(Super. Ct. No. 10F00604)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The question posed in this appeal is whose contraband is it -- his, hers, or theirs? Undercover narcotics agents found methamphetamine, marijuana, pay/owe sheets, pipes, baggies, packaging materials, and a gun in three different locations. Depending on whose version of the facts the jurors accepted, defendant Wendy Labuda may have possessed the drugs and the various accoutrements found in her bedroom, in a motel room she rented, and/or in her purse, or some of the drugs may have been possessed solely or jointly by her dealer and boyfriend, Keith Zimmerman. The trial court failed to give a unanimity instruction, creating the distinct possibility the jurors did not agree on who possessed what and where. Because the jury hung on many counts involving possession, we cannot conclude the error was harmless.*fn1 We reverse.
On January 25, 2010, three county sheriff's deputies were surveilling a parolee, 51-year-old Wendy Labuda, outside her apartment. When approached, she gave them a false identification. They arrested her and took her to her apartment. She told them that only her roommate, Andy Babcock, was in the apartment.
When they entered, however, one of the deputies discovered Keith Zimmerman in one of the bedrooms. In that room, the deputy found two baggies with some methamphetamine, a digital scale with residue, and a pay/owe sheet. Zimmerman claimed these items were his. The deputy searched Zimmerman and found $303 in small bills and two motel keys. According to the officers, defendant shouted from the other room that everything belonged to her, not Zimmerman.
A deputy found $349 in cash in defendant's pocket, and searched defendant's purse and found two baggies of methamphetamine, two cell phones, a glass smoking pipe, $900 in cash, and a motel room key. A text message on one of the cell phones inquired whether "they were still at the Hawthorn Inn motel." Defendant told the officers she had been staying at the Hawthorn Inn with Zimmerman, but she no longer was staying there with him.
Meanwhile, two officers left to search the motel room. There they found loose methamphetamine on a table near the bathroom, seven separately packaged baggies of methamphetamine, two metal canisters containing methamphetamine, five separately packaged baggies of marijuana, a digital scale, unused packaging baggies, a loaded .38-caliber firearm and additional ammunition, and bills for Babcock's utilities. None of the fingerprints lifted from items found in the motel room matched defendant's.
On the ride to the motel, a deputy recited the Miranda advisements to defendant.*fn2 She stated she understood her rights. She was calm and cordial. She told the officers she rented the room using the same false identification she had shown to them earlier. She insisted the methamphetamine and cash found in her purse and in her bedroom were hers, not Zimmerman's. She admitted to selling a quarter pound of methamphetamine a day to support her own addiction to the drug. She suggested there might be an "eight ball" (3.5 grams) of methamphetamine in the motel room as well as a firearm belonging to someone else. Again, she claimed the methamphetamine was hers; neither Zimmerman nor Babcock was involved.
Defendant told a very different story at trial. She testified that one of the deputies, enraged when he encountered Zimmerman, punched her with a closed fist in the mouth. Everything she did following the assault was based on fear. She told them the drugs and cash were hers, and she waived her rights.
No longer afraid, defendant testified that the methamphetamine, marijuana, and gun in the motel room did not belong to her. The methamphetamine ...