P. v. Sargent

Filed 5/12/06  P. v. Sargent CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

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     A jury convicted defendant Danielle Leanne Sargent of possessing methamphetamine for sale (count I), making a building available for the purpose of unlawfully manufacturing, storing or, distributing methamphetamine (count II), maintaining a place for the purpose of unlawfully selling, giving away, or using any  controlled substance (count III), possessing concentrated cannabis (count IV), and possessing less than one ounce of marijuana, a misdemeanor (count V).  As to count I, the jury found defendant possessed for sale 28.5 grams or more of methamphetamine or 57  grams or more of a substance containing methamphetamine. 

     Defendant was sentenced to the middle term of two years in  state prison on count I and to concurrent terms on the other felonies.  On appeal, she contends, and the People concede, that the  evidence is insufficient to support her conviction on count II.  Defendant also contends there is insufficient evidence to support her conviction on count III. 

     We shall reverse the convictions on counts II and III, and otherwise affirm the judgment. 

FACTS

     We recount the evidence in the light most favorable to the judgment.  (People v. Horning (2004) 34 Cal.4th 871, 901.)

     Defendant and her husband, Michael Sargent (Michael), lived with Michael's mother, Mary Ann Sargent (Mary Ann), who rented a  two-bedroom, one-bath apartment.  Defendant and Michael did not pay rent or utility bills, but Michael occasionally bought some groceries and sometimes gave $40 to Mary Ann when she needed it. 

     Michael, who worked as a tattoo artist but did not have a regular job, left the apartment in  the morning and was gone all day.  When he was at the apartment, Michael and defendant would stay in their bedroom with the door shut.  They had four or five friends who would visit them at the apartment.  When the friends arrived, they would stay in  the bedroom with Michael and defendant.  When the friends departed, Michael and defendant would leave with them. 

     Michael was outside the apartment, with Christy Tombs and Wendell Cornett, when officers arrived there at about 12:30 p.m. to  execute a search warrant.  The  trio looked in the officers' direction and ran.  Tombs and Cornett complied with the officers' instructions to stop; but Michael ran inside the apartment and was  detained immediately by officers.  Defendant went into the bathroom, and closed the door.  Officer Russell Skinner pursued defendant, pounded on the bathroom door, and heard the toilet flush.  Defendant then came out of the bathroom and was detained. 

     In a cabinet in the bathroom, officers found a Skippy Dog Food can containing 1.37 grams of concentrated cannabis, 1.18 grams of marijuana, a roach clip, a marijuana smoking pipe, and some rolling papers.  Also there was a Pledge can containing 73.37 grams of methamphetamine in several baggies and a metal spoon for scooping the powder into packages. 

     In a Rave hairspray can on a dresser in the bedroom where defendant and Michael stayed, Officer Skinner found $900 in cash, some of Michael's bank records, and receipts for a storage locker.  An empty popcorn can with a fake top also was found in the bedroom.  A fingerprint lifted from the Pledge can and a fingerprint lifted from the Rave can did not match either Michael's or defendant's fingerprints. 

     Michael had $125 in cash on his person. 

     An expert testified the methamphetamine had a retail value of more than $6,000 and was possessed for sale.  The expert opined the cannabis and marijuana were possessed for personal use. 

     Mary Ann denied knowing anything about the illicit drugs found in her apartment.  According to her, she never smelled the odor of marijuana in her apartment. 

     Agent Vance Nabeta assisted with asset forfeiture on the case.  He spoke with Mary Ann, who claimed that Michael had lived with her for a year, did not have a job, was always home, and never paid any bills or bought any food.  Nabeta spoke with Michael, who claimed that he earned the $900 found in the bedroom doing tattoos and that he earned about $6,000 to $8,000 a month for his tattoos.  Michael claimed that he gave Mary Ann $500 to $700 a month for food and bills and paid a total of $1,000 in monthly car payments for a Chevrolet truck and a Chevrolet Camaro. 

     Gina Zuazua, a tattoo shop owner, testified that Michael rented a booth from her in 1997 and 1998.  She considered Michael to be a good tattoo artist and opined that such an artist could earn about $38,000 a year. 

DISCUSSION

I

     Defendant contends, and the People concede, that the evidence does not support her conviction on count II for violating Health and Safety Code section 11366.5.  (Further section references are to the Health and Safety Code.) 

     Section 11366.5, subdivision (a) provides:  â€