P. v. Ante

 

 

 

 

 

 

 

 

 

 

Filed 9/12/12  P. v. Ante CA5

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,        Plaintiff and Respondent,        v.   ERIC THOMAS ANTE,        Defendant and Appellant.

F062620   (Super. Ct. No. BF134490A)     >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County.
 Sidney P. Chapin and Lee P. Felice,
Judges.

            Jan B.
Norman, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Tiffany
J. Gates, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

            On
December 15, 2010, the Kern County District Attorney filed an information charging
appellant, Eric Thomas Ante, with possession of a controlled substance,
methamphetamine, in violation of Health and Safety Code section 11377,
subdivision (a); and possession of
paraphernalia used for unlawfully injecting or smoking a controlled
substance, in violation of Health and Safety Code section 11364. 

            Prior
to trial, the defense moved, under Evidence Code section 402, to exclude the
statements made by appellant to a law enforcement officer on >Mirandahref="#_ftn2" name="_ftnref2" title="">>^[1] grounds, but the motion was denied.

            A
jury trial commenced on May 17 and concluded on May 18, 2011.  The
jury found appellant guilty of both counts. 
On June 1, 2011, appellant was placed on probation for three
years pursuant to Penal Code section 1210.1. 
The court also imposed various fines and fees.  On motion by the prosecution, the trial court
dismissed count 2.

>            On appeal, appellant contends that the trial court erred when it denied
his Miranda motion and when it failed
to give a unanimity instruction.  We disagree
and affirm. 

STATEMENT OF FACTS

>Prosecution
Case

On November 2, 2010, at approximately 4:00 p.m., Bakersfield Police Officer Michael Allred
(Allred) and four other uniformed law enforcement officers conducted a search
of the apartment shared by appellant, his two children, his girlfriend and her
two children. 

Upon entering the master
bathroom, Allred found a spoon on the sink counter, which appeared to be
holding a usable amount of methamphetamine. 
He then discovered two syringes in the medicine cabinet and a black
cloth-type zipper pouch in a drawer to the left of the sink.  In the pouch, Allred found a small plastic
baggie that appeared to contain methamphetamine in powder form.  Based upon his experience and training,
Allred opined that the spoon was used to convert the methamphetamine from
powder form to liquid solution, and that the syringes were used to inject the
liquid methamphetamine.  Allred also
stated his belief that both the spoon and plastic bag contained usable amounts
of methamphetamine. 

After collecting the spoon,
syringes, and small plastic baggie, Allred spoke with appellant in the driveway
adjacent to the apartment.  Allred
described to appellant the items he had found in the bathroom, and appellant
admitted that the items were his. 
Additionally, appellant stated that the baggie of methamphetamine was
“old” and that he had forgotten he had it. 
Appellant did not say anything about the syringes being used for medical
purposes, but did tell Allred that he had “been clean” for a while before
recently relapsing into drug use.  Allred
then placed appellant under arrest. 

>Defense
Case

Appellant testified that
during his conversation with Allred, he was asked if the “stuff” found in his
bathroom was his, but Allred did not specify what exactly the “stuff” was.  In response to the question, appellant asked
if Allred was referring to the marijuana appellant had left on the bathroom
counter.  After further questioning,
appellant admitted that the syringes were his.

Appellant claimed he had no
knowledge of the spoon or the black zipper pouch found in his bathroom.  When Allred asked appellant about the
methamphetamine found in the bathroom, he told Allred that it must have been
old because he could not remember it being there.  Appellant did tell Allred that he had a drug
problem in the past and recently relapsed, but stated that he was referring to
using marijuana, not methamphetamine. 

Appellant had a prescription
for syringes used to inject his diabetic son with insulin, but failed to
mention this to Allred because he was frightened at the time of the
conversation.  Specifically, appellant
testified that his fear was caused by the number of police officers present and
his previous criminal record,
consisting of three prior convictions. 
Appellant claimed that Allred threatened to arrest his girlfriend, at
which point appellant told him that everything he found was his.  Appellant testified that he was still
uncertain about how those items got into his bathroom, but took responsibility
for ownership of them so that his girlfriend would be able to stay at home and
take care of the children.  

Prosecution Rebuttal Case

On rebuttal, Allred testified
that he did not find any marijuana in appellant’s bathroom, that appellant did
not mention that his son used insulin, and that he did not threaten to arrest
Solis. 

>DISCUSSION

I.

Appellant asserts that the trial court erred
in denying his motion to exclude his statements to Allred because he was in “custody”
when those statements were made and was not read his Miranda rights.  However,
appellant’s argument fails because he was not subject to custodial
interrogation when he made self-incriminating statements to Allred.  Thus, the trial court properly denied
appellant’s motion.

Motion in Limine
Hearing

            Prior to
trial, appellant moved to exclude his pretrial statements to Allred because he
was subject to custodial interrogation in violation of Miranda.  At the Evidence
Code section 402 hearing on the admissibility of the statements, the following
was adduced.

            On November 2, 2010, at 4:00 p.m., Allred and four other officers
arrived at appellant’s apartment, which he shared with his girlfriend, and
received permission to search.  During
the 20-minute search, officers discovered, in the master bathroom, a couple of
syringes, a spoon with a small quantity of methamphetamine on it in, and a
black zipper pouch which contained a small bag of suspected methamphetamine in
it. 

            After
locating these items, Allred spoke to appellant outside the apartment, on the
driveway.  Allred spoke to appellant, who
was not placed under formal arrest at this point, in a nonthreatening manner
and informed him of the items he had found. 
After describing the items to appellant and describing where the items
were found, appellant admitted that the items were his.  According to Allred, “Right after I described
what I had found, he basically stated that they were his, on his own, without
me asking him anything.”  Appellant told
Allred that he believed the methamphetamine was old and had been there for
awhile and that he had forgotten he had it. 
After this “brief discussion,” Allred placed appellant under
arrest.      

            Allred
acknowledged that appellant was not free to leave the apartment during the
search, nor was he free to leave while he was speaking to him outside on the
driveway.  

            After
argument by counsel, the trial court found that there was “not an
interrogation,” and denied the motion. 

Applicable Legal
Principles

            To invoke
the protections of Miranda, a suspect
must be subjected to a “custodial interrogation,” i.e., he or she must be
“taken into custody or otherwise deprived of his freedom of action in any
significant way.”  (Miranda, supra, 384 U.S. at p. 444.)  “[T]he ultimate inquiry is simply whether
there is a ‘formal arrest or restraint on freedom of movement’ of the degree
associated with a formal arrest.”  (>California v. Beheler (1983) 463 U.S.
1121, 1125, quoting Oregon v. Mathiason
(1977) 429 U.S. 492, 495.)  Where no
formal arrest has taken place, the pertinent question is “how a reasonable man
in the suspect’s position would have understood his situation.”  (Berkemer
v. McCarty (1984) 468 U.S. 420, 442.) 


            The second
component of custodial interrogation is obviously interrogation.  Interrogation is defined as express
questioning or its “functional equivalent,” i.e., by words or actions on the
part of police that they should know are “reasonably likely to elicit an
incriminating response.”  (>Rhode Island v. Innis (1980) 446 U.S.
291, 303; People v. Mickey (1991) 54
Cal.3d 612, 648.)  Spontaneous statements
are not the product of interrogation and therefore are not violative of >Miranda. 
(People v. Mickey, supra, at
p. 648.) 

            Here,
Allred testified that appellant was not free to leave when he was out on the
driveway with him.  He was therefore in
custody at the time.  But, we agree with
the trial court that no interrogation occurred. 
People v. Haley
(2004) 34 Cal.4th 283 (Haley) is
instructive.  In Haley, a detective said to the defendant, a murder suspect, “‘[W]e
know that you did kill [the victim],’” after telling him that his fingerprints
were found at the crime scene; the defendant replied, “‘You’re right.  I did it.’” 
(Id. at pp. 296, 300.)  In this case the Supreme Court held that the
defendant’s statements were not a result of an interrogation within the meaning
of Miranda because the detective did
not phrase his statement as a question, and the statement did not necessarily
call for an incriminating response.  (>Id. at p. 302.)  The court reasoned that “[a] brief statement
informing an in-custody defendant about the evidence that is against him is not
the functional equivalent of interrogation because it is not the type of statement
likely to elicit an incriminating response.” 
(Ibid.) 

            The ruling in >Haley contradicts appellant’s assertion
that the trial court should have excluded his statements to Allred.  Under Haley,
even if appellant was in custody when the statements were made to Allred, the
statements are admissible because they were not the product of
interrogation.  (Haley, supra, 34 Cal.4th at p. 295.)  Similar to the detective in >Haley, Allred did not phrase his
statement to appellant as a question. 
Furthermore, Allred’s statement was even less likely to elicit an
incriminating response than the detective’s in Haley.  In >Haley, the detective told the defendant
that he “knew” the defendant killed the victim (id. at p. 290), while Allred expressed no belief as to the
appellant’s guilt or innocence.  Thus,
under these circumstances, appellant’s self-incriminating statements were not
the product of an interrogation.

            In sum, the
self-incriminating statements made by appellant to Allred were unsolicited
voluntary admissions that were not the product of a custodial
interrogation.  Therefore, Allred did not
have a duty to read appellant his Miranda
rights prior to showing him the objects he found, and the trial court properly
denied appellant’s motion to exclude his statements. 

II.

            Appellant claims the
trial court erred in failing to give a unanimity instruction because the jury
was given evidence of two separate items containing different amounts of
methamphetamine upon which they could have convicted appellant.  Notwithstanding this argument, no unanimity
instruction was required in this scenario, and further, any error in failing to
instruct the jury on unanimity was harmless. 


>Applicable
Legal Principles

Under California law, a unanimity instruction
must be given sua sponte by the trial court when more than one act could
support a single charged offense, and the prosecution does not rely on any
single act.  (People v. Flores (2007) 157 Cal.App.4th 216, 222.)  A unanimity instruction is designed to
prevent a defendant from being convicted when the jury does not agree that the
defendant committed any single offense. 
(Ibid.)  The trial court has a duty to give a
unanimity instruction whenever the circumstances of the case make it
appropriate.  (People v. Carrera (1989) 49 Cal.3d 291, 311 fn. 8.)

In a prosecution for possession of narcotics,
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 (King).)  Among the factors to be considered in
determining when a unanimity instruction is necessary are whether the defendant
raised separate defenses to separate narcotic items and whether there is href="http://www.fearnotlaw.com/">conflicting evidence over ownership of
such items.  (See People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071 (>Castaneda).) 

In King,
for example, the defendant was convicted of possession for sale where
methamphetamine was found in two different locations of defendant’s home; in a
purse found in the living room, and inside a decorative statue in the
kitchen.  (King, supra, 231
Cal.App.3d at pp. 497-498.)  The evidence
showed that the purse was the property of someone else, the home had multiple
occupants, and the defendant’s boyfriend testified that some of the drugs
belonged to him.  (Id. at pp. 497-500.)  Because
the two units of methamphetamine were in separate parts of the house and there
was evidence that could lead a reasonable jury to believe that it was possessed
by another person, the court in King
concluded that a unanimity instruction was required.  (Id.
at pp. 501-502.)

Similarly, in Castaneda, the court concluded that a unanimity instruction was
required where the defendant’s conviction for possession of heroin could have
been based upon either constructive possession of heroin found on his
television set or actual possession of heroin found in his pocket at the
sheriff’s station.  (Castaneda, supra, 55
Cal.App.4th at pp. 1070-1071.)  The court
held that these acts of possession were distinct, and pointed out that the defendant
provided separate defenses to each act: (1) that the heroin found on the
television was his son’s, and (2) that the heroin found in his pocket was
planted or otherwise fabricated.  (>Id. at p. 1071.)  Thus, the court concluded that, under those
circumstances, the trial court had a sua
sponte duty to give the jury a unanimity instruction on which act or acts
constituted the offense of possession.  (>Ibid.) 


This case is distinguishable from >King and Castaneda.  Unlike >King and Castaneda, the two items containing methamphetamine in this case
were not reasonably distinguishable by separation of either time or space.  Conversely, the items were found during the
same search, at the same time, and only inches apart -- the spoon on the
counter, and the baggie in a drawer adjacent to the counter.  Additionally, in contrast to >King and Castaneda, there was no evidence indicating that a reasonable jury
could find that the two items containing methamphetamine belonged to someone
other than appellant.  While the evidence
showed that appellant lived there with his girlfriend, there is no evidence
tending to show that she or anyone else possessed the spoon or baggie.  Further, appellant presented the same defense
for the spoon and the baggie -- that he did not know of their presence in the
bathroom, so they must have been old. 
Because the two items containing methamphetamine were not reasonably
distinguishable by separation of time or space, and there was no conflicting evidence
of ownership or varying defenses offered for the items, the trial court was not
required to give a unanimity instruction. 


            Appellant argues that
the trial court’s failure to give a unanimity instruction was not harmless
beyond a reasonable doubt.  We
disagree. 

            There is a split among
the Courts of Appeal as to the standard for harmless error when a trial court
erroneously fails to give a unanimity instruction.  (See People
v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [collecting cases].)  Some courts have applied the state law
standard of harmless error, which asks whether “it is reasonably probable that
a result more favorable to the appealing party would have been reached in the
absence of the error.”  (>People v. Watson (1956) 46 Cal.2d 818,
836.)  Courts using this standard reason
that there is no federal constitutional right to a unanimous jury verdict.  (See, e.g., People v. Vargas (2001) 91 Cal.App.4th 506, 562 [holding that the
test as enunciated in People v. Watson,
supra, 46 Cal.2d 818, provides the correct standard for reviewing prejudice
when the trial court fails to give a unanimity instruction].)  Other courts, including this Court, apply the
more stringent federal law standard, which provides that, “before a federal
constitutional error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.”  (Chapman
v. California (1967) 386 U.S. 18, 24; See, e.g., People v. Gary (1987) 189 Cal.App.3d 1212, 1218; >People v. Metheney (1984) 154 Cal.App.3d
555, 563, fn. 5) 

Even if we assume that a unanimity
instruction should have been given, and apply the stricter federal law
standard, the error was still not prejudicial. 
Specifically, under this standard, failure to give a unanimity
instruction is harmless “[w]here the record provides no rational basis, by way
of argument or evidence, for the jury to distinguish between the various acts,
and [therefore,] the jury must have believed beyond a reasonable doubt that
defendant committed all acts if he committed any ….”  (People
v. Thompson (1995) 36 Cal.App.4th 843, 853.)  For example, in a case where the defendant
offered the same defense to all criminal charges against him, and “the jury’s
verdict implies that it did not believe the only defense offered,” the failure
to give a unanimity instruction is harmless error.  (People
v. Diedrich (1982) 31 Cal.3d 263, 283.) 
Failure to give a unanimity instruction is also considered harmless “if
the record indicate[s] 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 ….”  (People
v. Jones (1990) 51 Cal.3d 294, 307.)

            Here, appellant argued
that the methamphetamine was not his because he did not know that it was in the
bathroom.  Appellant made this assertion
with knowledge that two different items containing methamphetamine were found
very close to each other in the bathroom, and did not distinguish between the
two items.  Despite this defense, the jury
found appellant guilty of possession of methamphetamine.  Because both units were close together and
the appellant’s defense was the same for both units, the verdict implies that
the jury did not believe that appellant did not know that there was methamphetamine
in his bathroom.  Thus, since the jury
rejected the only defense appellant offered for possession of two units of
methamphetamine in close proximity, the trial court’s failure to give the
unanimity instruction was harmless beyond a reasonable doubt. 

DISPOSITION

The judgment is affirmed.