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People v. Wesley

Citations: 177 Cal. App. 3d 397; 223 Cal. Rptr. 9; 1986 Cal. App. LEXIS 2558Docket: B006264

Court: California Court of Appeal; February 7, 1986; California; State Appellate Court

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Paul Wesley was charged with attempted murder, assault on a peace officer, and possession for sale of controlled substances, specifically cocaine and heroin. He was acquitted of the first two charges but found guilty of possession for sale. During a police search of his home on January 13, 1984, officers discovered evidence suggesting drug trafficking, including packaging materials and cutting agents. Appellant was found with heroin on his person, and cocaine was discovered at the scene. Expert narcotics officers concluded that the substances were intended for sale, supported by the presence of various paraphernalia commonly associated with drug distribution. The court dismissed Wesley's claim that the evidence was insufficient to prove intent to sell, distinguishing his case from previous rulings that involved minimal drug residues.

The question of whether the appellant possessed cocaine or heroin for sale was a factual issue for the jury. While the appellant argued the amount of cocaine was too small for sale, evidence of diluting agents and packaging paraphernalia indicated otherwise, supporting the conclusion of possession for sale. However, the ambiguity in the jury's verdict stemmed from the prosecution's single count alleging possession of both cocaine and heroin. The relevant jury instruction stated that any unlawful possession for sale of a controlled substance constituted a crime, but it did not clarify whether the jury unanimously agreed on which substance was the basis for the conviction. This lack of clarity violated the principle of juror unanimity, as jurors could have based their verdict on different substances. The court referenced similar cases where failure to provide a unanimity instruction led to reversals. The absence of such an instruction in this case necessitated the reversal of the conviction, emphasizing the need for clearer prosecution practices regarding pleading, jury instructions, and verdict forms to avoid ambiguity.

The defendant in McNeill was convicted of assault with a deadly weapon involving four victims. The appellate court reversed the conviction due to the absence of a unanimity instruction, indicating that the accusatory pleading was defective for combining multiple offenses into a single count, which warranted a demurrer. However, the defendant waived any objection to this defect by failing to demur. The court highlighted that such a pleading error not only causes formal insufficiency but leads to complex instructional issues, often resulting in reversals if not addressed at trial. It noted that the optimal solution to avoid these complications is to charge separate counts for different offenses, as exemplified by the suggestion to charge cocaine and heroin offenses separately. The judgment was ultimately reversed. Additional notes include that a fourth count was severed and dismissed before trial, and although there was evidence of an attempted firearm discharge, the jury acquitted the defendant of attempted murder and assault. The court did not address the defendant's claim regarding the trial court's failure to instruct on simple possession as a lesser included offense, given the necessity of reversing due to the lack of a unanimity instruction.