P. v. Calvin
Filed 11/6/13 P. v. Calvin CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CARY L. CALVIN,
Defendant and Appellant.
B239709
(Los Angeles County
Super. Ct. No. MA051713)
APPEAL from
a judgment of the Superior Court of
County, Hayden A. Zacky, Judge.
Affirmed with directions.
Holly J.
Jackson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General,
for Plaintiff and Respondent.
——————————
>
Defendant
Cary L. Calvin appeals his conviction of one count of
substance (Vicodin) (Health & Saf. Code, § 11351), one count of
possession for sale of cocaine base (Health & Saf. Code, § 11350,
subd. (a)), one count of possession of marijuana for sale (Health & Saf.
Code, § 11359), and one count of destruction of evidence (Pen. Code,
§ 135).
title="">[1] He contends (1) the evidence is
insufficient to support his conviction of possession of Vicodin for sale,
(2) the trial court abused its discretion in admitting evidence of text
messages from his cell phone, and (3) the trial court erred in imposing a
three-year enhancement. We affirm the
judgment, and remand for resentencing.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant
was charged in an information filed February 24, 2011 in count 1 of possession
for sale of dihydrocodeinone (Health & Saf. Code, § 11351); in count 2 of
possession for sale of cocaine base (Health & Saf. Code, § 11351.5); in
count 3 of possession for sale of marijuana (Health & Saf. Code, § 11359); in
count 4 of sale/offer to sell/transportation of marijuana (Health & Saf.
Code, § 11360, subd. (a)); and in count 5 of destroying evidence, a misdemeanor
(Pen. Code, § 135). The information
alleged as to counts 1 and 2 that appellant had two prior drug convictions
(Health & Saf. Code, § 11370.2, subd. (a)), and it was further alleged
as to counts 1 through 4 that appellant had two convictions for which he served
a prison term (Pen. Code, § 667.5, subd. (b)).
Case
Los Angeles
County Sheriff’s Deputy Michael Rose was on patrol on January 28, 2011 at
approximately 9:15 p.m. with his partner Deputy Robert Heins when he conducted
a traffic stop of defendant’s vehicle.
As Deputy Rose approached the driver’s side of the car, he smelled the
odor of marijuana coming from the vehicle.
Deputy Rose asked defendant if he had any marijuana in the vehicle, and
defendant responded that he did. Deputy
Rose noticed a brown marijuana cigarette sitting in the console area ash tray,
and asked defendant to step out of the vehicle.
Defendant told Deputy Rose that he was a medical marijuana user.
After moving
defendant to the back seat of the patrol car, Deputy Rose asked defendant to remove
his shoes and socks, but Deputy Rose did not find any narcotics on defendant. Deputy Rose noticed defendant was moving his
jaw and lips in a “weird way,†by making side-to-side and rolling movements
with his lips. Deputy Rose, who knew
that it was common for persons with narcotics to put the drugs in their mouths
when encountering police, asked defendant to open his mouth. Deputy Rose saw defendant had a shiny piece
of plastic in his mouth; inside the plastic was a white powder. After Deputy Rose asked defendant to spit out
the plastic, defendant began to chew and swallow. Deputy Rose and his partner again asked
defendant to spit out the substance, but defendant refused. Deputy Rose grabbed defendant’s jaw and
looked in his mouth. Defendant’s mouth
had multiple bags with a white substance in them. Deputy Rose and his partner removed defendant
from the patrol car and asked defendant to spit out the material in his mouth,
but defendant refused, stating he had nothing in his mouth, claiming it was “just
a blunt.â€
Defendant
stopped chewing. The deputies stood
defendant up and handcuffed him. The
deputies were not able to recover anything from defendant’s mouth, but later Deputy
Heins discovered a chewed up bag with a white substance in it on the rear floor
board of the patrol car. The bag was
covered with saliva.
A search of
defendant’s car yielded two individually wrapped bags of marijuana inside a
clear jumper cable bag. Inside defendant’s
right front pocket was a cell phone. In
his left front pocket was a wad of currency consisting of one $100 bill, two
$20 bills, a $10 bill, six $5 bills, and eight $1 bills. Deputy Rose found several text messages on
defendant’s cell phone that had been received that day. One stated, “Do you have any Vics [Vicodin] I
can buy?†Another message stated, “I’m
on schedule. Do you have . . . 40
V’s I can get . . . and 11 [Nors (hydrocodone)] that I can
get from you for 160?†Defendant
responded, “yeah, okay. Come on.†In another message, defendant texted, “I have
some Watsons [Vicodin].â€
name="_ftnref2" title="">[2] Deputy Sheriff Daniel Welle also saw the
texts on defendant’s cell phone requesting Vicodin and Norco and defendant’s
outgoing messages with price quotes.
After
giving defendant his Miranda
mouth. Defendant stated it was cocaine,
and he liked to sprinkle cocaine on his marijuana. Defendant then contradicted himself and said
it was two Vicodin pills wrapped in a plastic bag. Defendant admitted he did not have a
prescription for Vicodin, and claimed he got them from his grandmother. After further questioning, defendant admitted
he had marijuana and Vicodin pills at his nearby home, as well as some crumbs
of rock cocaine and a digital scale.
During
Deputy Rose’s questioning, defendant’s cell phone rang nonstop, and several
persons rode by on bicycles who appeared to recognize defendant. Deputy Rose, who believed defendant had more
narcotics at his house, became concerned that someone would give a “heads upâ€
and remove any narcotics from defendant’s house. Therefore, Deputy Rose called for more units
to lock down defendant’s house.
Defendant refused to consent to a search of his house. Several hours later, after obtaining a
warrant, Deputy Rose and other sheriff’s deputies conducted a search of
defendant’s home.
Upon
entering defendant’s house in Lancaster, deputies encountered “an overwhelming
smell of fresh marijuana.†Inside
kitchen cupboards were three glass jars containing high-grade marijuana. A drawer held a tin container with a digital
scale, digital gram scale, and several boxes of sandwich bags. Inside the same drawer was a tall orange vial
containing Watson 853’s, which are a generic form of Vicodin
(hydrocodone). Deputies found a backpack
in a bedroom containing a notebook with a “payola†sheet (a ledger of
transactions), but defendant’s name was not on the list. Another bedroom yielded a TV stand with two
bags of marijuana, and inside a closet in that bedroom was a bag containing
cocaine base.
The jars of
marijuana contained 142 grams. In Deputy
Welle’s opinion, defendant possessed the marijuana, Vicodin and cocaine for
sale based on the amount of marijuana and Vicodin; the lack of glass pipes,
mirrors or plates with lines of cocaine, and other items to ingest the substances;
the cell phone messages; the pay/owe sheets, the scales, and packaging
materials. Deputy Welle could not recall
if any of the text messages concerned sales of marijuana or cocaine. In Deputy Welle’s experience, no text message
is sent when the sale is concluded.
2. Defense Case
On January 8, 2011, defendant
was on a double date with a male friend and two women. The two women drove to the rear of defendant’s
house, where one got out and asked to go inside so she could put on some
makeup. Defendant went to the gas station
to put some gas in his car. While doing
so, he was pulled over by sheriff’s deputies who asked if there was anything
illegal in his car. Defendant, who was a
medical marijuana user, had his dosage with him. After defendant made a flippant remark to one
of the deputies, he was put in the back of the patrol car. The deputies asked him to remove his shoes
and socks and open his mouth, and he complied.
Defendant denied having bags of cocaine in his mouth, and denied chewing
it or spitting it out. Defendant did not
know who held the prescription for the 72 pills of hydrocodone found at his
house. Although defendant knew one of
the persons who had sent him a text message, he was not familiar with the
messages on his phone regarding drug sales.
Defendant makes his living as an entertainer and received royalty checks
for songs he had written; the last check was for about $300. Defendant kept medical marijuana in the trunk
of his car; that day he had a large amount because he was traveling to Los
Angeles and needed more than one day’s supply.
Thomas
Johnson testified to impeach Deputy Rose that on one occasion while driving his
children to school, he was stopped by Deputy Rose. Deputy Rose told Johnson that he had seen
Johnson throwing something out of the window of his car. Johnson, who denied he had thrown anything
out of his car, refused to give Deputy Rose permission to search the car. Deputy Rose handcuffed Johnson and put him in
the back of the patrol car and detained him from between 20 to 40 minutes. Johnson was not charged.
3. Rebuttal
Detective Roger Izzo, an expert in
drug sales, opined that the marijuana found in defendant’s car was more than
sufficient for one night’s use as medical marijuana. In his opinion, the marijuana in defendant’s
car trunk was possessed for sale.
After the prosecution’s case in chief, the court dismissed
count 4 for insufficient evidence pursuant to section 1118.1. The jury found appellant guilty on counts 1,
3, and 5, not guilty on count 2, but guilty of the lesser included offense of
possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). The jury found true all of the prior
conviction allegations. The trial court
sentenced defendant to a total term of nine years and 180 days in county jail,
consisting of the midterm of three years on count 1, plus three years each for
the two prior drug conviction enhancements, 180 days on count 5; and concurrent
terms of two years each on counts 2 and 3. The court struck the prior prison term
enhancements.
DISCUSSION
I. Count
1: Sufficiency of the Evidence of Possession
of Vicodin for Sale
Defendant
argues that there is insufficient evidence he possessed Vicodin for sale: there was no direct evidence of possession
because the pills were found in defendant’s kitchen while he was detained
elsewhere; defendant asserted the pills found belonged to his grandmother; the
pills were found in a shared place, the kitchen. On this last point, he contends the
prosecution misstated the law when it argued that as long as defendant resided
in a place where narcotics were found, such a fact alone would support a finding
of possession.
Background
During closing argument, the
prosecution told the jury, “[Defendant] tried to make a big deal about whether
or not there was a rental agreement, whether or not there was title or a deed
to the home. It’s irrelevant. Because as long as he lives there, he is a
resident of that home, he has possession of the Vicodin. [¶] . . . [¶] Then
I asked him, did you—have you seen the Vicodin pills prior to that night? And his answer was, yes. But he says it’s not his. So as far as possession of the controlled
substance, it’s in his custody and dominion.â€
The
jury was instructed with CALCRIM No. 2302, possession for sale of a controlled
substance: “The defendant is charged in
Counts 1 and 2 with possession for sale of dihydrocodeinone, also known as
Vicodin, and cocaine base, controlled substances. [¶] To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1. The
defendant [unlawfully] possessed a controlled substance; [¶] 2. The
defendant knew of its presence; [¶] 3. The
defendant knew of the substance’s nature or character as a controlled
substance; [¶] 4. When
the defendant possessed the controlled substance, he intended to sell it; [¶] 5. The
controlled substance was dihydrocodeinone, also known as Vicodin, and cocaine
base; [¶] AND [¶] 6. The
controlled substance was in a usable amount. [¶] Selling
for the purpose of this instruction means exchanging the controlled substance
for money, services, or anything of value.
[¶] . . . [¶] 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.â€
“In
assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses 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. [Citations.]†(People
v. Bolin (1998) 18 Cal.4th 297, 331.) We “resolv[e] all conflicts in [the] evidence
and questions of credibility in favor of the verdict, and indulge every
reasonable inference the jury could draw from the evidence.†(People
v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon
no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’†(Bolin, at p. 331.) “‘[T]he
appellate court presumes in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or
circumstantial evidence is involved.†(
139.)
Unlawful
possession of a controlled substance for sale requires proof that the defendant
possessed the substance with the intent to sell, and with knowledge of its
presence and its illegal character. “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 heroin, 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.†(
Harris, at pp. 374–375.) Constructive possession exists where a
defendant maintains some control or right to control contraband that is in the
actual or constructive possession of another. Exclusive possession is not required. (See People
v. Morante (1999) 20 Cal.4th 403, 417; People
v. Francis (1969) 71 Cal.2d 66, 71.) In addition, possession may be imputed to the
defendant where the narcotics are found in a place easily accessible to the
defendant, or under the joint dominion control of defendant or another. (People
v. Williams (1971) 5 Cal.3d 211, 215.)
However, “[p]roof of opportunity of access to a place where narcotics
are found will not, without more, support a finding of unlawful possession.†(People
v. Harrington (1970) 2 Cal.3d 991, 998.)
“As might be expected, no sharp line can be drawn to distinguish the
congeries of facts which will and that which will not constitute sufficient
evidence of a defendant’s knowledge of the presence of a narcotic in a place to
which he had access, but not exclusive access, and over which he had some
control, but not exclusive control.†(
287.) Some factors evidencing possession
where there is nonexclusive dominion include a showing of consciousness of
guilt and that the contraband was found among defendant’s personal
effects. (Id. at pp. 287–288.)
The
prosecution is given wide latitude during argument. “‘The argument may be vigorous as long as it
amounts to fair comment on the evidence, which can include reasonable
inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation
may state matters not in evidence, but which are common knowledge or are
illustrations drawn from common experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case
and is not limited to ‘Chesterfieldian politeness’†[citation], and he may “use
appropriate epithets warranted by the evidence.’†[Citations.]†(People
v. Wharton (1991) 53 Cal.3d 522, 567–568.) On the other hand, the “prosecutor is held to
a standard higher than that imposed on other attorneys because of the unique
function he or she performs in representing the interests, and in exercising
the sovereign power, of the State. [Citation.] . . . [T]he
prosecutor represents ‘a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be done.’ [Citation.]†(People
v. Espinoza (1992) 3 Cal.4th 806, 820.)
Prosecutorial
misconduct occurring during argument may take a variety of forms,
including: mischaracterizing or
misstating the evidence, referring to facts not in evidence, or misstating the
law, particularly where done in an effort to relieve the People of
responsibility for proving all elements of a crime beyond a reasonable doubt. (People
v. Hill (1998) 17 Cal.4th 800, 823, 827–830.) Prosecutorial misconduct mandates reversal when
“it comprises a pattern of conduct ‘so egregious that it infects the trial with
such unfairness as to make the conviction a denial of due process.’ [Citations.] But conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves ‘“the use of deceptive or reprehensible methods
to attempt to persuade either the court or the jury.â€â€™ [Citations.]†(People
v. Espinoza, supra, 3 Cal.4th at
p. 820.)
Here,
we find no error. The court informed the
jury that two or more people could possess a narcotic, and that it was enough
if the person had control over the narcotic or the right to control it, either
personally or through another person. Given
that defendant argued he had to have legal title to the residence in order to
possess the Vicodin, the prosecution’s argument must be read in that context,
namely, that defendant did not need to own or rent the residence in order to
have possession of the Vicodin. Rather,
it was sufficient that defendant had ready access to the house—a fact defendant
admitted. Further, defendant variably testified
that the Vicodin was his or his grandmother’s prescription, although the pill
bottle contained no prescription label, the lack of a label does not contradict
shared custody of the Vicodin.
II. Admission
of Cell Phone Text Messages
Defendant
contends the trial court abused its discretion when it permitted Deputy Rose to
testify concerning the contents of defendant’s cell phone text messages because
the evidence lacked proper foundation:
Deputy Rose did not preserve the text messages, present any evidence of
the phone, or a printout of the messages at trial. Defendant points to the fact that during deliberations
the jury asked for an identification of police report containing the text
messages and wanted to know why the prosecution witnesses testified to the messages. The court advised the jury that the text
messages were qualified as admissible evidence pursuant to an exception to the
hearsay rule.
evidence. (Evid. Code, § 1401, subd. (a).)
“Authentication of a writing means (a) the introduction of evidence
sufficient to sustain a finding that it is the writing that the proponent of the
evidence claims it is or (b) the establishment of such facts by any other
means provided by law.†(Evid. Code,
§ 1400.) “Authentication of a
writing is required before secondary evidence of its content may be received in
evidence.†(Evid. Code, § 1401, subd.
(b).) “Circumstantial evidence, content
and location are all valid means of authentication [citations].†(People
v. Gibson (2001) 90 Cal.App.4th 371, 383.)
Here, defendant was in possession of
his cell phone at the time of the traffic stop, and admitted to the deputies it
was his cell phone. Deputy Rose
testified to the contents of several text messages regarding drug transactions
that were received on the cell phone the same day as the traffic stop. Deputy Welle also testified that he saw and
read the same text messages on defendant’s cell phone. These facts constitute sufficient
authentication; the fact that the jury expected to see a print out or other
tangible reproduction of the text messages does not render the deputies’
authentication invalid.
Even assuming the evidence was
erroneously admitted, defendant can show no prejudice because there was ample
other evidence that he engaged in the sale of narcotics such that it is not
reasonably probable the result would have been different if the text messages
had not been admitted at trial: the
amounts of narcotics possessed were greater than that possessed by a recreational
user and defendant had paraphernalia in his home associated with drug sales (digital
scales, baggies, payment ledgers). (
836.)
III. Evidence
of Defendant’s Prior Conviction
Defendant
contends the trial court erred in relying on a prior conviction from 1997 that
was not proved at trial in imposing a three-year sentence enhancement on count
1, and argues the enhancement must be stricken.
The People concede the error, but requests that we remand for resentencing
so that the trial court can restructure defendant’s sentence because in
sentencing defendant, it struck a prior prison term in the interests of justice
and ordered the sentences to run concurrently.
We agree and remand for resentencing.
Background
The
information alleged that defendant had two prior drug convictions within the
meaning of Health and Safety Code section 11370.2, subdivision (a). One of those convictions was a September 4,
1997 conviction for a violation of Health and Safety Code section 11352, subdivision
(a), in case No. VA041407. The
information also alleged a conviction for a violation of Health and Safety Code
section 11351.5 dated April 8, 2005, case No. MA031174. The information further alleged that
defendant served prison terms in case Nos. MA031174 and MA027896 (for a February
2004 conviction for a violation of Health & Saf. Code, § 11359).
However,
at sentencing, the prosecution sought to introduce two exhibits (exhibits 13 &
14) to establish defendant’s prior convictions.
Exhibit 13 was not admitted because it did not contain the prior
conviction alleged in the information.
Exhibit 14 established that defendant was in prison from 2004 through
2007 for convictions in case Nos. MA027896 and MA031174, but there was no
evidence of defendant’s 1997 conviction in that packet.
The
jury found true the prior conviction allegation on count 1 that defendant had
been convicted on September 4, 1997 of a violation of Health and Safety Code
section 11352, subdivision (a) in case No. VA041407. Defendant moved to strike the finding, but
the court denied his motion. The trial
court sentenced defendant to a total term of nine years and 180 days in county
jail, consisting of the midterm of three years on count 1, plus three
years each for the two prior drug conviction enhancements, 180 days on count 5;
and concurrent terms of two years each on counts 2 and 3. The court struck the prior prison term
enhancements.
The People must prove each element
of a sentence enhancement beyond a reasonable doubt. (People
v. Delgado (2008) 43 Cal.4th 1059, 1066.)
A common method to prove the fact and nature of a prior conviction is to
introduce certified documents from the record of the prior court proceeding and
commitment to prison, including the abstract of judgment describing the prior
offense. “On review, we examine the
record in the light most favorable to the judgment to ascertain whether it is
supported by substantial evidence. In
other words, we determine whether a rational trier of fact could have found
that the prosecution sustained its burden of proving the elements of the
sentence enhancement beyond a reasonable doubt. [Citations.]†(Id. at
pp. 1066–1067.)
Here,
insufficient evidence supports the imposition of one of the two three-year
enhancements on count 1. Only one of the
prior convictions alleged in the information was proved by exhibit 14; no
evidence of defendant’s 1997 conviction was presented. Thus, the trial court erred in imposing the
second three-year enhancement on count 1 because it relied on information not
in the record. However, because the
trial court exercised sentencing discretion in fashioning defendant’s sentence,
we remand for resentencing to permit the trial court to restructure defendant’s
sentence. (People v. Rodriguez (2009) 47 Cal.4th 501, 509.)
DISPOSITION
The judgment is affirmed. Defendant’s sentence is vacated and the
matter is remanded for
resentencing to permit the trial court to restructure defendant’s sentence. The trial court is directed to forward to the
abstract of judgment.
NOT
TO BE PUBLISHED.
JOHNSON,
J.
We concur:
ROTHSCHILD,
Acting P. J.
CHANEY,
J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title="">[2] Pills marked “Watson 853†are a generic form of Vicodin.
