P. v. Haylock

Filed 4/17/09 P. v. Haylock CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Mangay Chung, Judge. Modified and, as modified, affirmed with directions.

Thomas Owen, 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, Zee Rodriguez and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Maurice Arthur Haylock appeals from the judgment entered following his conviction by jury of cultivating marijuana (Health & Saf. Code, 11358). The court sentenced appellant to prison for three years but suspended execution of sentence and ordered him placed on formal probation for three years. We modify the judgment and, as modified, we affirm it.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 8:00 a.m. on May 2, 2007, Los Angeles County Sheriffs Detective Kenneth Price and a narcotics team went to a Palmdale residence to execute a search warrant. Detectives knocked on the door and appellant opened it. Appellant was the only person inside the residence. Price testified he asked appellant why appellant was there and how did he get there, and appellant replied,  Well, I housesit. Appellant told Price that appellant did not live at the residence. Appellant denied knowing who owned, or lived at, the residence, but acknowledged he sometimes stayed there.

Price entered the residence and immediately detected a strong odor of marijuana. The residence had a southwest bedroom, a northwest bedroom, a northeast bedroom, and a garage. The southwest and northwest bedrooms were designated rooms 1 and 2, respectively, and the garage was designated room 3. There were 30 marijuana plants growing in the southwest bedroom, 38 in the northwest bedroom, and 48 in the garage. An irrigation system watered the plants. Various equipment, materials, and paraphernalia in the residence (including in the southwest and northwest bedrooms and in the garage) were being used to facilitate the plant growth. This included reflective material on all sides of the plants to help illuminate them.

Plant nutrients were in containers in the living room. The living room had reflective material on a wall, and a table next to the wall. Plant debris on and under the table evidenced the table was a marijuana processing area.

The kitchen contained two boxes of marijuana debris evidencing that three- to four-month-old marijuana had been harvested. The kitchen also contained a device used to monitor pH levels of water. Marijuana plants were typically harvested when they were four months old, and marijuana houses were designed to produce three harvests annually.

The marijuana in the Palmdale residence was in two different sizes and appeared to have been between one and two months old. There was also evidence that the marijuana plants in the southwest and northwest bedrooms appeared to have been 10 to 12 weeks old, while the plants in the garage appeared to have been six to eight weeks old. The age difference between the plants in the bedrooms and those in the garage indicated different harvest dates. The residence was arranged to grow marijuana to be harvested three times a year with each harvest containing 116 plants, resulting in a total annual amount of usable marijuana worth between $217,500 and $1,044,000.

In a hallway near the garage, Price found large trash bags filled with grow cubes. These were cubes of soil used for growing marijuana plants. The number of discarded grow cubes suggested that plants filling one or two rooms had been harvested.

Price found grow schedules in the residence. The schedules, dated January 29, January 31, February 15, and May 1, 2007, reflected plant nutrient information. One schedule dated May 1, 2007, found in the living room, had the name Maurice on the top (spelled Marice) and then room number 2. Nutrients used to grow plants indoors were listed on the schedule. Price also found bottles of plant nutrients matching the names of the nutrients on the schedules. Another grow schedule dated May 1, 2007, found in the kitchen, had Maurices room number 1 and 3 written on it.

A calendar page dated April 2007, with the notation 48-day harvest, was on the living room table. The notation was consistent with the grow cubes, as well as with the plant debris on the living room floor under the table. Price saw items throughout the location that were characteristic of a working . . . marijuana drug facility where marijuana was being cultivated.

Price found in the living room a set of keys which opened the residences front door, its security screen, and two cars. The two cars, a Saturn and a Mazda, were parked in front of the residence. Both cars were registered to appellant, and the Saturns registered address was the Palmdale residence address. Registration information for both vehicles was found in the northeast bedroom.[1] There were two registration cards for the Saturn, one issued on April 27, 2007, and the other issued on April 30, 2007. The registration for a Chevy was on the dresser in the northeast bedroom. The Chevy was registered to appellant, but it was not parked at the residence.

Price recovered, from the northeast bedroom, items consistent with appellant occupying that bedroom. These included photographs depicting appellant, and mail in appellants name, some of which was addressed to the Palmdale residence address. The mail included an envelope postmarked January 30, 2007, and addressed to appellant at the Palmdale residence address. The items also included a California identification card bearing appellants name, two passports, one of which was issued to appellant, photographs of appellant smoking marijuana in a marijuana pipe, and two dirty work gloves. The northeast bedroom was the only bedroom in which someone lived. There was one toothbrush in the only bathroom in the residence.

Price found no evidence at the residence that appellant owned or rented it, nor did Price find electrical bills made out to appellant. The account for electrical service at the residence was in the name of Nicole Harley, but he lived elsewhere. Appellant presented no defense testimony.

CONTENTIONS

Appellant claims (1) there was insufficient evidence supporting his conviction, and (2) narcotics probation conditions should be modified.

DISCUSSION

1. There Was Sufficient Evidence Supporting Appellants Conviction.

Appellant claims there is insufficient evidence supporting his conviction for cultivating marijuana. We disagree. There is no dispute as to the sufficiency of the evidence that someone was cultivating marijuana.

In People v. Vermouth (1974) 42 Cal.App.3d 353, marijuana plants were growing on the sun deck of a residence and the defendants challenged the sufficiency of the evidence that they were cultivating the marijuana. The court stated, We . . . conclude proof the marijuana plants were growing on the sun deck of the residence, coupled with evidence defendants had control of the premises, was sufficient to support their conviction of cultivating marijuana. Marijuana plants do not grow in pots and planters by chance. When they are found growing in that manner, it is reasonable to infer those who controlled and occupied the premises had something to do with their planting, cultivation or care. While this may not be the only reasonable inference deducible from such evidence, it is sufficient that it is one which may be fairly drawn. (Id. at p. 362.)

Appellant concedes someone was cultivating marijuana at the Palmdale residence. Our power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. [Citation.] (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.) We have recited the pertinent facts. There was ample evidence that appellant lived at the residence and had control of it, and that he was involved in cultivating the marijuana. His claim to police that he did not know who lived there provided evidence of a false statement reflecting consciousness of guilt. We conclude there was sufficient evidence that appellant cultivated marijuana in violation of Health and Safety Code section 11358. (Cf. People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Hernandez, supra, 219 Cal.App.3d at pp. 1181-1182; see People v. Vermouth, supra, 42 Cal.App.3d at p. 362.) None of appellants arguments compel a contrary conclusion.

2. Modification of the Narcotics Probation Conditions is Appropriate.

On May 12, 2008, the court sentenced appellant to prison but suspended execution thereof and placed him on formal probation for three years. As a condition of appellants probation, the court issued two narcotics probation conditions pertinent to this appeal. The first narcotics probation condition was, Do not use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia except with valid prescription, and stay away from places where users, buyers, or sellers congregate[.] The second was, Do not associate with persons known by you to be narcotic or drug users or sellers[.]

Respondent concedes appellants claim that the first narcotics probation condition should be modified as italicized below to include a knowledge requirement so that the condition reads in part, stay away from places known to you to be places where users, buyers, or sellers congregate[.] (Cf. In re Justin S. (2001) 93 Cal.App.4th 811, 816; People v. Lopez (1998) 66 Cal.App.4th 615, 628-629, 638; see In re Sheena K. (2007) 40 Cal.4th 875, 892.) We also agree with appellant that the first probation condition should be modified to reflect that appellant is required to know that the users, buyers, or sellers are illegal users, buyers, or sellers. We believe it sufficient to address appellants above knowledge and illegality concerns to modify the condition so it reads in part, stay away from places where persons known to you to be illegal users, buyers, or sellers of narcotics, or dangerous or restricted drugs congregate, and we will modify the condition accordingly.

We reject appellants suggestion that the first narcotics probation condition should be modified as italicized below to include an illegality requirement so that the condition reads in part, Do not use or possess any illegal narcotics, dangerous or restricted drugs or associated paraphernalia except with valid prescription[.] The modification is unnecessary in light of the phrase valid prescription currently in the probation condition. (See, e.g., Health & Saf. Code, 11350, subd. (a), proscribing possession of specified controlled substances unless upon the written prescription of a physician[.])

Appellant suggests the second narcotics probation condition must be modified as italicized below to include an illegality requirement so that the condition reads, Do not associate with persons known by you to be illegal narcotic or illegal drug users or sellers[.] We agree and will modify the condition accordingly. (Cf. In re Justin S., supra, 93 Cal.App.4th at p. 816; People v. Lopez, supra, 66 Cal.App.4th at pp. 628-629, 638; see In re Sheena K., supra, 40 Cal.4th at p. 892.) We will also direct the trial court to correct its sentencing minute order to reflect all of the above modifications. (Cf. People v. Solorzano (1978) 84 Cal.App.3d 413, 415, 417.)

DISPOSITION

The judgment is modified by modifying (1) the first narcotics probation condition to read, Do not use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia except with a valid prescription, and stay away from places where persons known to you to be illegal users, buyers, or sellers of narcotics, or dangerous or restricted drugs congregate, and (2) the second probation condition to read, Do not associate with persons known by you to be illegal narcotic or illegal drug users or sellers. As so modified, the judgment is affirmed. The trial court is directed to correct its sentencing minute order to reflect the above modifications.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] Price also testified he did not find a registration for the Mazda.