P. v. Ford

Filed 1/13/10 P. v. Ford CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

A search of defendants vehicle and residence revealed a large amount of cocaine base, a tablet of Ecstasy, ammunition, and two handguns. Convicted by jury of possession for sale and transportation of cocaine base, possession and transportation of Ecstasy, and possession of ammunition and a firearm by a felon, defendant appeals. He contends that (1) the evidence was insufficient to sustain the Ecstasy convictions, (2) the conviction for possession of ammunition by a felon must be reversed because the trial court failed to give the jury a unanimity instruction, and (3) the sentence for one of the cocaine base convictions should have been stayed. (Defendant makes other contentions, but, as will be seen, they need not be discussed separately.)

Defendant is correct that the evidence was insufficient to sustain the Ecstasy convictions and that the sentence for one of the cocaine base convictions must be stayed; however, the unanimity instruction argument is without merit because any error in that regard was harmless. We therefore modify the judgment by vacating the Ecstasy convictions and staying the conviction for transportation of cocaine base, and we affirm the judgment as modified.

PROCEDURE

The district attorney charged defendant by information with six felony counts: possession of cocaine base for sale (count 1; Health & Saf. Code,  11351.5); transportation of cocaine base (count 2; Health & Saf. Code, 11352); possession of Ecstasy (count 3; Health & Saf. Code, 11377, subd. (a)); transportation of Ecstasy (count 4; Health & Saf. Code, 11379); possession of ammunition by a felon (count 5; Pen. Code,  12316, subd. (b)(1)); and possession of a firearm by a felon (count 6; Pen. Code,  12021, subd. (a)(1)). The information also alleged, with respect to counts 1 and 2, that defendant had two prior convictions for possession of a controlled substance for sale. (Health & Saf. Code,  11370.2, subd. (a).)

A jury convicted defendant on all counts and found true the prior conviction allegations.

The trial court sentenced defendant to the middle term of four years in state prison on count 1 (possession of cocaine base for sale), plus six years for the two prior convictions, and a consecutive eight months for count 6 (possession of a firearm by a felon). The court imposed concurrent terms for count 2 (transportation of cocaine base), count 3 (possession of Ecstasy), count 4 (transportation of Ecstasy), and count 5 (possession of ammunition by a felon). The total state prison term imposed was ten years eight months.

FACTS

In setting forth this evidence, we apply the familiar appellate standard that, [o]n appeal, we . . . construe the facts in the light most favorable to the judgment. [Citation.] (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.)

Officer Steven Dowswell observed defendant run a stop sign in a Chevrolet Monte Carlo shortly before midnight on March 14, 2007. After stopping defendant, Officer Dowswell conducted a search of defendant and the vehicle. He found two digital scales and an Ecstasy tablet in the center console, a box of .22 caliber bullets in the glove compartment, a baggie containing 68.69 grams of cocaine base (approximately 680 doses) under the armrest in the backseat, and four empty plastic baggies on the floorboard.

After the vehicle search, Detective Marnix Lub and others searched defendants residence, where defendants girlfriend (Jenica Adams) and several children also lived. The officers found a loaded .25 caliber semiautomatic handgun in a dresser drawer in the master bedroom and a loaded .45 caliber semiautomatic handgun in defendants leather jacket in the master bedroom closet.

Additional facts are recounted in connection with discussion of the contentions raised by defendant on appeal.

DISCUSSION

I

Sufficiency of Evidence Concerning Ecstasy Convictions

Concerning the convictions for possession (count 3) and transportation (count 4) of Ecstasy (also known as MDMA or methylenedioxymethamphetamine), defendant asserts (1) the evidence was insufficient to sustain the convictions and (2) the trial court lacked jurisdiction to enter judgment on those counts. In the alternative, defendant contends that (3) the sentence on the Ecstasy possession count should have been stayed.

Although defendants jurisdictional argument has no merit, we agree with defendant that the evidence was not sufficient to sustain the convictions for possessing and transporting Ecstasy. The prosecution failed to present substantial evidence that defendant knew that the substance was Ecstasy and that Ecstasy, which is not a controlled substance, is an analog of one of the drugs listed as controlled substances. Without such evidence, the convictions on counts 3 and 4 are unsustainable.

In his opening brief, defendant argued that the evidence was insufficient to sustain the Ecstasy convictions because he did not know that the substance was Ecstasy. The Attorney General responded that the jury could infer from the evidence that defendant, an experienced drug user and vendor, knew the nature of the substance. In a supplemental brief, defendant argued that the trial court had no jurisdiction to convict him on counts 3 and 4, both relating to Ecstasy because Ecstasy is not a controlled substance. Responding to that argument, the Attorney General stated that Ecstasy is an analog (a concept discussed below) of methamphetamine and, therefore, the court had jurisdiction to convict on those counts.

A. Knowledge of Substances Nature

We first address defendants contention that the evidence was insufficient to sustain the Ecstasy counts because the prosecution did not bear its burden of proving that defendant knew that the substance was Ecstasy. He is correct.

It is well settled . . . 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. . . . 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.] For example, knowledge of a substances narcotic nature may be shown by evidence of the defendants furtive acts and suspicious conduct indicating a consciousness of guilt, such as an attempt to flee or an attempt to hide or dispose of the contraband [citations], or 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]. (People v. Tripp (2007) 151 Cal.App.4th 951, 956.)

During the search of the vehicle, Officer Dowswell found one tablet of Ecstasy in the center console. The tablet was green or blue and had a Batman symbol marked on it. Ecstasy typically is bought in tablet form -- one tablet being a dose. Some kind of recognizable symbol is placed on the tablet, such as a Nike swoosh, a Playboy bunny, or a Batman symbol, as here.

Defendant told Detective Lub that he was aware of the presence of the Ecstasy tablet, but he thought it was Viagra. He also told Detective Lub that he was a heavy drug user and used a little bit of everything . . . . At trial, defendant testified that he thought that the tablet was Viagra and it was given to him by a friend as a joke.

The Attorney General argues that the jury could infer defendants knowledge of the Ecstasys nature from defendants involvement with illegal drugs and his admission that he had used a little bit of everything. To the contrary, the jury could only speculate concerning whether defendant knew that the substance was Ecstasy. There was no substantial evidence that his prior involvement with illegal drugs included Ecstasy. And his admission that he used a little bit of everything could not be taken literally. While this is a close case, it appears that there was insufficient evidence that defendant knew the nature of the Ecstasy. However, as we will discuss next, there is an additional problem with the sufficiency of the evidence in this case.

B. Evidence that Ecstasy is an Analog of Methamphetamine

We next address defendants argument that the trial court lacked jurisdiction to convict defendant of possessing and transporting Ecstasy. We do so here because, although the court had jurisdiction to convict, defendants argument establishes, instead, that the evidence was insufficient to convict on the Ecstasy counts.

An analog of a controlled substance is a substance having a chemical structure substantially similar to a controlled substance, or having an effect on the central nervous system substantially similar to or greater than a controlled substance. (People v. Silver (1991) 230 Cal.App.3d 389, 393 (Silver), fn. omitted, interpreting Health & Saf. Code,  11401.) An analog of a controlled substance is considered identical to the controlled substance for purposes of the penalties and punishment in the Health and Safety Code. (Health & Saf. Code,  11400.)

Ecstasy in not listed as a controlled substance in the Health and Safety Code. However, it may be an analog of methamphetamine, which is a controlled substance. Whether Ecstasy is an analog of methamphetamine is a factual question that must be presented to and resolved by the jury. (Silver, supra, 230 Cal.App.3d at p. 396.)

With this in mind, we turn to defendants jurisdictional and sufficiency of evidence arguments.

Defendants jurisdictional argument has no merit. While it is true that a trial court has no jurisdiction to convict a person of a crime if the act committed by that person is not defined in the statutes as a crime (People v. Vasilyan (2009) 174 Cal.App.4th 443, 449-450), possession or transportation of a controlled substance is a crime (Health & Saf. Code,  11377, subd. (a); 11379) and possession or transportation of Ecstasy may or may not be a crime, depending on whether the prosecution meets its burden of establishing that Ecstasy is an analog of a controlled substance. The issue presented to the jury was whether the prosecution proved defendant guilty of violating sections 11377, subdivision (a) [possession] and 11379 [transportation] of the Health and Safety Code. Those are crimes defined by statute. Therefore, the trial court had jurisdiction.

Nonetheless, having reviewed the expert testimony with respect to the tablet found in the vehicle when defendant was stopped, we conclude that the prosecution made no attempt to establish that Ecstasy is an analog of methamphetamine. Because no such evidence was proffered, the evidence was insufficient to convict defendant of possession and transportation of a controlled substance. (Silver, supra, 230 Cal.App.3d at p. 396.)

C. Stay of Sentencing

Because we conclude that the Ecstasy convictions must be reversed, we need not discuss defendants contention (and the Attorney Generals concession) that the trial court was required to stay the sentence for count 3, the Ecstasy possession count, pursuant to Penal Code section 654.

II

Unanimity Instruction

The evidence presented to the jury included three instances of ammunition possession by defendant (the box of ammunition in the glove compartment, the loaded handgun in the dresser, and the loaded handgun in the leather jacket), yet the information charged only one instance. During trial, the prosecutor did not elect which instance of ammunition possession to rely on for the possession count. Defendant contends that we must reverse his conviction for possession of ammunition because the trial court failed to give a unanimity instruction. We conclude that any error in failing to give a unanimity instruction was harmless.

A jury must unanimously agree that a defendant is guilty of a specific crime. When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the trial court must require the jury to agree on the same criminal act. When the prosecution does not make the election, the trial court has a duty to instruct the jury sua sponte on the unanimity requirement. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)

Even if the trial court erred in failing to give the jury a unanimity instruction, that error was harmless under any standard, even under the most stringent beyond-a-reasonable-doubt standard. (Chapman v. California (1972) 405 U.S. 1020 [31 L.Ed.2d 483].) Some cases found harmless any error in failing either to select specific offenses or give a unanimity instruction, if the record indicated 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, italics omitted.) That is the case here.

The jury convicted defendant for possession of everything found in the vehicle. Therefore, there is no reasonable doubt that the jury unanimously convicted defendant for possession of the ammunition in the glove compartment, even though defendant claimed not to know it was there, as he did with the cocaine base found in the backseat. This alone is sufficient upon which to base a finding that the jury unanimously concluded that defendant possessed the ammunition found in the vehicle and supports the possession conviction even if jurors also found that defendant possessed other ammunition.

Any error in failing to give a unanimity instruction with respect to the ammunition possession count was harmless beyond a reasonable doubt.

III

Stay of Cocaine Base Possession Count

Defendant contends that the trial court erred by not staying the sentence for count 1 (possession of cocaine base for sale) because it was based on the same conduct as count 2 (transportation of cocaine base). The Attorney General agrees that counts 1 and 2 were based on the same conduct; however, he asserts that the trial court should have stayed the sentence on count 2 because the court used count 1 to impose the base term of four years and then imposed concurrently the term for count 2, also four years. Defendant gives no reason for asserting that the sentence on count 1, and not count 2, should have been stayed. Therefore, we will modify the sentence to reflect that count 2 is stayed.

Penal Code section 654 precludes multiple punishment for a single act or a course of conduct comprising an indivisible course of conduct. Whether a course of conduct is divisible depends on the intent and objective of the defendant, as found by the trial court. The courts findings will not be reversed on appeal if there is any substantial evidence to support them. Appellate courts must view the evidence in the light most favorable to the trial courts findings and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Here, the sole evidence supporting the convictions for possessing cocaine base for sale and transporting cocaine was the discovery of the cocaine in the backseat of the vehicle when defendant was stopped. There was no evidence that the possession of the cocaine base preceded the transportation of the cocaine base.

Since the evidence does not support the trial courts implicit finding that the possession of cocaine base for sale and the transportation of cocaine base were based on separate conduct, we must order the sentence on count 2 (transportation of cocaine base) stayed.

DISPOSITION

The judgment is modified by vacating the convictions on count 3 (possession of Ecstasy) and count 4 (transportation of Ecstasy) along with the concurrent terms imposed for those counts. The judgment is also modified by staying the concurrent term imposed on count 2 (transportation of cocaine base). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and send it to the Department of Corrections and Rehabilitation.

NICHOLSON , Acting P. J.

We concur:

RAYE , J.

ROBIE , J.

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