Filed
3/29/13 P. v. Chavez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. IMELDA CHAVEZ, Defendant and Appellant.

F063170 (Madera Super. Ct. No. MCR037736B) >OPINION

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

APPEAL from
a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.

Jean M.
Marinovich, 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, Michael A. Canzoneri and Sean
M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

>INTRODUCTION

Appellant/defendant
Imelda Chavez was charged and convicted of count I, felony possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and count
II, misdemeanor possession of narcotics paraphernalia (Health & Saf. Code,
§ 11364, subd. (a)). She was placed
on probation.

On appeal,
defendant contends the court erroneously admitted evidence of her admission
that she previously used methamphetamine, and defense counsel was prejudicially
ineffective for failing to request a limiting instruction as to the jury’s
consideration of her admission.
Defendant further argues the court had a sua sponte duty to give the
unanimity instruction. We will affirm.

>FACTS

On December
15, 2009, Madera Police Officer Matthew McCombs was dispatched to a residential
area to investigate a possible burglary.
While investigating that case, the neighbors reported a large amount of
suspicious activity and constant foot traffic at a particular residence
there. McCombs determined that Agapito
Obregon, a probationer, lived in a converted garage behind that particular
residence.

Officer
McCombs went to Obregon’s residence and made contact with him. He entered the property to look for stolen
goods. Defendant Imelda Chavez and
codefendant Norris were in the front room of the residence.

McCombs
testified that he immediately saw a plastic box on the living room’s coffee
table which contained 3.1 grams of methamphetamine. A smoking pipe was next to the box. A digital scale and a cell phone were also on
the table.

Officer McCombs conducted a consent
search of Norris and found a plastic bag in her pocket. It contained 0.2 grams of
methamphetamine. Norris said the
methamphetamine on the coffee table belonged to Obregon. Officer McCombs called for backup assistance.

Officer Jason Gutknecht arrived and
spoke to defendant, who said that she shared the residence’s single bedroom
with Obregon. Defendant said she had
been staying there for two months, and she used the bedroom dresser.

Officer Gutknecht testified the
dresser contained women’s clothing, several broken watches, and purses. A blue purse contained a plastic bag with 0.2
grams of methamphetamine and a glass smoking pipe.

Officer Gutknecht testified that he
advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. He asked defendant about the blue purse and
the drugs. Defendant said the purse
belonged to her. Gutknecht asked her if
the methamphetamine and pipe belonged to her, and defendant said no. Defendant said she kept old watches in the
purse.

The prosecutor asked Officer
Gutknecht whether defendant said she used methamphetamine. Defense counsel objected on relevance
grounds. The court overruled the
objection.

Officer Gutknecht testified that
defendant said she used methamphetamine the day prior to the search, and she
ingested the drug by using a methamphetamine pipe, similar to the one found in
the house.

>DEFENSE EVIDENCE

Defendant
testified that Obregon used to be her boyfriend. In July 2009, she began staying at his
residence on weekdays because it was just a short walk to her adult
school. In August 2009, she stopped
attending school, and she ended her relationship with Obregon. Defendant testified she moved out in November
2009 because Obregon had other girlfriends and liked to party. However, she still kept some things at his
house, and she would occasionally visit.

Defendant
testified that at the time of the search, the only property she kept at
Obregon’s house was a duffle bag of clothing, a few purses, shoes, and
jeans. She admitted that she kept
clothing in the bedroom dresser.

Defendant
testified that she spoke to Officer McCombs on the day of the search. McCombs might have asked her about the blue
purse and its contents. Defendant did not
recognize Officer Gutknecht at trial and testified she never spoke with
him. Defendant testified that she never
told any officer that the methamphetamine and pipe in the purse belonged to
her, and she never said that she used methamphetamine.

Defendant
admitted that she told an officer that the blue purse belonged to her, and that
she kept watches in the purse. Defendant
testified that the methamphetamine and pipe found in that purse did not belong
to her. Defendant also claimed that she
had lost the blue purse at Obregon’s house about two months before the search.

On
cross-examination, the prosecutor asked defendant if she had used
methamphetamine in the past. Defense
counsel objected on relevance grounds.
The prosecutor replied:
“Knowledge, your Honor.” The
court overruled defense counsel’s objection.
Defendant answered the question and said she had used methamphetamine in
the past, but she had last used the drug in 1997 or 1998.

Also on cross-examination, the
prosecutor asked defendant if she had been convicted of possession of
methamphetamine in 2004. Defendant
answered, “Yes, I was[,]” just before defense counsel objected. The court sustained the objection and instructed
the jury to disregard “for all purposes and not to consider in any part of your
deliberations the question and answer last posed. The matter is stricken.”href="#_ftn2" name="_ftnref2" title="">^[1]

>PROCEDURAL HISTORY

Defendant
and codefendant Norris were both charged with count I, possession of
methamphetamine, and count II, misdemeanor possession of narcotics paraphernalia.

Codefendant Norris pleaded guilty
to count I. After a jury trial,
defendant was convicted of counts I and II.
She was placed on probation.

>DISCUSSION

I. Evidence of defendant’s admissions about
prior drug use

Defendant
raises several issues as to the court’s admission of evidence about her
admissions that she used methamphetamine the day before the search. First, defendant contends the court
erroneously permitted introduction of this evidence through the testimony of
Officer Gutknecht and cross-examination of defendant during trial.

Second, defendant argues that while
defense counsel raised relevance objections to this evidence, he was
prejudicially ineffective for failing to object to the testimony as
inadmissible character evidence pursuant to Evidence Code section 1101.

Finally,
defendant argues that defense counsel was ineffective for failing to request an
instruction on the limited admissibility of this evidence, and counsel’s
failure to request the instruction was prejudicial because the prosecutor urged
the jury to rely on defendant’s admission of prior drug use for the improper
purpose of propensity evidence.

A. >Possession

We begin
with the limited admissibility of prior drug use in narcotics
prosecutions. “The crime of possession
of methamphetamine consists of four elements:
(1) defendant exercised control over or the right to control an amount
of methamphetamine; (2) defendant knew of its presence; (3) defendant knew
of its nature as a controlled substance; and (4) the substance was in an
amount usable for consumption.
[Citations.]” (>People v. Tripp (2007) 151 Cal.App.4th
951, 956 (Tripp), italics in
original.)

“ ‘It
is well settled, of course, that in a prosecution for unlawful possession of
narcotics, it is incumbent upon the prosecution to present evidence from which
the trier of the facts reasonably may infer and find that the accused had
dominion and control over the contraband with knowledge of its presence and
narcotic character.… [Citation.]’ It is also well settled, however, that each
of these essential elements may be proved by circumstantial evidence and any
reasonable inferences drawn from such evidence.
[Citations.]” (>Tripp, supra, 151 Cal.App.4th at p. 956.)

“[K]nowledge
by the accused of the character of the contraband is an essential element of
possession. [Citations.]” (People v. Williams (1971) 5 Cal.3d
211, 215.) Knowledge of a substance’s
narcotic nature may be shown in a variety of ways, including “by evidence
showing a familiarity with the substance, such as needle marks or other
physical manifestations of drug use or
instances of prior drug use [citations].”
(Tripp, supra, 151 Cal.App.4th
at p. 956, italics added.)

“As a
general rule, evidence the defendant has committed crimes other than those for
which he is on trial is inadmissible to prove bad character, predisposition to
criminality, or the defendant’s conduct on a specific occasion. [Citation.]
However, Evidence Code section 1101, subdivision (b), permits evidence
of a defendant’s past criminal acts when relevant to prove a material fact at
issue, such as identity, motive, or knowledge.
[Citations.]” (>People v. Williams (2009) 170
Cal.App.4th 587, 607.)

In the prosecution of drug crimes, evidence
of the defendant’s prior drug name="SR;2856">use is generally admissible under Evidence Code section
1101, subdivision (b), “to prove knowledge of the narcotic nature of the
drugs. [Citation.]” (People
v. Williams, supra, 170 Cal.App.4th at p. 607; People v. Earley
(2004) 122 Cal.App.4th 542, 546-548; see also People v. Morales
(1979) 88 Cal.App.3d 259, 264; People v. Perez (1974) 42 Cal.App.3d 760,
764.)

For example, in People v. Thornton (2000) 85 Cal.App.4th 44, the defendant was
charged with possession of heroin. A
syringe was found in his car, and heroin was found in the police car into which
the defendant was placed after his arrest.
Thornton held that the
defendant’s statement to the arresting officer, that he had only used heroin a
few times, was admissible to show the defendant’s knowledge
of the nature of the substance alleged to be in his possession. (Id.
at pp. 47-48.)

B.
>Admission
of defendant’s statements about her prior drug use

As applied to this case, the court
did not abuse its discretion when it permitted Officer Gutknecht to testify
about defendant’s admission that she used methamphetamine the day before the
search, which she denied when she testified.
In addition, the court did not abuse its discretion when it permitted
the prosecution to cross-examine defendant about her prior drug use. Similarly, defense counsel was not
ineffective for failing to object to the testimony as inadmissible character
evidence under Evidence Code section 1101, subdivision (b) because the evidence
was relevant, probative, and admissible.

Defendant admitted that she kept belongings
in the bedroom dresser and that the blue purse belonged to her. However, she denied any knowledge of the
methamphetamine and pipe found in that purse, claimed she only kept broken
watches in that bag, and also claimed that she did not regularly live there
anymore. The prosecution had the burden
of proving that defendant knew of the nature and character of the contraband
found in the blue purse as a controlled substance. Evidence of defendant’s previous admission to
Officer Gutknecht, that she had used methamphetamine, was highly relevant and
probative to the disputed issue of knowledge, and the court did not abuse its
discretion when it permitted the prosecution to ask both Officer Gutknecht and
defendant about her prior methamphetamine use.
Defendant’s out-of-court statements to Officer Gutknecht were admissible
pursuant to the admission exception to the hearsay rule. (Evid. Code, §§ 1204, 1220.)

C. >Failure
to request a limiting instruction

Defendant
next argues that defense counsel was prejudicially ineffective for failing to
request a limiting instruction to the jury, that evidence of her prior
methamphetamine use was only relevant to prove knowledge of the nature and
character of the substance, and the evidence was not admissible to prove her
character or disposition to use narcotics.

“To establish ineffective
assistance, defendant bears the burden of showing,
first, that counsel’s performance was deficient, falling below an objective
standard of reasonableness under prevailing professional norms. Second, a defendant must establish that,
absent counsel’s error, it is reasonably probable that the verdict would have
been more favorable to him.
[Citations.]” (People v.
Hawkins (1995) 10 Cal.4th 920, 940, overruled on other grounds in People
v. Lasko (2000) 23 Cal.4th 101, 110 and People v. Blakeley (2000) 23
Cal.4th 82, 89.) “If the record on
appeal fails to show why counsel acted or failed to act in the instance
asserted to be ineffective, unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation, the claim must be rejected on appeal. [Citation.]”
(People v. Kraft (2000) 23
Cal.4th 978, 1068-1069.)

“[A]lthough a court should give a
limiting instruction on request, it has no sua spontename="SDU_889"> duty
to give one. [Citations.]” (People
v. Hernandez (2004) 33 Cal.4th 1040, 1051.)
CALCRIM No. 375 would have been the appropriate limiting instruction in
this case. It instructs the jury that
evidence was introduced that defendant committed certain uncharged acts; the
jury had to decide whether defendant committed the uncharged offense by a
preponderance of the evidence; the jury could, but it was not required to,
consider that evidence for the limited purpose of determining identity, intent,
motive, knowledge, accident, or common scheme or plan; the jury could not
consider the evidence for any other purpose; and the jury could not conclude
from this evidence that the defendant has a bad character or is disposed to
commit crime.

The court did not have a sua sponte
duty to give this instruction, and defense counsel did not request it. Defense counsel was not ineffective for
failing to request the limiting instruction in response to the evidentiary portion
of the trial. Defense counsel may have
had made the tactical decision to decline such an instruction to avoid calling
attention to the evidence and instructional language that might have been
deemed unfavorable to the defense – that the jury could consider her admission
of prior drug use to prove her knowledge of the nature and character of the
substance.

>D.
>Prejudice/Closing argument

Defendant
argues that defense counsel’s failure to request a limiting instruction was
prejudicial in light of the prosecutor’s closing argument, because the prosecutor
cited to defendant’s admission of her prior drug use and encouraged the jury to
improperly use such evidence for the improper purpose of proving her propensity
to use drugs.

In his initial closing argument,
the prosecutor addressed defendant’s admission of her prior drug use in light
of the elements of simple possession, particularly the element as to whether
the defendant knew of the nature and character of the contraband as a
controlled substance.

“How do we know that?
Well, we know that for a couple different reasons. [¶]
One, Officer Gutnecht [sic]
testified that the defendant in fact told him that she smoked
methamphetamine. That she did it
yesterday. [¶] Even if you have reason to disbelieve that
account and believe the defendant’s testimony, she stated that she had smoked methamphetamine in the past. So she certainly knew that it was a
controlled substance. That it was a
narcotic.” (Italics added.)

The prosecutor’s initial closing argument accurately
described the limited manner in which the jury could consider defendant’s
admission of her prior methamphetamine use.

Defense
counsel also addressed defendant’s admissions of prior drug use in his closing
argument, and challenged Officer Gutknecht’s credibility on this point. Defense counsel also rejected the
prosecutor’s attempt to connect defendant’s prior drug use to the contraband
found in the house:

“That’s
like saying, ‘I found this pen on the floor.
Is this pen yours?’

“ ‘No.’

“ ‘Have you used a pen?’

“ ‘I used a pen yesterday.’

“ ‘Okay.
Well, this pen is yours because you used a pen yesterday.’

“That’s the
same thing as saying, ‘I smoked methamphetamine the day before.’ ”

Defense counsel further argued that
defendant’s admissions about prior drug use did not mean that “because she
smoked meth the day before that everything now becomes hers.”

In the
prosecutor’s rebuttal argument, he refuted defense counsel’s attacks upon the
officer’s credibility as to what defendant said about her prior drug use. He also addressed defense counsel’s attempt
to compare prior drug usage with prior usage of a pen.

“And, yeah, she did say that
she smoked yesterday to the officer. So
that has some importance because now we know that she’s a meth smoker, more
than likely it’s hers. Also, she knows –
she knows what methamphetamine is.…”

The
prosecutor continued this theme and again cited to defendant’s admissions about
prior methamphetamine use:

“Did
she say the meth was hers? No, she
didn’t. But you know what, the officers
came to her house, they did have a legal search. They found that a meth user did in fact have
methamphetamine and a meth pipe used for [smoking] methamphetamine in her pouch
in her dresser in her bedroom in her home.
And it was a usable amount.

“Use
your common sense. Is the other story
reasonable? Come on. It was her meth. And it was her pipe. That’s all I have.”

The
prosecutor’s argument was not inappropriate, and defense counsel’s failure to
request a limiting instruction was not prejudicial in light of the trial
evidence in this case. The prosecutor
argued the officer’s testimony about defendant’s admissions was
credible – that defendant said she lived in the house, she used the
bedroom, she kept things in the dresser, and she used methamphetamine the
previous day. Defendant claimed she no
longer lived in the house, and she had last used methamphetamine in 1997 or
1998. The conflicting evidence presented
a credibility question for the jury. The
prosecutor argued that based on the officer’s testimony, the jury could infer
that the methamphetamine found in the purse belonged to defendant since she
admitted that she lived there, kept things in the dresser, and had used
methamphetamine the previous day.

II. Failure to give the unanimity
instruction

Defendant
contends the court had a sua sponte to give the unanimity instruction because
three different quantities of methamphetamine were found in the house, and the
jury had to agree which amount was alleged to belong to defendant to convict
her of simple possession. The People
argue that the failure to give the unanimity instruction was harmless in this
case.

>A.
>Background

When the officers searched
Obregon’s house, they found a plastic box on the coffee table in the living
room and a smoking pipe next to the box.
The box contained 3.1 grams of methamphetamine. The officers also found a plastic bag in
Norris’s pocket which contained 0.2 grams of methamphetamine. A blue purse was found in the bedroom
dresser, and it contained a plastic bag with 0.2 grams of methamphetamine and a
glass smoking pipe.

During closing argument, the
prosecutor acknowledged there were three different quantities of
methamphetamine found in the house.

“Now, I’m not necessarily concerned with the meth in Ms.
Natalie Norris’ pocket. I’m sure that was
her own. [¶] But the defendant had the right to possess
that which was in her purse. It’s likely
she also had the right to possess the methamphetamine that was connected to Mr.
Obregon which was on the coffee table in her home out in the open, not hidden.”

The prosecutor argued that
defendant had the right to control both quantities, and she knew the drugs were
present in the house since she admitted that she had lived there for two months
and used drugs the day before the search.

>B.
>Analysis

In a criminal case, a jury verdict
must be unanimous, and “the jury must agree unanimously the defendant is guilty
of a specific crime.
[Citation.]” (>People v. Russo (2001) 25 Cal.4th 1124,
1132, italics in original.) “[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. [Citations.]” (Ibid.) “This requirement of unanimity as to the
criminal act ‘is intended to eliminate the danger that the defendant will be
convicted even though there is no single offense which all the jurors agree the
defendant committed.’ [Citation.]” (Ibid.) “On the other hand, where the evidence shows
only a single discrete crime but leaves room for disagreement as to exactly how
that crime was committed or what the defendant’s precise role was, the jury
need not unanimously agree on the basis or, as the cases often put it, the
‘theory’ whereby the defendant is guilty.
[Citation.]” (>Ibid.)
The trial court has a sua sponte 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; People v. Riel (2000) 22 Cal.4th 1153, 1199.)

In a prosecution for possession of
narcotics, a unanimity instruction is required “where name="SR;2173">actual or constructive
possession is based
upon two or name="SR;2182">more individual units
of contraband reasonably
distinguishable by a
separation in time
and/or space name="SR;2197">and there is name="SR;2200">evidence as to name="SR;2203">each unit from name="SR;2206">which a reasonable
jury could find
that it was name="SR;2215">solely possessed by
a person or name="SR;2221">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
conflicting evidence over ownership of such items. (See People v. Castaneda (1997) 55
Cal.App.4th 1067, 1070-1071 (Castaneda).)

For
example, the defendant in King was convicted of possession for sale where methamphetamine was
found in two different locations of the 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.) King held the unanimity instruction was required 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. (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 defendant’s
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.) >Castaneda held that the acts of
possession were distinct, and the defendant provided separate defenses to each
act: the defendant’s son testified that
the heroin found on the television belonged to him; and defense counsel argued
the heroin found in the defendant’s pocket was planted or otherwise
fabricated. (Id. at p.
1071.) Castaneda concluded 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.)

The instant
case is name="citeas((Cite_as:_2012_WL_3996128,_*5_(Ca">distinguishable from name="SR;2577">King and Castaneda. The prosecutor acknowledged that the drugs
found in Norris’s pocket belonged to her, but did not elect between the drugs
found on the coffee table and in the blue purse. Unlike King and Castaneda,
however, the two items containing methamphetamine were not reasonably
distinguishable by separation of either time or space. The items were found during the same search,
at the same time, and a very short distance apart. In addition, defendant presented the same
defense: she did not know anything about
the drugs found in the house, and she no longer lived there. Since the two amounts of 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.

Even if we
assume that a unanimity instruction should have been given, the error was
harmless beyond a reasonable doubt. (>Chapman v. California (1967) 386 U.S.
18, 24; People v. Gary (1987) 189 Cal.App.3d 1212, 1218; cf. >People v. Vargas (2001) 91 Cal.App.4th
506, 562.) Under this standard, the
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.)
The failure to give a unanimity instruction is 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 to have been committed. [Citations.]”
(People v. Jones (1990) 51 Cal.3d 294, 307, original italics.)

In this
case, defendant testified at trial and denied any knowledge about the
methamphetamine found in the house. She
denied making the statements attributed to her by Officer Gutknecht – that she
was living at the house, sleeping in the bedroom, storing things in the bedroom
dresser, or saying that she used methamphetamine the day before search. Instead, she testified that she no longer
lived there and did not know anything about the drugs. In addition, the defense attacked the
credibility of the officer’s testimony about her admissions. Despite this defense, the jury found
defendant guilty of possession of methamphetamine. Since both amounts were relatively close
together, and defendant raised the same defense, the verdict implies that the
jury did not believe defendant’s version of events. Thus, since the jury rejected the only
defense that defendant offered for the charged offense, the trial court's
failure to give the unanimity instruction was harmless beyond a reasonable
doubt.

DISPOSITION

The
judgment is affirmed.