P. v. Rodriguez

Filed 7/17/07 P. v. Rodriguez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Ramiro Miramontes Rodriguez appeals from the judgment following his jury trial and conviction of transportation of cocaine for sale between noncontiguous counties, possession of cocaine for sale, and misdemeanor destruction of evidence. (Health & Saf. Code,  11352, subd. (b), 11351; Pen. Code,  135.)[1] The court suspended the pronouncement of judgment and granted appellant three years' probation on terms and conditions, including serving 120 days in county jail. Appellant contends that the trial court committed instructional error. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Prosecution Evidence

Because they had received information that Rudy Soto, appellant's codefendant, was buying drugs in Los Angeles and selling them in Santa Barbara, Santa Barbara Police Department narcotics officers conducted a surveillance of Soto on March 3, 2004. On that morning, Soto left his Santa Barbara residence in a Chevy Tahoe and picked up appellant. They went to the bar where Soto worked and took a taxi to a car rental agency. They then walked from the rental agency to retrieve the Tahoe.

Soto drove to Los Angeles, with appellant riding in the front passenger seat. Santa Barbara narcotics officers followed the Tahoe to Los Angeles. While driving, Soto used "counter-surveillance" techniques to detect, and avoid, drivers who might be following them. The techniques included doing things for no apparent reason, e.g., stopping at the side of the road, changing lanes or speeds, checking the mirror often, and driving in "squares" around city blocks.

In Los Angeles, the officers lost sight of the Tahoe and drove toward Santa Barbara, hoping to catch the Tahoe on its return trip. After locating it, the officers arranged for marked police cars to gather near the Ventura-Santa Barbara County line to stop the Tahoe. Acting as if he had seen the marked cars, Soto hit the brakes, sped up, left the freeway, and quickly turned the Tahoe to the right.

Officers noticed a briefcase come from the passenger side of the Tahoe and hit the ground. After they stopped the Tahoe, the officers retrieved the briefcase and unlocked it with a key from Soto's key ring. The briefcase contained letters bearing Soto's name and a bag that held cocaine, a digital scale and lactose powder (often used as a cutting agent for cocaine). Nothing in the briefcase bore appellant's name. The recovered cocaine weighed approximately 255 grams (about nine ounces). Its street value ranged from $5,000 to $30,000, depending on its purity and other factors. An officer and a trained dog searched all areas of the Tahoe. The dog's behavior indicated that he detected a narcotics odor in only one area--the front passenger interior floorboard.

While speaking with officers on March 3, appellant initially denied having gone to Los Angeles that day. He later admitted having been present when Soto received the black bag in Los Angeles. He also admitted that he threw the briefcase through the Tahoe's window at Soto's request. Some time later, he told a probation officer that because he and Soto had been in an area with several restaurants, he thought that there might be food in the black bag.

Defense Evidence

Appellant was a hard-working, honest man who did not use or sell drugs. He met Soto about a month before March 3 at the club where Soto promoted bands. Appellant had noticed Soto's clothing. Soto bought his clothing from a store in Los Angeles, where he received favorable prices. He said that he would take appellant shopping in Los Angeles some day. On March 3, he offered to do so.

After picking up appellant, Soto tried to rent a car because he was having problems with the Tahoe's tires. The rental agency refused to rent him a car because he had exceeded his credit limit. Soto drove erratically on March 3 when it appeared that he was being followed by enemies--people he had excluded from the club because they lacked proper identification.

Soto had not planned to get any cocaine on March 3, but decided to do so only after someone called him while he was in Los Angeles. He drove to a restaurant parking lot, where he left the Tahoe, and picked up a black plastic bag containing cocaine from an unidentified person. Soto returned to the Tahoe with the bag, put it inside a briefcase on the left rear passenger seat and locked the briefcase. Appellant remained in the Tahoe, did not see Soto receive the bag, and did not know that he had picked up drugs. However, appellant did find it strange that Soto had locked the briefcase and did think that something "could be . . . illegal."

The bag was never in the front passenger seat with appellant, but he knew it was full of cocaine. Appellant did not throw the briefcase through the Tahoe's window. Soto threw the briefcase through the passenger window, while driving, before turning the Tahoe, and after grabbing the briefcase from the left rear passenger seat. Appellant admitted that he might have "pushed it a little bit" as Soto threw it, but denied having told police that he threw it through the window at Soto's direction.

DISCUSSION

Appellant contends that his convictions of transportation of cocaine for sale between noncontiguous counties and possession of cocaine for sale must be reversed because the trial court gave inadequate instructions concerning the doctrine of constructive possession. We disagree.

A trial court has a duty to instruct a jury sua sponte on general legal principles necessary for the jury's proper understanding of the case. (People v. Roberge (2003) 29 Cal.4th 979, 988.) The court below gave correct instructions regarding the statutory definition of the offenses and their elements. It instructed the jury as follows regarding possession: "There are two kinds of possession, actual possession and constructive possession. Actual possession requires that a person has knowingly exercised direct physical control over a thing. [] Constructive possession does not require actual possession but does require that a person knowingly exercised 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."

During trial, appellant neither claimed that the constructive possession instruction was inadequate or incomplete, nor requested any amplifying or clarifying instructions defining "control" or any related term. He thus waived the argument that the instructions were inadequate. (See People v. Lewis (2001) 25 Cal.4th 610, 666.) Furthermore, the argument lacks merit. He argues that the instructions were inadequate for two reasonshis transitory possession of the cocaine while throwing it through the window does not compel a finding of the requisite possession for narcotics offenses; and the instructions failed to inform the jury that "mere access" to the cocaine alone is insufficient. In so arguing, appellant relies in large part upon People v. Mijares (1971) 6 Cal.3d 415, 420, 422; U.S.v. Sanchez-Mata (9th Cir. 1991) 925 F.2d 1166, 1169; People v. Showers (1968) 68 Cal.2d 639, 644; and U.S.v. Vasquez-Chan (9th Cir. 1992) 978 F.2d 546, 550-551. Those cases are inapposite.

In Mijares, our state Supreme Court reversed a heroin possession conviction where there was plausible evidence that the defendant had noticed that his friend might be overdosing, located and removed heroin from his friend's pocket, and disposed of the heroin before taking his friend to the fire station to get medical assistance. After emergency personnel treated his friend and took him to the hospital, the defendant left the station, but returned in less than a minute to await the police. (People v. Mijares, supra, 6 Cal.3d 415, 420, 422.) The court later clarified that the Mijares "transitory possession" defense (People v. Martin (2001) 25 Cal.4th 1180, 1191) arose in a very specific factual context, "involving a fleeting, de minimis possession and a reflexive act of abandonment." (Id. at p. 1188.) Mijares "in no way insulates from prosecution under the narcotics laws those individuals who, fearing they are about to be apprehended, remove contraband from their immediate possession." (Martin, at p. 1185, fn. 5.) Mijares does not support appellant's argument. In throwing the cocaine from the Tahoe as it moved from marked police vehicles, after leaving the cocaine at his feet for a lengthy period, appellant acted precisely like those individuals whom Mijares does not insulate from prosecution. (Ibid.)

In Sanchez-Mata, defendant Sanchez-Mata was a passenger in a car that was stopped by border patrol agents. The agents located 141 pounds of marijuana in the trunk but found no drugs in the car's passenger section. Sanchez-Mata "was never seen touching the marijuana and his fingerprints were not on the bags"; he had no "key to the [car]"; and he was "never observed with co-defendants at any other time." (U.S.v. Sanchez-Mata, supra, 925 F.2d 1166, 1167.) Here, in contrast, the cocaine was in the Tahoe's front passenger compartment; no other area in the Tahoe bore any detectable odor of cocaine; only appellant occupied the front passenger seat; appellant admitted that he threw the briefcase (which contained cocaine) through the Tahoe's passenger window; and he acknowledged that he had known Soto for about a month before March 3.

Appellant also relies upon People v. Showers, supra, 68 Cal.2d 639, another inapposite case. In Showers, police found a balloon containing heroin residue in an ivy patch where the defendant had been searching for a few short periods of time on two daysthe day the police found the balloon and the prior day. (Id. at p. 642.) Because there was no evidence that the defendant and his codefendants had maintained exclusive access to and control over the location, the court concluded that there was inadequate evidence of dominion and control. (Id. at p. 644.) Contrary to the Showers' contraband, the cocaine remained in the Tahoe's passenger compartment during the entire relevant time frame, when nobody except appellant and Soto were in the Tahoe. The objective evidence indicated that the cocaine was only in the front passenger compartment, where appellant sat; and he acknowledged that he threw the cocaine out the window.

Appellant's reliance upon U.S.v.Vasquez-Chan, supra, 978 F.2d 546, is also misplaced. Vasquez-Chan reversed cocaine possession and conspiracy convictions against a housekeeper and houseguest after concluding that they lacked dominion or control over cocaine in a house. (Id. at pp. 550-555.) Appellant argues that "as in this case the defendant [Vasquez-Chan] knew of the presence of illegal drugs"; the defendant did not come "to the attention of law enforcement until the arrest at issue"; and, like appellant, he "made allegedly false or inconsistent statements to the police." Appellant does not acknowledge a key distinguishing fact: Unlike appellant, the Vasquez-Chan defendant "did not attempt to destroy or conceal the evidence." (Id. at p. 550.) The Ninth Circuit noted that fact, among others, in concluding that the defendant lacked dominion and control over the cocaine. (Id. at p. 551.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

George C. Eskin, Judge

Superior Court County of Santa Barbara

______________________________

Esther R. Sorkin , 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, Senior Assistant Attorney General, Steven E. Mercer, Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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