Filed 7/29/14 P. v. Covarrubias CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B250029

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA398657)
         v.

RENE COVARRUBIAS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Lisa B. Lench, Judge. Reversed and remanded.


         Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
                  ___________________________________________________
       After a third jury trial, defendant Rene Covarrubias was convicted by a jury of
possession of a firearm by a felon in violation of Penal Code section 12021, subdivision
(a)(1)1 (count 3).2 The trial court sentenced defendant to six years in state prison.
       Defendant appeals on the grounds that: (1) the trial court prejudicially erred in
failing to give a unanimity instruction with respect to count 3; (2) the trial court
improperly admitted other bad act evidence; (3) the trial court’s denial of defendant’s
request for a continuance of the sentencing hearing violated defendant’s due process
rights; and (4) defendant requests an independent review of the trial court’s in camera
hearing on a Pitchess motion.3
       We find that the trial court’s failure to give a unanimity instruction was error, and
that the error was not harmless. Accordingly, we reverse the judgment.
                                           FACTS
Prosecution Evidence
       On August 23, 2011, at approximately 7:00 p.m., Jermaine Marbuery was walking
on West 58th Street in Los Angeles, going from his house to a mini-market. He saw
defendant in front of defendant’s home, talking to two acquaintances, Stub and Jay.
Marbuery knew defendant from growing up together.
       Defendant said hello to Marbuery, shook his hand, hugged him, and said, “You
know you owe me.” Marbuery was caught off guard and angered by the statement.
Marbuery had borrowed $15 from defendant about 10 years before, but Marbuery
believed that defendant had stabbed his brother about 20 years ago. Defendant and
Marbuery had words, and defendant challenged him to a fight. When Marbuery declined,


1      All further statutory references are to the Penal Code unless otherwise noted.
2      The first trial resulted in a mistrial due to jury deadlock. In the second trial,
defendant was acquitted of attempted murder (count 1), but the jury deadlocked on the
remaining counts. The third jury found defendant not guilty of assault with a firearm
(count 2) and possession of ammunition by a felon (count 4).
3      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).


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defendant told him to wait while he went inside his house. After defendant went inside,
Stub gestured to Marbuery to leave.
       Marbuery walked a few houses down the street and turned around. He saw
defendant pointing a rifle at him. Marbuery felt a bullet hit his buttocks area and then
another bullet hit his forearm.
       Marbuery ran to Hercules Market and called 911. He told the operator that he was
shot by a Hispanic male, but he did not name defendant. When the police arrived, he
again did not tell them he was shot by defendant. After he was transported to the
hospital, Marbuery was shown a picture of defendant by the police and identified him as
the shooter. However, at the first two trials in this matter, Marbuery testified that he did
not know who had shot him. At the final trial, Marbuery identified defendant as the
shooter.
       Los Angeles Police Officer Alex Alas responded to the 911 call at approximately
7:50 p.m. As the police car traveled westbound on West 58th Street, Officer Alas spotted
defendant talking to a group of people in front of a home. Defendant then crossed the
street carrying a large black duffel bag. He set the bag down in the front yard of another
residence. Officer Alas stopped defendant.
       Police Officer Cody MacArthur opened the bag. In it, he saw a rifle, a baseball
bat, and a shotgun barrel. The rifle’s magazine held three rounds of ammunition, and a
fourth bullet was found next to the bag on the sidewalk.
       No shell casings were found in the vicinity. The police searched defendant’s
house but did not find any relevant evidence. A gunshot residue test of defendant’s hands
did not detect any gunshot residue.
Defense Evidence
       Dr. David Duarte treated Marbuery at the hospital. Marbuery had gunshot wounds
to his right buttock and left arm. Defendant was treated with pain medication.
       A defense investigator took photographs and measured distances at West 58th
Street. She testified that it was 130 feet from where Marbuery testified defendant was



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standing to a tree near where Marbuery testified he was shot. It was a quarter mile to
Hercules Market.
                                        DISCUSSION
       Defendant contends that the trial court committed reversible error when it failed to
give a unanimity instruction with respect to the possession of a firearm by a felon charge.
We agree and therefore do not reach defendant’s remaining contentions, except for
review of the Pitchess motion, which we discuss below.
       We review a claim of instructional error de novo. (People v. Alvarez (1996) 14
Cal.4th 155, 217.) “Whether or not to give any particular instruction in any particular
case entails the resolution of a mixed question of law and fact that . . . is . . .
predominantly legal. As such, it should be examined without deference.” ( People v.
Waidla (2000) 22 Cal.4th 690, 733.)
       A jury verdict must be unanimous in a criminal case. (People v. Russo (2001) 25
Cal.4th 1124, 1132.) If the accusatory pleading charges a single offense, and the
evidence shows the defendant committed more than one act that could constitute that
offense, the jury must be instructed that the defendant can be found guilty only if the
jurors unanimously agree the defendant committed the same, specific act comprising the
crime. (Ibid.) This requirement is intended to eliminate the danger that the defendant
will be convicted even though there is no single offense that all jurors agree he or she
committed. (Ibid.) A unanimity instruction typically applies to acts that could have been
charged as separate offenses. (People v. Edwards (1991) 54 Cal.3d 787, 824.)
       “In deciding whether to give the 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.” (People v.
Russo, supra, 25 Cal.4th at p. 1135.) “The duty to instruct on unanimity when no
election has been made rests upon the court sua sponte. [Citation.] Because jury
unanimity is a constitutionally based concept, ‘. . . the defendant is entitled to a verdict in

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which all 12 jurors concur, beyond a reasonable doubt, as to each count charged.’
[Citation.]” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
       A unanimity instruction was clearly called for here. In the prosecution’s closing—
in the argument and on rebuttal—the prosecutor relied on two separate incidents to
support the felon in possession of a firearm charge. In explaining what evidence could be
applied to the charge, the prosecutor initially stated: “Marbuery said that he saw the
defendant firing a rifle at him. He saw him in possession of that rifle. Officer Alas said
he saw the defendant carrying a black duffel bag across 58th Street when he drove down
the street. Then Officer MacArthur said he went to that bag and removed the rifle, which
was loaded with three bullets.” Again, in rebuttal, the prosecutor said: “[Defense
counsel] pointed out that there is no physical evidence with regard to the defendant
having possession of a rifle. But there is two eyewitnesses who saw him with that rifle.
Jermaine Marbuery saw him pointing it at him and shooting at him with that rifle, and
then Officer Alas saw him walking across West 58th Street to 540 West 58th Street with
that gun in that bag. There are two witnesses here.”
       The question thus becomes whether the failure to give a unanimity instruction was
harmless error. (See People v. Hernandez (2013) 217 Cal.App.4th 559, 576.) We find
that it was not. Reasonable jurors could have differed on which incident constituted
defendant’s possession of a firearm. Some jurors may have believed that Marbuery saw
defendant pointing a gun at him. Other jurors may have discounted Marbuery’s story, but
believed that Officer Alas saw defendant carrying the duffel bag holding a rifle.
       Respondent contends that jury members could not have based the possession
conviction on the incident involving Marbuery because defendant was found not guilty of
assault with a firearm. The case of People v. Hernandez demonstrates why this
arguments fails. In People v. Hernandez, the defendant was charged with unlawful
possession of a firearm. Evidence was presented that the defendant was seen at a former
girlfriend’s house with a gun, and he later was found driving a car with a gun hidden
under the hood. The defendant offered separate defenses as to each alleged possession—
that he did not have a gun at the house, and that he did not have “‘dominion and control’”

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over the gun hidden in the car. (People v. Hernandez, supra, 217 Cal.App.4th 559, 574.)
The presentation of these separate defenses “‘gave the jury a rational basis to distinguish
between the various acts’” and raised the possibility that some jurors might have based
the conviction on the first act and others on the second. (Id. at p. 578.)
       At trial in this matter, defendant’s counsel proffered separate defenses for each
alleged possession. First, defense counsel argued that Marbuery was not credible, that he
had previously testified that defendant was not the perpetrator, and that his eventual
testimony that defendant was the shooter was unreliable. Second, defense counsel argued
that Officer Alas was a long distance from defendant when he allegedly saw him carrying
the duffel bag. Further, there was no physical evidence tying defendant to the bag. No
gunshot residue was found on defendant, no fingerprints linking defendant to the bag or
its contents were found, and no evidence was found in defendant’s house.
       Giving these separate defenses, it is not clear that all jurors based the conviction
upon defendant’s possession of the duffel bag. Some jurors may have been persuaded
that the lack of physical evidence created a reasonable doubt that defendant possessed a
duffel bag containing a firearm,4 but found defendant guilty based on Marbuery’s
testimony that he saw defendant holding a rifle. Because jurors may have differed on the
particular criminal act that formed the basis of the verdict, the error was not harmless.
We therefore must reverse.5


4      This possibility is likely in light of the jury’s verdict on count 4. Despite Officer
MacArthur’s testimony that three rounds of ammunition were in the magazine of the rifle
and a fourth round was on the sidewalk by the duffel bag, defendant was found not guilty
of felon in possession of ammunition.
5      Defendant moved for discovery of personnel information relating to Officers Alas
and Resureccion. (Pitchess, supra, 11 Cal.3d 531.) Defendant requests that this Court
independently review the transcript of the Pitchess hearing to determine if any additional
discoverable materials were withheld. The People do not object to this request. We
review the trial court’s ruling on a motion to discover personnel records for abuse of
discretion. (See People v. Samayoa (1997) 15 Cal.4th 795, 827.) Our independent
review reveals that the trial court properly exercised its discretion and its order
concerning the disclosure of materials to the defense was correct.

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                                     DISPOSITION
       The judgment is reversed and remanded for purposes of retrial of count 3, if the
prosecution so elects.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                         BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       FERNS, J.*




*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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