P. v. Garibay
Filed 3/2/12 P.
v. Garibay CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS ALANIZ GARIBAY,
Defendant and Appellant.
F061887
(Super. Ct. No. BF134200A)
O P I N I O N
THE COURT
APPEAL from
a judgment of the Superior Court of
Jennifer
Hansen, 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, David R. Rhodes and Michael
Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On November 5, 2010, the Kern County District Attorney
charged appellant, Jesus Alaniz Garibay, with
(count 1/Health & Saf. Code, § 11352, subd. (a)),
11351), and possession of cocaine (count 3/§ 11350, subd. (a)), a lesser
included offense of the possession for sale charged in count 2.
On January 12, 2011, a jury
convicted Garibay on count 1.
On February 10, 2011, the court
sentenced Garibay to the middle term of four years.
On appeal, Garibay contends the
court committed instructional error. We affirm.
FACTS
The Trial Evidence
At Garibay’s trial, Kern County
Sheriff’s Deputy Tae Park testified that on June 10, 2010, at approximately
11:45 p.m., he was on patrol in Delano when he stopped a pickup truck in which
four people, including Garibay, were riding.
Garibay was seated on a bench seat next to the passenger’s door. An unidentified woman was driving, a second
unidentified woman sat next to her, and Roberto Zamora, the registered owner of
the truck, sat between the second woman and Garibay. Deputy Park had the four occupants exit the
truck and searched it. Under the bench
seat where Zamora was sitting, Park found a white plastic baggie, tied in a
knot at the top, containing four individual bindles of cocaine that were each
twisted and tied with a rubber band at the top.
Deputy Park continued searching the truck and found a plastic baggie
containing cocaine in the glove compartment.
During a search of Garibay, Deputy
Park found 21 blue rubber bands in Garibay’s front coin pocket that were
identical to the ones that were used to tie the bindles of cocaine. In Garibay’s front pocket, Park found a total
of $120 consisting of five $20 bills, one $10 bill, one $5 bill, and five $1 bills.
Kern County Sheriff’s Deputy Enrique
Bravo testified that after he arrived on the scene, Garibay and Zamora were
placed in the back of his patrol car where Bravo had placed and activated a
digital recorder. A transcript of the
conversation was submitted into evidence.
In the recorded conversation, Zamora complained several times that
someone snitched on them. When Zamora
stated that the deputies already knew that Garibay “sold there,” Garibay did
not deny selling drugs. Instead, he
replied, “No. It’s not here. (unintelligible) I was very comfortable
there, Roberto. If I hadn’t left nothing
like this would’ve happened. I was
comfortable there. Nobody knows anything
there. I only had three fucking twenties.[
one I gave you and I only had two left.
That’s all I had. I didn’t have
anymore. That’s what we were using
there.”
been in possession of three 20’s; that he gave one 20 to Zamora, kept two 20’s,
and threw his two 20’s by one of the truck tires after it was stopped.
found any money on him, Garibay replied that they found about $100 or $140 on
him. He did not, however, describe these
amounts in terms of 20’s.
name="_ftnref7" title="">[6] Zamora also told Garibay three times that he
should have placed “it” or “them” in his “balls” because the deputies would not
have searched him there. Neither Garibay
nor Zamora, however, mentioned anything during the recorded conversation about
Garibay lending Zamora money.
Garibay testified that he was in
the truck because Zamora had asked to borrow $60 to buy beer to “party” with
the two women in the truck and Zamora asked Garibay to accompany him to the
store. Garibay denied having any drugs
when he entered the truck or giving or selling any drugs to Zamora or the
women. He also denied putting any
baggies of cocaine in the glove compartment or under the seat and he did not
know how they got there. Garibay further
testified that Deputy Park found the rubber bands under the seat where Zamora
was sitting, not on Garibay. The money
found on him was from a check for $463 he received on June 6 or 7, 2010, and
cashed on June 8, 2010. Garibay claimed
that during the recorded conversation when they referred to 20’s, they were
talking about $20 bills, not drugs.
Jury Deliberations
On January 10, 2011, the jury
deliberated from 4:31 p.m. to 4:45 p.m.
On January 11, 2011, after one
juror was replaced, the jury began their deliberations anew at 10:13 a.m. and
continued through 4:30 p.m. with a lunch break of an hour and a half and two
short breaks to address notes by the jury.
One of the notes asked the court for “[t]he extended, legal definition
of intent.”
On January 12, 2011, the jury began
deliberating at 9:00 a.m. At 10:21 a.m.,
the jury was called into the courtroom in response to a jury note stating that
they were unable to reach a verdict on count 2.
The foreman then advised the court, in pertinent part, that they had
reached a guilty verdict on count 1, but were unable to reach a verdict on
count 2. After declaring a mistrial as
to count 2, the court took the jury’s guilty verdict on count 1.
DISCUSSION
During
closing arguments, the prosecutor argued that Garibay violated section 11352,
by transporting the cocaine found in the truck in which he was a passenger
and/or by selling or furnishing cocaine to Zamora. Garibay contends that because at least two
acts were alleged to have been the basis for finding him guilty of violating
section 11352, the court prejudicially erred by its failure to charge the jury
with a unanimity instruction. Garibay
concedes that a unanimity instruction is not required when the same defenses
are offered to the various acts constituting the charged crime. He claims, however, that he proffered
different defenses to each charge, i.e., his defense to the transporting
cocaine charge was that he was unaware of the presence of the cocaine in the
truck whereas his defense to selling or furnishing cocaine was that the
reference to 20’s in the recorded conversation was actually a reference to $20
bills. We will find that the court was
not required to charge the jury with a unanimity instruction because Garibay
proffered the same defenses to the acts that were alleged to have violated
section 11352 and, in any event, the failure to do so was harmless.
“In a
criminal case, a jury verdict must be unanimous. [Citations.]
The court here so instructed the jury.
(See CALJIC No. 17.50.)
Additionally, the jury must agree unanimously the defendant is guilty of
a specific crime. [Citation.]
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. [Citations.]
“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.] For example, in
263, the defendant was convicted of a single count of bribery, but the evidence
showed two discrete bribes. We found the
absence of a unanimity instruction reversible error because without it, some of
the jurors may have believed the defendant guilty of one of the acts of bribery
while other jurors believed him guilty of the other, resulting in no unanimous
verdict that he was guilty of any specific bribe. [Citation.]
‘The [unanimity] instruction is designed in part to prevent the jury
from amalgamating evidence of multiple offenses, no one of which has been
proved beyond a reasonable doubt, in order to conclude beyond a reasonable
doubt that a defendant must have done something
sufficient to convict on one count.’
[Citation.]” (
1132.)
“There
are, however, several exceptions to this rule.
For example, no unanimity instruction is required if the case falls
within the continuous-course-of-conduct exception, which arises ‘when the acts
are so closely connected in time as to form part of one transaction’ [citation]
or ‘when the statute contemplates a continuous course of conduct or a series of
acts over a period of time.’
There also is no need for a
unanimity instruction if the defendant offers the same defense or defenses to
the various acts constituting the charged crime. [Citation.]”
(People v. Jennings (2010) 50
Cal.4th 616, 679, italics added.)
One of Garibay’s defenses to the
allegations that he transported cocaine or that he sold or furnished cocaine to
Zamora was simply a general denial that he committed these acts because he did
not possess any drugs on the day in question.
Further, in the recorded conversation, Garibay stated that he had two
20’s left after he gave one to Zamora
and he threw his 20’s by one of the truck tires after it was stopped. These statements amounted to admissions by
Garibay that he furnished Zamora with a 20 and that he transported two 20’s
with him on the truck prior to throwing them by one of the truck’s tires after
it was stopped. Thus, his claim that
20’s referred to $20 bills was a defense to the allegation that he transported
cocaine and the allegation that he sold or furnished cocaine to Zamora.
Moreover, “[t]ransportation of a
controlled substance is established by [simply] carrying or conveying a usable
quantity of a controlled substance with knowledge of its presence and illegal
character. [Citations.]” (People
v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
Thus, Garibay’s denial of knowledge of the presence of the cocaine in
the truck was merely a general denial of one of the elements of transportation
which was encompassed in his general denial that he transported, sold or
furnished cocaine because he did not possess any drugs prior to his arrest. Accordingly, we conclude that the court was
not required to charge the jury with a unanimity instruction.
Nevertheless, even if we concluded
that the court erred by its failure to charge the jury with a unanimity
instruction, we would find the error harmless.
“There is a split of authority on the proper standard for reviewing
prejudice when the trial court fails to give a unanimity instruction. Some cases hold that the prejudice must be
deemed harmless beyond a reasonable doubt under
18, 24 …. Other cases hold that the test
is as enunciated in People v. Watson
(1956) 46 Cal.2d 818, 836 …, which is 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. Vargas (2001) 91 Cal.App.4th 506, 561-562.)
Assuming, arguendo, that the
resulted because the record refutes the centerpiece of Garibay’s defense, that
he and Zamora were referring to $20 bills when they spoke of 20’s. As noted earlier, during the recorded
conversation, Garibay admitted furnishing Zamora with a 20 and transporting two
20’s in the truck prior to allegedly throwing them by one of the truck’s
tires. Garibay’s explanation for his use
of the term 20’s was that he lent Zamora $60 and that the term “20’s” referred
to $20 bills. However, during the
recorded conversation, Garibay and Zamora did not discuss anything about
Garibay lending money to Zamora and the single 20 Garibay admitted giving to
Zamora in that conversation was inconsistent with his testimony that he lent
Zamora $60. Further, numerous statements
from the recorded conversation make sense only if the term “20’s” referred to
cocaine, not $20 bills, including Garibay’s statement that he threw two 20’s by
one of the truck’s tires. Additionally,
when Zamora asked Garibay how much money the deputies found on him, Garibay did
not quantify the amount in terms of 20’s and instead stated that they had found
about $100 or $140 on him. There was
also no apparent reason for Garibay to attempt to hide 20’s where the deputies
would not search if the term 20’s simply referred to $20 bills.
Moreover, the recorded conversation
was laden with apparent references to drugs and drug dealing including several
references to someone having snitched on them, Zamora’s statement that the
deputies already knew that Garibay “sold” at the bar, which Garibay did not
deny, and Zamora’s statements that he should have placed “them” or “it” in his
balls because the deputies would not have searched him there.
Nevertheless, Garibay contends that
the split verdict shows that the jury did not accept the prosecutor’s case
wholesale and that the length of the deliberations shows that it was a close
case. Garibay is wrong.
The jury’s inability to reach a
verdict on the possession for sale count indicates, at most, that the jury had
trouble concluding that Garibay possessed cocaine with the intent to sell, as
demonstrated by the jury’s request for an “extended, legal definition of
intent.” Further, the jury deliberated
only about six hours over two days and even if the deliberations can be viewed
as lengthy, the length of the deliberations is clearly attributable to the
jury’s inability to reach a verdict on the possession for sale count. In contrast, nothing in the record indicates
that the jury had any difficulty finding that Garibay sold, furnished and/or
transported cocaine within the meaning of section 11352. Accordingly, we conclude that the failure to
charge the jury with a unanimity instruction was harmless beyond a reasonable
doubt.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before Cornell, Acting P.J., Kane, J., and
Detjen, J.
name="_ftn2" title="">[1] Unless
otherwise indicated, all further statutory references are to the Health and
Safety Code.
