What is the standard for a jury to convict a person of possessing and transporting fentanyl?

Under the more stringent standard "'[w]here 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 defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless.'" (People v. Curry (2007) 158 Cal.App.4th 766, 783.) Such is the case here. Based on the jury's verdict on counts one and two, the jury undeniably found that defendant was possessing and transporting fentanyl for sale. Both the fentanyl found on defendant and in the backpack had the same unique packaging. Specifically, regardless of location, amounts of more than 0.5 grams of fentanyl were all packaged in the same plastic baggies with the peace symbol. We see no rational basis for the jury to find that defendant was selling the fentanyl in the peace symbol baggies in one location but not the fentanyl in the same baggies found in the other location. Given the unique and uniform packaging, the jury must have believed that defendant intended to sell the fentanyl found

Page 12

in both locations. "[I]t is reasonable to conclude that the jury believed beyond a reasonable doubt that [defendant] committed all acts if he committed any. Thus, the failure to give the unanimity instruction was harmless beyond a reasonable doubt." (People v. Curry, supra, 158 Cal.App.4th at p. 784.)