THE PEOPLE v. CORNELIUS PAYNE

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CORNELIUS PAYNE, Defendant and Appellant.

B220332

Decided: November 23, 2010

Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant Cornelius Payne (defendant) appeals from the judgment entered after a jury convicted him of possession for sale of cocaine base, in violation of Health and Safety Code section 11351.5.   Defendant's sole contention on appeal is that the trial court committed reversible error by failing to give a unanimity instruction to the jury.  (CALCRIM No. 3500.) 1  We conclude that the trial court's failure to give a unanimity instruction was not reversible error and therefore affirm the judgment.

BACKGROUND

At mid-day on April 20, 2008, Deputy Sheriffs Dwayne Miller (Deputy Miller) and Chris Lio (Deputy Lio) were driving on 102nd Street when they saw defendant close the door of an older model black automobile and walk down the street.   The deputies saw a pink coin purse full of money protruding from the car trunk.   Deputy Miller asked defendant if the car belonged to him, and defendant replied that it did.   Deputy Miller also asked defendant if the coin purse belonged to him, and defendant said that it belonged to his daughter.

Defendant acknowledged that he was on parole.   When asked if he had anything illegal in his car, defendant responded that he might have a “little bit of weed” in the car.   Defendant gave the deputies permission to search the car, and Deputy Miller conducted a pat down search of defendant and retrieved the car keys.

Deputy Gabriela Vidrio (Deputy Vidrio) and her partner, Deputy Jones, were on patrol in the vicinity and noticed Deputies Lio and Miller with defendant.   Deputy Vidrio asked Deputy Miller if they needed help, and Deputy Lio asked Deputies Vidrio and Jones to search defendant's car.   From the front passenger seat of defendant's car, Deputy Vidrio recovered two rocks of cocaine, which she gave to Deputy Miller.   Deputy Jones recovered two bags of marijuana.

The defendant was arrested and Deputy Miller conducted a more thorough search of defendant's person, recovering money and a wallet.   During the search, Deputy Miller attempted to examine the area near defendant's buttocks, but defendant would not comply with Deputy Miller's directive to spread his legs, and instead tensed his buttocks.

Deputy Miller suspected that defendant was concealing something in his buttocks, so a strip search of defendant was conducted at the Lennox Sheriff Station.   The search yielded two plastic bags containing 12 rocks of cocaine, recovered from defendant's buttocks.   The deputies did not recover any drug paraphernalia from defendant's person or his car, nor did they observe defendant displaying any behavior consistent with cocaine use.

In a one-count information, the defendant was charged with possession for sale of cocaine base.  (Health & Saf.Code, § 11351.5.) The information further alleged that defendant suffered a prior conviction of a serious or violent felony pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a), and two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).  Defendant pled not guilty and denied all of the special allegations.

Defendant exercised his right to represent himself at trial, during which he admitted possessing half a bag of marijuana in his car, but denied possessing any rock cocaine in his car or on his person.   Defendant said that he made multiple requests for a DNA test of the plastic bags recovered from his buttocks as a means of proving his innocence, but that his requests were ignored.   During closing argument, defendant maintained that the deputies planted the cocaine in his car and on his person and lied about finding the drugs.

The jury found defendant guilty of possession for sale of cocaine base.   Following his conviction, defendant agreed to admit all of his prior convictions in exchange for the prosecutor's agreement to strike the two one-year prior prison terms.

Before sentencing, defendant relinquished his right to represent himself, and the court appointed him counsel.   The trial court sentenced defendant to a total term of 13 years in state prison and awarded him 749 days of presentence credit.   This appeal followed.

DISCUSSION

I. Unanimity Instruction

It is well established that the jury's verdict in a criminal case must be unanimous.  (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo ).)   “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.]”  (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.]”  (Russo, supra, 25 Cal.4th at p. 1132.)  “[S]uch an instruction must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor had not relied on any single such act.  [Citations.]”  (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)

In cases involving prosecution for possession of narcotics for sale, a unanimity instruction is required when (1) “actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space”;  (2) “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”;  and (3) the prosecutor did not elect to rely on only one of the individual units.   (People v. King (1991) 231 Cal.App.3d 493, 501-502 (King ).)

A unanimity instruction is not required, however, if the evidence shows a defendant's acts occurred during a “continuous course of conduct”-when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct.  (People v. Diedrich (1982) 31 Cal.3d 263, 282 (Diedrich );  People v. Winkle (1988) 206 Cal.App.3d 822, 826.)   The “continuous conduct” rule also applies when the defendant offers essentially the same defense to each of the acts and there is no reasonable basis for the jury to distinguish between them.  (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)   When the defendant offers the same defense to all the charged criminal acts, and “the jury's verdict implies that it did not believe the only defense offered,” failure to give a unanimity instruction is harmless error.  (Diedrich, supra, at p. 283.)

II. No Reversible Error

Defendant relies on King in support of his argument that a unanimity instruction was required.   In King, a search yielded 3.59 grams of methamphetamine in two different locations in the defendant's home-in a purse found in the living room, and hidden in a decorative statue in the kitchen.   (King, supra, 231 Cal.App.3d at pp. 497-499.)   The evidence showed that the purse belonged to someone else, and defendant based her defense on the testimony of her boyfriend, who claimed ownership of the methamphetamine found in the statue.   The court in King concluded that a unanimity instruction was required because the two units of methamphetamine were separated in space and there was evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person other than the defendant.  (Id. at pp. 501-502.)

In this case, unlike King, there was no evidence from which a reasonable jury could find that the two units of cocaine recovered from defendant's car and person were solely possessed by someone other than him.   Defendant admitted ownership of the car in which the cocaine was found, and there was no reasonable basis for the jury to conclude that the cocaine found on defendant's person was possessed by anyone else.  King is thus distinguishable.

In addition, the absence of a unanimity instruction was not a ground for reversal here because the “continuous conduct” rule applies.   Defendant did not present separate defenses to the different units of cocaine recovered from his car and his person.   Rather, his common defense to both units was that the deputies planted the drugs on him and lied to the jury.   The jury's verdict of conviction indicates that they did not believe the only defense proffered.   (Diedrich, supra, 31 Cal.3d at p. 283.)   The record thus reflects that the jury resolved a basic credibility dispute against defendant and would have convicted defendant based on either of the two units of cocaine.  (People v. Jones (1990) 51 Cal.3d 294, 307.)

Under the circumstances presented here, even if we were to conclude the trial court erred by failing to give a unanimity instruction, we would find that such error was harmless.   There is a split of authority as to whether the failure to give a unanimity instruction is subject to the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 or the state law standard under People v. Watson (1956) 46 Cal.2d 818, 836.  (See People v. Frederick (2006) 142 Cal.App.4th 400, 419 [recognizing split of authority as to applicable standard of harmless error for failure to give unanimity instruction].)   Under either standard, the error, if any, in this case was harmless.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CHAVEZ

We concur:

FOOTNOTES

FN1. CALCRIM No. 3500 provides in relevant part:  “The People have presented evidence of more than one act to prove that the defendant committed this offense.   You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”.  FN1. CALCRIM No. 3500 provides in relevant part:  “The People have presented evidence of more than one act to prove that the defendant committed this offense.   You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”

_, P.J. BOREN _, J. ASHMANN-GERST