P. v. Lynch
Filed 10/20/06 P. v. Lynch CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE, Plaintiff and Respondent, v. ZETTIEST T. LYNCH, Defendant and Appellant. | D046074 (Super. Ct. No. SCD169332) |
APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian, III, Judge. Affirmed.
A jury convicted Zettiest T. Lynch of one count of selling or furnishing cocaine base (Health & Saf. Code, § 11352 subd. (a)) but acquitted him of another count of selling or furnishing cocaine base, and conspiracy to sell or furnish cocaine base (Health & Saf. Code, § 11352 subd. (a); Pen. Code,[1] § 182 subd. (a)(1).) In a bifurcated proceeding, the jury found Lynch had one prior prison term (§§ 667.5, subd. (b) and 668) and two strike priors (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d) and 668.) The court struck one strike prior and sentenced Lynch to prison for nine years: a middle term of four years, doubled for the strike prior, and a consecutive one-year term for the prison prior.
Lynch appeals, contending the court erroneously failed to sua sponte instruct in the language of CALJIC No. 17.01, the unanimity instruction. We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On August 15, 2002, San Diego Police Officer Carole Beason was working undercover on C Street in downtown San Diego, when she saw Lynch and another male engaging in what appeared to be a drug transaction. Beason approached Lynch, asked if he was working, and told him she wanted a "20," meaning $20 worth of cocaine. Lynch told her he had just "dubbed up" the man he was with, meaning he gave him double the amount of cocaine for the price, and did not have any more, but Lynch offered to help and directed her to follow him. As Beason followed Lynch down the street, Lynch asked a man on the street corner pushing a shopping cart if he still needed a dime, meaning a $10 rock of cocaine base. The man answered "yes." Lynch walked across the street, and instructed Beason to wait for him as he pulled open a plywood fence to enter a construction site.
A minute later, Lynch emerged, pointed at Beason, and yelled, "She needs a
2-0." Beason turned and saw a man, Billy Joe Willis, walking up to her. Willis asked for the money, and Beason gave him a previously photocopied $20 bill. Willis handed her a piece of cocaine base. During Beason's transaction with Willis, she saw Lynch give what she believed to be a piece of cocaine base to the man with the shopping cart. Beason walked away and gave a prearranged signal to other police officers, who arrested Lynch and Willis.
The trial court instructed the jury regarding the alternative ways, either by selling or furnishing cocaine base, Lynch could be convicted of violating Health and Safety Code section 11352, subdivision (a). (CALJIC Nos. 12.02 and 12.03.)
DISCUSSION
Contrary to Lynch's contention, the trial court had no sua sponte duty to give a unanimity instruction.[2] There is a constitutional right to a unanimous verdict in a criminal case. (People v. Wheeler (1978) 22 Cal.3d 258, 265, overruled on other grounds in Johnson v. California (2005) 545 U.S. 162.) When the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied on to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific criminal act. (People v. Gordon (1985) 165 Cal.App.3d 839, 853, disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737.) "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." (People v. Deletto (1983) 147 Cal.App.3d 458, 472.)
A trial court is not obligated to give an instruction, either requested or sua sponte, if the evidence precludes a reasonable jury from finding the instruction applicable. (People v. Schultz (1987) 192 Cal.App.3d 535, 539.) "A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791, disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322.) Thus, the unanimity instruction is appropriate when conviction on a single count could be based on two or more discrete criminal events but not where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event. (People v. Perez (1993) 21 Cal.App.4th 214, 223.)
Lynch contends that a unanimity instruction was necessary because the jury possibly disagreed regarding which of two discrete acts, selling or furnishing cocaine, he committed. However, selling or furnishing cocaine are merely two different ways or methods by which he might have committed the particular crime, not two discrete criminal acts. Jury unanimity is not required on the specific theory of guilt or particular method of commission of the crime. (People v. Russo (2001) 25 Cal.4th 1124, 1135.) "In deciding whether to give the [unanimity] instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Ibid.)
Here, the prosecution relied on evidence of a single criminal act -- that Lynch helped Officer Beason buy cocaine base -- to prove Lynch violated Health and Safety Code section 11352 subdivision (a). The verdict form specified that the sale of cocaine to Beason was the criminal act underlying that charge. The jury was instructed regarding aiding and abetting and unanimously found that Lynch violated the statute.[3] It is legally irrelevant whether some jurors found Lynch facilitated selling or other jurors found he facilitated furnishing of cocaine because either act violated the statute. There was no risk the jury disagreed he committed the offense; rather, at best the jury may have been uncertain as to the way in which Lynch violated the statute. Thus, it was unnecessary for the jury to unanimously agree on whether Lynch's conduct constituted a sale or a furnishing of cocaine. Accordingly, the trial court did not err in not giving the uanimity instruction.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
McINTYRE, J.
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[1] All further statutory references are to the Penal Code unless otherwise stated.
[2] CALJIC No. 17.01 states: "The defendant is accused of having committed the crime of _______ [in Count _______]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count _______] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count _______], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict."
[3] The jury was instructed in the language of CALJIC No. 3.00 that, "Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include, one, those who directly and actively commit the act constituting the crime, or two, those who aid and abet the commission of the crime."
