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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald GUITON, Defendant and Appellant.

No. E008383.

Decided: February 24, 1992

Alvarenga & Bryan and Kathleen Bryan, San Bernardino, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Janelle B. Davis, Supervising Deputy Atty. Gen., and Yvonne H. Behart and Pamela A. Ratner, Deputy Attys. Gen., for plaintiff and respondent.


The defendant was charged with violating Health and Safety Code 1 section 11352 by selling or transporting cocaine (count one), and section 11351 by possessing cocaine for sale (count two).   The information also alleged that he had suffered a prior conviction of section 11352 within the meaning of section 11370.2, subdivision (a), and a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

Following a jury trial, the defendant was convicted of both counts, and the court found the special allegations to be true.   On count one, the defendant was sentenced to the middle term of four years.   On count two, he was sentenced to the middle term of three years, to run concurrently with the sentence on count one.  (Pen.Code, § 654.)   The sentence on count one was enhanced by three years pursuant to section 11370.2, subdivision (a), for a total of seven years.   A one-year enhancement under Penal Code section 667.5, subdivision (b), was stayed.


The defendant makes four contentions on appeal:  (1) that the trial court abused its discretion when it denied his motion for new counsel;  (2) that the conviction on count one must be reversed, because there was insufficient evidence to find that the defendant had sold cocaine, and it cannot be determined whether the jury relied on sales or transportation in convicting him of violating section 11352;  (3) that the court erred in instructing the jury with CALJIC No. 2.06;  and (4) that the prosecutor was guilty of prejudicial misconduct.

Finding merit only in his second contention, we reverse the conviction on count one, but affirm as to count two.




 In count one, the defendant was charged with violating section 11352 by selling and transporting cocaine.   Although apparently conceding that there was sufficient evidence from which the jury could have found that he had transported cocaine, the defendant argues that substantial evidence did not support the allegation that he had sold that drug.   He also contends that the record does not indicate which act the jury relied on in finding him guilty of violating section 11352.   He concludes that, because the jury may have based its verdict upon the alleged but unproven sale, his conviction on that count must be reversed.

In response, the People appear to contend that there was substantial evidence to support the alleged sale.   Furthermore, they argue that, even if the evidence was insufficient to support a finding of sales by the defendant, there was no danger that the jury relied on the unsupported act, because the jury was instructed that all jurors must agree on the defendant's commission of the same act, and it may be assumed that the jurors followed the law.

We conclude that the defendant is correct, and that the instruction relied upon by the People does not cure that defect.   Accordingly, we reverse the defendant's conviction on count one.

The evidence submitted in support of the alleged sale was this:  At approximately 9 p.m. on January 3, 1990, an undercover police officer was in a second-floor apartment in Riverside, looking out the front window.   From that position, he observed the defendant and five other males conversing outside the gates to the apartment complex, at a point approximately 35 to 56 feet away from the window, illuminated by a single “vapor” light.   Thereafter, two of the men departed, leaving the defendant with Eddie Lee and two other men.   Sometime later, the defendant said, “Here, hold this,” and handed a clear plastic sandwich-sized bag to Lee, who was standing one to two feet away from him.   The bag appeared to contain a white lumpy substance.   Lee placed the bag in his right front pants pocket, and the defendant walked out of sight into the apartment complex entrance.

Three to four minutes later, a white 280Z pulled up to the curb in front of the apartment complex.   A whistling noise came from the car, after which the driver got out and approached Lee and the other two men.   He met face-to-face with Lee and spoke with him, but the officer could not hear what was said.   Similarly, there was some movement of their shoulders, suggesting that their hands may have been moving, but the officer could not see their hands.   The driver then walked back to the white car, with his right hand in a closed position like a fist.

The defendant was not visible at any time the white car was present.   However, about 20 seconds after it had left, he again emerged into view, and approached Lee and the other two men.   Lee handed something to the defendant, which the defendant placed in his right front pants pocket.

All four men then got into a gray car parked at the curb in front of the apartment, with the defendant in the front passenger seat.   Lee drove the car to a Riverside motel, and pulled into the parking lot.   The police immediately approached the car and searched it.   Under the floor mat at the defendant's feet they discovered two plastic bags of rock cocaine, and one small bag of marijuana.   A search of the defendant revealed a pager in his left pants pocket, $490 in U.S. currency in his right pants pocket, and another small plastic bag of marijuana in the watch pocket inside his right pants pocket.

The undercover officer also testified that, based upon his experience working in narcotics enforcement, sellers of rock cocaine typically use assistants or “runners” to actually make contact with cocaine buyers, in order to reduce the chance of the seller being arrested as the result of a purchase by an undercover police officer.   In addition, he testified that a pager is commonly used by sellers to allow buyers to contact him and to arrange sales.   Finally, he said that rock cocaine purchases are typically paid for with cash.

This record does not reveal substantial evidence from which a reasonable finder of fact could find beyond a reasonable doubt that the defendant had made a sale of cocaine.  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)   Here, the People would presumably argue that the defendant sold cocaine to the driver of the white car.   But to reach that conclusion, we must be able to find, from the evidence, that Lee is the agent of the defendant, that Lee sold something to the driver, and that the thing sold to the driver was cocaine.   Instead, each of those steps requires speculation.   For instance, there is no evidence that that driver bought anything.   Even if he did, there is no evidence of what he bought, since that car was apparently never stopped.   We find that, as a matter of law, this evidence is insufficient to support the prosecution's theory that the defendant sold cocaine.2

 “[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.”  (People v. Green (1980) 27 Cal.3d 1, 69, 164 Cal.Rptr. 1, 609 P.2d 468.)  “The rule is perhaps most commonly invoked when the alternate theory is legally erroneous,” because supported by inadmissible evidence or incorrect instructions.  (Ibid.)  However, “[t]he same rule applies when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground.”   (Id., at p. 70, 164 Cal.Rptr. 1, 609 P.2d 468.)

Here, the People advanced two theories by which the defendant was alleged to have violated the prohibitions of section 11352:  by transporting or by selling.   As discussed above, the defendant concedes that the transportation is supported by substantial evidence, but the alleged sale is not.   Thus, the rule of People v. Green requires that we reverse the conviction on count one unless we can determine that the jury did not rely on the alleged sale to provide the basis for the conviction under section 11352.

From the record before us, we cannot with any certainty conclude that the basis upon which the jury found the defendant guilty on this count was his transportation of the cocaine.   The jury was instructed that the defendant was being charged with selling, transporting, furnishing, importing, and giving away cocaine.   It was further instructed that the defendant was guilty of that offense if he had either “transported, sold, furnished or gave away cocaine․”  (CALJIC No. 12.02, as modified;  emphasis added.)   These instructions from the court could have led the jury to believe that sufficient evidence of the alleged sale existed to permit a conviction of the defendant on that basis.   Indeed, that suggestion was repeated in another instruction, in which the jurors were told that “[t]he prosecution has introduced evidence tending to prove that there is more than one act upon which a conviction on Count I may be based.”  (CALJIC No. 17.01.)

This possible conclusion would have been reinforced by the People's argument.   Although the prosecutor emphasized the defendant's transportation as the “easiest” act upon which to base a verdict on count one, she also told the jury that the evidence justified a belief that the defendant had sold cocaine.3

Nor does the form of the verdict reveal the act upon which the jury based its decision.4  By characterizing a violation of section 11352 as being “Transportation/Sale of Cocaine,” the form provided to the jurors suggests that they could base their verdict on either act.   Similarly, the incorporation of the information by reference does not eliminate the ambiguity, because the information charged him with both transporting and selling.5

 The fact that the court instructed the jury with CALJIC No. 17.01 6 does not cure the absence of evidence to support the alleged sale.   When a defendant is charged in a single count with several acts and the evidence tends to show that he committed more than one such act, the jury must agree upon the particular act committed in order to convict.   (People v. McNeill (1980) 112 Cal.App.3d 330, 335, 169 Cal.Rptr. 313.)   This unanimity is constitutionally required.  (People v. Ferguson (1982) 129 Cal.App.3d 1014, 1020, 181 Cal.Rptr. 593.)   To achieve it, “either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.”   (People v. Gordon (1985) 165 Cal.App.3d 839, 853, 212 Cal.Rptr. 174, fn. omitted;  see also People v. Callan (1985) 174 Cal.App.3d 1101, 1111, 220 Cal.Rptr. 339.)   The instruction regarding the need for a unanimous agreement upon the specific act by which the defendant violated the statute thus cures the prosecution's failure to elect the act upon which it is relying.

 This rule, however, operates only when both of the alternative acts are supported by substantial evidence.   It “can have no application in a case ․ where there is a failure to present evidence of any specific act to support the charged crime.”  (People v. Van Hoek (1988) 200 Cal.App.3d 811, 816, 246 Cal.Rptr. 352, overruled on another ground in People v. Jones (1990) 51 Cal.3d 294, 320–322, 270 Cal.Rptr. 611, 792 P.2d 643 [substantial testimony to a series of specific but indistinguishable acts is sufficient].)   Similarly, it does not apply when one of the alleged acts is supported by substantial evidence, but the other is not.   After all, unanimous agreement by the jurors on the particular criminal act committed is of no constitutional significance if that act is not supported by substantial evidence.

Therefore, CALJIC No. 17.01 cannot cure either the prosecution's failure to submit substantial evidence of guilt as to one of two alleged acts, or the ambiguity in the resulting general verdict.   Because one of the two alleged acts is unsupported by substantial evidence, and because we cannot determine which act the jury relied upon in finding the defendant guilty of violating section 11352, the conviction on count one must be reversed.  (People v. Green, supra, 27 Cal.3d at pp. 69–70, 164 Cal.Rptr. 1, 609 P.2d 468.) 7

 While we agree with the defendant that his conviction under count one must be reversed, his following contention that a retrial of that charge would be barred by the double jeopardy clause is incorrect.   His only authority for that proposition is People v. Jeff (1988) 204 Cal.App.3d 309, 329, 251 Cal.Rptr. 135.   There, rape had been alleged on two theories:  force and fear.  (Id., p. 323, 251 Cal.Rptr. 135.)   However, no evidence was introduced concerning any force, and the jury was instructed solely on the theory of fear.  (Ibid.)  Although the jury found the defendant guilty of rape, the appellate court held that there was “no substantial evidence that defendant accomplished the acts of sexual intercourse by means of fear․”  (Id., pp. 328–329, 251 Cal.Rptr. 135.)   Thus, neither of the two theories alleged were supported by substantial evidence.   “Since the evidence was insufficient as a matter of law to support the finding that the [defendant] committed the offense charged, further proceedings are barred by the double jeopardy clause․”  (In re Johnny G. (1979) 25 Cal.3d 543, 548, 159 Cal.Rptr. 180, 601 P.2d 196.)

Here, by contrast, there was sufficient evidence to convict the defendant of transporting cocaine in violation of section 11352.   The reversal is necessary, not because of a lack of evidence, but because it cannot be determined whether the jury relied on that act in declaring the defendant guilty of the violation.   Therefore, there is no bar to a retrial on that charge.



The conviction on count one is reversed.   The conviction on count two is affirmed, and the matter is remanded to the trial court for resentencing on that count.


FN1. Unless specified otherwise, all further section references will be to sections of the Health and Safety Code..  FN1. Unless specified otherwise, all further section references will be to sections of the Health and Safety Code.

FOOTNOTE.   See footnote *, ante.

2.   This insufficiency did not go unnoticed by the defendant.   When he discovered prior to trial that the People intended to prosecute him on count one on the theory of a sale in addition to transportation, he asked the prosecutor to make an election between the two acts.   The prosecutor declined.   Noting that there was insufficient evidence at the preliminary hearing to establish a sale, the defendant moved orally under Penal Code section 995 to set aside that portion of the information.   That motion was denied.   After the People had rested at trial, the defendant moved for a judgment of acquittal as to the alleged sale, pursuant to Penal Code section 1118.1.   That motion was also denied.

3.   In explaining to the jury that all it had to do to convict the defendant on count one was to find that he had committed one of the acts specified in the information, the prosecutor said:  “Just one.   Did the defendant transport cocaine, or sell it, furnish it, offer to do one of these things․  [¶]  Now, although all of these things are possible, and you could, based on the evidence that we had in this case, think, yes, I believe that he did all of those things.   I believe that he sold cocaine.   I believe that he offered to sell it.   I believe that he furnished it to someone through his runner—as Officer Romo described to you is normal in cocaine transactions—though you could agree on all of those things, the point is that all 12 of you have to agree on one, at least one.”

4.   “We, the jury in the above-entitled action, find the defendant ․ guilty of violation of Section 11352 of the Health and Safety Code, (Transportation/Sale of Cocaine), as charged under Count I of the Amended Information.”

5.   The defense attorney attempted to resolve this uncertainty by requesting that the jurors be polled as to which of the two acts they relied upon in reaching their verdict on this count.   The court declined to do so, relying instead upon the jurors' compliance with the instruction concerning the need for unanimity regarding the act.   As will be discussed, that reliance was misplaced in this instance, but only because the alleged sale was not supported by substantial evidence.   We do not mean to suggest that, when two or more acts are established by the evidence, the defendant is entitled to test the jury's compliance with CALJIC No. 17.01 by polling the jurors as to their choice of act.

6.   As given, CALJIC No. 17.01 provides:  “The defendant is accused of having committed the crime of violation of Section 11352 Health and Safety Code in Count I.   The prosecution has introduced evidence tending to prove that there is more than one act upon which a conviction on Count I may be based.   Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts.   However, in order to return a verdict of guilty to Count I, all jurors must agree that he committed the same act.   It is not necessary that the particular act agreed upon be stated in your verdict.”

7.   At oral argument, the People urged us to reject the rule laid down by our Supreme Court in Green in favor of the rule which governs federal prosecutions.   In Griffin v. United States (1991) 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371, the United States Supreme Court held that the rule that was applied in Green was not required by due process.   To the contrary, it reaffirmed that the rule applicable to federal criminal procedure was that “ ‘when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, ․ the verdict stands if the evidence is sufficient with respect to any one of the acts charged.’ ”   (Id. at p. ––––, 112 S.Ct. at p. 473, quoting Turner v. United States (1970) 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610.)   However, since our court did not base its decision upon notions of federal due process, and since we are not bound by federal rules of criminal procedure which are not constitutionally mandated, we must follow the guidance of the California Supreme Court as announced in Green.

FOOTNOTE.   See footnote *, ante.

McKINSTER, Associate Justice.

HOLLENHORST, Acting P.J., and McDANIEL, J.†, concur.

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