People v. Barnes

Opinion

WOODS, J.

A jury was instructed it could convict appellant of cocaine possession (Health & Saf. Code, § 11350) if it found he had actual or

[554]

constructive possession of cocaine. We reverse the conviction because we “cannot determine from the record on which theory the ensuing general verdict of guilt rested”

(People

v.

Green

(1980) 27 Cal.3d 1, 69 [164 Cal.Rptr. 1, 609 P.2d 468], quoted in

People

v.

Guiton

(1993) 4 Cal.4th 1116, 1122 [17 Cal.Rptr.2d 365, 847 P.2d 45]) and the constructive possession theory was legally incorrect

(Armstrong

v.

Superior Court

(1990) 217 Cal.App.3d 535 [265 Cal.Rptr. 877]).

Factual and Procedural Background

Appellant was charged with possession of cocaine (Health & Saf. Code, § 11350) and having suffered three felony convictions including two “strikes” (Pen. Code, §§211, 667, subds. (b)-(i)). In a bifurcated proceeding a jury first convicted him of cocaine possession and then found both “strikes” true.

1

Appellant was sentenced to a 25-year-to-life state prison term.

The jury was presented two versions of what had occurred.

The prosecution version was testified to by Los Angeles Police Officer Anzaldo and his partner, Officer Zuniga.

On October 8, 1994, at 6:15 p.m. they were driving westbound on 5th Street, a one-way street, at about five miles per hour when they saw two male Blacks, appellant and another man, standing together at the comer of 5 th and Crocker. When the officers were about 10 feet away they saw that appellant held a small blue vial in his left hand, between his left thumb and forefinger. Appellant’s arm was at his side.