Opinion
A146649
10-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTHONY VELEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-142490-2)
After a jury trial, defendant was convicted of being a felon in possession of ammunition. (Pen. Code, § 30305, subd. (a)(1).) Defendant contends the trial court erred in failing to give a unanimity instruction. Defendant also asks this court to conduct an independent review of two in camera hearings to determine whether the trial court erred in denying his motion to quash and traverse a search warrant or abused its discretion by denying discovery of police personnel records. Under the circumstances of this case, we conclude the failure to give a unanimity instruction was reversible error because the evidence disclosed more than one way in which defendant might have possessed ammunition and it is not clear beyond a reasonable doubt the jurors unanimously agreed he committed the same criminal act. We reject defendant's other claims of error.
All statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In January 2014, approximately 10 police officers appeared at defendant's residence to execute a search warrant. Defendant lived in a duplex with his girlfriend and her daughter. Their neighbor, Cindy F., lived next door in the other unit of the duplex.
During the search, officers discovered a storage shed in defendant's backyard, approximately 10 feet by 15 feet in size. Defendant had been sharing the shed with Cindy F. since 2008, under the lease agreement with their landlord. Both defendant and Cindy F. had keys to access the shed, and defendant had seen her allow other individuals to use the shed a number of times.
When Officer Travis Wrangham entered the shed, he noted it was cluttered and appeared to be used as both a storage area and a workshop. The officer found toolboxes, tools, benches, a motorcycle in disrepair, and other miscellaneous items. He also located pieces of mail with defendant's name on them, as well as a chop saw with a piece of duct tape on it that read "Joe Velez." When searching inside a toolbox located along the back wall to the left side of the shed, Wrangham found a Smith & Wesson .357 revolver loaded with two .38 bullets and three .357 bullets. He also discovered a metal gun case with a Smith & Wesson logo that contained cleaning brushes and cleaning solution. In a storage crate on a shelf above the toolbox containing the gun, Wrangham also found a clear plastic bag with seven .357 bullets. In yet another location of the shed, he found a box of 12-gauge shotgun shells.
After finding the gun, Wrangham showed it to Officer Dale Hadley, who took it into the kitchen. Defendant was seated on a couch where he could see Hadley at the time. Hadley testified defendant said, "You found the gun, Hadley," and Hadley replied, "I did." Hadley stated he then overheard defendant say, "I found that in the park." Defendant, who also testified at trial, denied making the statements. Defendant claimed he overheard Hadley say he found the gun and defendant asked, "You found a gun?" Defendant denied having any knowledge of the gun.
An information was filed charging defendant with one count of possession of a firearm by a felon, unlawful possession of ammunition, and unlawful possession of a controlled substance. Defendant's first trial ended in a mistrial after the jury hung on all three counts. On retrial, the jury found defendant guilty of unlawful possession of ammunition, not guilty of unlawful possession of a controlled substance, and failed to reach a verdict on possession of a firearm. At sentencing, the court suspended imposition of sentence, granted court probation for three years, and ordered defendant to serve 30 days in jail.
II. DISCUSSION
A. Unanimity Instruction
Defendant contends the trial court's failure to give a sua sponte unanimity instruction is reversible error. He argues because there were three different caches of ammunition and he presented two different defenses, not all jurors may have agreed on which act of possession constituted the crime, in violation of his due process rights. We review defendant's claim of instructional error de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
Under the California Constitution, a unanimous jury verdict is required to convict a person of a criminal offense. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) The jury must agree unanimously that the defendant is guilty of a specific crime. (People v. Hernandez (2013) 217 Cal.App.4th 559, 569 (Hernandez).) "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." (Russo, at p. 1132.) A trial court has a sua sponte duty to give a unanimity instruction when the circumstances require one. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
"In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. [Citation.] In the first situation, but not the second, it should give the unanimity instruction." (Hernandez, supra, 217 Cal.App.4th at p. 570.) In cases involving possession of contraband, courts have held a unanimity instruction is required "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 . . . ." (People v. King (1991) 231 Cal.App.3d 493, 501-502, 497-499 [unanimity instruction required where officers discovered methamphetamine inside a purse in the living room and in a statue on a shelf in the kitchen and the defendant claimed different individuals owned the drugs]; see People v. Crawford (1982) 131 Cal.App.3d 591, 595, 598-599 (Crawford) [unanimity instruction required where police discovered four firearms in three different locations in house and there were unique possessory facts as to each].)
The Crawford decision is instructive. In Crawford, the trial court erred in failing to instruct on unanimity even as to two handguns found in the same room because "the evidence presented at trial, if believed, suggested the circumstances surrounding the .22 luger were different than those surrounding either of the .357 magnums, nor were the relevant indicia of possession as to each .357 magnum similar. Certain jurors might quite easily have been persuaded beyond a reasonable doubt that appellant possessed one gun, but not another." (Crawford, supra, 131 Cal.App.3d at p. 598.) As to constructive possession, "[w]hile possession of all guns was not fragmented as to time, the possession was fragmented as to space." (Id. at p. 599.) Because guns were found in different parts of the house, "the evidence showed unique facts surrounding the possessory aspect of each weapon." (Ibid.)
Here the facts are analogous. The different units of ammunition were found in three locations within the shed: (1) bullets in the loaded .357 firearm were located in a toolbox along the back wall; (2) .357 bullets were found in a plastic bag in a storage crate on a shelf above the gun; and (3) 12-gauge shotgun shells were found on a shelf in another location in the shed. Some of the ammunition was concealed while some may have been visible. The gun was underneath a cloth inside a toolbox, the plastic bag of bullets was in a storage crate, and the shotgun shells were on a back shelf. The prosecutor did not elect which act of possession constituted the crime.
Nor did the information identify the type of ammunition defendant was charged with possessing.
Moreover, defendant's testimony, if believed, revealed the circumstances surrounding the distinct units of ammunition were different. To find defendant guilty of possession of ammunition, the jury was required to find defendant both possessed the ammunition and knew he possessed it. (See CALCRIM No. 2591; see also People v. Blakely (2014) 225 Cal.App.4th 1042, 1052 [elements of felon-in-possession offense are conviction of felony and ownership or knowing possession, custody or control of prohibited object].) Defendant testified he "had no clue, no idea" there was a gun in the shed, and denied admitting to Hadley the gun was his. As to the shotgun shells, he stated he knew they were on the back shelf of the shed, but he did not know who had put them there. Because the different types of ammunition were separated by place in different locations within the shed, and there were different circumstances as to defendant's knowledge such that the jury could distinguish among them, a unanimity instruction was required. (See, e.g., Crawford, supra, 131 Cal.App.3d at p. 599.)
Failure to give a unanimity instruction is governed by the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Under this standard, "Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless." (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)
There is a split of opinion as to whether the state law harmless error standard of People v. Watson (1956) 46 Cal.2d 818 or the federal Chapman standard applies to the failure to give a unanimity instruction. We follow the majority of courts, including our colleagues in the First Appellate District, that have applied the stricter Chapman standard. (See Hernandez, supra, 217 Cal.App.4th at p. 576; People v. Wolfe (2003) 114 Cal.App.4th 177, 188; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536; People v. Ramirez (1987) 189 Cal.App.3d 603, 615, fn. 13, disapproved on other grounds in Russo, supra, 25 Cal.4th at pp. 1136-1137.)
Here, the evidence and argument provided a reasonable basis for the jurors to distinguish between the acts of possession. As discussed above, the different units of ammunition were reasonably separated by space in different parts of the shed, and defendant admitted seeing the shotgun shells on the shelf, but denied any knowledge of the gun. Further, the jury did not resolve the basic credibility dispute against defendant. The fact the jury hung on the possession of firearm offense shows at least some jurors may have believed defendant's testimony he did not know anything about the gun (and inferentially, the bullets inside it or the same caliber bullets above it). The jury's inability to agree on the gun charge poses a risk that some jurors concluded defendant possessed the bullets in the gun or in the storage crate, while others based their verdict on the shotgun shells found on the shelf. (See, e.g., Hernandez, supra, 217 Cal.App.4th at p. 577, fn. 11 [fact that jury acquitted on one charge and was unable to unanimously agree on another "indicates the jury did find the defense's evidence credible in some regard" and did not reject defendant's defenses " 'in toto' "].)
The record also reveals this was a very close case. It was tried twice—the first trial resulted in a hung jury on all three counts. In the second trial, the jurors sent out several notes on the issue of possession, asking whether it would be legal for a neighbor to have guns and ammunition in the shared shed and whether defendant could live with someone who possesses a gun, and asked for a readback of defendant's and his landlord's testimony. (People v. Diaz (2014) 227 Cal.App.4th 362, 384-385 [jury's request for readback of testimony is an indication of a close case and fact previous trial resulted in hung jury supports a finding of prejudicial error].) Because the evidence provides a rational basis for distinguishing between the different units of ammunition, this was a close case, and the jury's verdict does not demonstrate the jurors believed beyond a reasonable doubt he was guilty of all acts of possession if he was guilty of any, we cannot conclude the error was harmless. B. Hobbs Hearing
Defendant filed a motion to traverse and quash the warrant authorizing the search of his residence, unseal the affidavit supporting the warrant, and suppress all evidence discovered in the search. The trial court denied the motion. Defendant requests this court conduct an independent review of the sealed portion of the affidavit supporting the search warrant and the transcript of the in camera hearing conducted pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) to determine if the trial court erred in sealing the affidavit and denying the motion.
In Hobbs, the California Supreme Court outlined procedures for a trial court to follow when presented with a motion to quash or traverse a search warrant where any portion of the search warrant affidavit has been sealed to protect the confidentiality of an informant. (Hobbs, supra, 7 Cal.4th at pp. 972-975.) In such a case, the court shall conduct an in camera hearing to determine whether sufficient grounds exist for maintaining the confidentiality of the informant's identity, and whether the extent of the sealing is necessary to protect the informant's identity. (Id. at p. 972.)
"If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendant's general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit . . . . Generally, in order to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit included a false statement made 'knowingly and intentionally, or with reckless disregard for the truth,' and (2) 'the allegedly false statement is necessary to the finding of probable cause.' " (Hobbs, supra, 7 Cal.4th at p. 974.) If the trial court determines the defendant's charges of material misrepresentation are unsupported, the trial court must inform the defendant and deny the traverse. (Ibid.)
"Similarly, if the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant [citation], the court should proceed to determine whether, under the 'totality of the circumstances' presented in the search warrant affidavit . . . there was a 'fair probability' that contraband or evidence of a crime would be found in the place searched pursuant to the warrant." (Hobbs, supra, 7 Cal.4th at p. 975.) If the court determines the affidavit furnished probable cause for issuance of the warrant, the court must inform the defendant and deny the motion to quash. (Ibid.)
We have independently reviewed the transcript of the in camera hearing and the sealed and unsealed portions of the search warrant affidavit. We conclude the trial court appropriately determined the confidential portion of the affidavit should remain sealed to protect the identity of the confidential informant. We also find nothing to suggest the affidavit contained false statements or omissions, and the sealed portion of the affidavit set forth sufficient evidence to support the finding of probable cause to issue the warrant. Defendant's motion to quash and traverse the warrant was properly denied. C. Pitchess Hearing
Before trial, defendant filed a Pitchess motion, seeking discovery of any personnel records of Officer Dale Hadley relating to, among other things, dishonesty or the fabrication of evidence. The court granted the motion as to reports of dishonesty, held an in camera hearing, and determined the personnel file did not contain any discoverable information. Defendant now asks us to independently review the sealed record to determine whether the trial court abused its discretion in failing to provide any documents contained in Hadley's personnel file.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). --------
Under well-established Pitchess procedure, a criminal defendant may bring a motion to discover law enforcement personnel records relevant to the defendant's defense. (People v. Mooc (2001) 26 Cal.4th 1216, 1225.) If the court finds the defendant has shown good cause for the discovery, the court must conduct an in camera hearing to determine if any relevant records must be produced. (Id. at p. 1226.) At the hearing, the custodian of records must bring to court all documents " 'potentially relevant' " to the defendant's motion. (Id. at pp. 1228-1229.) The trial court must make a record of the documents it examined in ruling on the motion sufficient to permit appellate review. (Id. at p. 1229.) The court may photocopy the documents and place them in a confidential file, prepare a list of the documents it considered, "or simply state for the record what documents it examined." (Ibid.) To protect privacy concerns, the hearing transcript and any documents copied for the record must be sealed. (Ibid.) On appeal, this court reviews the "record of the documents examined by the trial court" to determine if the trial court abused its discretion in failing to disclose any records. (Ibid.)
We have examined the sealed reporter's transcript of the May 15, 2015 in camera Pitchess hearing. The custodian of records was properly sworn. Although our record does not contain a copy of the documents the custodian of records brought to the hearing, the trial court reviewed Hadley's entire personnel file and thoroughly described its contents. A transcript reflecting such descriptions "is adequate for purposes of conducting a meaningful appellate review" of a court's determination whether personnel files contain any material subject to disclosure. (People v. Myles (2012) 53 Cal.4th 1181, 1209.) Our review reveals no abuse of discretion by the trial court.
III. DISPOSITION
The judgment is reversed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.