P. v. Pollette








Filed 9/26/11 P. v. Pollette CA2/6




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. JUDI YVONNE POLLETTE, Defendant and Appellant.

2d Crim. No. B229199 (Super. Ct. No. MA045769-01) (Los Angeles County)

Judi Yvonne Pollette was charged by information with possession for sale of methamphetamine (count 1 - Health and Saf. Code, § 11378); possession of a firearm by a felon (count 2 - Pen. Code, § 12021, subd. (a)(1); maintaining a place for selling or using methamphetamine and marijuana (count 3 - Health & Saf. Code, § 11366); and possession of ammunition by a felon (count 4 - Pen. Code, § 12316, subd. (b)(1)). It was alleged that she suffered a prior conviction and served a prior prison term (Pen. Code, § 667.5, subd. (b)), and that she had suffered two prior convictions for possession of a controlled substance for sale pursuant to Health and Safety Code sections 11378 and 11370.2, subdivision (c).
Following a jury trial, appellant was acquitted on counts 2 and 3. The jury convicted her of the lesser included offense of possession of methamphetamine (count 1 - Health & Saf. Code, § 11377, subd. (a)) and possession of ammunition by a felon (count 4). Appellant admitted as true the allegation that she had served a prior prison term pursuant to section 667.5, subdivision (b).
The trial court denied probation and sentenced appellant to state prison for a term of four years eight months. It imposed the upper term of three years on count 1 with a consecutive year for the prison prior term enhancement. As to count 4, it imposed a consecutive sentence of one-third the midterm of eight months. Appellant claims that the trial court violated its sua sponte duty to give a unanimity instruction (CALCRIM 3500). We disagree and affirm.
FACTS
Deputy Sheriffs Jeremi Edwards and David Keese conducted an undercover surveillance on a house in the City of Lancaster for suspected narcotics activity. Over a 90-minute period they saw five vehicles approach the house. Individuals from the vehicles entered the house for 5-10 minutes and then left. During this same time period, the deputies also observed four pedestrians briefly enter and leave the home.
On May 1, 2009, a team of deputies executed a search warrant on the home, located at 42415 52nd Street West. It was daylight, and Deputy Mark Madrid saw a woman moving in and out of a detached garage at least twice. She then moved from the garage area into the house.
Several deputies knocked and announced their presence at the front door. No one answered. They knocked a second time and yelled that they had a search warrant. There was still no answer, so they forced entry through the door. Two pit bulls were inside, and the deputies used a fire extinguisher to keep the dogs from advancing. The powder sprayed from the fire extinguisher hung in the air and obscured their vision, but they could see someone walking back and forth inside the house.
After several minutes, appellant approached the front door. She put the dogs in a bathroom so the deputies could enter. They found third dog in the master bedroom and a fourth dog in the garage. Appellant was detained, and she placed the dogs in the officers' patrol cars so they could search the residence.
The house had three bedrooms, and it appeared that no one lived in two of the bedrooms. Appellant's identification was found on a dresser in the master bedroom, along with a glass methamphetamine pipe and a device used for snorting a powder narcotic. Deputies found a .45-caliber round of ammunition on a nightstand and two bags of methamphetamine in a box next to the bed.
Also recovered from the master bedroom were 19-20 small baggies, a size often used for packaging methamphetamine. Deputies discovered $2,090 in currency in a coin purse on a table next to the bed. The cash was packaged into $100 bundles. Marijuana, pipes and water bongs were stored in a second bedroom. Appellant later told the deputies that it had been two months since someone had lived in the house with her.
There was a security monitor on a desk inside the garage which had a live feed of areas around the residence. On the desk were two digital scales and an unspecified amount of marijuana. A dusty piece of plywood lay across the garage rafters. On top was a .22 Marlin long rifle and a small coin purse. The rifle was not as dusty as the plywood, and the coin purse had no dust on it at all. Inside the coin purse were two plastic baggies containing methamphetamine.
Located in the tool box in the center of the garage were two speed loaders with .357 magnum ammunition in them. A speed loader is a device that refills the empty cylinders of a revolver so all five rounds can be loaded simultaneously. Forty-five .22-caliber rounds of ammunition were spread out on a workbench. The ammunition fit the rifle found on top of the plywood. Also recovered from the garage were pipes and 20 to 30 unused baggies. After her arrest, appellant stated that she is addicted to methamphetamine, and sells it to supplement her income earned from masonry work.
DISCUSSION
Appellant asserts that the court violated its sua sponte duty to give the unanimity instruction, CALCRIM No. 3500.^[1] She claims the instruction was necessary because the prosecution did not elect the acts upon which to base either charge. She contends that the methamphetamine was found in the bedroom and garage, thus the jury could have considered either location to support her conviction on count 1. Appellant raises the same argument with respect to the two locations in which the ammunition was found.^[2]
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) The state constitution guarantees a unanimous verdict on a specific charge. (Cal. Const., art. 1, § 16.) If conviction on a single charge could be based on evidence of two or more discrete criminal acts, all jurors must agree that the defendant committed the same act. If the prosecution does not elect to rely upon a single criminal act, the trial court has a sua sponte duty to instruct the jury that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) This eliminates the risk that the defendant will be convicted "even though there is no single offense which all the jurors agree the defendant committed.' [Citation.]" (Ibid.)
Appellant's argument is meritless because it was unnecessary for the jury to agree upon the room in which the contraband was found--it was sufficient that it was found in the house. The unanimity instruction is required only if the evidence supports two or more discrete crimes. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185 [six firearms found in trailer, but evidence showed they were owned by various individuals]; People v. King (1991) 231 Cal.App.3d 493, 501-502 [unanimity instruction required where there was conflicting evidence as to ownership of 3 baggies of methamphetamine found in different locations inside and outside of residence].)
Appellant cites liberally to People v. Crawford (1982) 131
Cal.App.3d 591, to support her argument. There, the court held that a unanimity instruction was required because guns were found in four different areas of the house, and ownership was disputed. There was evidence that at least three of the four guns belonged to people other than the defendant. (Id. at p. 596.) The court concluded that the unanimity instruction "should be given where the acts of possession were not factually identical. Conversely, where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case." (Id. at p. 599.)
The latter situation applies here. Appellant was charged with one count of possession of methamphetamine and one count of possession of ammunition. All the contraband was found in the same house, at the same time and the evidence reflected that appellant was the sole occupant. There was no danger that certain jurors could have believed appellant possessed the methamphetamine in her bedroom, but not in the garage, or possessed the ammunition on her nightstand but not on the workbench. (See People v. Wolfe, supra, 114 Cal.App.4th at p. 184.) Appellant's acts of possession were substantially identical in nature, rendering a unanimity instruction unnecessary. (People v. Crawford, supra, 131 Cal.App.3d at p. 599.) There was no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.




COFFEE, J.


We concur:

YEGAN, A.P.J.



PERREN, J.


Richard E. Naranjo, Judge
Superior Court County of Los Angeles
______________________________

Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, James William Bilderback II, Supervising Deputy Attorneys General, for Plaintiff and Respondent.



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