Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA296479, Frederick N. Wapner, Judge.
Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson, Michael R. Johnsen and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Robert Persinger, appeals from the judgment entered following his conviction, by jury trial, for possession for sale of cocaine base, possession for sale of cocaine, possession for sale of methamphetamine, and possession of ammunition by a felon, with prior prison term enhancement findings (Health & Saf. Code, §§ 11351.5, 11351, 11378; Pen. Code, §§ 12316, subd. (b)(1), 667.5). Sentenced to state prison for eight years, Persinger claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
On January 16, 2006, at about 1:45 p.m., Los Angeles Police Officers Bradford Gorby and Thomas Andreas went to 618 North Bonnie Brae Street in response to a complaint about a prowler. After they spoke to a man who fit the prowler’s description, Andreas knocked on the front door of 620 North Bonnie Brae and announced himself as a police officer. Gorby testified he was standing 15 feet away from the front door when Andreas knocked, and from there he could “hear rustling inside, like movement, and . . . voices.” One of the two voices Gorby heard was male. After waiting a few minutes, Andreas knocked and again announced he was a police officer.
The door was finally opened by defendant Persinger. The officers explained they were investigating a prowler and said they wanted to check if Persinger had an outstanding warrant. Persinger stepped outside to talk. Co defendant Kathleen Rubio also came outside. Gorby noticed there were various household items piled along an exterior wall of the house. When Andreas asked if the officers could look inside the house, Persinger said yes.
The house consisted of a single room, about 10 feet by 15 feet, with a small bathroom in one corner. The kitchen was part of the main room. There was a mattress on the floor. Various items were strewn across the floor, including VCR’s, radios, televisions, car stereos, cell phones, and ID’s that did not belong to either Persinger or Rubio. According to Andreas, “There was so much stuff in that . . . room, it was ridiculous.” Gorby testified, “Pretty much the entire floor was covered with various objects.” Behind a stand holding a microwave oven, the officers found a .40-caliber Glock magazine loaded with 26 rounds of hollow-point ammunition.
On top of the mattress there were car stereos and piles of clothing. Also on the mattress, partially hidden by some of the clothing, was a black shoulder bag. Inside the shoulder bag were several coin purses, a notebook, an electronic scale, codeine pills, “plastic toy bubbles full of crack cocaine,” “smaller sniffers full of powder cocaine,” “smaller baggies full of marijuana,” “[l]arger baggies full of marijuana,” a bag of heroin, and a candy container in which there was ice methamphetamine. Forensic testing determined these drugs included 7.84 grams of methamphetamine, 4.26 grams of cocaine base, and 10.61 grams of powder cocaine.
Andreas described these as “the bubbles that you get out of the . . . vending machines that have the little toys in them for your kids.”
Gorby testified ice methamphetamine was a “more refined version of methamphetamine, looks like large crystals.”
The cover of the notebook found inside the black shoulder bag had a picture of a Barbie doll. Inside this notebook there were at least two different kinds of handwriting: cursive and printing. Some of this handwriting consisted of names and numbers. Gorby testified these could be pay-owe records for drug transactions: “[F]or instance, it says Black David 20 plus computer plus fuck off, it possibly represents payment for the narcotics. [¶] Plus, oftentimes, they’ll trade stolen property or other property of theirs for narcotics. Sometimes they’ll owe money, they’ll get narcotics on loan and they’ll write down how much is owed.” Andreas testified the notebook contained pay-owe records of drug transactions.
Gorby described the handwriting as: “Cursive . . . capitalized print, . . . and lower-case print. And then numerous numbers. So both cursive and print writing.”
Gorby testified the drugs in the black bag were being possessed for sale. He based this conclusion on the quantity and variety of the drugs, their packaging, the pay-owe records, the electronic scale, the lack of any drug-user paraphernalia, and all the household items found scattered around. Gorby concluded the household items could have been traded for drugs because “it’s . . . pretty common to see thieves and narcotics go hand-in-hand. They make trades for that.” Andreas also opined the drugs were being possessed for sale, based on the quantities, the packaging, the electronic scale and the pay-owe records. He testified drug customers generally pay in cash or trade, “depending on who your actual seller is. I mean, if you’re running a fence, let’s say, you’re running a house and you’re taking stolen property, I can bring you a TV in exchange for narcotics if that’s all I have.”
Luis Fragoso owned the house at 620 North Bonnie Brae. Fragoso testified that in January 2006, he was renting the house to Persinger and Rubio.
Although Fragoso recalled it had been Rubio who signed the rental agreement, he testified he had rented the house to Persinger and Rubio, who he assumed were a married couple.
CONTENTIONS
1. Review of an in camera Pitchess proceeding is requested.
2. There was insufficient evidence to prove Persinger had been in possession of any drugs.
3. There was Cunningham sentencing error.
DISCUSSION
1. Review of in camera Pitchess hearing.
Persinger requests review of the trial court’s ruling on his motion seeking discovery under Pitchess v. Superior Court (1974)11 Cal.3d 531. Review of the in camera hearing by this court reveals no abuse of the trial court’s discretion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1232.)
2. There was sufficient evidence Persinger possessed the drugs.
Persinger contends all of his drug convictions must be reversed because there was insufficient evidence he was in possession of the drugs found in the black shoulder bag. This claim is merit less
a. Legal principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“The elements of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence and narcotic character of the drug. [Citations.] Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.] The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence.” (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on other grounds by People v. Daniels (1975) 14 Cal.3d 857, 862.)
“Proof of opportunity of access to a place where narcotics are found will not, without more, support a finding of unlawful possession. [Citation.] But the necessary elements (that the accused exercised dominion and control over the drug with knowledge of both its presence and its narcotic character) may be established by circumstantial evidence and any reasonable inferences drawn from such evidence; and neither exclusive possession of the premises nor physical possession of the drug is required. [Citations.]” (People v. Harrington (1970) 2 Cal.3d 991, 998.)
As the following two cases illustrate, fairly slight circumstantial evidence is sufficient to prove that a person with immediate, but nonexclusive, access to illegal drugs is in possession of those drugs.
In People v. Newman, supra, 5 Cal.3d 48, (Newman), the defendant was stopped for speeding. Detecting the odor of burnt marijuana, the officer arrested defendant and his two passengers. Sitting in the driver’s seat, the officer noticed a sealed envelope sitting on a tape deck below the dashboard. Inside the envelope were eight plastic bags containing methedrine. The defendant denied knowing anything about the envelope or its contents, and testified he had been driving a borrowed car. In affirming his conviction for possession of methamphetamine for the purpose of sale, Newman reasoned: “[S]ufficient circumstantial evidence existed from which the jury could infer that defendant possessed the drugs and had knowledge of their presence, for the envelope containing the drugs was located and visible on the tape deck below the dashboard of the car defendant was driving and was therefore immediately accessible to him and subject to his exclusive or joint dominion and control.” (People v. Newman, supra, 5 Cal.3d at p. 53.)
In People v. Glass (1975) 44 Cal.App.3d 772, the defendant was found in bed at his girlfriend’s house. When the police walked into the bedroom, defendant pulled the bed covers up over his head. Underneath a pillow, police found a plastic vial and a bag containing amphetamine tablets. Under the living room couch, police found a large quantity of amphetamine tablets. Glass concluded there was sufficient evidence defendant had been in possession of the pills in the bed, but not the pills under the couch. The latter finding was based on the lack of evidence the defendant had been residing at the house: “Other than his boots and shirt on the bedroom floor, no other men’s clothing was discovered in the residence. No letters or documents were found addressed to appellant at that address. All documents found at the house were addressed to [his girlfriend] . . . . The most that can be inferred from this evidence is that appellant was a visitor at the residence on the morning of the arrest; the usual inferences that may be drawn from joint possession and control of the premises where drugs are found are impermissible in this case.” (Id. at pp. 776-777.) But with regard to the pills found in the bedroom, Glass reasoned: “[T]he presence of the amphetamines found in and around the bed where appellant had been lying and the act of pulling up the bed covers over his entire body, including his head, would be sufficient to support a conviction for simple possession” of those tablets. (Id. at pp. 775-776.)
b. Discussion.
Persinger aptly sums up the relevant case law thus: “[W]here, as here, the accused does not have exclusive access to the contraband or its location, the courts have required some indicia of the accused’s knowing possession of the contraband. Such indicia is often provided by physical evidence connecting the accused to the contraband, the conduct of the parties, and the accused’s admissions, contradictory statements, or suspect explanations.”
Persinger asserts the only evidence supporting his drug convictions was that he resided at a house where drugs were found, and that the pay-owe records in the notebook “contained both print and cursive writing.” But there was more evidence than that. There was the time lag before Persinger opened the front door, during which Officer Gorby, standing 15 feet away, heard movement and two voices. When he and Officer Andreas entered the house, they discovered the black shoulder bag on top of the mattress, partially hidden beneath a pile of clothing. The jury could have inferred from this evidence that Persinger and Rubio had tried to hide the drugs and the pay-owe records in the moments before opening their door to the officers.
But there was even stronger evidence. Both officers testified quite emphatically the house was incredibly cluttered, that there were household items scattered all over the floor. More household items were piled up along an exterior wall of the house. Although the small size of the house could have explained some of this mess, it is apparent there was a lot of stuff Persinger and Rubio were not using in their daily life. We know this because there were so many multiples of different items. Officer Gorby described the items piled along the exterior wall of the house as: “Lots of appliances, TV’s, some scooters. . . . [E]ntire wall was covered with objects.” He described the items scattered inside the house as including “stereos,” “several VCR’s, radios, TV’s,” and “wheel locks that go on steering wheels for automobiles.” Officer Andreas testified there were a “lot of cell phones,” and that “[t]he floor was covered with . . . junk, TV’s, stereos. You’d walk on top of the stuff just to get around the residence . . . .” Both officers testified it was common for drug customers to barter for their purchases in lieu of paying cash. One entry in the notebook read, “Black David 20 plus computer.” Among the items found in the house were other peoples’ ID’s.
In United States v. Jenkins (D.C. Cir. 1991) 928 F.2d 1175, police discovered a drug manufacturing and trafficking operation in a house the defendant shared with her adult son and two others. Jenkins testified she generally left her house early in the morning for work, returned late at night, and ate most of her meals out. In affirming Jenkins’s conviction, the appellate court relied, in part, on incriminating evidence found in plain view in her kitchen: “Of the various pieces of evidence against Jenkins, the most prominent were that the house was hers and that she lived there. The natural inference is that those who live in a house know what is going on inside, particularly in the common areas. Jenkins says this counts for little because others lived with her and because the cocaine in the basement safe and the cocaine in the closet in her son’s room were not in plain view. But the jury was entitled to believe that the drugs were not concealed to keep Jenkins in the dark. . . . The computerized scale on the kitchen counter, and the cocaine pieces on the cutting board and the particles in the microwave oven, were enough to indicate to the jury that whoever had been making the ‘crack’ did not try to hide these activities from Jenkins. From this, one might infer that Jenkins already knew what was going on in her kitchen.” (Id. at p. 1179, italics added.)
Persinger and Rubio lived in a house that consisted entirely of common areas. Persinger could hardly have been unaware of all the incriminating items scattered about his house, and this tended to show he was part of a drug trafficking operation. When this is considered along with the pay-owe records written in two different hands, there was more than ample evidence to prove Rubio and Persinger were partners in a drug-selling operation.
While conceding the two different kinds of handwriting “could possibly mean there were two different writers,” Persinger argues “it is just as plausible that there was only one writer who sometimes wrote in cursive and at other times wrote in print.” We disagree. Given the routinized nature of such account-keeping, similar to filling out a check book register or an employment time sheet, it seems to us much more likely that the evidence of two writing styles indicates two different people had been keeping the drug accounts. In any event, what matters is only that the jury could have reasonably concluded this evidence suggested Persinger’s guilt, not his innocence. “ ‘ “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 668; see also People v. Towler (1982) 31 Cal.3d 105, 118 [“even though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant’s innocence, this alone does not warrant interference with the determination of the trier of fact”].)
Persinger tries to distance himself from the pay-owe records by arguing the notebook cover was so feminine the logical inference must be that it belonged to Rubio, not to him. He asserts: “The cover of the notebook was distinctively feminine, as was [sic] two of the coin purses. The notebook cover was decorated with numerous multi-colored hearts and featured a female doll wearing a pink and white shirt with the name ‘Barbie’ across the front. One of the coin purses prominently displayed the word ‘princess,’ and another was embellished with a floral pattern. Given that these exceedingly feminine items were found together with the narcotics inside the bag, the bag and its contents most likely belonged to co defendant Rubio.”
The prosecutor described the notebook as “a small notebook . . . with what appears to be some sort of Barbie doll on it and it says ‘Happy Time.’ ”
We are not persuaded. The decorations characterized by Persinger as distinctively feminine strike us rather as distinctively childish, and more likely to belong to a little girl than to a woman. Be that as it may, the evidence of the two handwritings raises a fair inference that, even if the notebook belonged to Rubio, both she and Persinger were using it to record their drug transactions.
There was sufficient evidence Persinger was in possession of the drugs found in the black shoulder bag.
3. There was no Cunningham error.
Persinger contends the trial court’s imposition of an upper term on count 1 and a consecutive term on count 2 violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]. This claim is merit less
In Apprendi v. New Jersey (2000) 530 U.S. 466 147 L.Ed.2d 435, the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, 301159 L.Ed.2d 403, the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of fact finding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely . . . .” (Id. at p. 1254.)
However, Cunningham v. California, supra, 127 S.Ct. 856, overruled Black I, holding that the middle term under the DSL is “the relevant statutory maximum” (id. at p. 871) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at pp. 863-864.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reconsidered Black I in light of Cunningham and held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. (Id. at p. 812.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
Here, in imposing the upper term, the trial court said it was relying on Persinger’s record, which consisted of six prior felony convictions resulting in prison terms. This factor was sufficient to render Persinger eligible for the upper term. (See Black II, supra, 41 Cal.4th at p. 818, 819 [“the right to a jury trial does not apply to the fact of a prior conviction,” an exception which “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions”]; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515 [trial court’s finding defendant had served prior prison term was directly related to defendant’s recidivism as that term has been construed by California appellate courts]; People v. Yim (2007) 152 Cal.App.4th 366, 370-371 [trial court’s finding defendant had been on parole when current offense committed related to defendant’s recidivism and was sufficient reason for imposing upper term].)
There was no improper dual use problem here because the trial court imposed only two section 667.5 prior prison term enhancements.
Currently pending before the California Supreme Court, in People v. Towne (review granted July 14, 2004, S125677), is the issue of whether a trial judge may sentence a defendant to an upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory.
Contrary to Persinger’s argument, the trial court’s imposition of a consecutive term on count 2 did not implicate the Sixth Amendment. “Cunningham . . . does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” (People v. Black, supra, 41 Cal.4th at p. 821.)
Thus, there was no Cunningham error.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.