P. v. Alvarez

Filed 7/20/07 P. v. Alvarez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Jose Jesus Alvarez was charged with one felony, possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a). He was also charged with two misdemeanors, being under the influence of a controlled substance, methamphetamine (Health & Saf. Code,  11550, subd. (a)), and providing false identification to a peace officer (Pen. Code, 148.9, subd. (a)).[1] The information also alleged a prior strike conviction ( 667, subds. (b)-(i), 1170.12). A jury found defendant guilty of all charges, the court found the enhancement true, and he was sentenced to 32 months in prison.

On appeal, defendant asserts that there was insufficient evidence to support the methamphetamine possession conviction because the amount of the controlled substance that he was alleged to have possessed was not a usable quantity. He argues further that the trial court coerced the conviction by failing to comply with the jurys requests for a readback of testimony and by failing to give an adequate response to the jurys inquiry regarding the definition of usable, in the context of the drug possession charge.

We conclude that there was sufficient evidence to support the methamphetamine possession conviction. We also reject defendants jury coercion claim. Accordingly, we will affirm the judgment.

FACTS

We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.)

I. Prosecution Evidence

At about 2:20 a.m. on September 21, 2004, Deputy Richard Alanis and Deputy Marc Lehmannboth with the Santa Clara County Sheriffs Departmentwere in their patrol vehicle in east San Jose. They observed a large white Econoline van roll through an intersection controlled by a stop sign and turn left. The deputies initiated an enforcement stop of the vehicle.

As Deputy Alanis approached the van, he observed through the side window that there were two males lying down in the passenger area behind the drivers seat. (The van had only passenger seats in the front; there were no rear passenger seats.) The reclining males were not moving. The driver identified himself to the deputies. The passenger (not defendant) in the rear of the van also produced proper identification.

Defendant was asked to identify himself; he responded that he did not have his drivers license with him but that his name was Calixto Alvarez and gave his date of birth. After the deputies were unable to obtain a computer match of a drivers license by using the name and date of birth defendant provided, they had defendant get out of the vehicle. Defendant admitted on the witness stand that he had given the deputies a false name, i.e., the name of his brother. The deputies did not learn defendants true identity until after he was arrested, taken to the main jail facility, booked, fingerprinted, and incarcerated.

Deputy Alanis observed that defendant was displaying several symptoms of being under the influence of a stimulant. Deputy Lehmann reached the same conclusion. Defendant had sweaty skin, and a dry mouthhe was licking his lips. Deputy Alanis later determined when defendant was sitting in the back of the patrol vehicle that he had an elevated pulse, his eyelids were fluttering, and his pupils were dilated. Defendant was then arrested for being under the influence of a controlled substance.[2] Neither the driver nor the other occupant of the van exhibited any symptoms of being under the influence.

The driver consented to a search of his vehicle. During the search, Deputy Lehmann observed that there was fabric pulled off of the side of the van (near the floor) behind the drivers seat. Deputy Lehmann discovered a clear plastic bag containing a white crystalline substance behind the fabric.[3] At the time Deputy Alanis first observed the two males in the rear of the van, defendant was lying behind the drivers seat, flat on his back with his feet facing the drivers seat. The area where the plastic bag was found was approximately four to six inches from where defendant had been lying and midway down the length of his body. (The other male was lying on his back with his feet close to the front passenger seat.)

The deputies determined by using a narcotics identification kit that the substance was presumptively methamphetamine. A criminalist from Santa Clara Countys crime laboratory later determinedafter performing presumptive and confirmatory teststhat the substance in the plastic bag found in the van was 0.35 grams of methamphetamine. It was a sufficient quantity to supply a person for almost a week, although a particularly heavy user might consume it in a day.

At the main jail facility, the deputies searched defendant for weapons and contraband. Deputy Lehmann found a black pouch hanging from defendants neck; inside the pouch was a clear plastic bag containing a white chalky residue. The deputies did not test the substance at the time, in part, because the quantity was small and they didnt want to destroy any further [its] evidentiary value. A criminalist from Santa Clara Countys crime laboratory determined that the substance in the bag found in the pouch hanging from defendants neck was 0.01 grams of methamphetamine. Deputy Alanis and Deputy Lehmann both opined that it was a usable amount.

II. Defense Evidence

Defendant testified on his own behalf. He admitted that he had smoked 0.25 grams of methamphetamine on the night that he was arrested. He bought the drug from Joe, the passenger in the van. The plastic bag in the black case around defendants neck when he was arrested had previously held the methamphetamine that he had smoked that evening. Defendant testified that there was not enough methamphetamine left in that bag to smoke or to otherwise use. Shortly before defendant was arrested, Joe told him that he had more methamphetamine in his possession if defendant wanted it.

Before the van was stopped, defendant was riding in the front passenger seat. The driver told defendant that he saw a patrol vehicle, and defendant immediately jumped into the back of the van and lay down behind the drivers seat. As he did so, defendant asked Joe to move over to the area behind the front passenger seat. The plastic bag containing amphetamine discovered in the back of the van did not belong to defendant.

PROCEDURAL BACKGROUND

Defendant was charged by information filed April 21, 2005, with three counts, namely, possession of a controlled substance, methamphetamine, a felony (Health & Saf. Code,  11377, subd. (a); count 1); being under the influence of a controlled substance, methamphetamine, a misdemeanor (Health & Saf. Code,  11550, subd. (a)); and providing false identification to a peace officer, a misdemeanor (Pen. Code, 148.9, subd. (a)). The information also alleged a prior strike conviction ( 667, subds. (b)-(i), 1170.12). He was convicted after a jury trial of all three counts charged. The court thereafter found true the prior strike conviction.

Defendant filed a motion to strike the prior strike allegation, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court denied defendants Romero motion. Defendant was sentenced to the lower term of 16 months, doubled to 32 months based upon the prior strike conviction ( 667, subds. (b)-(i)). The court also imposed separate concurrent six-month county jail terms for the two misdemeanor convictions. Defendant filed a timely notice of appeal.

DISCUSSION

I. Issues On Appeal

Defendant makes the following contentions:

1. There was insufficient evidence to support the conviction of possession of methamphetamine, because there was no substantial evidence that defendant possessed a usable amount of the controlled substance, one of the elements of the offense.

2. The court coerced the jury into rendering a guilty verdict by (a) failing to provide a readback of the testimony of Deputy Alanis as requested by the jury, and (b) failing to adequately respond to the jurys request for a clarification as to the meaning of the term usable in connection with the controlled substance possession charge.

We address both of these appellate claims below.

II. Sufficiency Of The Evidence

A. Standard of Review

In addressing appellate claims of insufficiency of the evidence, our role is a limited one. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Id. at p. 576; see also People v. Iniguez (1994) 7 Cal.4th 847, 854.) In conducting this review, we give due deference to the trier of fact in assessing the credibility of witnesses, and [do] not substitute [our] evaluation of a witnesss credibility for that of the fact-finder. [Citations.] (People v. Barnes (1986) 42 Cal.3d 284, 303-304.) In reviewing the evidence, our perspective favors the judgment. [Citation.] (People v. Matian (1995) 35 Cal.App.4th 480, 484.)

B. Possession of Controlled Substance Charge

1. General principles

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. [Citations.] (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) As to the dominion and control element, possession of the controlled substance may be either actual or constructive. (People v. Rice (1976) 59 Cal.App.3d 998, 1002.) It is necessary to a finding of either actual or constructive possession that the accused had the right to exercise dominion and control over the contraband or at least that he had the right to exercise dominion and control over the place where it was found. (Ibid.)  And the actual or constructive possession of the controlled substance need not be exclusive in order to support a conviction. (Id. at pp. 1002-1003.)

Appellate courts in numerous instances have found sufficient evidence of constructive possession to support a controlled substance conviction. We refer to several cases that are illustrative and have a bearing upon the conviction at issue in this appeal. (See, e.g., People v. Williams (1971) 5 Cal.3d 211, 215 [contraband found on car seat where the defendant had been sitting]; Caughlin v. Superior Court (1971) 4 Cal.3d 461, 465 [the defendant constructively possessed purse and its contents, i.e., marijuana, where purse found on floorboard of her car, she described cars location, and she was without purse at time of arrest for shoplifting]; People v. White (1969) 71 Cal.2d 80, 83 [marijuana found in the defendants shared bedroom in which he had been present within hours before search]; People v. Wilson (1967) 256 Cal.App.2d 411, 419-420 [circumstantial evidence of constructive possession where majority of heroin found in the defendants apartment, his car was used to make delivery, and he gave contradictory explanations to account for large expenditures where heroin may have been purchased].)

We note here that there were two distinct items of contraband that were potentially the basis for the possession conviction here. We first examine defendants premise that we may not consider the larger quantity of methamphetamine in evaluating his sufficiency-of-the evidence challenge. After rejecting that premise, we conclude that the evidencebased upon the 0.35 grams of methamphetamine found in the back of the vanwas sufficient to support the conviction.

2. The 0.01 grams of methamphetamine

Defendants insufficiency-of-the evidence argument focuses solely upon the 0.01 grams of methamphetamine found on his person after his arrest. He claims that the conviction cannot stand because the prosecution failed to show that there was a usable amount of the controlled substance. In making this argument, defendant ignores the evidence concerning the 0.35 grams of methamphetamine, asserting that [i]t was undisputed that the jury did not believe [defendant] was in possession of the larger bag of methamphetamine found in the van. The Attorney General disagrees with this assertion and argues that defendant is improperly attempting to impeach the jury verdict.[4] The Attorney General bases his argument that the evidence was sufficient to support the conviction, in part, upon the evidence that defendant was in constructive possession of the 0.35 grams of methamphetamine found in the back of the van.

The sole basis for defendants position that evidence of his constructive possession of the 0.35 grams of methamphetamine should be disregarded is a statement made by the prosecution at the time of sentencing. In recommending a sentence more lenient than the one recommended by the probation department, the prosecutor gave as one of his reasons the fact that he and defense counsel had discussions with the jury after this case, and the juror members that remained told us they based their verdict on the smaller of the two bindles, which is only [0].01 grams.

We reject defendants contention that, in evaluating his sufficiency-of-the-evidence challenge, we must ignore the larger quantity of methamphetamine found in the van. Evidence Code section 1150, subdivision (a), provides: Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent or to dissent from the verdict or concerning the mental processes by which it was determined. (Italics added.) Defendants argument hererelying upon the hearsay statement of the deputy district attorney regarding what some unidentified members of the jury allegedly told defense counsel and him after the trial about the collective reasoning of the juryis clearly an improper attempt to impeach the jury verdict under Evidence Code section 1150, subdivision (a). (See, e.g., People v. Steele (2002) 27 Cal.4th 1230, 1260-1261 [verdict could not be impeached by jurors declaration concerning subjective reasoning process for death penalty vote]; People v. Hutchinson (1969) 71 Cal.2d 342, 349 [Evid. Code, 1150 prohibits attack on verdict based upon subjective reasoning processes of individual juror].)

3. The 0.35 grams of methamphetamine

Focusing solely on the 0.35 grams of methamphetamine found in the side of the van behind the drivers seat, the evidence was sufficient to support defendants conviction for possession of this controlled substance. There is no question that the plastic bag found in the side of the van contained a usable quantity (0.35 grams) of methamphetamine. Defendanta frequent methamphetamine user who qualified as an expert concerning usable amounts of that controlled substanceadmitted that this plastic bag contained a usable amount of methamphetamine. As a frequent user for four to five years, defendant indisputably had knowledge of the restricted dangerous drug character of the methamphetamine. And he admitted to knowledge of its presence, although it was his testimony that it belonged to Joe.

There was also sufficient circumstantial evidence of defendants dominion or control over the methamphetamine found in the side of the van. At the time of the traffic stop, defendant was lying down in the back of the van and was only four to six inches from where the methamphetamine was found by Deputy Lehmann. The other male in the back of the van was much farther away from the contraband. Defendant lied to the deputies by giving them a false name, evidencing a consciousness of guilt. (See People v. Perry (1972) 7 Cal.3d 756, 772 [accuseds attempts to conceal identity or whereabouts may warrant an inference of consciousness of guilt].) In contrast, both the driver and the other passenger readily gave the deputies proper identification. And defendant had on his person at the time of the arrest a small quantity of methamphetamine. Moreover, defendant was under the influence of methamphetamine at the time of his arrest, while the driver and the other occupant did not exhibit any symptoms of being under the influence. (Cf. People v. Morales (2001) 25 Cal.4th 34, 44-45 [evidence of being under the influence of controlled substance, by itself, is not proof of present or past possession].)

The evidence clearly supported the conclusion that defendant had constructive possession of the plastic bag containing 0.35 grams of methamphetamine that was found in the side of the van. (See, e.g., People v. Wilborn (1999) 70 Cal.App.4th 339, 348-349 [evidence sufficient to support contraband possession conviction where the defendant, after traffic stop, repeatedly dropped hands to lap and kept knees together, suggesting he was hiding something, and where contraband found on floorboard on side where he had been sitting].) Therefore, viewing all of the evidence in a light most favorable to the judgment (People v. Johnson, supra, 26 Cal.3d at p. 578), there was sufficient evidence to support the conviction of possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a).[5]

III. Alleged Coercion of Jury

A. Background and Parties Contentions

After the jury had commenced its deliberations, it sent a note requesting areadback of Deputy Alaniss testimony as to usable amounts of methamphetamine. Whether he considers sample usable or not. Including defense cross[-]examination. The court responded: Our court reporter is currently unavailable. We anticipate a delay before we are able to respond to your request. At about the same time, the jury sent a note requesting clarification on whether the quantity of methamphetamine is of sufficient quantity to constitute usable^[] quantity to convict of possession. The court referred the jury to two jury instructions previously given, i.e., CALJIC Nos. 12.32 and 12.33.

Later during the same day of deliberations, the jury sent another note requesting a clarification on the issue of usable amount relative to the charge of possession of a controlled substance.[6] The court again referred the jury to CALJIC Nos. 12.32 and 12.33, and also referred the jury to CALJIC No. 2.80. Shortly thereafter, the jury sent another note, repeating its request for a readback of Deputy Alaniss selected testimony on the issue of usable amount of methamphetamine. The note also indicated: At this point we are stalled until we get this information. My understanding is that we may not get it today. How long shall we wait before going home? The courts note in response read: Unfortunately the court reporter is still unavailable. (She is ill & we have not been able to reach her.) We anticipate that she will be in Monday. Thank you for your patience. Fifteen minutes later, the jury advised the court that it had reached a verdict. After counsel was called, the clerk read the jurys verdicts, finding defendant guilty on all three counts. Defense counsel made a motion for mistrial because the jury had not received a readback of the requested testimony of Deputy Alanis. The court denied that motion.

Defendant contends that the court below coerced the jurys verdict in two respects. First, defendant argues that the courts failure to perform a readback of Deputy Alaniss testimony in response to the jurys two requests constituted a violation of section 1138. Second, the court erred (defendant contends) by failing to provide the jury with a further definition of usable amount, despite the jurys two requests for clarification on this point. He argues that the cumulative effect of these two errors requires reversal.

The Attorney General responds that defendant forfeited his claim by failing to raise it below. He argues further that, even if defendants argument is considered on the merits, there was no error.

B. Discussion

As a general rule, a partys failure to raise an argument or objection before the trial court precludes the party from raising it on appeal. When a party does not raise an argument at trial, he may not do so on appeal. [Citations.] (People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) Thus, for instance, the failure to object to a trial judges decision not to respond to a jury inquiry results in the forfeiture of the issue on appeal. (People v. Boyette (2002) 29 Cal.4th 381, 430; see also People v. Price (1991) 1 Cal.4th 324, 414 [failure to object to court giving interview tapes to jury in response to its request forfeited challenge].)

Here, there is no record that defendant objected to the trial courts responses to the jurys two requests for a readback of Deputy Alaniss testimony. Likewise, defendant did not object to the courts responses to the jurys two inquiries concerning the meaning of usable. The clerks minutes reflect that the court consulted counsel in formulating responses to the jurys inquiries and requests.[7] Plainly, defendant forfeited any appellate challenge to the trial courts responses to the jurys inquiries.

Even were we to consider the merits of defendants claim, we would find no error.[8] It is of course the case that, pursuant to section 1138, the trial court must satisfy requests by the jury for the rereading of testimony. [Citation.] (People v. Box (2000) 23 Cal.4th 1153, 1213.)[9] But the trial court here did not refuse to comply with the jurys request for a readback of Deputy Alaniss testimony. (See People v. Gonzales (1968) 68 Cal.2d 467 [no error where court responded to jurys request by stating that information would not be available until next morning, that they could continue to deliberate or stop until morning, and jury came back with verdict 15 minutes later].) Rather, it told the jury that there would be some delay in the readback due to illness of the court reporter. (Cf. People v. Butler (1975) 47 Cal.App.3d 273 [courts refusal to reread testimony of five witnesses was prejudicial error.) Certainly, the temporary unavailability of a court reporter that results in delayed compliance with a jurys request for a readback is a practical circumstance that happens on occasion during a trial; it does not constitute a refusal in violation of section 1138.

Further, the trial court committed no error in the manner in which it responded to the jurys inquiries about the meaning of usable in the context of the possession of a controlled substance charge. While section 1138 requires the trial court to assist the jury in understanding applicable legal principles, [t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] (People v.Beardslee (1991) 53 Cal.3d 68, 97.)

The court properly referred the jury to standard instructions that it had previously given that provided guidance as to the elements of the charged offense. Specifically, the two instructions (CALJIC Nos. 12.32 and 12.33) defined the term usable and gave the jury guidance as to how it should go about making the determination of whether the amount of contraband defendant was alleged to have possessed was a usable quantity. And contrary to defendants assertion, the court was not required to fashion, in effect, a special jury instruction concerning the definition of useable,particularly where there is no record that defendant asked for one or specified how it should read, and where there were already jury instructions that had dealt with the issue. (See People v. Davis (1995) 10 Cal.4th 463, 523 [trial judge properly declined to provide further instructions in response to jury inquiry where instructions previously given were sufficient].) The court did not abuse its discretion by referring the jury to previously-read instructions on the subject.

Defendant forfeited any challenge based upon any alleged failure of the trial court to read back requested portions of Deputy Alaniss testimony or to adequately respond to the jurys questions regarding the meaning of the term usable. Moreover, no error appears, even were the challenge not forfeited.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

Mihara, J.

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[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The parties stipulated at trial that a certified phlebotomist drew defendants blood after he was arrested and taken to the main jail facility. The presumptive test of the blood sample for methamphetamine was positive. And the confirmation test showed that the blood sample was positive for methamphetamine and amphetamine.

[3] The plastic bag was not tested for fingerprints.

[4] Defendant in his reply brief did not respond to this assertion that his argument that the conviction was not based upon possession of the larger quantity of methamphetamine is an improper attempt to impeach the jurys verdict.

[5]Because we have concluded that there was sufficient evidence of defendants constructive possession of the 0.35 grams of methamphetamine found in the back of the van next to where he had been lying, we need not decide whether the recordfocusing only on the 0.01 grams of methamphetamine found on defendants person and ignoring the greater quantity of the controlled substance found in the vanwas sufficientto support the conviction.

[6] The inquiry of the jury read as follows: It is my understanding that, to find the defendant guilty of possession of a controlled substance, it must be determined that the substance was in an amount sufficient to be used as a controlled substance. It seems, however, that what constitutes useable amount is open to interpretation. More precisely, I am unsure of the definition of use_[._] Any quantity may be in[g]ested, but then is it used as a controlled substance, or is it merely being used for [a] placebo [e]ffect? Am I correct to understand that we must be the judge of that, based on expert testimony?

[7] There is no reporters transcript of any proceedings involving discussions between court and counsel about the jurys requests for a readback of testimony and its inquiries regarding the definition of usable.

[8] In failing to respond substantively to the Attorney Generals forfeiture argument in his reply brief, defendant seemingly concedes the issue. Nonetheless, defendant argues that appellate courts have the discretion to consider matters that are raised for the first time on appeal when they involve fundamental constitutional issues.

[9] After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called. ( 1138.)