People v. Castaneda

Opinion

McINTYRE, J.

Reginaldo Castaneda was charged with, and convicted of, one count of possession of a controlled substance—heroin. He contends his conviction must be reversed for a new trial because the trial court failed to give a unanimity instruction and the prosecutor was allowed to elicit testimony from a sheriff’s deputy that the typical heroin dealer is an Hispanic adult male. We agree, and reverse the judgment.

1

Factual and Procedural Background

On May 4, 1995, about 6:15 a.m., nine members of the San Diego County Sheriff’s Department executed a search warrant at the Vista home of Castaneda’s ex-wife. Sheriff’s deputies had conducted surveillance on the home during the month of April, and had observed Castaneda there on two occasions. After entering the home, deputies found Castaneda in a bedroom sitting on the floor, and ordered him to roll over and put his hands behind his back. However, Castaneda resisted and three deputies struggled to subdue him. Eventually, the deputies were able to control and handcuff him. A deputy then took everything out of Castaneda’s pockets, which included keys, money, a wallet and pieces of paper, but not drugs or weapons. Also present in the home during the search were his ex-wife, Diane, their teenage son, Reggie, and their three younger children.

Deputies searched the room where Castaneda had been arrested and found a small plastic bindle containing .07 grams of tar heroin taped to the back of a television set. On top of the television, they also found .02 grams of tar heroin, which was described as “minute” and hard to see—about the size of “the tip off of a real sharp pencil."

Castaneda was transported to the Vista Sheriff’s Station and placed in a holding cell. One of Castaneda’s hands was cuffed to a pipe and the other

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was left free. He was left alone in the room for 10 to 15 minutes before Deputy Richard Zuniga entered, asked him to stand for a search and took off the handcuff. The first place Zuniga searched was Castaneda’s right front coin pocket, where he found a plastic bindle containing 1.1 grams of tar heroin. Zuniga testified that Castaneda was “[sjhocked, surprised” when this happened.