P. v. Sandoval

Filed 7/5/06 P. v. Sandoval CA5

TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Christopher David Sandoval was convicted after a jury trial of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count one) and possession of methamphetamine for sale (Health & Saf. Code, § 11378, count two). In a bifurcated proceeding, the trial court found true allegations Sandoval had a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (a) – (i) & 1170.12) and two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).

The trial court sentenced Sandoval to prison for the upper term of four years on count one, which it doubled pursuant to three strikes, and to two consecutive one-year terms for the prior prison term enhancements for a total prison term of ten years.^[1] The court imposed a restitution fine and granted applicable custody credits. On appeal, Sandoval contends the trial court failed to admonish the jury with the unanimity instruction, CALJIC No. 17.01. Sandoval also argues the court failed to properly exercise its sentencing discretion when it failed to strike his prior serious felony conviction and that it violated his Sixth Amendment right to a jury trial when it sentenced him to the upper prison term.

FACTS

Prosecution Case

About 2:00 a.m. on January 8, 2005, Bakersfield Police Officers Jason Hatcher and Charles Sherman stopped Sandoval's car because he was driving without headlights. Sandoval was driving alone and appeared very nervous. Sandoval did not have a driver's license, proof of insurance, or vehicle registration. Hatcher verified that the car Sandoval was driving was registered to Richard Macias.

Sandoval was asked to exit the car but he did not move until asked a few more times. Before he exited the car, Hatcher noticed Sandoval was manipulating something with his hands in his lap. As Sandoval exited the car, he placed his hand into his coat pocket. He was told to put his hands where the officers could see them. Sandoval was handcuffed and arrested.

When Hatcher looked inside the vehicle, he saw a clear plastic baggie the size of a baseball on the driver's side floorboard adjacent to the seat containing what appeared to be four individually wrapped baggies of methamphetamine. Hatcher also found a digital gram scale inside the car.

Sherman searched appellant and found a small quantity of methamphetamine which Sherman estimated to be about one gram. The bag on the floorboard of the car contained 22.9 grams of methamphetamine.^[2] Sandoval waived his right to remain silent and told Sherman he purchased methamphetamine found in his car for $300 and it was for his personal use. Sandoval told Sherman he was an addict and consumed four grams of methamphetamine a day. Sandoval explained that he broke and discarded the pipes he used to smoke methamphetamine after each use. In Sherman's experience, it is not common for drug addicts to throw away their pipes. Officers failed to find any paraphernalia for drug use in the car Sandoval was driving.

Sherman testified as an expert on illegal drug use. Sherman expressed the opinion that Sandoval possessed the methamphetamine for sale. The quantity of narcotic recovered represents between 88 and 221 individual uses. The value of the drug recovered was between $890 and $1,800, depending on the size of the individual portions sold. In Sherman's experience, no one uses four grams of methamphetamine a day. The typical methamphetamine user carries no more than a gram of the drug.

Sherman stated that Sandoval showed no signs of being under the influence of methamphetamine when he was arrested. Sherman believed that if Sandoval was a heavy user, he would have used the drug prior to his arrest. Sherman stated his opinion that Sandoval possessed methamphetamine for sale.

Defense Case

Sandoval testified that he did not have methamphetamine in his possession, he did not know there was methamphetamine in the car, and he did not have methamphetamine in his pocket.

Sandoval explained that he was stopped by officers after borrowing the car from Richard Macia's wife. Sandoval received a call from a friend asking for a ride. He dressed and left in the car unaware of how the drugs got there. Sandoval said he froze in the car because he received conflicting instructions from the officers. One told him to exit the car, the other told him to stay. One of the officers grabbed his arm, pushed it up behind his back, and pinned Sandoval against the car door. Sandoval said he was not asked by the officers for his driver's license.

Sandoval explained that he was twice patted down by officers before they checked his pockets. Sherman reached into Sandoval's pants' pocket and retrieved a bindle of methamphetamine. Sherman told Sandoval that he found about a gram of methamphetamine in the pocket, and arrested him. Sandoval did not know how the methamphetamine got into his pocket and did not put it there. Sandoval denied telling Sherman he was a drug addict, the drugs were for his personal use, or that he smoked methamphetamine.

On cross-examination, Sandoval admitted he was a drug addict, he knew the street value of methamphetamine, and he smoked methamphetamine using a pipe. Sandoval suggested that Sherman could have grabbed methamphetamine and placed it into his pocket when he conducted the search of Sandoval's pocket. According to Sandoval, the last time he used methamphetamine was before Christmas of 2004.

UNANIMITY INSTRUCTION

Appellant contends his convictions must be reversed because the trial court failed to instruct jurors, on its own motion, that they must unanimously agree on the act or acts supporting the charges.^[3] Appellant argues there was evidence of more than one stash of methamphetamine and there was evidence that one or both of these could have belonged to someone else. Thus, there was a possibility that the jury did not unanimously agree as to which stash belonged to appellant. Respondent argues appellant was simultaneously in possession of, and transporting methamphetamine and that it was one batch being transported without separation in time or space. According to respondent, either the instruction was unnecessary or any error in failing to give it was harmless beyond a reasonable doubt.

In People v. Russo (2001) 25 Cal.4th 1124, 1132, the California Supreme Court explained the unanimity requirement as follows:

â€