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Filed 7/26/16 P. v. Sedgeman CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES PHILLIP SEDGEMAN,

Defendant and Appellant.

C072359

(Super. Ct. No. CRF12238)

Defendant Charles Phillip Sedgeman appeals following conviction of one count of

felony possession of a controlled substance (methamphetamine) and one count of

misdemeanor possession of controlled-substance paraphernalia. (Health & Saf. Code, 

§§ 11377, subd. (a), 11364, subd. (a); unless otherwise stated, statutory references that 

follow are to the Health and Safety Code.) Defendant contends the trial court improperly 

denied his request to redact portions of his audiotaped police interrogation in which (a) he 

invoked his constitutional rights to counsel and to remain silent and (b) the police officer
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stated the police had “probable cause” to believe defendant was selling (as opposed to 

merely possessing) methamphetamine. Defendant also contends the trial court erred by 

not instructing the jury on the need to decide unanimously which of two quantities of 

methamphetamine defendant possessed in order to convict him on the single count. We 

conclude any errors were harmless, and we affirm the judgment.

FACTS AND PROCEEDINGS

Around noon on January 19, 2012, law enforcement officers from a county-wide 

narcotics task force executed a search warrant on a two-bedroom trailer in West 

Sacramento, looking for drugs. Seven officers went to the front door, where they saw a 

video camera that might alert the occupants to the presence of law enforcement officers. 

An officer knocked on the door and announced they were police and had a search 

warrant. After about 20 seconds with no one answering the door, the officers used a ram 

tool to knock the door open and entered. A pit bull mix dog ran into the living room 

growling and lunged at Agent Alisha Slater, who shot and killed the dog. 

A woman named Sensier (phonetic) was in the first bedroom on the left. Police 

found defendant walking in the hallway directly in front of the back master bedroom, 

which defendant shared with his girlfriend Cheri, who was not present. Police detained 

defendant and Sensier at the home. Although defendant notes evidence that he was 

handcuffed, that evidence was adduced only in a hearing outside the jury’s presence. 

In a nightstand drawer in defendant’s bedroom, police found a small glass pipe, a 

medicine bottle containing 0.12 gram (as measured by the criminalist) of 

methamphetamine, and a digital scale commonly used for drug sales. Agent Slater 

defined a “usable amount” of the drug as “if you can see it, then you can use it,” and 0.1 

gram is a “usable amount.” In a trash can under a desk in defendant’s bedroom, police 

found a glass pipe containing black residue and a torn piece of plastic containing a 

substance that tested positive for methamphetamine. 
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Although Agent Slater testified the substance from the trash can weighed 0.1 

gram, the criminalist testified it was 0.01 gram, which was not mere residue because 

residue is anything less than 0.01 gram. In defendant’s bedroom police found a wallet

with his identification card. Police also found a rifle magazine and rifle round in the 

home, but no rifle. The trial court sustained a relevance objection to the magazine/round 

but admitted them into evidence, noting they did not mean much without a rifle. No one 

argued the magazine/round to the jury. 

Around 2:27 p.m., Agent Slater audiotaped an interview with defendant in the 

home. The audiotape was played for the jury. The interrogation begins with the agent 

reading defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436. She asks if 

defendant understands, and he says, “Understood.” She says something transcribed as 

“inaudible,” to which defendant responded, “Yes.” At the Evidence Code section 402 

hearing, the agent was unable to decipher or recall what she said. 

The agent then asked where defendant was when the police arrived to execute the 

search warrant. He said he was walking up the hallway from his bedroom. She asked if 

he “dump[ed] dope.” He said, “No, I have some weed, that’s all.” She said she found “a 

little bit of crystal, but I mean do you like--,” at which point he interrupted and said, 

“No.” She said she found a bag by his desk, and “[o]bviously, we’re the narcotics team 

we have a search warrant so we know what you’ve been up to. We’re not saying you’re 

the biggest guy in the world. We know who we’re after, but we know what you’ve been 

up to so there’s obviously no need in the world to lie right now.” Defendant said he was 

not lying. She asked what was the packaging material by his feet. He said “It was just [-

- -] I had a little bit and,” at which point she interjected, “Ripped it open?” He said, 

“Ripped it open, and that was it.” She asked where he put it. He said, “There was 

nothing in it. Whatever [- - -] it was just a [- - -] I don’t know how to explain it. Um, 

personal, personal use. That’s it.” She asked where it was and if it was all gone. He said 

if the police thought there was something there, they should bring in a police dog instead 
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of “tearing my house apart.” She said he should just be honest and tell her where 

everything is. He said, “I am [- - -] I’ve been honest with you. I have nothing here just 

that little bit of personal use that was it. And there’s weed in the drawer. You know

there’s several different kinds of weed it’s just for personal use though.” She said, “This 

is all we do is work dope. And the majority of people that we serve warrants on are 

selling crystal. That’s why--or any other type of drugs. That’s why we’re here. So we’re 

here because we have probable cause to believe that you have been selling 

methamphetamine. [Italics added.] I’ll tell you this. The classic line that every single 

drug dealer uses is ‘it’s just for personal,’ so just you saying that almost just gives 

yourself up right there. It’s just ridiculous. I mean honestly we should just like cut the 

crap. I know you’ve been selling crystal. I know who your connect is. Alright? You 

saw us walk across the street. We have [inaudible] [orig. brackets] already. There’s no 

reason in the world for you to lie--.” Defendant said he was not lying. The agent asked, 

“so you have no more methamphetamine?” He said, “No I don’t.” She asked, “where is 

it? When was the last time you had meth?” He said, “I dunno, just,” to which she 

interrupted and asked, “This morning?” He said, “This morning, yeah.” She asked 

“Where is that meth?” He said, “I’ve already done it. Okay? There is nothing, there is 

nothing here I don’t have anything.” She said she thinks he dumped it. He said, “There’s 

nothing to dump.” She asked “How long have you been selling methamphetamine,” to 

which he replied, “I haven’t.” She asked, “You’re really gonna play that game?” He 

responded, “I have a right to an attorney[.] I have a right to remain silent.” (Italics 

added.) Thus ended the interrogation presented to the jury. 

Defendant did not testify at trial.

The jury found defendant guilty on both counts, felony possession of a controlled 

substance and misdemeanor possession of drug paraphernalia. The trial court placed 

defendant on probation for three years and said defendant could request reduction of the 

felony to a misdemeanor upon successful completion of a drug treatment program. 
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DISCUSSION

I

Invocation of Right to Counsel and Right to Remain Silent

Defendant contends the trial court erred in denying his motion to redact from the 

audiotaped police interrogation his words, “I have a right to an attorney[.] I have a right 

to remain silent.” Defendant contends this was error under Doyle v. Ohio (1976) 426 

U.S. 610, 619 [49 L.Ed.2d 91] (Doyle) and Evidence Code section 352. The People 

dispute whether either ground was adequately stated in the trial court and contend 

defendant forfeited the objection by failing to raise it again when the audiotape was 

played for the jury. We observe defense counsel cut off the trial court’s explanation of its 

ruling, stating she just wanted to make her record. We need not address the People’s 

procedural arguments or defendant’s reply to them, because even assuming for the sake 

of argument evidentiary error under Doyle or Evidence Code section 352, there was no 

prejudicial error warranting reversal of the judgment.

A. Doyle Error

Under Doyle, the use against defendant of a post-arrest invocation of rights 

following a Miranda admonition violates due process. (Doyle, supra, 426 U.S. 610; 

People v. Thomas (2012) 54 Cal.4th 908, 936 (Thomas).) Here, Agent Slater testified at 

the hearing that defendant was detained and in handcuffs when she conducted the 

audiotaped interrogation that began with a Miranda admonition. The objectionable use 

generally involves impeachment. (Doyle, supra, 426 U.S. 610.) Here, defendant did not 

testify, but we will assume a Doyle violation could be found if the invocation were used 

to counter defendant’s denials in the audiotaped interview.

A Doyle violation “ ‘does not occur unless the prosecutor is permitted to use a 

defendant’s postarrest silence against him at trial . . . .’ [Citation.]” (Thomas, supra, 

54 Cal.4th at p. 936.) Thomas held there was no Doyle violation, where a detective 
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testified the defendant asked for an attorney during a police interrogation, but “the 

prosecutor did not attempt and was not permitted to use the comment against defendant 

by inviting the jury to draw any adverse inferences from the remark.” (Ibid.) 

Here too, the prosecutor did not invite the jury to draw any adverse inference from 

defendant’s invocation of his rights. The prosecutor never even mentioned the invocation 

of rights in closing argument to the jury. The prosecutor referred to the audiotape only to 

point out that defendant’s admission he consumed methamphetamine that morning was 

relevant to prove he knew what methamphetamine is and possessed the pipe with black 

residue for that purpose. 

Moreover, Thomas, supra, 54 Cal.4th 908, said that, even if the testimony could 

be considered a Doyle violation, it was harmless beyond a reasonable doubt under 

Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], because the defendant’s

initial denial of involvement in a robbery was impeached, not by his invocation of right to 

counsel, but by his later admission to police that he had participated in the crimes, and 

evidence of guilt was overwhelming and uncontested at trial. (Thomas, supra, 54 Cal.4th 

at pp. 936-937, citing People v. Riggs (2008) 44 Cal.4th 248, 299 [no prejudicial Doyle

error where testimony did not impeach defendant’s later statements to police by reference 

to his earlier decision not to talk with them, which is the harm Doyle seeks to prevent]; 

People v. Hinton (2002) 37 Cal.4th 839, 868 [defendant’s invocation of Miranda rights 

was cumulative of, and inferior to, other evidence indicating he had fabricated the 

account he eventually provided during police interviews and reiterated at trial]; People v. 

Hughes (2002) 27 Cal.4th 287, 332 [any Doyle error was harmless beyond a reasonable 

doubt in light of overwhelming evidence of defendant’s guilt].)

Defendant argues the trial court, by denying redaction of his invocation of rights, 

facilitated the prosecutor’s improper presentation of evidence to the jurors that defendant 

exercised his right to remain silent in the face of accusations of his involvement in drug 

sales activities. 
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However, defendant was not charged with or convicted of selling drugs. The 

audiotape was not used to impeach defendant, who did not testify at trial. Contrary to 

defendant’s claim, his invocation of rights would not lead jurors to draw negative 

inferences that he sold drugs and therefore was guilty of the charged possession offenses. 

Rather, his admission that he consumed methamphetamine that morning was strong 

evidence of his control over the remaining methamphetamine found in his room. Defense 

counsel asked the jury to believe defendant’s audiotaped denials of knowledge about 

methamphetamine and to disregard his admission that he consumed methamphetamine 

that morning because he was not being charged with the drugs he consumed, but only

with the drugs found in the room he shared with another person. However, defendant’s 

admission that he consumed methamphetamine that morning was relevant to show 

defendant knows what methamphetamine is and knows how to use it -- relevant evidence 

to the charges of possession of drugs and drug paraphernalia, as the prosecutor argued to 

the jury. 

Defendant cites a federal case which found reversible error where the district court 

allowed a police officer to testify about the defendant’s post-arrest, pre-Miranda silence 

when confronted with a large amount of marijuana found in his vehicle’s gas tank, and 

the prosecution urged the jury to use the defendant’s non-reaction as evidence of his 

guilt, and the other evidence against him was not strong. (United States v. VelardeGomez (9th Cir. 2001) 269 F.3d 1023.) The defendant there testified the officer spoke 

little Spanish and the defendant had trouble understanding. (Id. at pp. 1027, 1036.) The 

defendant also testified he spent the night with a prostitute in his hotel room and left his 

car keys and wallet accessible to her while he took a shower for 15 to 20 minutes. (Id. at 

pp. 1028, 1036.) The federal case bears no similarity at all to the case before us.

Assuming Doyle error, it was harmless beyond a reasonable doubt.
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B. Evidence Code Section 352

Evidence Code section 352 provides: “The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.” 

Even assuming for the sake of argument that this ground is preserved for appeal 

and that the invocation of rights should have been excluded as more prejudicial than 

probative under Evidence Code section 352, any error was harmless because, for the 

same reasons already discussed, it is not reasonably probable that defendant would have 

obtained a more favorable result absent the error. (People v. Gonzales (2011) 51 Cal.4th 

894, 924 (Gonzales); People v. Watson (1956) 46 Cal.2d 818, 836.)

II

Drug Sales

Defendant argues the trial court abused its discretion in denying his motion to 

redact from the audiotape Agent Slater’s comment, “So we’re here because we have 

probable cause to believe that you have been selling methamphetamine.” Defendant also 

complains the trial court overruled his objections to the agent testifying (1) that the digital 

scale drew her attention because it is common to find such scales where 

methamphetamine is being sold, and (2) “the reason why we had a search warrant for that 

residence was probable cause to believe that the subjects living there could be involved in 

illegal sale of methamphetamine.” And defendant complains the trial court overruled his 

objection to a rifle round found in the home. Defendant argues all this evidence was 

irrelevant and more prejudicial than probative and, if he forfeited an Evidence Code 

section 352 objection, it is his trial counsel’s fault for rendering ineffective assistance of 

counsel. 
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Again, even if we assume all contentions are preserved for appeal and further 

assume the evidence should have been excluded, any error was harmless because it is not 

reasonably likely defendant would have obtained a better result absent the error. 

(Gonzales, supra, 51 Cal.4th at p. 924.) He was not charged with or convicted of selling 

drugs. Agent Slater testified at trial that the probable cause was to believe someone in 

the home could be involved in sales, not necessarily that it was defendant as opposed to 

another person with whom he shared the space. The methamphetamine found in his 

room plus his admission about consuming methamphetamine that morning, thus proving 

his knowledge, were uncontroverted evidence of the possession offense.

Defendant argues the challenged evidence likely engendered a negative emotional 

bias against him since it portrayed him as someone involved in more egregious conduct 

than that with which he was charged. Defendant argues the challenged evidence would 

have given the jury the impression that the prosecution had evidence of defendant’s 

involvement in drug sales that was not being presented to the jury. To the contrary, the 

fact that such evidence was not being presented (and that defendant was not being 

charged with selling drugs) would give the impression that no such evidence of drug sales 

by defendant existed. Additionally, evidence of defendant’s guilt on the charged 

possession offenses was clear.

Defendant fails to show any prejudicial evidentiary error, individual or 

cumulative, warranting reversal.

III

Unanimity Instruction

Defendant next claims instructional error in the trial court’s failure to instruct the 

jury sua sponte on the need for a unanimous agreement as to which unit of 

methamphetamine he possessed -- the methamphetamine found in the nightstand or the 

methamphetamine found in the trash can. As defendant notes, the trial court did give the 
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unanimity instruction, but only for the two pipes: “The People allege that the defendant 

possessed the following items: 2 pipes. You may not find the defendant guilty unless you 

all agree that the People have proved that the defendant possessed at least one of these 

items and you all agree on which item he possessed.” 

The unanimity requirement is intended to eliminate the danger that the defendant 

will be convicted even though there is no single offense which all jurors agree he 

committed. (People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Riel (2000) 

22 Cal.4th 1153, 1199.) In a prosecution for narcotics possession, a unanimity 

instruction is required where actual or constructive possession is based upon two or more 

individual units of contraband reasonably distinguishable by a separation in time and/or 

space and there is evidence as to each unit from which a reasonable jury could find that it 

was solely possessed by a person or persons other than the defendant. (People v. King

(1991) 231 Cal.App.3d 493, 501 (King).) Among the factors to be considered in 

determining whether the instruction is needed are whether the defendant raised separate 

defenses to separate narcotic items and whether there is conflicting evidence over 

ownership of the items. (People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071

(Castaneda).)

Even assuming for the sake of argument that the trial court should have given the 

unanimity instruction, its omission was harmless, even under the Chapman standard of 

beyond a reasonable doubt. (People v. Hernandez (2013) 217 Cal.App.4th 559, 576-579 

[noting split of authority as to whether Chapman or Watson standard applies to erroneous 

omission of unanimity instruction].)

Under Chapman, where the record provides no rational basis, by way of argument 

or evidence, for the jury to distinguish between the various acts, and the jury must have 

believed beyond a reasonable doubt that the defendant committed all acts if he committed 

any, the failure to give a unanimity instruction is harmless. (People v. Thompson (1995) 

36 Cal.App.4th 843, 853 (Thompson) [error harmless where defendant presented unitary 
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defense that all six guns belonged to his mother].) Where the defendant offered the same 

defense to all criminal acts and the jury’s verdict implies that it did not believe the only 

defense offered, failure to give a unanimity instruction is harmless error. (People v. 

Diedrich (1982) 31 Cal.3d 263, 283.) The error is also harmless where the record 

indicates the jury resolved the basic credibility dispute against the defendant and 

therefore would have convicted him of any of the various offenses shown by the 

evidence. (Thompson, supra, 36 Cal.App.4th at p. 853.)

Here, the prosecutor placed both quantities of methamphetamine in the same 

People’s Exhibit Seven and argued defendant possessed both. Defendant did not raise 

separate defenses. Defendant’s trial counsel argued to the jury, “What he’s charged with 

is in People’s 7. Did he possess it? Did he have knowledge of it?” She argued it was not 

clear whether that bedroom was his, and he shared a bedroom with his girlfriend, and 

there were other people in the home, and defendant admitted only marijuana possession 

which was not being charged, and he was not being charged with drugs he consumed that 

morning, and he denied any knowledge of “what’s in People’s 7,” and the jurors were 

required to adopt defendant’s denial as a reasonable interpretation pointing toward notguilty. 

On appeal, defendant argues that, because he admitted having consumed 

methamphetamine that morning, some jurors may have believed he possessed the drug 

found in the trash can (because it was discarded remains of what he consumed that 

morning) but that he did not possess the drug in the medicine bottle because there was no 

direct evidence the medicine bottle was his. Defendant further reasons that some jurors 

may have found he possessed the drug in the medicine bottle but may have found the 

0.01 amount in the trash can did not meet the essential element of being a “usable 

amount.” Defendant observes the jury during deliberations asked the court to clarify the 

meaning of “usable amount.” The court re-read the instruction and, over defense 
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objection, added that a trace is simply when it cannot be used, such as when it is a 

blackened residue. 

Defendant’s theory falters with the medicine bottle. He offered no defense about 

the medicine bottle, and the jury instructions and the prosecutor’s closing arguments

made clear that it did not matter whether someone else also possessed the 

methamphetamine. The jury instruction stated, “Two or more people may possess 

something at the same time. [¶] A person does not have to actually hold or touch 

something, to possess it. It is enough if the person has control over it or the right to 

control it, either personally or through another person.” The prosecutor argued to the 

jury, “obviously methamphetamine that’s in a nightstand drawer in his bedroom or in a 

trash can in his bedroom is easily accessible to him, and he would be able to control it 

from that location.” 

Defendant ineffectually relies on inapposite cases where different defenses were 

presented as to different items. (Castaneda, supra, 55 Cal.App.4th at p. 1071 

[defendant’s son testified heroin found on television set was his, and defendant claimed 

police planted heroin found in his pocket at police station]; King, supra, 231 Cal.App.3d 

at pp. 496-499 [drugs found in defendant’s living room were inside a purse owned by 

another woman, and defendant’s boyfriend testified that drugs found in ceramic statute in 

kitchen belonged to him]; People v. Crawford (1982) 131 Cal.App.3d 591 [defendant and 

his girlfriend denied ever seeing gun found holstered to his bed, and girlfriend testified 

the gun found in the closet was hers and she never saw defendant possess it].) 

We conclude omission of a unanimity instruction, if error, was harmless beyond a 

reasonable doubt.
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DISPOSITION

The judgment is affirmed. 

 HULL , Acting P. J.

We concur:

 MURRAY , J.

 HOCH , J.