People v. Cole CA2/6 ( 2015 )

Filed 9/29/15 P. v. Cole CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B261276
(Super. Ct. No. 2014020328)
Plaintiff and Respondent, (Ventura County)
v.
THEODORE ALBERT COLE,
Defendant and Appellant.
A jury found Theodore Albert Cole guilty of possession of
methamphetamine for sale (Health & Saf. Code, § 11378) and simple possession of
cocaine (id. § 11350, subd. (a)). The trial court sentenced Cole to two years in county jail
followed by one year of mandatory supervision. We affirm.
FACTS
Ventura County Sheriff's Detective Eric Arteaga regularly searches
Craigslist for people selling drugs. He discovered an advertisement posted by Annie
Rossi that appeared to be promising. Arteaga responded to Rossi's advertisement, and
she agreed to meet to sell him six grams of methamphetamine.
Arteaga arranged to have an informant make a "controlled buy" from Rossi
in a Del Taco parking lot. The informant wore a wireless transmitting device to record
conversations with Rossi. Arteaga and Detective Robert Davidson were the surveillance
team to monitor the purchase.
Rossi drove into the parking lot in a Prius. She told the informant, "My guy
[is] just gonna meet us here." She said he would be driving a truck. Numerous times
during the conversation Rossi referred to "my guy," and assured the informant he would
be there any minute. Eventually, Rossi concluded that her guy would not be coming.
She told the informant to go to Thousand Oaks, and she would pick up the
methamphetamine and bring it to him.
As the informant and the surveillance team were leaving the Del Taco
parking lot, Rossi called to say her guy was here and to meet her in the Target parking
lot. They drove to the Target parking lot.
Rossi parked her Prius in the Target parking lot. She walked to a pickup
truck also parked in the lot. Cole was in the driver's seat of the pickup. Rossi went to the
driver's side window, placed her left hand inside the driver's side window for
approximately 10 seconds, and returned to the Prius with her left hand clenched. At the
Prius, Rossi placed her left hand inside the driver's side. She was walking back to the
pickup truck when the surveillance team arrested Rossi and Cole.
Detective Davidson searched the Prius and pickup truck. In the Prius on
the driver's side floorboard Davidson found a prescription bottle containing 6.2 grams of
methamphetamine. In the pickup truck Davidson found cocaine in a silver-colored
container and also 0.1 gram of loose methamphetamine.
Telephone records show calls between Rossi and Cole at the times Rossi
was communicating with her guy about the drug deal.
Both Arteaga and Davidson testified that 6.2 grams is a quantity that
indicates possession for sale, and that the small amount of loose methamphetamine found
in the pickup indicates possession for personal use.
Cole did not present an affirmative defense, but relied on the state of the
evidence.
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DISCUSSION
I.
Cole contends the jury instructions could have misled jurors into convicting
him based on the loose methamphetamine found in the pickup truck.
The trial court instructed that Cole was charged with possession for sale.
(CALCRIM No. 2302.) The instruction expressly stated that the People must prove,
"When the defendant possessed the controlled substance, he intended to sell it." (Ibid.)
Cole argues, however, that the instruction did not inform the jury that the conviction
could only be based on the 6.2 grams of methamphetamine found in the Prius. He
concludes the jury might have convicted him based on the 0.1 gram of methamphetamine
found in his truck.
In determining whether the jury was misled by an instruction, we must
consider the arguments of counsel. (People v. Young (2005) 34 Cal. 4th 1149, 1202.)
Here, in both opening statement and closing argument, the prosecutor unequivocally
informed the jury that the charge of possession for sale was based on the 6.2 grams of
methamphetamine found in the Prius. Moreover, the uncontradicted testimony of
Detectives Arteaga and Davidson was that only the 6.2 grams found in the Prius were
possessed for sale.
The jury could not have been misled.
II.
Cole argues the jury instructions and the prosecutor's arguments on
uncharged conspiracy violated his due process rights by confusing the jury.
The trial court instructed that the People have presented evidence of a
conspiracy, that each member of the conspiracy is responsible for the acts or statements
of any other member, and gave the elements of conspiracy. (CALCRIM No. 416.) The
court also instructed that the jury could not consider out-of-court statements made by
Rossi unless the jury found the People proved by a preponderance of the evidence that
there was a conspiracy, that Rossi and Cole were members of the conspiracy, that the
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statement was made to further the goal of the conspiracy, and that the statement was
made before or during the conspiracy. (CALCRIM No. 418.) In addition, the court
instructed on aiding and abetting. (CALCRIM Nos. 400 & 401.)
Cole argues that the conspiracy instruction was confusing because the jury
may have convicted him of possession for sale based solely on the crime of conspiracy,
even though that crime was neither charged nor proved beyond a reasonable doubt.
But the jury was instructed on the elements of the crime of possession for
sale. (CALCRIM No. 2302.) The instruction did not mention conspiracy. In addition,
the prosecutor told the jury in closing argument: "Now, I didn't charge -- there's no
charge here that there's an actual conspiracy. There's an actual charge that you do. That's
not here. This is what's known as an uncharged conspiracy. The conspiracy you're going
to hear about allows me to bring in Ms. Rossi's statements without having to try and drag
her into court. And they get to be used against the defendant if you find some evidence
that the defendant and Rossi were working together." Far from confusing the jury, the
prosecutor's argument made it abundantly clear that Cole was not charged with
conspiracy. The jury could have properly convicted Cole based on the conspiracy
between Cole and Rossi. The instruction of an uncharged conspiracy does not mean Cole
was convicted of a conspiracy.
Police saw Cole engaged in the sale of methamphetamine to an informant.
The jury instructions are legally correct. We presume the jurors are able to understand
and follow the instructions. (People v. Yeoman (2003) 31 Cal. 4th 93, 139.) No
reasonable juror would have been confused by the instructions.
Cole argues that a unanimity instruction should have been given because
some jurors may have found him guilty based on conspiracy, and other jurors may have
found him guilty based on aiding and abetting. But a unanimity instruction is appropriate
only when a conviction on a single count could have been based on two or more discrete
crimes. (People v. Russo (2001) 25 Cal. 4th 1124, 1135.) The instruction is not
appropriate where multiple theories or acts may form the basis of a guilty verdict on one
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discrete criminal event. (Ibid.) Here there was only one discrete criminal event,
possession for sale of methamphetamine. A unanimity instruction was not appropriate.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Arielle Bases, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney
General, for Plaintiff and Respondent.