Filed 9/30/13 P. v. Lockwood CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
     publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
                               publication or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E055479

v.                                                                        (Super.Ct.No. FSB1104250)

TRAVIS L. LOCKWOOD,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Bryan Foster,

Judge. Affirmed.

         Correen W. Ferrentino, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J.

Beale, Deputy Attorneys General, for Plaintiff and Respondent.




                                                              1
       A jury found defendant, Travis L. Lockwood, guilty of (1) possessing a

destructive device or explosives on a public street (Former Pen. Code, § 12303.2);

(2) possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and

(3) possessing drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). The trial

court sentenced defendant to prison for a term of two years, eight months. Defendant

raises three issues on appeal. First, defendant contends the trial court erred by denying

his motion to suppress evidence because the officers did not have a reasonable suspicion

defendant was involved in criminal activity when they stopped him. Second, defendant

asserts the trial court erred by permitting the prosecutor to present propensity evidence.

(Evid. Code, § 1101, subd. (b).) Third, defendant contends the trial court made multiple

instructional errors in relation to defendant‟s conviction for possessing drug

paraphernalia. We affirm the judgment.

                    FACTUAL AND PROCEDURAL HISTORY

       On September 12, 2011, at approximately 10:30 a.m., Redlands Police Officer

Strobaugh was on patrol, in uniform, with Officer Herrera in a marked police car.

Dispatch contacted the officers about a suspicious person near an elementary school.

The person was identified as a white male, in his 30s, wearing a red T-shirt, black pants,

and riding a bicycle. While traveling toward the school, Strobaugh saw a man

(defendant) on a bicycle matching the description given by the dispatcher.

       Upon seeing defendant, the officers blew their car‟s horn as defendant rode past

them. Defendant looked backward toward the patrol car, lost control of his bicycle and

fell down. Within seconds of falling, defendant reached into his pants pocket, took out


                                             2
a handkerchief, and tossed it into a grassy area a few feet away. Strobaugh walked over

to defendant and asked if he was okay. Defendant explained he lost control of his

bicycle. Strobaugh asked defendant if he had any drugs or weapons on him. Defendant

said he “had a couple pocketknives with him.” Defendant also said he was on probation

“for illegal fireworks.”

       Strobaugh asked to search defendant, and defendant agreed. During the search,

Strobaugh found a glass pipe in defendant‟s front pants pocket. The pipe appeared to be

used for smoking methamphetamine. Strobaugh also found pocketknives in defendant‟s

underwear. Defendant agreed to let Strobaugh search the backpack he was wearing. In

the backpack Strobaugh found another glass pipe.

       Officer Herrera looked at the area where defendant threw the handkerchief.

Inside the handkerchief, Herrera found a plastic baggie containing “a small tin case and

then a white crystal substance also inside of the baggie.” The substance was

methamphetamine. Strobaugh handcuffed defendant and arrested him for possessing

methamphetamine.

       Strobaugh again asked defendant if he had anything illegal or anything that

would hurt the officers, since defendant was about to be placed in the patrol car.

Appearing confused, defendant asked the officers if he had any fireworks in his

possession. Strobaugh patted defendant down again, but did not find anything. After

placing defendant in the patrol car, Strobaugh walked over to defendant‟s bicycle, in

order to secure it. Strobaugh noticed a sweatshirt tied to the bicycle‟s handlebars.

Strobaugh looked in the sweatshirt pockets and found a pipe bomb. Strobaugh called


                                            3
the bomb squad. Defendant admitted to Strobaugh that the item was a pipe bomb.

Defendant explained that he found gunpowder in a friend‟s garage, took it home, and

made the pipe bomb.

       The bomb squad disposed of the pipe bomb. San Bernardino County Sheriff‟s

Detective Scovel was a member of the bomb squad. In Scovel‟s opinion the device

defendant possessed was a pipe bomb—it was not a firecracker.

       On January 20, 2010, at approximately 12:35 p.m., Redlands Police Officer

Estrada saw defendant on a bicycle near a middle school. Defendant agreed to let

Estrada search his backpack. Estrada found an explosive device in defendant‟s

backpack, which appeared to be a stick of dynamite. Estrada did not believe the item

was a pipe bomb. Defendant told Estrada he thought the item was a firecracker, but

defendant was unsure if it was “fake or real.” Estrada arrested defendant.

                                     DISCUSSION

       A.     MOTION TO SUPPRESS EVIDENCE

              1.     PROCEDURAL HISTORY

       Prior to trial, defendant moved to suppress the evidence obtained by the police

officers when they searched defendant on the street. Defendant asserted the officers

“did not have legal cause to justify the detention or the search of [defendant‟s]

property.” The trial court held a hearing on the motion. Herrera testified that he and

Strobaugh saw defendant riding his bicycle and noticed he matched the description

given by the dispatcher. Defendant was traveling in the opposite direction of the police

officers. Herrera tried to get defendant‟s attention by placing his hand out the window


                                             4
of the patrol car; however, that did not get defendant‟s attention, so Herrera blew the

patrol car‟s air horn. Herrera blew the horn in order to stop defendant, so that defendant

would speak to the officers. Defendant looked back at the patrol car and fell down.

Herrera watched defendant, through the vehicle‟s back window, throw the handkerchief;

Strobaugh watched through the vehicle‟s side-view mirror.

       When Strobaugh approached defendant he asked defendant if he was okay and if

he needed medical help. Defendant said he lost control of his bicycle. Strobaugh asked

defendant his name, date of birth, and whether he was on probation or parole.

Defendant said he was on probation. A dispatcher also informed Strobaugh that

defendant was on probation. Strobaugh did not ask the dispatcher if defendant had

search terms as part of his probation.

       Strobaugh asked for permission to search defendant and remove the knives

defendant admitted possessing. Defendant consented. While performing the search,

Strobaugh found a white cloth or sock with a pipe protruding from it in defendant‟s

pocket. The top of the pipe was protruding from both the cloth and defendant‟s pocket.

Strobaugh asked for permission to search defendant‟s backpack, and defendant

consented. When searching the sweatshirt attached to the handlebars of defendant‟s

bicycle, Strobaugh found a black felt bag inside the left pocket of the sweatshirt. Inside

the bag, Strobaugh found the pipe bomb.

       Defendant‟s trial attorney asserted that honking the air horn was akin to stopping

a person by using the patrol car‟s flashing lights and sirens. The trial court found the

honking of the air horn was not a command to stop, rather, it was “an attempt to gain


                                             5
attention.” The trial court reasoned that “defendant would have been free to continue

riding his bike away, and it would not have been any grounds to stop him at that point.”

However, once defendant fell down, the police officers had a right to check on

defendant‟s welfare and then a right to check the item defendant threw away from him.

Further, the trial court found defendant freely gave his consent for the search that

resulted in Strobaugh finding the pipe in defendant‟s pocket. As to the pipe bomb, the

trial court concluded it was discovered during a valid inventory search. Accordingly,

the trial court denied defendant‟s motion to suppress evidence.

              2.       ANALYSIS

       Defendant contends the trial court erred by denying his motion to suppress

evidence because the police officers did not have a reasonable suspicion that defendant

was involved in criminal activity when they stopped defendant. The particular issue

presented is whether the officers‟ use of the air horn and placing a hand outside the car

window created a detention. We conclude the officers did not detain defendant by using

a hand and air horn.

       “„In ruling on a motion to suppress, the trial court finds the historical facts, then

determines whether the applicable rule of law has been violated.‟ [Citation.] When we

review the trial court‟s resolution of the motion to suppress, we „defer to the trial court‟s

factual findings, express or implied, where supported by substantial evidence.‟

[Citation.] However, we exercise our independent judgment in determining whether the

search or seizure was reasonable under the Fourth Amendment. [Citation.]” (People v.

Dotson (2009) 179 Cal.App.4th 1045, 1048-1049.)


                                              6
       “Unlike a detention, a consensual encounter between a police officer and an

individual does not implicate the Fourth Amendment. It is well established that law

enforcement officers may approach someone on the street or in another public place and

converse if the person is willing to do so. There is no Fourth Amendment violation as

long as circumstances are such that a reasonable person would feel free to leave or end

the encounter. [Citations.]” (People v. Rivera (2007) 41 Cal.4th 304, 309.)

       “„[I]n order to determine whether a particular encounter constitutes a seizure, a

court must consider all the circumstances surrounding the encounter to determine

whether the police conduct would have communicated to a reasonable person that the

person was not free to decline the officers‟ requests or otherwise terminate the

encounter.‟ [Citation.] This test assesses the coercive effect of police conduct as a

whole, rather than emphasizing particular details of that conduct in isolation. [Citation.]

Circumstances establishing a seizure might include any of the following: the presence

of several officers, an officer‟s display of a weapon, some physical touching of the

person, or the use of language or of a tone of voice indicating that compliance with the

officer‟s request might be compelled. [Citations.] The officer‟s uncommunicated state

of mind and the individual citizen‟s subjective belief are irrelevant in assessing whether

a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]” (In re

Manuel G. (1997) 16 Cal.4th 805, 821.)

       The totality of the circumstances reflects an officer placed a hand outside the

patrol vehicle and sounded the vehicle‟s air horn while traveling in the opposite

direction of defendant. Defendant continued riding past the officers until he fell down.


                                             7
Given that the officers did not command defendant to stop, follow behind him, display a

weapon, or touch defendant there is nothing indicating the officers detained defendant.

This is further supported by the fact that the officers watched defendant continue riding

away. The officers did not turn the patrol car around or otherwise attempt to chase after

defendant when he continued on his path. Given the totality of the circumstances, it

appears the officers attempted to get defendant‟s attention in order to determine if he

would want to engage in a consensual conversation—the officers‟ actions did not create

a stop that a reasonable person would feel unable to leave.

       Defendant asserts the record reflects the officers wanted to stop defendant

because (1) the officers honked the air horn after holding a hand out the window proved

to be ineffective in stopping defendant, and (2) Herrera testified that he wanted to stop

defendant. Herrera‟s uncommunicated state of mind is irrelevant in assessing whether a

seizure triggering Fourth Amendment scrutiny has occurred. (In re Manuel G., supra,

16 Cal.4th at p. 821.) Thus, the fact that Herrera wanted to stop defendant is not

relevant, because we can only consider what was communicated between the officers

and defendant.

       The officers‟ act of blowing the air horn after holding a hand out toward

defendant did not create a compulsion for defendant to stop. It appears from the

evidence that the officers were only trying to obtain defendant‟s attention to determine

if he would participate in a consensual conversation. The officers did not command

defendant to stop or use the vehicle‟s lights or sirens to stop defendant. Thus, we are

not persuaded by defendant‟s argument.


                                             8
       B.       PROPENSITY EVIDENCE

                1.   PROCEDURAL HISTORY

       Prior to trial, the prosecutor moved to introduce evidence of defendant‟s prior

misdemeanor conviction for possession of a destructive device for the sake of proving

intent and knowledge. (Evid. Code, § 1101, subd. (b).) Defendant‟s trial attorney

asserted the prior conviction would not help the prosecutor to prove knowledge in the

instant case because the dynamite in the prior case was not similar to the pipe bomb in

the current case. Defendant‟s attorney asserted the devices were too dissimilar to prove

defendant‟s knowledge about the pipe bomb.

       The prosecutor argued that the prior conviction helped to prove defendant had “at

least some level of awareness and understanding and sophistication with respect to

explosive devices and that he‟s not supposed to have them.” Defendant‟s attorney

asserted the prior conviction evidence was also problematic under an Evidence Code

section 352 analysis because the devices were so dissimilar and the prior conviction

would require several witnesses to testify, creating “a trial of the same magnitude of the

trial” concerning the current charges. The prosecutor said two or three witnesses would

need to testify about the prior conviction, but the testimony would consume “less than

ten minutes.”

       Defendant‟s attorney argued that the prior conviction was merely about

possession and did not involve an element concerning defendant‟s mental state.

Therefore, defendant‟s attorney asserted the prior conviction could not be used in the

instant case to prove recklessness or maliciousness. The trial court asked the prosecutor


                                            9
for an offer of proof concerning the prior conviction. The prosecutor described the

evidence reflecting defendant was found on a bicycle with a destructive device in his

backpack. The prosecutor also wanted to introduce statements defendant made during

the prior encounter reflecting he knew the device was destructive or explosive.

       The trial court ruled the prosecutor could present the prior offense evidence. The

trial court held the prosecutor could present evidence about where the prior device was

found and defendant‟s conduct at the time. The trial court reasoned that the details

surrounding the prior offense would help put the prior conviction “in context.” The trial

court concluded the evidence would not be prejudicial to defendant because defendant

admitted possessing the prior destructive device and consented to the prior search of his

backpack.

              2.     ANALYSIS

       Defendant contends the trial court erred by permitting the prosecutor to present

evidence of defendant‟s prior conviction (Evid. Code, § 1101, subd. (b)).1 We disagree.

       “„Evidence that a defendant has committed crimes other than those currently

charged is not admissible to prove that the defendant is a person of bad character or has

a criminal disposition; but evidence of uncharged crimes is admissible to prove, among

other things, the identity of the perpetrator of the charged crimes, the existence of a

       1  Under the same point heading as this contention, defendant asserts the trial
court erred by not informing the jury that defendant‟s prior offense was a misdemeanor
and not the same crime as that charged in the instant case. (See Cal. Rules of Court,
rule 8.204(a)(1)(B) [separate point headings].) Defendant‟s argument on this point is
one paragraph and does not cite law. Thus, we deem the issue to be forfeited. (People
v. Anderson (2007) 152 Cal.App.4th 919, 929.)


                                            10
common design or plan, or the intent with which the perpetrator acted in the

commission of the charged crimes. [Citation.] Evidence of uncharged crimes is

admissible to prove identity, common design or plan, or intent only if the charged and

uncharged crimes are sufficiently similar to support a rational inference of identity,

common design or plan, or intent. [Citation.]‟ [Citation.]” (People v. Foster (2010) 50

Cal.4th 1301, 1328.) Prior offense evidence is also relevant to proving absence of

mistake. (See People v. Escudero (2010) 183 Cal.App.4th 302, 313.)

       “„The least degree of similarity (between the uncharged act and the charged

offense) is required in order to prove intent. [Citation.] . . . In order to be admissible to

prove intent, the uncharged conduct must be sufficiently similar to support the inference

that the defendant “„probably harbor[ed] the same intent in each instance.‟ [Citations.]”

[Citation.]‟ [Citation.]” (People v. Foster, supra, 50 Cal.4th at p. 1328.) As to lack of

mistake, “„“[t]he recurrence of a similar result . . . tends (increasingly with each

instance) to negative accident or inadvertence or self-defense or good faith or other

innocent mental state, and tends to establish (provisionally, at least, though not

certainly) the presence of the normal, i.e., criminal, intent accompanying such an

act . . . .” [Citation.]” (People v. Escudero, supra, 183 Cal.App.4th at p. 314.)

       “If evidence of prior conduct is sufficiently similar to the charged crimes to be

relevant to prove the defendant‟s intent . . . , the trial court then must consider whether

the probative value of the evidence „is “substantially outweighed by the probability that

its admission [would] . . . create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury.” [Citation.]‟ [Citation.] „Rulings made under


                                             11
[Evidence Code sections 1101 and 352] are reviewed for an abuse of discretion.

[Citation.]‟ [Citation.] „Under the abuse of discretion standard, “a trial court‟s ruling

will not be disturbed, and reversal . . . is not required, unless the trial court exercised its

discretion in an arbitrary, capricious, or patently absurd manner that resulted in a

manifest miscarriage of justice.” [Citation.]‟ [Citation.]” (People v. Foster, supra, 50

Cal.4th at pp. 1328-1329.)

       In the prior case, defendant was riding a bicycle near a middle school and had

dynamite in his backpack. In the current case, defendant was riding a bicycle away

from an elementary school and had a pipe bomb in a sweatshirt pocket. The prior crime

and charged crime are similar because they both involve defendant possessing a

destructive, explosive device in a public area. Thus, the trial court could reasonably

conclude the charged and uncharged crimes were factually similar and could infer the

prior offense showed defendant was not mistaken about the pipe bomb being a

firecracker, which would tend to show his malicious intent.

       As to probative value, the uncharged offense was relevant to proving the charged

crime of possessing a destructive device or explosive because the charged offense

required proof that defendant‟s possession was reckless or malicious. (Former Pen.

Code, § 12303.2.) “Malicious” means “a wish to vex, annoy, or injure another person,

or an intent to do a wrongful act.” (Pen. Code, § 7, subd. (4).) Reckless behavior is that

“„which is such a departure from the conduct of an ordinarily prudent person under the

same circumstances as to demonstrate an indifference to consequences or a disregard of

human life.‟ [Citation.]” (People v. Medlin (2009) 178 Cal.App.4th 1092, 1103.)


                                              12
       Defendant‟s past offense was relevant to showing defendant had previously been

around explosives and had a level of knowledge about their destructive nature. In the

current case, defendant originally referred to the pipe bomb as a firecracker. The prior

offense evidence helped to prove defendant likely knew the pipe bomb was not a

firecracker and therefore, he possessed the pipe bomb with a malicious or reckless intent

because he knew the potential destructive nature of the bomb. Accordingly, the trial

court could reasonably conclude the prior offense evidence had probative value.

       In regard to the prejudicial effect of the prior crime evidence, the testimony about

the prior crime was not lengthy. The officer who stopped defendant testified, and his

direct testimony was brief. The detective who disposed of the dynamite also testified,

and his testimony was also brief. Thus, the prior offense evidence did not consume an

undue amount of time. Further, while the charged and uncharged offenses were similar,

there were differences that would have allowed the jury to distinguish the crimes so as

not to confuse them. For example, the prior offense involved dynamite, while the

current offense involved a pipe bomb, and the offenses involved testimony from

different police officers. Given the differences between the two crimes, it is unlikely a

trier of fact would mistake the two offenses.

       In sum, the prior crime evidence had probative value and a low risk of creating a

prejudicial effect. Accordingly, we conclude the trial court acted within its discretion

when granting the prosecutor permission to present the prior crime evidence.




                                            13
       Defendant contends the prior offense evidence was not probative because there

was no dispute at trial about whether defendant knew the pipe bomb was an explosive

device. Defendant‟s argument is not persuasive because the evidence reflects defendant

originally referred to the pipe bomb as a firecracker. Thus, defendant could reasonably

argue that he did not recklessly or maliciously possess the device because he did not

appreciate the potentially destructive nature of the device.

       Next, defendant asserts the prior conviction could not have helped to prove

whether defendant recklessly or maliciously possessed the pipe bomb because the prior

offense did not have a mental state as an element of the offense.2 As set forth ante,

maliciousness involves an intent to do a wrongful act. Defendant‟s prior offense

involved him claiming that he did not know whether the dynamite was a “fake or real”

firecracker. In the current case, defendant claimed the pipe bomb was a firecracker.

When the crimes are brought together, the prior offense helps to show defendant acted

with malice when carrying the pipe bomb in a public place—that he did not have an

innocent belief that he was carrying a firecracker.

       C.     JURY INSTRUCTION

              1.     PROCEDURAL HISTORY

       Strobaugh testified that, while speaking to defendant, he asked defendant

whether he had consumed any methamphetamine. Defendant told Strobaugh, “he had

smoked a couple hits of methamphetamine earlier that day.” Strobaugh understood

       2Defendant‟s prior conviction was for possession of a destructive device.
(Former Pen. Code, § 12303.)


                                            14
“hits” to mean “like puffs.” Strobaugh showed defendant the pipe he found in

defendant‟s front pants pocket and asked him if that was the pipe he used “to take the

hits off of.” Defendant “said it was.” When searching defendant‟s backpack, Strobaugh

found a second glass pipe that was similar to the one found in defendant‟s pants pocket.

       The trial court gave the jury the following instruction concerning the drug

paraphernalia charge: “The defendant is charged in Count 3 with possessing an object

that can be used to unlawfully inject or smoke a controlled substance. [¶] To prove that

the defendant is guilty of this crime, the People must prove that: First, the defendant

possessed an object used for unlawfully injecting or smoking a controlled substance;

second, the defendant knew it to be an object used for unlawfully injecting or smoking a

controlled substance; and third, the defendant knew that the object could be used to

unlawfully inject or smoke a controlled substance. [¶] A person does not have to

actually hold or touch something to possess it. It is enough if the person has control

over it either personally or through another person.” (CALCRIM No. 2410.)

              2.     ANALYSIS

                     a)     Contentions

       Defendant contends the trial court erred by not instructing the jury (1) that

defendant had to know of the pipe‟s presence, and (2) on the law of unanimity.

                     b)     CALCRIM No. 2410

       We begin our analysis of this issue with the instruction concerning the law of

possessing drug paraphernalia. The People concede the trial court erred, but assert the

error was harmless. We agree with the People. We note the statute at issue does not


                                            15
include a knowledge requirement. The statute, in 2011, made it a crime “to possess an

opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully

injecting or smoking (1) a controlled substance . . . .” (Health & Saf. Code, § 11364,

subd. (a).) However, CALCRIM No. 2410 does include an element concerning

knowledge of the paraphernalia‟s presence. The elements in the instruction are:

“1. The defendant [unlawfully] possessed an object used for unlawfully injecting or

smoking a controlled substance; [¶] 2. The defendant knew of the object‟s presence;

[¶] AND [¶] 3. The defendant knew it to be an object used for unlawfully injecting or

smoking a controlled substance.” Given the language in the form jury instruction, we

will assume the trial court erred by not instructing the jury that an element of the offense

was defendant‟s knowledge of the paraphernalia‟s presence.

       A trial court‟s failure to instruct the jury on an element of an offense is subject to

harmless error review. (People v. Flood (1998) 18 Cal.4th 470, 502-503.) We must

determine “whether it appears beyond a reasonable doubt that the error did not

contribute to this jury‟s verdict. [Citations.]” (Id. at p. 504.) In performing this

analysis we must consider whether “defendant contested the omitted element and raised

evidence sufficient to support a contrary finding.” (People v. Mil (2012) 53 Cal.4th

400, 417.) The error may be deemed harmless if “the omitted element was uncontested

and supported by overwhelming evidence.” (Ibid.)

       Strobaugh testified that defendant admitted smoking from the pipe located in his

pocket earlier that morning. Thus, it can be inferred defendant knew the pipe was in his

pocket because he had used it earlier that day. The only defense witness who testified at


                                             16
trial was Thomas Fee, a private investigator who specialized in fires and explosives.

Fee‟s testimony concerned the explosives charge, not the drug paraphernalia charge.

       During closing arguments, defendant‟s trial counsel argued, “I‟m not worrying

about the methamphetamine. Just like [defendant] did to the police officers, he told

them exactly what that was. He admitted to use. He admitted that those were the pipes

that he used to smoke it. He didn‟t try to hide the ball in any[]way, so I‟m not worried

about Charges 2 and 3, if you decide they‟ve been demonstrated.”

       Given that defendant did not argue against the charge in Count 3 and the

uncontradicted evidence supports a finding that defendant knew there was a pipe in his

pocket because he had used it that same morning, we conclude any error on the part of

the trial court was harmless beyond a reasonable doubt.

       D.     UNANIMITY

       We review alleged instructional errors de novo. (People v. Martin (2000) 78

Cal.App.4th 1107, 1111.) “Unanimity instructions [citation] are required whenever

more than one act could constitute the offense charged. [Citations.] The impetus for

[unanimity instructions] is protection of the defendant‟s „right to have the jury agree

unanimously on the criminal act or acts which supported his conviction.‟ [Citation.]”

(People v. Robbins (1989) 209 Cal.App.3d 261, 264.)

       Nonetheless, there is an exception to this rule. A unanimity instruction is not

required “when (1) „the acts are so closely connected in time as to form part of one

transaction,‟ (2) „the defendant tenders the same defense or defenses to each act,‟ and

(3) „there is no reasonable basis for the jury to distinguish between them. [Citations.]‟


                                            17
[Citation.]” (People v. Lueth (2012) 206 Cal.App.4th 189, 196 [Fourth Dist., Div.

Two].) In particular, the exception is meant to apply when all the crimes occur during a

single transaction and “„are so closely related in time and place that the jurors

reasonably must either accept or reject the victim‟s testimony in toto.” [Citation.]‟

[Citation]” [Citation.]‟ [Citation.]” (Ibid.)

       Defendant was found with the glass pipes at the same time, in the same place.

Thus, the acts are closely connected in time, because they occurred at the same time.

Defendant tendered the same defense to both acts. Defendant did not separate the

pants-pipe from the backpack-pipe. Defendant essentially conceded the drug related

charges by reminding the jury that he admitted using methamphetamine and telling the

jury, “I‟m not worried about Charges 2 and 3, if you decide they‟ve been

demonstrated.” There was no reasonable basis for the jury to distinguish between the

pants-pipe and the backpack-pipe because it would defy reason to believe Strobaugh

and the photographs/photocopies of the pipes in relation to one of the pipes but not the

other. In other words, the crimes were so close together in time that the jurors would

have needed to accept the photocopies and testimony in toto or reject them entirely.

Accordingly, the exception to the unanimity requirement is satisfied. Therefore, we

conclude the trial court did not err by not instructing the jury on the law of unanimity.

       Defendant compares his case to People v. Castaneda (1997) 55 Cal.App.4th

1067. In Castaneda, deputies searched the home of the defendant‟s ex-wife. The

defendant was at the home during the search, but he did not live there. Deputies found a

small bindle of heroin taped to the back of a television set and a “„minute‟” amount of


                                            18
heroin on top of the television. (Id. at pp. 1069-1070.) The defendant was searched and

nothing was found in his pockets. (Id. at p. 1069.) Later, after the defendant was

transported to the sheriff‟s station, he was searched again and a small bindle of heroin

was found in his pocket. The defendant was shocked and surprised at the discovery.

(Id. at pp. 1069-1070.) The defendant‟s son testified that the heroin found on the

television set belonged to him. (Ibid.)

       The defendant was charged with possession of heroin. The jury was not

instructed on the law of unanimity. (People v. Castaneda, supra, 55 Cal.App.4th at p.

1070.) The appellate court concluded the jury could have found the defendant

constructively possessed the heroin on the television set, or it could have found the

defendant possessed the heroin discovered in his pocket at the sheriff‟s station. (Id. at p.

1071.) The appellate court held the two acts of possession were factually distinct and

the defendant offered separate defenses to the two acts: (1) the heroin on the television

belonged to the defendant‟s son, and (2) the heroin in the defendant‟s pocket was

planted. (Ibid.) Thus, the appellate court concluded the trial court erred by not

instructing the jury on the law of unanimity. (Ibid.)

       The instant case is distinguishable from Castaneda because defendant, in the

instant case, was alone with the pipes. One pipe was in his pants pocket and the other

was in his backpack—there was nothing indicating the pipes belonged to another person

and nothing making the offenses factually distinct. Further, defendant did not offer

separate defenses. Defendant conceded the drug related charges. Given the differences

between the two cases, we are not persuaded by defendant‟s reliance on Castaneda.


                                            19
                                      DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                    MILLER
                                                             J.


We concur:


RAMIREZ
                           P. J.


HOLLENHORST
                                 J.




                                          20
