P. v. Oliphant
Filed 7/18/13 P. v. Oliphant CA1/2
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN JOSEPH
OLIPHANT,
Defendant and Appellant.
A136107
(Contra
Costa County
Super. Ct. No. 50716829)
After
a several-day jury trial, appellant was convicted on 10 drug-related counts,
including possession for sale and
transportation of heroin, oxycodone, methadone and morphine, possession of
methamphetamine, and one count of being under the influence of
methamphetamine. He appeals, claiming
there was a lack of substantial evidence
to support his conviction on three of those 10 counts. We reject that argument and affirm
appellant’s convictions.
Shortly
before noon on January 18, 2006, Officer Josh Vincelet, a
narcotics detective with the Antioch Police Department, saw appellant, then 26
years old, driving a Cadillac into a gas station in a “high crime†area of Antioch. Also in the car was Kelly Walden-Downs, who
the officer recognized as appellant’s girlfriend. He then saw a group of transients “milling
around†that gas station. As appellant
pulled his car into the station’s car wash, they moved toward it. One of them, who Officer Vincelet recognized
as a known narcotics user, Michael Onate, came to the car door and handed
appellant cash; appellant then handed Onate “an object.†According to the officer, this interaction
was “indicative of a hand-to-hand drug deal.â€
Later
that same afternoon, Officer Vincelet obtained a
appellant, his apartment, his mother Judy Donnell, and his Cadillac. When Vincelet and at least five other Antioch
officers arrived at appellant’s apartment at about 4:30 p.m. the same afternoon, both appellant and
Walden-Downs were present, but not appellant’s mother, Ms. Donnell. The officers duly conducted a search of the
apartment and found several used hypodermic needles of the kind usually used to
administer heroin. Appellant told the
officers that the needles belonged to his mother. The officers also found a “pay-owe†ledger on
a dresser in a bedroom. Such records
are, per Officer Vincelet’s testimony, often used by drug dealers to record who
has paid for drugs and to whom they still owe money. This ledger contained a list of names,
numbers and various commonly-used terms for narcotics.
As
the officers searched the apartment, a cell phone lying on a bed—later
identified as possibly belonging to appellant’s mother—rang. Officer Vincelet answered it and recognized
the voice of Onate as the caller. Onate
used appellant’s name, i.e., “John,†and asked if he could get a “20†of
“tar.†Several other calls of the same
nature were received on the same cell phone, all using the name “John†and also
asking for various quantities of the same drug; none of the callers asked to
speak with appellant’s mother. One of
the callers was a woman who identified herself as “Tina†and inquired about
obtaining Xanax. Vincelet, pretending to
be appellant, asked Tina where the mother, Ms. Donnell, might be located; Tina
provided him with the name of a hotel, the El Dorado Hotel in Pittsburg, and
the mother’s room number.
On
the way out of the apartment, Officer Vincelet searched appellant’s car and
found a second cell phone; at trial he opined that drug dealers often have
several cell phones and provide different numbers to different customers to
avoid police detection.
Officer
Vincelet conducted a probation search of Ms. Donnell’s room at the El Dorado
Hotel later that same day; in it, he discovered hypodermic needles, cotton
balls, packaging material, spoons, a digital scale, a glass pipe, and letters
addressed to Ms. Donnell. During this
search, someone entered the room, asked for Ms. Donnell, and stated that he
needed “a 20.â€
The
following day, i.e., January 19, 2006, at approximately 2:00 p.m., Officer
Vincelet saw appellant driving a different car, a Toyota Corolla, with Ms.
Walden-Downs in the passenger seat.
Vincelet drove to appellant’s apartment building and, when appellant
arrived in the Corolla, the two met and talked briefly about the search
warrant. During that conversation,
Vincelet noted that appellant appeared to be under the influence of drugs in
that, among other things, he was perspiring, his lips appeared to be cracked,
and he was talking very hurriedly. The
officer took appellant into custody, searched him, and then searched the
Corolla via the keys to it he had found in appellant’s pocket. In the Corolla, Vincelet found a plastic
grocery bag containing many drugs, i.e., methadone tablets, black tar heroin,
Oxycodone tablets, morphine pills, and methamphetamine. Also in the same grocery bag was another
notebook containing “more pay-owe type information†including specific letters
and numbers next to them. Near the bag
was a copy of the search warrant served the preceding day and a letter
addressed to appellant.
All
in all, Vincelet later opined, the value of the drugs in the bag in the Corolla
was between $9,000 and $10,000, and the various drugs in the car were intended
for later sale by appellant.
After
his arrest on January 19, appellant’s blood was drawn, and tested positive for
methamphetamine, but negative for other drugs.
On
October 24, 2007, the Contra Costa District Attorney’s office filed a 10-count
indictment against appellant charging him with four counts of possessing
illegal drugs (namely, heroin, Oxycodone, methadone, and morphine) for sale in
violation of Health and Safety Code section 11351 (hereafter section 11351),
and four counts of selling and transporting the same four drugs in violation of
Health and Safety Code section 11352, subdivision (a). The ninth count of the indictment charged
possession of methamphetamine in violation of Health and Safety Code section
11377, subdivision (a), and the tenth count with being under the influence of
that drug in violation of Health and Safety Code section 11550, subdivision
(a). The indictment also contained an
allegation that appellant was ineligible for probation because of his
possession of 14.25 grams or more of heroin for sale under Penal Code section
1203.07, subdivision (a)(1).
A
jury trial commenced on June 29, 2009; Officer Vincelet testified for the prosecution
regarding the events of January 18 and 19, 2006. Also testifying for the prosecution were
three forensic services specialists employed by the Contra Costa County
Sheriff’s Department.
On
July 6, 2009, the trial court granted appellant’s motion for acquittal
(pursuant to Penal Code section 1118.1) of the “selling†component of the four
counts of the indictment (Nos. 2, 4, 6 and 8) alleging “sale and
transportation,†although it kept before the jury the transportation component
of those four counts.
Appellant
testified in his own defense on July 6.
His testimony was, essentially, that his mother, Ms. Donnell, was the
real drug trafficker, and that he was only secondarily involved in the drug
transactions. More specifically, he
testified that, on January 18, 2006, she, being a heroin addict as he
admittedly was also, came to his apartment to “shoot [him] upâ€, because he was
too “scared to be able to do it†himself.
He conceded, however, that he had sold heroin to Onate at the gas
station that day, but had done so at the request of his mother.
As
far as the search of the apartment later that day, i.e., the search that
uncovered the “pay-owe†ledger, appellant testified that this belonged to his
mother, Ms. Donnell, as did the cell phone the police had found in the
bedroom—although he conceded that he had occasionally used that phone. He denied that his mother’s customers ever
used him to supply drugs and that he did not do so for her.
He
conceded that, after the search performed of his apartment by Officer Vincelet
and the other officers, he had gone to a hotel and taken methamphetamine. He had gotten the same from a friend on his
hockey team but, at trial, could not remember the friend’s name. That same evening and also the next morning,
per his testimony, his mother came to that room to “shoot [him] up†with
heroin.
Per
appellant’s testimony, the following day, January 19, Ms. Donnell placed the
grocery bag later found in the Corolla he was driving into the trunk of that
car. He claimed that the drugs found in
that bag were for his use and not intended for sale, except for the Oxycodone
pills which belonged to him, but were available to be purchased from his
mother.
No
other evidence was presented by appellant.
On
July 8, 2009, after less than a day of deliberation, the jury convicted
appellant on all 10 counts and found true the allegation that he has possessed
14.25 grams or more of heroin for sale.
Appellant was not present when the jury returned its verdict; he had
apparently fled to Nevada. He was,
however, later extradited and placed in jail on May 23, 2012.
On
June 29, 2012, the court denied appellant probation and imposed a midterm
sentence of three years in prison on the first count of the indictment. It imposed concurrent midterm sentences in
the same amount, i.e., three years, on counts 2 through 8 and a concurrent
midterm of two years on count 9 and a concurrent one year on count 10. It awarded appellant a total of 200 days of
credit for time already served.
Appellant
filed a timely notice of appeal on
July 17, 2012.
Appellant’s
only argument is that there was not substantial
evidence to support his conviction on three of the 10 counts on which the
jury found him guilty, i.e., counts 1, 5, and 7, the counts alleging the
possession for purposes of sale of, respectively, heroin, methadone, and
morphine. He does not contend that his
convictions on the other seven counts should be reversed, but does ask that, if
we agree that his convictions on these three counts should be reversed because
of the lack of substantial supporting evidence, the case should be remanded to
the trial court with the direction that it grant him probation.
We
must and will, therefore, start with the issue of the applicable standard of
review, i.e., whether there was substantial evidence supporting appellant’s
convictions on counts 1, 5, and 7. Our
Supreme Court has made that standard very clear in several decisions. Thus, in People
v. Caitlin (2001) 26 Cal.4th 81, 139, it stated: “A reviewing court faced with such a claim
determines ‘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.’ [Citations.]
We examine the record to determine ‘whether it shows evidence that is
reasonable, credible and of solid value from which a rational trier of fact
could find the defendant guilty beyond a reasonable doubt.’ [Citation.]
Further, ‘the 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. ‘Although it is
the jury’s duty to acquit a defendant if it finds the circumstantial evidence
susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] “ ‘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.’ †’
[Citation.]â€
A
bit later that same year, the court summarized the relevant standard a bit more
briefly: “To determine the sufficiency
of the evidence to support a conviction, an appellate court reviews the entire
record in the light most favorable to the prosecution to determine whether it
contains evidence that is reasonable, credible, and of solid value, from which
a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.†(People v. Kipp (2001) 26 Cal.4th 1100, 1128; see also
1251; People v. Bolden (2002) 29
Cal.4th 515, 553; 6 Witkin & Epstein, Cal. Criminal Law (4th ed., 2012)
Criminal Appeal, § 169, and authority cited therein.)
In
People v. Parra (1999) 70 Cal.App.4th
222 (Parra), our colleagues in the
Fourth District addressed the issue of whether, for a conviction to be affirmed
under section 11351, it is necessary for the prosecution to establish that it
was the possessing-defendant’s intent to sell the drugs personally as
distinguished from having someone else sell it for them. It held that either was sufficient,
stating: “[W]e conclude that in order to
be convicted of a violation of . . . section 11351 the defendant
needs to either (1) possess the specific intent to sell the controlled
substance personally, or (2) possess the specific intent that someone else will
sell the controlled substance.†(
Cal.App.4th 1726, 1731-1732 and fn. 4.)
Further, “[i]intent to sell may be established by circumstantial
evidence.†(People v. Harris (2000) 83 Cal.App.4th 371, 374 (
Finally
with regard to our standard of review, the law is also clear that an officer as
experienced as Officer Vincelet may state his opinions regarding the intent of
the possessor or possessors of the drugs in question. (See Parra,
supra, 70 Cal.App.4th at p. 227.)
Indeed, in an opinion quoted by the Parra
court, our Supreme Court made this point abundantly clear. (See People
v. Newman (1971) 5 Cal.3d 48, 53, disapproved on other grounds in
862; see also People v. Peck (1996)
52 Cal.App.4th 351, 357, and Harris,
supra, 83 Cal.App.4th at pp. 374-375.)
The testimony, including the opinions stated, of Officer Vincelet
clearly meets the required substantial evidence standard of review as to
appellant’s possession for the purpose of sale of the three drugs which were
the subjects of counts 1, 5 and 7.
Appellant’s
core position as to why we should reverse his convictions on those three counts
is that the jury’s verdict had to be based on “suspicion†and “circumstantial
evidence,†and that such did not amount to the required substantial
evidence. He summarizes this contention
thusly: “Suspicion merely raises a
possibility of guilt and is not a sufficient basis for a
conviction. . . . Moreover, there was no direct evidence that
Mr. Oliphant possessed any of these substances [i.e., heroin, methadone, and
morphine] with the specific intent to sell them.†Thus, he contends, the jury’s conclusion that
he possessed these three drugs for sale was “unreasonable.â€
With
regard to appellant’s conviction on count 1 (possession of heroin for sale),
appellant concedes that he used that drug, but contends that the evidence
admitted “supports only his possession of the drugs for personal use.†Regarding his convictions regarding
possession of methadone and morphine for purposes of sale, appellant contends
that the only evidence supporting his conviction on these two counts was the
opinion evidence offered by Officer Vincelet, and that, therefore, there was
“no hypothesis under which the Court can find that there was substantial
evidence to support†those two convictions.
We
strongly disagree. As noted above, our
Supreme Court has made it abundantly clear that a conviction may be—and indeed
must be—affirmed if there is substantial evidence to support it. Further, and as appellant points out in his
opening brief to us, the jury was specifically instructed (via CALCRIM No. 224)
that “[B]efore you may rely on circumstantial evidence to find the defendant
guilty, you must be convinced that the only reasonable conclusion supported by
the circumstantial evidence is that the defendant was guilty.†As our Supreme Court has also made clear,
“[j]urors are presumed able to understand and correlate instructions and are
further presumed to have followed the court’s instructions.†(People
v. Sanchez (2001) 26 Cal.4th 834, 852.)
Thus, because it convicted appellant on the three counts at issue on
this appeal, the jury must have found either that (1) such was the only
reasonable conclusion to be drawn from the circumstantial evidence before it or
(2) there was more than just circumstantial evidence supporting appellant’s
conviction.
And,
indeed, there was more, much more, than “suspicion†or “circumstantial
evidence†supporting the jury’s verdict on the three counts from which
appellant appeals.
First,
the day before his arrest, Officer Vincelet personally witnessed what he
described as a “hand-to-hand drug deal†at a car wash in Antioch, a deal in
which appellant specifically received money from Michael Onate. Indeed, when he was on the witness stand,
appellant specifically conceded that he had provided heroin to Onate as
witnessed by Officer Vincelet.
Second,
the same afternoon, when multiple officers were searching appellant’s
apartment, a cell phone found in the bedroom of that apartment rang several times. Officer Vincelet answered it, the callers
(one being Onate) all assumed they were speaking with “John,†and made specific
requests for drugs. Appellant argues
that the cell phone in the apartment belonged to appellant’s mother, Ms.
Donnell, but the reality is that all of the callers assumed the answering male
was “John†and attempted to arrange a drug transaction directly with him; none
of them ever asked to speak with “Judy.â€
Nor was the discovery of another cell phone in the Cadillac appellant
had been driving pertinent because, as Officer Vincelet testified, a “lot of
times dealers carry more than one phone . . . so they can avoid
detection from law enforcement . . . .â€
Third,
the following day, appellant drove to his apartment in another car, a Toyota
Corolla, the keys to which Officer Vincelet later found in appellant’s
pocket. Using those keys, the officer
opened the trunk of the Corolla and found a plastic grocery bag containing the
large amount of multiple drugs described above, including over 19 grams of
black tar heroin. Vincelet testified
that, in his estimation, the value of the drugs found in the trunk of the
Corolla was “around the ballpark of†$9,000 to $10,000. Regarding whether the 19.61 grams of heroin
might have been for appellant’s personal use, Vincelet testified that the
“typical dosage†of heroin was “a tenth of a gram.†Thus, the heroin found in the car appellant
was driving on the day he was arrested equaled almost 200 “typical†dosages. This evidence hardly supports appellant’s
personal use theory of defense.
Fourth, Officer Vincelet testified that, in his
opinion, the methadone found in the bag in the Corolla “was possessed for
saleâ€, as was the heroin, and the morphine.
No objections to these opinions were lodged by trial defense counsel,
and Officer Vincelet did not retract these opinions even slightly in the course
of cross-examination by that counsel
When asked by the prosecutor what led him to his opinions that “all
those items were possessed for sell [sic: sale],†he responded:
“I
base my opinion on first the amounts such as the oxy as well as the
heroin. And then to factor in the
packaging, the pay-owe sheets and then the behavior that I saw leading up to
the search warrant. [¶] All of those factor into even the smaller amounts
that may be just possessing one pill.
Those morphine pills that you talked about were in a smaller amount in
and around the one to two pills.
[¶] As I said before, they were rare so only having one to two
pills isn’t uncommon so that would further lead me to believe that those were
possessed for sell.â€
Later, on redirect
examination, Officer Vincelet summarized his opinion thusly: “[I]f you are buying in bulk your intent is
to turn a profit off of that. You are
not going to buy in bulk for personal use.â€
As noted above—and not contested either at trial or in appellant’s
briefs to us—Officer Vincelet was fully qualified to offer these opinions.
Fifth and finally,
when the grocery bag full of all the drugs was found in the Corolla appellant
was driving the day he was arrested, the police also found, next to the plastic
bag containing the drugs, both an envelope addressed to appellant and the
search warrant that had been served on him the preceding day. Contrary to appellant’s argument in his reply
brief, that evidence did, indeed, “contradict [appellant’s] testimony that the
drugs belonged to his mother and were dumped in the trunk of [the Corolla] a
short time prior to the search.â€
Additionally, inside that bag was another pay-owe sheet of the kind, per
Officer Vincelet again, used by drug dealers.
In
his briefs to us, appellant essentially reargues the evidence before the jury,
more specifically the version of events testified to by the only witness
produced at trial for the defense: appellant himself. His testimony was that his mother was the
real dealer of drugs, and that she had placed the large plastic bag full of the
various drugs in the trunk of the Corolla he was driving on January 19,
2006. But they were, according to his testimony
in the trial court, for his use, and provided to him in such bulk because that
quantity was “all she could get†from her suppliers. Thus, per appellant’s argument to us, his
mother simply “dumped [the drugs] into the trunk of the car he was driving
while she was trying to ‘get out of town.’ â€
However,
as noted above, there was absolutely no corroboration of appellant’s version of
events, a version that was full of inconsistencies. By way of example, appellant first testified
that his mother was “holding on to†the heroin she injected him with, but then
admitted that he would “snort it if she wasn’t there.†Similarly, and as pointed out to the jury in
the prosecutor’s closing argument, the buyers who called on the cell phone in
his apartment were persons who were allegedly his mother’s customers, but all
of them clearly knew his name and that they could rely on him to obtain the
drugs they requested; none of them asked to speak to his mother.
There
was far more than the requisite substantial evidence to sustain the jury’s
finding that appellant was guilty of the crimes charged in counts 1, 5, and 7
of the indictment.
The
judgment is affirmed.
_________________________
Haerle,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
