Filed 3/29/13 P. v. Chavez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063170
         Plaintiff and Respondent,
                                                                                 (Madera Super. Ct. No.
                   v.                                                               MCR037736B)

IMELDA CHAVEZ,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Mitchell C.
Rigby, Judge.
         Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean
M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



         *   Before Levy, Acting P.J., Cornell, J. and Poochigian, J.
                                     INTRODUCTION
       Appellant/defendant Imelda Chavez was charged and convicted of count I, felony
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and count II,
misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364, subd.
(a)). She was placed on probation.
       On appeal, defendant contends the court erroneously admitted evidence of her
admission that she previously used methamphetamine, and defense counsel was
prejudicially ineffective for failing to request a limiting instruction as to the jury‟s
consideration of her admission. Defendant further argues the court had a sua sponte duty
to give the unanimity instruction. We will affirm.
                                           FACTS
       On December 15, 2009, Madera Police Officer Matthew McCombs was
dispatched to a residential area to investigate a possible burglary. While investigating
that case, the neighbors reported a large amount of suspicious activity and constant foot
traffic at a particular residence there. McCombs determined that Agapito Obregon, a
probationer, lived in a converted garage behind that particular residence.
       Officer McCombs went to Obregon‟s residence and made contact with him. He
entered the property to look for stolen goods. Defendant Imelda Chavez and codefendant
Norris were in the front room of the residence.
       McCombs testified that he immediately saw a plastic box on the living room‟s
coffee table which contained 3.1 grams of methamphetamine. A smoking pipe was next
to the box. A digital scale and a cell phone were also on the table.
       Officer McCombs conducted a consent search of Norris and found a plastic bag in
her pocket. It contained 0.2 grams of methamphetamine. Norris said the
methamphetamine on the coffee table belonged to Obregon. Officer McCombs called for
backup assistance.



                                               2.
       Officer Jason Gutknecht arrived and spoke to defendant, who said that she shared
the residence‟s single bedroom with Obregon. Defendant said she had been staying there
for two months, and she used the bedroom dresser.
       Officer Gutknecht testified the dresser contained women‟s clothing, several
broken watches, and purses. A blue purse contained a plastic bag with 0.2 grams of
methamphetamine and a glass smoking pipe.
       Officer Gutknecht testified that he advised defendant of the warnings pursuant to
Miranda v. Arizona (1966) 384 U.S. 436. He asked defendant about the blue purse and
the drugs. Defendant said the purse belonged to her. Gutknecht asked her if the
methamphetamine and pipe belonged to her, and defendant said no. Defendant said she
kept old watches in the purse.
       The prosecutor asked Officer Gutknecht whether defendant said she used
methamphetamine. Defense counsel objected on relevance grounds. The court overruled
the objection.
       Officer Gutknecht testified that defendant said she used methamphetamine the day
prior to the search, and she ingested the drug by using a methamphetamine pipe, similar
to the one found in the house.
                                 DEFENSE EVIDENCE
       Defendant testified that Obregon used to be her boyfriend. In July 2009, she
began staying at his residence on weekdays because it was just a short walk to her adult
school. In August 2009, she stopped attending school, and she ended her relationship
with Obregon. Defendant testified she moved out in November 2009 because Obregon
had other girlfriends and liked to party. However, she still kept some things at his house,
and she would occasionally visit.
       Defendant testified that at the time of the search, the only property she kept at
Obregon‟s house was a duffle bag of clothing, a few purses, shoes, and jeans. She
admitted that she kept clothing in the bedroom dresser.

                                             3.
       Defendant testified that she spoke to Officer McCombs on the day of the search.
McCombs might have asked her about the blue purse and its contents. Defendant did not
recognize Officer Gutknecht at trial and testified she never spoke with him. Defendant
testified that she never told any officer that the methamphetamine and pipe in the purse
belonged to her, and she never said that she used methamphetamine.
       Defendant admitted that she told an officer that the blue purse belonged to her, and
that she kept watches in the purse. Defendant testified that the methamphetamine and
pipe found in that purse did not belong to her. Defendant also claimed that she had lost
the blue purse at Obregon‟s house about two months before the search.
       On cross-examination, the prosecutor asked defendant if she had used
methamphetamine in the past. Defense counsel objected on relevance grounds. The
prosecutor replied: “Knowledge, your Honor.” The court overruled defense counsel‟s
objection. Defendant answered the question and said she had used methamphetamine in
the past, but she had last used the drug in 1997 or 1998.
       Also on cross-examination, the prosecutor asked defendant if she had been
convicted of possession of methamphetamine in 2004. Defendant answered, “Yes, I
was[,]” just before defense counsel objected. The court sustained the objection and
instructed the jury to disregard “for all purposes and not to consider in any part of your
deliberations the question and answer last posed. The matter is stricken.”1
                               PROCEDURAL HISTORY
       Defendant and codefendant Norris were both charged with count I, possession of
methamphetamine, and count II, misdemeanor possession of narcotics paraphernalia.



       1 The court properly sustained the objection and admonished the jury because a
testifying defendant is not subject to impeachment with a prior conviction for simple
possession of narcotics since it is not a crime of moral turpitude. (See People v. Castro
(1985) 38 Cal.3d 301, 317.)


                                             4.
       Codefendant Norris pleaded guilty to count I. After a jury trial, defendant was
convicted of counts I and II. She was placed on probation.
                                       DISCUSSION
I. Evidence of defendant’s admissions about prior drug use
       Defendant raises several issues as to the court‟s admission of evidence about her
admissions that she used methamphetamine the day before the search. First, defendant
contends the court erroneously permitted introduction of this evidence through the
testimony of Officer Gutknecht and cross-examination of defendant during trial.
       Second, defendant argues that while defense counsel raised relevance objections to
this evidence, he was prejudicially ineffective for failing to object to the testimony as
inadmissible character evidence pursuant to Evidence Code section 1101.
       Finally, defendant argues that defense counsel was ineffective for failing to
request an instruction on the limited admissibility of this evidence, and counsel‟s failure
to request the instruction was prejudicial because the prosecutor urged the jury to rely on
defendant‟s admission of prior drug use for the improper purpose of propensity evidence.
       A. Possession
       We begin with the limited admissibility of prior drug use in narcotics
prosecutions. “The crime of possession of methamphetamine consists of four elements:
(1) defendant exercised control over or the right to control an amount of
methamphetamine; (2) defendant knew of its presence; (3) defendant knew of its nature
as a controlled substance; and (4) the substance was in an amount usable for
consumption. [Citations.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 956 (Tripp),
italics in original.)
       “ „It is well settled, of course, that in a prosecution for unlawful possession of
narcotics, it is incumbent upon the prosecution to present evidence from which the trier
of the facts reasonably may infer and find that the accused had dominion and control over
the contraband with knowledge of its presence and narcotic character.… [Citation.]‟ It is

                                              5.
also well settled, however, that each of these essential elements may be proved by
circumstantial evidence and any reasonable inferences drawn from such evidence.
[Citations.]” (Tripp, supra, 151 Cal.App.4th at p. 956.)
       “[K]nowledge by the accused of the character of the contraband is an essential
element of possession. [Citations.]” (People v. Williams (1971) 5 Cal.3d 211, 215.)
Knowledge of a substance‟s narcotic nature may be shown in a variety of ways, including
“by evidence showing a familiarity with the substance, such as needle marks or other
physical manifestations of drug use or instances of prior drug use [citations].” (Tripp,
supra, 151 Cal.App.4th at p. 956, italics added.)
       “As a general rule, evidence the defendant has committed crimes other than those
for which he is on trial is inadmissible to prove bad character, predisposition to
criminality, or the defendant‟s conduct on a specific occasion. [Citation.] However,
Evidence Code section 1101, subdivision (b), permits evidence of a defendant‟s past
criminal acts when relevant to prove a material fact at issue, such as identity, motive, or
knowledge. [Citations.]” (People v. Williams (2009) 170 Cal.App.4th 587, 607.)
       In the prosecution of drug crimes, evidence of the defendant‟s prior drug use is
generally admissible under Evidence Code section 1101, subdivision (b), “to prove
knowledge of the narcotic nature of the drugs. [Citation.]” (People v. Williams, supra,
170 Cal.App.4th at p. 607; People v. Earley (2004) 122 Cal.App.4th 542, 546-548; see
also People v. Morales (1979) 88 Cal.App.3d 259, 264; People v. Perez (1974) 42
Cal.App.3d 760, 764.)
       For example, in People v. Thornton (2000) 85 Cal.App.4th 44, the defendant was
charged with possession of heroin. A syringe was found in his car, and heroin was found
in the police car into which the defendant was placed after his arrest. Thornton held that
the defendant‟s statement to the arresting officer, that he had only used heroin a few
times, was admissible to show the defendant‟s knowledge of the nature of the substance
alleged to be in his possession. (Id. at pp. 47-48.)

                                              6.
       B. Admission of defendant’s statements about her prior drug use
       As applied to this case, the court did not abuse its discretion when it permitted
Officer Gutknecht to testify about defendant‟s admission that she used methamphetamine
the day before the search, which she denied when she testified. In addition, the court did
not abuse its discretion when it permitted the prosecution to cross-examine defendant
about her prior drug use. Similarly, defense counsel was not ineffective for failing to
object to the testimony as inadmissible character evidence under Evidence Code section
1101, subdivision (b) because the evidence was relevant, probative, and admissible.
       Defendant admitted that she kept belongings in the bedroom dresser and that the
blue purse belonged to her. However, she denied any knowledge of the
methamphetamine and pipe found in that purse, claimed she only kept broken watches in
that bag, and also claimed that she did not regularly live there anymore. The prosecution
had the burden of proving that defendant knew of the nature and character of the
contraband found in the blue purse as a controlled substance. Evidence of defendant‟s
previous admission to Officer Gutknecht, that she had used methamphetamine, was
highly relevant and probative to the disputed issue of knowledge, and the court did not
abuse its discretion when it permitted the prosecution to ask both Officer Gutknecht and
defendant about her prior methamphetamine use. Defendant‟s out-of-court statements to
Officer Gutknecht were admissible pursuant to the admission exception to the hearsay
rule. (Evid. Code, §§ 1204, 1220.)
       C. Failure to request a limiting instruction
       Defendant next argues that defense counsel was prejudicially ineffective for
failing to request a limiting instruction to the jury, that evidence of her prior
methamphetamine use was only relevant to prove knowledge of the nature and character
of the substance, and the evidence was not admissible to prove her character or
disposition to use narcotics.



                                               7.
       “To establish ineffective assistance, defendant bears the burden of showing, first,
that counsel‟s performance was deficient, falling below an objective standard of
reasonableness under prevailing professional norms. Second, a defendant must establish
that, absent counsel‟s error, it is reasonably probable that the verdict would have been
more favorable to him. [Citations.]” (People v. Hawkins (1995) 10 Cal.4th 920, 940,
overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v.
Blakeley (2000) 23 Cal.4th 82, 89.) “If the record on appeal fails to show why counsel
acted or failed to act in the instance asserted to be ineffective, unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation, the claim must be rejected on appeal. [Citation.]” (People v.
Kraft (2000) 23 Cal.4th 978, 1068-1069.)
       “[A]lthough a court should give a limiting instruction on request, it has no sua
sponte duty to give one. [Citations.]” (People v. Hernandez (2004) 33 Cal.4th 1040,
1051.) CALCRIM No. 375 would have been the appropriate limiting instruction in this
case. It instructs the jury that evidence was introduced that defendant committed certain
uncharged acts; the jury had to decide whether defendant committed the uncharged
offense by a preponderance of the evidence; the jury could, but it was not required to,
consider that evidence for the limited purpose of determining identity, intent, motive,
knowledge, accident, or common scheme or plan; the jury could not consider the
evidence for any other purpose; and the jury could not conclude from this evidence that
the defendant has a bad character or is disposed to commit crime.
       The court did not have a sua sponte duty to give this instruction, and defense
counsel did not request it. Defense counsel was not ineffective for failing to request the
limiting instruction in response to the evidentiary portion of the trial. Defense counsel
may have had made the tactical decision to decline such an instruction to avoid calling
attention to the evidence and instructional language that might have been deemed



                                             8.
unfavorable to the defense – that the jury could consider her admission of prior drug use
to prove her knowledge of the nature and character of the substance.
       D. Prejudice/Closing argument
       Defendant argues that defense counsel‟s failure to request a limiting instruction
was prejudicial in light of the prosecutor‟s closing argument, because the prosecutor cited
to defendant‟s admission of her prior drug use and encouraged the jury to improperly use
such evidence for the improper purpose of proving her propensity to use drugs.
       In his initial closing argument, the prosecutor addressed defendant‟s admission of
her prior drug use in light of the elements of simple possession, particularly the element
as to whether the defendant knew of the nature and character of the contraband as a
controlled substance.

       “How do we know that? Well, we know that for a couple different reasons.
       [¶] One, Officer Gutnecht [sic] testified that the defendant in fact told him
       that she smoked methamphetamine. That she did it yesterday. [¶] Even if
       you have reason to disbelieve that account and believe the defendant‟s
       testimony, she stated that she had smoked methamphetamine in the past.
       So she certainly knew that it was a controlled substance. That it was a
       narcotic.” (Italics added.)
The prosecutor‟s initial closing argument accurately described the limited manner in
which the jury could consider defendant‟s admission of her prior methamphetamine use.
       Defense counsel also addressed defendant‟s admissions of prior drug use in his
closing argument, and challenged Officer Gutknecht‟s credibility on this point. Defense
counsel also rejected the prosecutor‟s attempt to connect defendant‟s prior drug use to the
contraband found in the house:

             “That‟s like saying, „I found this pen on the floor. Is this pen
       yours?‟

              “ „No.‟
              “ „Have you used a pen?‟
              “ „I used a pen yesterday.‟
              “ „Okay. Well, this pen is yours because you used a pen yesterday.‟

                                             9.
               “That‟s the same thing as saying, „I smoked methamphetamine the
         day before.‟ ”
         Defense counsel further argued that defendant‟s admissions about prior drug use
did not mean that “because she smoked meth the day before that everything now becomes
hers.”
         In the prosecutor‟s rebuttal argument, he refuted defense counsel‟s attacks upon
the officer‟s credibility as to what defendant said about her prior drug use. He also
addressed defense counsel‟s attempt to compare prior drug usage with prior usage of a
pen.

                “And, yeah, she did say that she smoked yesterday to the officer. So
         that has some importance because now we know that she‟s a meth smoker,
         more than likely it‟s hers. Also, she knows – she knows what
         methamphetamine is.…”
         The prosecutor continued this theme and again cited to defendant‟s admissions
about prior methamphetamine use:

                “Did she say the meth was hers? No, she didn‟t. But you know
         what, the officers came to her house, they did have a legal search. They
         found that a meth user did in fact have methamphetamine and a meth pipe
         used for [smoking] methamphetamine in her pouch in her dresser in her
         bedroom in her home. And it was a usable amount.

                “Use your common sense. Is the other story reasonable? Come on.
         It was her meth. And it was her pipe. That‟s all I have.”
         The prosecutor‟s argument was not inappropriate, and defense counsel‟s failure to
request a limiting instruction was not prejudicial in light of the trial evidence in this case.
The prosecutor argued the officer‟s testimony about defendant‟s admissions was
credible – that defendant said she lived in the house, she used the bedroom, she kept
things in the dresser, and she used methamphetamine the previous day. Defendant
claimed she no longer lived in the house, and she had last used methamphetamine in 1997
or 1998. The conflicting evidence presented a credibility question for the jury. The
prosecutor argued that based on the officer‟s testimony, the jury could infer that the


                                              10.
methamphetamine found in the purse belonged to defendant since she admitted that she
lived there, kept things in the dresser, and had used methamphetamine the previous day.
II.   Failure to give the unanimity instruction
      Defendant contends the court had a sua sponte to give the unanimity instruction
because three different quantities of methamphetamine were found in the house, and the
jury had to agree which amount was alleged to belong to defendant to convict her of
simple possession. The People argue that the failure to give the unanimity instruction
was harmless in this case.
      A. Background
      When the officers searched Obregon‟s house, they found a plastic box on the
coffee table in the living room and a smoking pipe next to the box. The box contained
3.1 grams of methamphetamine. The officers also found a plastic bag in Norris‟s pocket
which contained 0.2 grams of methamphetamine. A blue purse was found in the
bedroom dresser, and it contained a plastic bag with 0.2 grams of methamphetamine and
a glass smoking pipe.
      During closing argument, the prosecutor acknowledged there were three different
quantities of methamphetamine found in the house.

      “Now, I‟m not necessarily concerned with the meth in Ms. Natalie Norris‟
      pocket. I‟m sure that was her own. [¶] But the defendant had the right to
      possess that which was in her purse. It‟s likely she also had the right to
      possess the methamphetamine that was connected to Mr. Obregon which
      was on the coffee table in her home out in the open, not hidden.”
      The prosecutor argued that defendant had the right to control both quantities, and
she knew the drugs were present in the house since she admitted that she had lived there
for two months and used drugs the day before the search.
      B. Analysis
      In a criminal case, a jury verdict must be unanimous, and “the jury must agree
unanimously the defendant is guilty of a specific crime. [Citation.]” (People v. Russo


                                           11.
(2001) 25 Cal.4th 1124, 1132, italics in original.) “[W]hen the evidence suggests more
than one discrete crime, either the prosecution must elect among the crimes or the court
must require the jury to agree on the same criminal act. [Citations.]” (Ibid.) “This
requirement of unanimity as to the criminal act „is intended to eliminate the danger that
the defendant will be convicted even though there is no single offense which all the jurors
agree the defendant committed.‟ [Citation.]” (Ibid.) “On the other hand, where the
evidence shows only a single discrete crime but leaves room for disagreement as to
exactly how that crime was committed or what the defendant‟s precise role was, the jury
need not unanimously agree on the basis or, as the cases often put it, the „theory‟ whereby
the defendant is guilty. [Citation.]” (Ibid.) The trial court has a sua sponte duty to give a
unanimity instruction whenever the circumstances of the case make it appropriate.
(People v. Carrera (1989) 49 Cal.3d 291, 311 fn. 8; People v. Riel (2000) 22 Cal.4th
1153, 1199.)
       In a prosecution for possession of narcotics, a unanimity instruction is required
“where actual or constructive possession is based upon two or more individual units of
contraband reasonably distinguishable by a separation in time and/or space and there is
evidence as to each unit from which a reasonable jury could find that it was solely
possessed by a person or persons other than the defendant ....” (People v. King (1991)
231 Cal.App.3d 493, 501 (King).) Among the factors to be considered in determining
when a unanimity instruction is necessary are whether the defendant raised separate
defenses to separate narcotic items and whether there is conflicting evidence over
ownership of such items. (See People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-
1071 (Castaneda).)
       For example, the defendant in King was convicted of possession for sale where
methamphetamine was found in two different locations of the defendant‟s home: in a
purse found in the living room, and inside a decorative statue in the kitchen. (King,
supra, 231 Cal.App.3d at pp. 497-498.) The evidence showed that the purse was the

                                            12.
property of someone else, the home had multiple occupants, and the defendant‟s
boyfriend testified that some of the drugs belonged to him. (Id. at pp. 497-500.) King
held the unanimity instruction was required because the two units of methamphetamine
were in separate parts of the house, and there was evidence that could lead a reasonable
jury to believe that it was possessed by another person. (Id. at pp. 501-502.)
          Similarly, in Castaneda, the court concluded that a unanimity instruction was
required where the defendant‟s conviction for possession of heroin could have been based
upon either constructive possession of heroin found on defendant‟s television set, or
actual possession of heroin found in his pocket at the sheriff‟s station. (Castaneda,
supra, 55 Cal.App.4th at pp. 1070-1071.) Castaneda held that the acts of possession
were distinct, and the defendant provided separate defenses to each act: the defendant‟s
son testified that the heroin found on the television belonged to him; and defense counsel
argued the heroin found in the defendant‟s pocket was planted or otherwise fabricated.
(Id. at p. 1071.) Castaneda concluded the trial court had a sua sponte duty to give the
jury a unanimity instruction on which act or acts constituted the offense of possession.
(Ibid.)
          The instant case is distinguishable from King and Castaneda. The prosecutor
acknowledged that the drugs found in Norris‟s pocket belonged to her, but did not elect
between the drugs found on the coffee table and in the blue purse. Unlike King and
Castaneda, however, the two items containing methamphetamine were not reasonably
distinguishable by separation of either time or space. The items were found during the
same search, at the same time, and a very short distance apart. In addition, defendant
presented the same defense: she did not know anything about the drugs found in the
house, and she no longer lived there. Since the two amounts of methamphetamine were
not reasonably distinguishable by separation of time or space, and there was no
conflicting evidence of ownership or varying defenses offered for the items, the trial
court was not required to give a unanimity instruction.

                                              13.
       Even if we assume that a unanimity instruction should have been given, the error
was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,
24; People v. Gary (1987) 189 Cal.App.3d 1212, 1218; cf. People v. Vargas (2001) 91
Cal.App.4th 506, 562.) Under this standard, the failure to give a unanimity instruction is
harmless “[w]here the record provides no rational basis, by way of argument or evidence,
for the jury to distinguish between the various acts, and [therefore,] the jury must have
believed beyond a reasonable doubt that defendant committed all acts if he committed
any,...” (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) The failure to give a
unanimity instruction is considered harmless “if the record indicate[s] the jury resolved
the basic credibility dispute against the defendant and would have convicted the
defendant of any of the various offenses shown by the evidence to have been committed.
[Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 307, original italics.)
       In this case, defendant testified at trial and denied any knowledge about the
methamphetamine found in the house. She denied making the statements attributed to
her by Officer Gutknecht – that she was living at the house, sleeping in the bedroom,
storing things in the bedroom dresser, or saying that she used methamphetamine the day
before search. Instead, she testified that she no longer lived there and did not know
anything about the drugs. In addition, the defense attacked the credibility of the officer‟s
testimony about her admissions. Despite this defense, the jury found defendant guilty of
possession of methamphetamine. Since both amounts were relatively close together, and
defendant raised the same defense, the verdict implies that the jury did not believe
defendant‟s version of events. Thus, since the jury rejected the only defense that
defendant offered for the charged offense, the trial court's failure to give the unanimity
instruction was harmless beyond a reasonable doubt.
                                      DISPOSITION
       The judgment is affirmed.



                                             14.
