defense counsel’s failure to request this instruction does not constitute a forfeiture of the claim on appeal. (See People v. Riel (2000) 22 Cal.4th 1153, 1199.)
“[W]hen 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.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In this case, the unanimity instruction was not required because, as set forth below, the prosecutor clearly elected to use as the basis of the charge the bindle of cocaine that the deputies saw defendant drop when they first observed her at 11:00 a.m.
In her opening statement, the prosecutor stated that the evidence would establish that the deputies saw defendant drop a glass pipe and piece of paper; that they retrieved the two items; and that subsequent analysis disclosed that the paper contained rock cocaine. In closing argument, the prosecutor focused solely on defendant’s possession of cocaine as the basis of her case. (See fn. 6, ante.) She stated that given the defense theory that the deputies had planted the cocaine found in the paper bindle, the jury would be required to determine who was telling the truth about defendant’s encounter with the deputies: Deputies Veliz and Lopez or defendant and Williams. Although the prosecutor referred to defendant’s admission that she had purchased cocaine several hours before her encounter with the deputies, the prosecutor never implied, let alone stated, that this earlier possession of cocaine was the basis of the pending charge. Instead, the prosecutor used the admission to show that defendant knew that the substance in the bindle that she had dropped was cocaine. In sum, through her statements and arguments to the jury, the prosecutor clearly elected the 11:00 a.m. possession as the basis of the charge. (People v. Mayer (2003) 108 Cal.App.4th 403, 418-419.) Her references to defendant’s admission of an earlier purchase and possession of cocaine “did not undermine that election.” (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) The trial court was therefore not required to give the unanimity instruction.
In any event, even if we found that the trial court should have submitted the unanimity instruction (a finding we do not make), we would find that the error to do so was harmless. There is a split of authority whether failure to give a required unanimity instruction should be reviewed under Chapman v. California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 818. (See cases cited in People v. Smith (2005) 132 Cal.App.4th 1537, 1545-1546, including fns. 7 & 9.) For purposes of this analysis, we assume Chapman applies. This standard requires the error to be harmless beyond a reasonable doubt. (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) Defendant argues that standard cannot be met “because the jurors could have disbelieved the officers in this matter and still have convicted [her] of possession of rock cocaine based solely on [her] testimony that she had purchased and consumed cocaine prior to her arrest.” As explained below, we disagree.
“Under the [People v. Diedrich (1982) 31 Cal.3d 263] analysis, the test for harmless error is whether the case is one in which the jury’s verdict necessarily implies that it did not believe the only defense offered. [Citations.]” (People v. Gordon (1985) 165 Cal.App.3d 839, 855.) If it is such a case, the instructional error is harmless beyond a reasonable doubt. Applying that test, we find any error was harmless.
As set forth earlier, the prosecutor’s closing argument relied solely on the deputies’ testimony that they observed defendant drop a bindle of cocaine and cast the case as a credibility contest between the deputies and the defense witnesses. Defense counsel’s closing argument took the same approach, explaining at one point: “I think both of these officers are not credible, and you should dismiss their testimony, and if you do the People have no case. It’s as if no one testified in this case.” Referring to defendant’s trial testimony that she had “smoked rock cocaine” earlier on the day of her arrest, defense counsel simply stated: “[T]hat’s not an issue.” Thus, it is clear that both parties framed the case as a credibility contest about the deputies’ observations of and encounter with defendant and both proceeded upon the assumption that the only alleged crime at issue was the one the deputies testified they observed. Neither party ever argued or even implied that defendant could be convicted based upon her in-court admission that she had purchased cocaine earlier that day (an admission that, on direct and cross-examination, was inconsistent as to time and place). We therefore conclude that by convicting defendant after deliberating less than one hour, the jury implicitly rejected the defense theory that the deputies had planted the cocaine, credited the testimony of the two deputy sheriffs and therefore resolved the credibility issue against defendant. “Under these circumstances, there is no rational basis to suspect the jury might have reached a different result had it been instructed with [a unanimity instruction]. In order to conclude the instructional error was prejudicial, we would have to abandon common sense.” (People v. Deletto (1983) 147 Cal.App.3d 458, 473 [applying Chapman test].) In sum we find that any error that may have occurred in failing to give a unanimity instruction was harmless beyond a reasonable doubt.
Defense counsel’s opening statement had also framed the trial as a credibility issue. He stated: “[Y]ou’re going to hear two different stories, and you’re going to have to assess which story is the right story. [¶]... You’re going to hear detailed information from my client as to what happened exactly, ... and you’re going to be left with a choice: has the defense reasonably shown another possible situation here[?] [¶]... [T]he defense will be proffering a reasonable explanation of what happened, and that the only decision that you can come to is not guilty. ”
At sentencing, the trial court noted that the jury had “very quickly” resolved the credibility issue against defendant. The court observed: “I found the two officers to be extremely credible, ... they were both equally credible [and] in this court’s opinion, [Deputy Lopez] did a wonderful job of explaining a number of issues in the case, that probably led to the quick jury verdict in this case.”
B. INSTRUCTION ON THE CORPUS DELICTI RULE
Defendant next contends that the trial court committed prejudicial error because it failed to submit CALCRIM No. 359, the pattern instruction explaining the corpus delicti rule. In so urging, defendant improperly conflates the deputies’ testimony about extrajudicial statements she made to them regarding her purchase of cocaine and her trial testimony that she had purchased cocaine earlier on the day of her arrest. Defendant’s trial testimony did not trigger application of the corpus delicti rule. (People v. Redd (1969) 273 Cal.App.2d 345, 351 [“[T]he corpus delicti may be established by the voluntary testimony of defendant as a witness at the trial.”].) To the extent that the deputies’ testimony about defendant’s extrajudicial statements required submission of CALCRIM No. 359, the failure to so instruct was not prejudicial error.
The trial court did submit CALCRIM No. 358, “Evidence of Defendant’s Statements.” It provided: “You have heard evidence that the defendant made an oral or written statement before the trial. You must decide whether the defendant made any such statement, in whole or in part. If you decide that the defendant made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement. [¶] Consider with caution any statement made by the defendant tending to show her guilt unless the statement was written or otherwise recorded.”
“Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1181.) If it had been given, the instruction would have merely informed the jury that before it could consider defendant’s extrajudicial statements as evidence of her guilt, it was required first to find that other evidence had been presented that supported a reasonable inference that a crime had been committed. Here such evidence was offered. The deputies testified that they recovered the bindle they had seen defendant drop and the parties stipulated that the bindle contained a usable amount of cocaine. Because a rational jury, properly instructed with CALCRIM No. 359, could not, as a matter of law, have found that the prosecution had failed to establish the corpus delicti of the offense of possession of cocaine, the omission of the instruction “is necessarily harmless.” (Ibid.)
C. PITCHESS MOTION
Prior to trial, defense counsel filed a Pitchess motion seeking all complaints lodged against Deputies Veliz and Lopez for false arrest, false police report writing, planting evidence, etc. After the Los Angeles County Sheriff’s Department filed opposition to the motion, the trial court granted the motion “as to false reporting.” On June 8, 2009, the trial court conducted an in-camera hearing. The custodian of records for the Sheriff’s Department attended and was sworn. After the in-camera hearing, proceedings resumed in open court at which the court stated: “[O]ne name, address, phone number will be turned over in one week.” The court issued a protective order regarding disclosure of the information. The court ordered the transcript of the in-camera hearing sealed.
In this appeal, defendant requests that we review the sealed transcript “to determine whether the trial court should have ordered the disclosure of additional evidence.” We have reviewed the sealed transcript and conclude that the trial court’s discovery order was not an abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
D. IMPOSITION OF A $30 SECURITY FEE
When defendant committed the charged offense in February 2009, Penal Code section 1465.8 provided that a $20 fee “shall be imposed on every conviction for a criminal offense” “[t]o ensure and maintain adequate funding for court security.” Effective July 28, 2009, the statute was amended to increase the court security fee to $30. While the amendment was silent as to whether it applied to crimes committed before its effective date, the increase to $30 was effective immediately. The Legislature declared: “This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect.” (Sen. Bill No. 13 (2009-2010 4th Ex. Sess.) § 38.)
Defendant was sentenced in October 2009. Without any objection from defense counsel, the trial court imposed a $30 security fee for her conviction.
Defendant now contends that “[t]he increased court security fee is not applicable to [her] because the Legislature did not expressly provide for its retroactive application.” Suggesting that imposition of a $30 fee violates the prohibition on ex post facto laws, she requests a reduction to $20. The argument lacks merit.
People v. Alford (2007) 42 Cal.4th 749 (Alford) held that Penal Code section 1465.8, subdivision (a) applied to all convictions occurring after its effective date regardless of the date the offense was committed. Alford found that the fee was nonpunitive and adopted as part of a budgetary measure to fund court security. Alford reasoned that if the fee applied only to crimes committed after the statute’s effective date, it “would not have produced the needed revenue in the budget year. The income would only be realized at some future time as the cases wended their way through the system.” (Id. at p. 754.)
By a parity of reasoning, the $10 increase can be applied to defendant even though she committed the crime before the amendment’s effective date. The $30 fee is not punitive so requiring defendant to pay it does not violate the prohibition on ex post facto punishment. Further, the Legislature’s intent that the increase take effect immediately demonstrates that the Legislature intended to raise the maximum amount of money for court security. Applying the increase to crimes committed before the amendment’s effective date effectuates that intent. Defendant’s conviction was therefore properly subject to the increased security fee of $30.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.
In her rebuttal argument, the prosecutor explained: “So when you consider all the testimony, it is reasonable the defendant is guilty. She possessed cocaine; she had it in her hand, she had the pipe in her hand, cocaine pipe, not anything else. She saw [Deputy] Veliz, got startled, dropped the pipe and the cocaine. And she clearly knows what cocaine is, there is no dispute about that and she admitted to buying cocaine, and that is why this case is proven beyond a reasonable doubt, that is why I will ask you to return with a verdict of guilty.”