P. v. Jackson

Filed 6/19/07 P. v. Jackson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Keijona Michael Jackson (appellant) was convicted, following a jury trial, of possession for sale of methamphetamine and maintaining a place for selling or using methamphetamine. On appeal, he contends (1) the evidence was insufficient to support either of his convictions; and (2) the trial court erred in failing to instruct the jury, sua sponte, that mere access to an object is not sufficient to support a finding of unlawful possession. We shall affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was charged by information with one count of possession for sale of methamphetamine (Health & Saf. Code,  11378),[1] and one count of maintaining a place for selling or using methamphetamine ( 11366). As to count one, the information alleged, pursuant to section 11370.2, subdivision (c), that appellant had suffered a prior conviction. As to both counts, the information alleged, pursuant to Penal Code section 667.5, subdivision (b), that appellant had served two prior prison terms.

A jury found appellant guilty of both charges. In bifurcated proceedings, the trial court found true the prior conviction allegation and one of the prior prison term allegations.

On December 20, 2005, the court sentenced appellant to seven years in prison, calculated as follows: the upper term of three years on count one, with a consecutive three-year term for a prior conviction and a consecutive one-year term for having served a prior prison term, and a concurrent three-year term on count two.

Also on December 20, 2005, appellant filed a notice of appeal.

FACTUAL BACKGROUND

On February 9, 2005, officers from the Fairfield Police Department conducted surveillance of an apartment on Dover Avenue in Fairfield for about one and one-half hours. Early in the surveillance, officers observed three people leaving the apartment, including appellant, another person named Andre Carter, and an unidentified female. Appellant walked to an adjacent parking lot and sat inside a minivan. Carter walked out to the sidewalk in front of the building and sat down. The two men were 15 to 20 feet apart. For the next hour and a half, officers observed Carter meet with various subjects who came up either on foot or in vehicles. After speaking to Carter on the sidewalk, at least eight different people went into the apartment in question, left within two to five minutes, and sometimes returned to the apartment with another person a short time later. Appellant remained in the parked minivan throughout the remainder of the surveillance.

On February 16, 2005, Fairfield police officers served a search warrant on the Dover Avenue apartment.[2] Appellant answered the door. There were two other people inside the apartment, one of whom was Andre Carter. Officers observed a safe on a couch. On top of the safe was a clear plastic sandwich bag containing 30.3 grams of a white crystalline substance. Inside the safe was another plastic sandwich bag containing 28.6 grams of a white crystalline substance,[3] a box of sandwich bags, small coin-sized clear baggies marked with blue devil heads, a spoon with white crystalline residue on it, and two scales with a white crystalline residue on them. Officers also found approximately $1,800 in the safe. Also in the safe was a letter to Big Jack and an envelope addressed to appellant (at a different address) that contained a letter to Jack and a sheet of paper with apparent narcotics price calculations on it. The envelope addressed to appellant was at the very bottom of the safe.

Officers searched appellant and found a glass tubular pipe and $132.41 in his possession. There was no food in the apartment and no electricity. In Officer Brad Collinss expert opinion the apartment was being used as a stash house and a place to sell drugs, and the methamphetamine found there was possessed for sale.

DISCUSSION

I. Sufficiency of the Evidence

Appellant contends the evidence was insufficient to support his convictions for possession for sale of methamphetamine and maintaining a place for selling or using methamphetamine.

When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidencethat is, evidence which is reasonable, credible, and of solid valuefrom which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Little (2004) 115 Cal.App.4th 766, 771, citing People v. Johnson (1980) 26 Cal.3d 557, 578.)

Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.] (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) The requisite mental state is satisfied when the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally. (People v. Consuegra (1994) 26 Cal.App.4th 1726, 1732, fn. 4; accord, People v. Parra (1999) 70 Cal.App.4th 222, 227.) The elements of the opening-or-maintaining offense [( 11366)] are that the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance. (People v. Hawkins (2004) 124 Cal.App.4th 675, 680.)

Here, appellant claims there was no evidence that he was in either actual or constructive possession of the methamphetamine found in the apartment or that he had the specific intent that it be sold, as is required to prove possession of methamphetamine for sale. He also claims there was no evidence that appellant was the person who maintained the apartment as a place for the sale or use of the methamphetamine, as is required to prove that offense. We disagree.

The evidence here showed that, on February 9, 2005, officers saw appellant leave the apartment in question with Andre Carter. He then got into a minivan in the parking lot, where he sat for the entire hour and a half of the surveillance, while Andre Carter went to the sidewalk in front of the apartment building and interacted with at least eight people, who then went into the apartment a short time before leaving. Then, on February 16, 2005, when police served a search warrant on the apartment, appellant answered the door. Inside the apartment, officers saw an open safe with a bag of methamphetamine on top and a bag of methamphetamine inside, along with various drug-related paraphernalia. Also inside the safe, beneath all of the other items, was an envelope addressed to appellant, with a letter to Jack inside and a sheet of paper with apparent narcotics price calculations on it. There was also another letter to Big Jack inside the safe. Officer Collins opined that, in his expert opinion, the apartment was being used as a stash house and a place to sell drugs, and that the methamphetamine found there was possessed for sale.

In light of this evidence linking appellant to the apartment, the methamphetamine, and the sale of the methamphetamine, the evidence was certainly sufficient to support the jurys findings that appellant was guilty of both possession for sale of methamphetamine and maintaining a place for selling or using methamphetamine. (See People v. Little, supra, 115 Cal.App.4th at p. 771.)[4]

II. Trial Courts Failure to Instruct Sua Sponte Regarding Mere Access

Appellant contends the trial court erred in failing to instruct the jury, sua sponte, that mere proximity or access to an object is not sufficient to support a finding of unlawful possession.

Whether requested or not, a trial court is required to give instruction on the legal principles that are relevant to the issues raised by the evidence in a criminal action. [Citation.] The general principles of law governing the case are those closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation.] (People v. Perry (1979) 100 Cal.App.3d 251, 260.)

Appellant relies on People v. Perry, supra, 100 Cal.App.3d 251, in which a panel of this Division held that it was probably error for the trial court to refuse to instruct the jury, pursuant to CALJIC No. 3.01 (4th ed. 1979), that [m]ere presence at the scene and failure to take steps to prevent a crime do not establish aid[ing] and abetting. (Id. at p. 260 & fn. 1.) Appellant argues that a sua sponte mere presence instruction should be required here as well. We do not agree that an instruction that was found to be (probably) obligatory in an aiding and abetting context is also necessarily required in a primary liability context. CALJIC No. 3.01 is focused on the unique circumstances of people accused of aiding and abetting another person in the commission of a crime.

In this case, where appellant was charged with direct commission of the offense of possession for sale of methamphetamine, the court properly gave CALJIC No. 12.01, which informed the jury, inter alia: There are two kinds of possession: actual possession and constructive possession. [] Actual possession requires that a person knowingly exercise direct physical control over a thing. [] Constructive possession does not require actual possession but does require that a person knowingly exercise control over or right to control a thing, either directly or through another person or persons. [] One person may have possession alone, or two or more persons together may share actual or constructive possession.

In order to prove this crime, each of the following elements must be proved:

1.  A person exercised control over or the right to control, an amount of methamphetamine, a controlled substance; [] . . . []

5.  That person possessed the controlled substance with the specific intent to sell the same.

This instruction sufficiently explained that mere access or proximity to an object is not sufficient to establish a defendants control over or possession of that object. Assuming as we must that the jury followed the trial courts instruction, appellant could have been convicted of possession of methamphetamine for sale only if the jury found that he actually or constructively exercised control over or the right to control the methamphetamine and had the specific intent to sell it. (See CALJIC No. 12.01.) To the extent appellant wanted further amplification or clarification of this legally sufficient instruction, it was his responsibility to request additional instruction on this point. (See, e.g., People v. Carpenter (1997) 15 Cal.4th 312, 391-392.)

DISPOSITION

The judgment is affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Richman, J.

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[1] All further statutory references are to the Health and Safety Code unless otherwise indicated.

[2] The name associated with the search warrant was Kenneth Riggins.

[3] Later toxicology testing confirmed that the white crystalline substance in the plastic bags was methamphetamine.

[4] In attempting to demonstrate that substantial evidence did not support the verdicts, appellant avers that one reasonable explanation for [appellants] presence in the apartment complex during the earlier surveillance was that he purchased drugs for his own use and then consumed them during the time he was sitting in the minivan. With respect to his presence in the apartment when the search warrant was served, appellant also asserts that, [i]f anything, the evidence more directly supports a conclusion that appellant was at the scene to purchase drugs: He had a smoking pipe in his possession and ready cash to make a purchase. Appellant further suggests that [a] reasonable inference consistent with appellant not being guilty of either of the offenses charged against him is that he was asked to answer the door by one of the other occupants [of the apartment], likely Andre Carter.

These alternative scenarios do not negate the fact that there is substantial evidence supporting the jurys guilty verdicts. Our function is not to reweigh the evidence, and reversal is not warranted merely because the evidence might also be reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)