Opinion
G054506
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. TERRY JOE ABRUZZISE, Defendant and Appellant.
Belinda Escobosa Helzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14WF0139) OPINION Appeal from a judgment of the Superior Court of Orange County, Derek Guy Johnson, Judge. Affirmed. Belinda Escobosa Helzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
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Terry Joe Abruzzise appeals his conviction of a single count of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1). He claims the trial court erred by denying his motion for acquittal pursuant to Penal Code section 1118.1 because there was insufficient evidence at the close of the prosecution's case to support his conviction. We find no error and, therefore, affirm the judgment.
All further statutory references are to the Health and Safety Code, unless otherwise indicated.
FACTS
The facts from the defense's case are omitted because the sole issue on appeal involves the trial court's ruling on the defense's motion for acquittal at the close of the prosecution's case. (People v. Watkins (2012) 55 Cal.4th 999, 1019.)
On October 3, 2013, the Garden Grove Police Department executed a search warrant at Abruzzise's home. The front door to the residence was locked, and officers had to break into the house. Abruzzise was the only person found inside.
Troy Haller, an officer with 17 years' experience at the Garden Grove Police Department, searched one of the bedrooms and the garage. He discovered in a dresser drawer in the bedroom a red-tinted plastic baggie containing 0.6 grams of a white crystalline substance he suspected to be methamphetamine. In the same drawer, Haller located miscellaneous plastic baggies, four methamphetamine pipes, and "indicia" of residency regarding Abruzzise and a "Mr. Morengo." He described "indicia" as "any type of identification or mail," such as a utility bill or driver's license. Haller also testified he found 0.5 grams of methamphetamine in a plastic container located in the garage.
Sean Salazar, an officer with the Garden Grove Police Department for 13 years at the time of trial, testified he found a hard plastic container on a desk in the den. The container was in his plain view. Inside, Salazar found two plastic baggies that contained a white, crystal-like substance he suspected to be methamphetamine, empty plastic bindles, and a used pipe.
Garden Grove Police Officer Raul Murillo, Jr. was the case agent in charge of the search. Murillo participated in the safety sweep of the home and located Abruzzise in the garage. He also recovered $450 from Abruzzise's wallet. Murillo saw the items Haller and Salazar found and was present when the methamphetamine was weighed. At the time of the search, Murillo had been a police office for a little more than three years. This was his first investigation as a case agent and was the first search warrant he had written for narcotics sales.
An information charged Abruzzise with possession for sale of a controlled substance (§ 11378) and failure to appear on a felony (Pen. Code, § 1320, subd. (b); count 2). The trial was bifurcated. In the trial as to count 1, testimony indicated approximately 9.7 grams of methamphetamine was recovered from the residence. Murillo testified this was enough for 97 individual doses of methamphetamine.
Pursuant to standard protocol, Thomas Dickan, a qualified senior forensic scientist in the Orange County Crime Lab, tested only the baggie containing the largest amount of suspected methamphetamine seized from Abruzzise's home. He confirmed the baggie contained methamphetamine.
At the close of the prosecution's case-in-chief, Abruzzise brought a motion for acquittal under Penal Code section 1118.1. He claimed the prosecution failed to carry its burden of proving he was either in possession of methamphetamine, or had the specific intent to sell the drug. The trial court denied Abruzzise's motion, stating there was sufficient evidence in the record to prove the defendant possessed methamphetamine for the purpose of selling it. Ultimately, the jury found Abruzzise guilty of that charge.
The trial court also instructed the jury on section 11377, simple possession, a lesser crime of section 11378.
Subsequently, the trial court reduced count 2 to a misdemeanor, to which Abruzzise pleaded guilty. The trial court suspended imposition of Abruzzise's sentence and placed him on formal probation for three years with specified terms and conditions, which the defendant accepted.
DISCUSSION
Abruzzise contends the evidence in the record at the close of the prosecution's case-in-chief was insufficient under Penal Code section 1118.1 to support a conviction on count 1. He argues the evidence failed to demonstrate that he possessed methamphetamine and also that he had the requisite intent to sell. We find no error and therefore affirm.
"'In ruling on a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, "'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.'" (People v. Magallanes (2009) 173 Cal.App.4th 529, 533.) "We review independently a trial court's ruling under section 1118.1 that the evidence is sufficient to support a conviction." (People v. Cole (2004) 33 Cal.4th 1158, 1213.)
1. The Prosecution's Evidence Was Sufficient to Show Abruzzise Possessed Methamphetamine
Abruzzise claims that the "indicia" evidence found during the search was insufficient to show that he had knowledge of, as well as dominion and control over, the methamphetamine. He argues this evidence was not "reasonable, credible or of solid value," and did not raise to the level of substantial evidence, because testimony from the officers who executed the search warrant was "vague," "unexplained," and constituted "pure speculation." We disagree.
"The essential elements of possession of a controlled substance are 'dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.'" (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) Actual possession is not required. (People v. Morante (1999) 20 Cal.4th 403, 417.) Constructive possession exists when the defendant "maintains some control or right to control contraband" that is not in his or her actual possession. (Ibid.)
At the time Abruzzise moved for acquittal, the prosecution had presented evidence from several witnesses detailing the search of Abruzzise's residence. Abruzzise contends the officers' testimony was insufficient because Haller could not describe with specificity the documents he found in the bedroom dresser drawer he referred to as "indicia" and Salazar did not recall whether Abruzzise's name was typed or handwritten on a piece of paper he found on a desk. It is true the officers could not recall the precise content of the paperwork they located near the methamphetamine. However, their testimony also included a definition of the term "indicia," detailed the sort of evidence they were looking for, and concluded by stating they located the documents containing Abruzzise's name near the methamphetamine. Furthermore, to the extent Abruzzise insinuates the officers' testimony lacked credibility, we note that this determination is beyond the scope of our review. (Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877 ["Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine."].)
Abruzzise cites several cases to support his argument that he did not have control of the residence or the methamphetamine found there. However, this case law is distinguishable. The cases he relies upon involved situations in which the prosecution presented no evidence the defendant resided in the place where the narcotics were found. (See People v. Glass (1975) 44 Cal.App.3d 772, 776 [no substantial evidence defendant resided at premises, "[defendant] was a visitor at the residence on the morning of the arrest"]; People v. Stanford (1959) 176 Cal.App.2d 388, 391 ["no basis" for inference defendant had constructive possession of narcotics found in the residence because "he did not live there and therefore he did not have possession or control of the premises"]; People v. Tabizon (1958) 166 Cal.App.2d 271, 273 [defendant was "at most a transient visitor" of motel room where drugs were found].)
Abruzzise's reliance on People v. Antista (1954) 129 Cal.App.2d 47 (Antista) is also misplaced. In Antista, the Court of Appeal reversed the defendant's conviction for possession of marijuana, finding that there was insufficient evidence to sustain the conviction even though he resided in the apartment where the marijuana was found. (Id. at p. 53.) In that case, however, at the time the drugs were discovered by police, the defendant was not home. (Id. at p. 48.) When he returned home, he denied knowledge of the drugs. (Id. at p. 52.) The evidence showed the defendant did not have exclusive control over the apartment, but rather shared it with others, including one who was a known narcotics user. (Ibid.) The Antista court noted: "In all the cases we have examined in which conviction was upheld there was some incriminating statement or circumstance in addition to the presence of mari[j]uana or narcotic which indicated knowledge of the defendant of its presence and his control of it." (Id. at p. 50.)
Here, in contrast to Antista, police found Abruzzise alone inside the home in which he apparently lived with nearly 10 grams of methamphetamine. The facts suggested Abruzzise had possession and control of the residence. Police located the methamphetamine near indicia with Abruzzise's name on it. This created a reasonable inference Abruzzise had at least constructive possession of a useable quantity of methamphetamine. This was sufficient evidence for the issue to reach the jury.
Abruzzise concedes that amount of methamphetamine was a "quantity usable for consumption or sale." (People v. Camp (1980) 104 Cal.App.3d 244, 247-248.) --------
The reasonable inference from the amount of methamphetamine found, along with the paraphernalia found throughout the home, was that Abruzzise had constructive possession of the drugs. There was sufficient circumstantial evidence to demonstrate proof of knowledge. (People v. Anderson (1970) 6 Cal.App.3d 364, 371 ["Ordinarily the fact that a narcotic is found in the personal effects of the defendant is compelling proof that defendant knew what he possessed and its nature"].)
2. The Prosecution's Evidence Was Sufficient to Show Abruzzise Possessed Methamphetamine with the Requisite Intent to Sell
Abruzzise next contends the trial court erred in denying his motion for acquittal because the prosecution's evidence failed to show he had the specific intent to sell the methamphetamine. Abruzzise concedes that convictions of possession of narcotics for sales have been upheld based on the testimony and opinions of experienced officers. He goes on to argue, however, that Murillo's testimony on the issue was without foundation because it was based on "informal reports by the officers of what they found," rather than "direct knowledge." We disagree.
The offense of possession of methamphetamine for sale requires the defendant to "'either (1) possess the specific intent to sell the controlled substance personally, or (2) possess the specific intent that someone else will sell the controlled substance.'" (People v. Ramos (2016) 244 Cal.App.4th 99, 105.) "Intent to sell may be established by circumstantial evidence." (People v. Harris (2000) 83 Cal.App.4th 371, 374.) "'In cases involving possession of marijuana or [methamphetamine], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld. [Citations.]' [Citation.] Thereafter, it is for the jury to credit such opinion or reject it." (Id. at p. 374-375.)
Abruzzise's claim that Murillo's opinion was without foundation is not supported by the record. Murillo based his opinions on informational reports by the other officers as well as personal knowledge. Murillo testified the other officers reported their findings to him, and that he saw the methamphetamine Haller and Salazar recovered when it was weighed. Furthermore, Haller and Salazar (with a combined 30 years of experience), corroborated Murillo's testimony. Murillo testified he personally found $450 in cash in Abruzzise's wallet.
Abruzzise contended that because the 9.7 grams of methamphetamine was found scattered across the den, a bedroom, and the garage, it was clearly possessed for personal use. Abruzzise's argument raised a question of fact on this issue. The jury apparently resolved this factual question in favor of the People. The fact that drugs were found in multiple locations does not by itself mean that there was insufficient evidence to convict Abruzzise of possession with intent to sell. Indeed, for a judgment to be set aside for insufficiency of the evidence, it must be clear that substantial evidence does not exist to support such hypothesis. (People v. Redmond (1969) 71 Cal.2d 745, 755.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Albillar (2010) 51 Cal.4th 47, 60.)
The testimony was uncontested that approximately 9.7 grams of methamphetamine was found in Abruzzise's home, enough for 97 individual hits. Taken as a whole, the evidence presented by the prosecution supported Abruzzise's conviction for possession of methamphetamine for sale.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.