People v. Bihl CA4/1 ( 2014 )

Filed 6/26/14 P. v. Bihl CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064065
Plaintiff and Respondent,
v. (Super. Ct. No. SCD245941)
DEENA LEE BIHL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Howard H.
Shore, Judge. Affirmed.
Russell S. Babcock, 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, Lynne G. McGinnis and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Deena Lee Bihl appeals the order suspending imposition of sentence and placing
her on probation for three years after a jury found her guilty of possession of
methamphetamine for sale and of transportation of methamphetamine (Health & Saf.
Code, §§ 11378, 11379, subd. (a)) and also found the transportation was not for personal
use (Pen. Code, § 1210, subd. (a)). Bihl contends the trial court prejudicially erred by not
giving a unanimity instruction and by limiting her cross-examination of a prosecution
witness, and she also argues the cumulative effect of these errors requires reversal. We
affirm.
I.
BACKGROUND
San Diego police officer Michael Sherbondy stopped a car driven by Bihl for a
broken taillight. There were also two men in the car, one seated in the front passenger
seat and the other in the seat behind him.
Sherbondy searched Bihl's purse and found marijuana and two small diamonds
within a small container. He also found "at least 20 gift cards," three cell phones, and
$666 in various denominations of bills inside Bihl's purse. Sherbondy took a pocket
knife from Bihl's waistband, and she handed him $1,100 in various denominations of bills
from her pockets and a small plastic bag of methamphetamine from her brassière.
San Diego police officer Gene Loucks searched the trunk of Bihl's car. In the
trunk, he found a clutch purse that contained a small electronic scale, several small plastic
bags, and "a purple woman's style coin purse." Inside the coin purse, Loucks found a
small plastic bag of methamphetamine.
2
Detective Richard Aguilar of the San Diego Police Department testified at trial as
an expert witness on drug sales. Based on his training, experience, review of the police
reports, and consideration of the evidence found on Bihl's person, in her purse, and in the
trunk of her car, Aguilar testified Bihl possessed methamphetamine for purposes of sale.
II.
DISCUSSION
Bihl challenges her convictions on three grounds: instructional error, erroneous
limitation of cross-examination, and cumulative effect of these errors. As we explain
below, none of these grounds has merit.
A. The Trial Court Had No Duty to Give a Unanimity Instruction
Bihl complains the trial court failed to discharge its sua sponte duty to give the
jury a specific unanimity instruction. (See CALCRIM No. 3500.)1 Such an instruction
was required, she claims, because each conviction could have been based on a separate
act of possession or transportation, namely possession or transportation of the
methamphetamine in her brassière or, alternatively, possession or transportation of the
methamphetamine in the clutch purse in the trunk of her car. We disagree.
1 CALCRIM No. 3500 states in part: "The People have presented evidence of more
than one act to prove that the defendant committed this offense. You must not find the
defendant guilty unless you all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act (he/she) committed."
3
The constitutional requirement of a unanimous verdict in a criminal case means
"the jury must agree unanimously the defendant is guilty of a specific crime." (People v.
Russo (2001) 25 Cal.4th 1124, 1132.) A trial court ordinarily instructs the jury
adequately on unanimity by advising the jury, as the court did here, that on each count all
jurors must agree to the verdict. (See CALCRIM No. 3550.) A more specific instruction
that the jury must unanimously agree on the particular act underlying a count (CALCRIM
No. 3500) is required only when the number of similar, separately chargeable criminal
acts shown by the evidence exceeds the number of crimes actually charged in the
accusatory pleading. (People v. Maury (2003) 30 Cal.4th 342, 422-423; Russo, at
p. 1132; People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612.) "The instruction 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." (Sutherland, at
p. 612.) There is no such danger, and no specific unanimity instruction need be given,
when the defendant's acts are so closely connected that they form part of a single
transaction and the jury is not reasonably likely to distinguish between them. (People v.
Stankewitz (1990) 51 Cal.3d 72, 100; People v. Burns (1987) 196 Cal.App.3d 1440,
1458.)
Here, the acts underlying Bihl's convictions were part of one transaction, and the
jury was not likely to disagree over which acts she committed. Bihl was convicted of
possession for sale and transportation of methamphetamine based on the bags of
methamphetamine, the cash, the drug paraphernalia, and other items police officers found
4
after they stopped her car and conducted a search.2 Although some of the
methamphetamine was found on Bihl's person and some in the trunk of the car she was
driving, "[t]he act[s] of possession [and transportation] here [were] not fragmented as to
time or space. The evidence showed all of the [methamphetamine] came from the car,"
and was located in areas under Bihl's exclusive or joint control. (People v. Wright (1968)
268 Cal.App.2d 196, 198 [three marijuana cigarettes found in car, two found on cliff
where passenger threw them].) The issue at trial was "not whether [Bihl] possessed [and
transported] each narcotic item found in the [car], but whether [she] possessed [and
transported] a usable amount of [methamphetamine] at the time and place charged."
(Ibid.) It therefore "was not necessary to instruct the jury its members must all agree
which specific items of narcotics [Bihl] possessed [or transported] so long as they all
agreed at the time and place [she] possessed, separately, jointly or constructively, [and
transported] a usable amount of [methamphetamine]." (Ibid.)
In support of her contrary argument that the trial court had a sua sponte duty to
give a specific unanimity instruction, Bihl relies heavily on People v. Castaneda (1997)
55 Cal.App.4th 1067 (Castaneda) and People v. King (1991) 231 Cal.App.3d 493 (King).
Castaneda held a unanimity instruction is required when the evidence shows multiple
"acts of possession [that are] factually distinct" and the defendant "offer[s] separate
2 To prove possession for sale, the People had to show Bihl possessed a usable
quantity of a methamphetamine, knew she possessed it, knew it was a controlled
substance, and intended to sell it. (People v. Montero (2007) 155 Cal.App.4th 1170,
1174-1177.) "Transportation of a controlled substance is established by carrying or
conveying a usable quantity of a controlled substance with knowledge of its presence and
illegal character." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
5
defenses to each act," but the People do not elect to rely on a particular act. (Castaneda,
at p. 1071.) King similarly held a unanimity instruction is required when "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, absent an election by the People." (King, at
p. 501.) Neither case supports reversal here, because no evidence indicated anyone other
than Bihl possessed either bag of methamphetamine.
In King, the defendant was convicted of possession for sale after
methamphetamine was found in two locations inside a house she rented, one quantity in a
purse in the living room and another inside a statue in the kitchen. (King, supra, 231
Cal.App.3d at pp. 495, 497.) There was evidence the purse belonged to someone else,
the house had multiple occupants, and the drugs found in the statue belonged to the
defendant's boyfriend. (Id. at pp. 497-498.) King held a unanimity instruction was
required because "there was a separation of the contraband by space and there was
conflicting evidence as to the ownership of the narcotics themselves." (Id. at p. 501,
italics added.)
In Castaneda, the defendant was convicted of possession of heroin. (Castaneda,
supra, 55 Cal.App.4th at p. 1069.) Law enforcement officers found heroin taped to the
back of a television in the room in which the defendant was arrested, and later found
heroin in the defendant's pocket when he was searched at the sheriff's station. (Id. at
pp. 1069-1070.) The defendant's son testified the heroin found on the television belonged
6
to him (id. at p. 1070), and the defendant argued the heroin found in his pocket during the
search at the sheriff's station had been planted because the evidence showed no drugs
were found in his pocket when he was searched upon arrest (id. at pp. 1069, 1071). The
Castaneda court concluded a unanimity instruction was required because "[t]he evidence
disclosed two different ways in which [the defendant] could have violated the single
charge of possession of a controlled substance." (Id. at p. 1070, italics added.)
Bihl's case is distinguishable from King and Castaneda. The two units of
contraband involved in this case were not "reasonably distinguishable by a separation in
time and/or space" (King, supra, 231 Cal.App.3d at p. 501), and the acts of possession
underlying Bihl's convictions were not "factually distinct" (Castaneda, supra, 55
Cal.App.4th at p. 1071). Both bags of methamphetamine were found during the same
search, at the same time, and near each other in places under Bihl's control, namely, in
her brassière as she sat in the driver's seat of her car and in a purse in the trunk of the car.
There was no evidence anyone other than Bihl possessed or transported either bag of
methamphetamine.3 Although Bihl insists she "offered separate defenses to each act [of
possession,]" all she really offered was argument based on speculation. Bihl called no
witnesses and presented no evidence on her own behalf as to either charge. In closing
arguments, Bihl's counsel contended "this case was about a failure to investigate and a
3 Bihl essentially concedes this evidentiary deficiency by acknowledging that
besides "the presence of the passengers in the car," she "had no other evidence to bolster
this argument" that the purse containing the methamphetamine "had been placed in the
trunk by one of the car's passengers." Bihl complains, however, that the trial court's
limitation on her cross-examination of Loucks prevented her from presenting such other
evidence. We address (and reject) this complaint in part III.B., post.
7
lack of evidence and a rush to judgment." Specifically, counsel argued "the officers'
failure to investigate" made it "clear from the evidence that [the People] have not proved
beyond a reasonable doubt that [Bihl] had knowledge that [the methamphetamine] was
even in the trunk." Counsel also argued there was reasonable doubt Bihl actually had
methamphetamine in her brassière because the "quality" of Sherbondy's testimony was
suspect based on his alleged mishandling of some of the evidence found in the search.
Counsel then discussed the elements of each charged offense and the related evidence,
and argued the People had not met their burden to prove Bihl guilty of either charge
beyond a reasonable doubt. On this record, where there was no evidence anyone other
than Bihl possessed or transported either bag of methamphetamine and the only "defense"
offered as to both bags was reasonable doubt, neither King nor Castaneda required the
trial court to give a unanimity instruction.
Also distinguishable is People v. Wesley (1986) 177 Cal.App.3d 397, a case Bihl
cited for the first time in her reply brief. In Wesley, the People charged the defendant in
one count with "possess[ion] for sale of a controlled substance, 'to wit, cocaine and
heroin,' " but the jury returned a verdict finding the defendant guilty of possession for
sale of " 'cocaine or heroin.' " (Id. at p. 400.) The heroin was found on the defendant's
person, but the cocaine was found on a table in the living room of his home where five
other people were present, two of whom dropped packages of cocaine on the floor. (Id.
at pp. 399-400.) Because the "evidence disclosed two different ways in which [the
defendant] could have violated the single charge . . . of possession for sale of a controlled
substance" and "the verdict fail[ed] to resolve the ambiguity presented by the evidence,"
8
the appellate court held it was reversible error not to give a unanimity instruction. (Id. at
p. 401.) Here, by contrast, only one controlled substance (methamphetamine) was at
issue; there was no evidence, as opposed to mere argument, that anyone other than Bihl
had control over it; and the verdicts were not ambiguous as to what controlled substance
she possessed and transported. Wesley therefore does not support Bihl's argument that
the trial court reversibly erred by not giving the jury a unanimity instruction.
Even if we were to assume a unanimity instruction should have been given, we
would conclude the trial court's failure to give the instruction 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.) "Where the record provides no rational basis, by
way of argument or evidence, for the jury to distinguish between the various acts, and the
jury must have believed beyond a reasonable doubt that defendant committed all acts if
he committed any, the failure to give a unanimity instruction is harmless." (People v.
Thompson (1995) 36 Cal.App.4th 843, 853.) "For example, where the defendant offered
the same defense to all criminal acts, and 'the jury's verdict implies that it did not believe
the only defense offered,' failure to give a unanimity instruction is harmless error."
(People v. Hernandez (2013) 217 Cal.App.4th 559, 577; see People v. Wolfe (2003) 114
Cal.App.4th 177, 188 [failure to give unanimity instruction was harmless when jury
rejected "unitary defense" to all instances of firearm possession].) The failure to give a
unanimity instruction is also harmless "if the record indicate[s] the jury resolved the basic
credibility dispute against the defendant and would have convicted the defendant of any
9
of the various offenses shown by the evidence to have been committed." (People v.
Jones (1990) 51 Cal.3d 294, 307.)
Under these rules, any error in not giving the jury a unanimity instruction in this
case was harmless. The case against Bihl rested primarily on the police officers'
testimony about what they found in the search of Bihl and her car. The discovery of
usable quantities of methamphetamine, a large amount of currency in various
denominations, numerous small plastic bags, and a small electronic scale strongly
suggested Bihl transported methamphetamine and possessed it for sale. Bihl neither
testified nor presented any other evidence to dispute the People's evidence. Her only
"defense" to the charges against her consisted of an attempt, through cross-examination
and closing argument, to undermine the credibility of the police officers and their
investigation and thereby to convince the jury the People had not met their burden of
proof. The guilty verdicts indicate the jury rejected this "defense," i.e., the jury decided
the credibility issue against Bihl and accepted the officers' testimony. "Given this record,
it is reasonable to conclude that the jury believed beyond a reasonable doubt that [Bihl]
committed all acts if [she] committed any. Thus, the failure to give the unanimity
instruction was harmless beyond a reasonable doubt." (People v. Curry (2007) 158
Cal.App.4th 766, 784; see People v. Napoles (2002) 104 Cal.App.4th 108, 120 [failure to
give unanimity instruction was harmless when credibility was main issue in case].)
B. The Trial Court Did Not Unconstitutionally Limit Cross-examination
Bihl complains the trial court violated her Sixth Amendment right to confront
adverse witnesses and her Fourteenth Amendment due process right to present a defense
10
by limiting her cross-examination of Loucks about his prior drug-related contacts with
one of the passengers in Bihl's car. After providing further background, we shall explain
why this complaint lacks merit.
1. Additional Background
The People called Loucks as a witness in their case-in-chief. In response to
questioning by the prosecutor, Loucks testified he searched the trunk of Bihl's car,
identified the methamphetamine and other items he found there, and described the chain
of custody for the items that were seized as evidence.
Bihl's trial counsel then cross-examined Loucks about the items he found in Bihl's
trunk. Counsel also inquired into Loucks's familiarity with the passengers in Bihl's car.
Loucks testified one of the passengers was Carlo Manuel. Counsel then asked, "And is it
fair to say you've had previous drug contacts with Mr. Manuel?" When the prosecutor
objected on relevance grounds, the trial court sustained the objection and stated, "It's
outside the scope of direct."
On redirect examination, the prosecutor asked Loucks whom he recognized in
Bihl's car. Loucks responded, "All three of them." The prosecutor then asked whether
Loucks had seen Bihl driving the car on prior occasions, and he responded in the
affirmative.
On recross-examination, Bihl's counsel again asked Loucks whether one of the
individuals he recognized in Bihl's car was Manuel, and Loucks against answered, "Yes."
The following exchange then occurred:
11
"[Bihl's counsel:] And you recognized him from prior contacts
involving —
"[The prosecutor:] Objection. Relevance.
"The Court: I indicated in limine he can indicate if he recognized the
people from prior contacts. That's as far as it will go.
"[Bihl's counsel:] Nothing further."
The court apparently was referring to its earlier in limine rulings that: (1) the police
officers could be asked whether they had previous contacts with Bihl; (2) Bihl's counsel
could inquire as to the circumstances of those contacts; but (3) the prosecutor could not
ask Sherbondy whether he knew Bihl used methamphetamine.
2. Legal Analysis
As an initial matter, we note Bihl has not preserved her federal constitutional
arguments for appellate review. A defendant who fails to assert in the trial court claims
of federal constitutional error forfeits those claims on appeal. (People v. Riccardi (2012)
54 Cal.4th 758, 801 [confrontation clause claim]; People v. Thornton (2007) 41 Cal.4th
391, 427 [same]; People v. Cua (2011) 191 Cal.App.4th 582, 591 [due process claim].)
When the trial court prevented Bihl's counsel from obtaining testimony from Loucks
about his prior drug-related contacts with Manuel, counsel never mentioned either the
confrontation clause or the due process clause. Bihl may not do so for the first time on
appeal. Nevertheless, we exercise our discretion to address Bihl's constitutional
arguments on the merits to forestall her claim that trial counsel provided constitutionally
ineffective assistance by not raising them at trial. (See, e.g., People v. Neely (2009) 176
Cal.App.4th 787, 795; People v. Scaffidi (1992) 11 Cal.App.4th 145, 151.)
12
The confrontation clause of the Sixth Amendment guarantees a criminal defendant
the right "to be confronted with the witnesses against him." (U.S. Const., 6th Amend.;
see Pointer v. Texas (1965) 380 U.S. 400, 403 [confrontation clause applies to states
through 14th Amend.].) The confrontation clause guarantees a criminal defendant an
adequate opportunity to cross-examine adverse witnesses in order to expose flaws in their
perception, memory, or veracity and thereby call the factfinder's attention to reasons to
doubt the witnesses' testimony. (United States v. Owens (1988) 484 U.S. 554, 557-558;
Davis v. Alaska (1974) 415 U.S. 308, 316.) The right to cross-examine adverse witnesses
is also a component of a criminal defendant's constitutional right to " 'a meaningful
opportunity to present a complete defense.' " (Crane v. Kentucky (1986) 476 U.S. 683,
690.) Although cross-examination is thus "a fundamental right essential to a fair trial in a
criminal prosecution" (Pointer v. Texas, supra, at p. 404), "not every restriction on a
defendant's desired method of cross-examination is a constitutional violation" (People v.
Hamilton (2009) 45 Cal.4th 863, 943). In particular, application of the rules of evidence
to cross-examination ordinarily does not violate a defendant's right to confront adverse
witnesses or to present a defense. (People v. Quartermain (1997) 16 Cal.4th 600, 623;
People v. Hall (1986) 41 Cal.3d 826, 834; People v. Ardoin (2011) 196 Cal.App.4th 102,
119.)
Here, testimony from Loucks about his previous drug-related contacts with
Manuel was properly excluded under the rules of evidence. Cross-examination is limited
13
to matters "within the scope of the direct examination" (Evid. Code, § 773, subd. (a)),4
and may elicit any information that is relevant to a complete and accurate understanding
of the witness's testimony on direct examination (People v. Dotson (1956) 46 Cal.2d 891,
898; Eddy v. Gallaway (1970) 11 Cal.App.3d 185, 192; People v. Whitehead (1952) 113
Cal.App.2d 43, 48-49). Bihl's questions about the nature of Loucks's previous encounters
with Manuel would not have given the jury a better understanding of Loucks's testimony
because Loucks never mentioned Manuel during direct or redirect examination. The only
testimony during those examinations that even remotely related to Manuel was Loucks's
statement during redirect examination that he recognized all three occupants of Bihl's car.
The prosecutor, however, asked no follow-up questions about Manuel. Bihl's inquiry into
the nature of Loucks's prior contacts with Manuel therefore exceeded the permissible
scope of cross-examination, as the trial court ruled. Although the same ruling would
have been correct as to Bihl's inquiry into that matter during recross-examination, the
court excluded the testimony on the basis of an earlier, inapplicable in limine ruling. The
4 There is an exception to this limitation on the scope of cross-examination for
questioning designed to attack a witness's credibility, such as by showing the witness's
bias. (People v. Cooper (1991) 53 Cal.3d 771, 816-817; Kelley v. Bailey (1961) 189
Cal.App.2d 728, 736.) Apparently relying on this exception, Bihl asserts "cross-
examination of Loucks would have been important to show that [his] previous encounters
with Manuel might have biased him against Manuel or anyone found traveling with
Manuel, like [Bihl]." We reject this assertion, which is unaccompanied by any citation to
the record or legal authority. Although a prior drug-related contact might have biased
Loucks against Manuel (cf. People v. Wheeler (1978) 22 Cal.3d 258, 275 [prior arrest
may bias arrestee against law enforcement]), any such bias would not necessarily extend
to anyone found with Manuel, including Bihl. Since "[i]t is bias towards a party that
counts and may be inquired into . . . " (People v. Vanderburg (1960) 184 Cal.App.2d 33,
41), questioning to show Loucks's bias against Manuel was not permissible under the
credibility exception to the limitation on the scope of cross-examination.
14
court's reliance on that ground does not require reversal, however, because a ruling
excluding evidence will be upheld if the evidence is subject to exclusion on any ground,
even though the trial court relied on the wrong ground. (Ceja v. Department of
Transportation (2011) 201 Cal.App.4th 1475, 1483.)
Loucks's testimony about his prior drug-related contacts with Manuel also
properly could have been excluded as inadmissible propensity evidence, as the People
contend in their appellate brief. Evidence of specific instances of a person's conduct "is
inadmissible when offered to prove his or her conduct on a specified occasion." (Evid.
Code, § 1101, subd. (a).) The purpose of this rule is to prevent a trier of fact from
inferring a person committed the bad act at issue based on the person's commission of
prior bad acts. (People v. Earle (2009) 172 Cal.App.4th 372, 397; People v. Von Villas
(1992) 10 Cal.App.4th 201, 262.) It was precisely this forbidden inference Bihl wanted
the jury to draw, however, for she argues testimony from Loucks about his previous drug-
related encounters with Manuel should have been admitted because it "tended to disprove
that it was [Bihl] — rather than Manuel — who possessed, transported, and intended to
sell the methamphetamine." (Italics added.) Bihl's assertion in her reply brief that
admission of Loucks's testimony "would not have run afoul of the prohibition on using
'prior bad acts' " because it would have shown Manuel "had the motive, opportunity, and
intent to possess the methamphetamine, either for personal use or for sales," is
unpersuasive. Evidence of prior bad acts is admissible to prove motive, intent, or
opportunity only if those matters are at issue. (Evid. Code, § 1101, subd. (b); People v.
Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava); People v. Pitts (1990) 223 Cal.App.3d 606,
15
830-831.) Since Manuel's motive, intent, and opportunity were not at issue at Bihl's trial,
testimony from Loucks on those matters would not have been admissible.
In sum, although Bihl was not able to elicit from Loucks all of the testimony she
desired, she was able to cross-examine and recross-examine him thoroughly about his
involvement in the events leading up to her convictions. "[T]he Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish." (Delaware
v. Fensterer (1985) 474 U.S. 15, 20.) In making the evidentiary rulings challenged on
appeal, the trial court did not violate Bihl's constitutional right to confront adverse
witnesses or to present a complete defense.
C. No Cumulative Effect of Error Requires Reversal
Finally, Bihl argues the cumulative effect of the trial court's errors in failing to
give the jury a unanimity instruction and restricting her cross-examination of Loucks
deprived her of a fair trial. We have rejected the two claims of error on the merits and
also concluded any assumed instructional was harmless. There was thus no cumulative
prejudicial effect of error requiring reversal. (People v. Linton (2013) 56 Cal.4th 1146,
1197; Fuiava, supra, 53 Cal.4th at pp. 692, 733; People v. Mercado (2013) 216
Cal.App.4th 67, 93.)
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DISPOSITION
The order suspending imposition of sentence and granting probation is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
17