P. v. Nolan

Filed 5/10/06 P. v. Nolan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed in part, reversed in part, and remanded for resentencing.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Robin Glen Nolan was convicted of possession of methamphetamine, possession of marijuana, possession of a hypodermic needle or syringe, and making a false representation to a peace officer. Defendant challenges the two drug possession convictions. The question before us is whether the prosecution met its constitutional burden of proving beyond a reasonable doubt the required element of constructive possession of methamphetamine and marijuana. Having thoroughly reviewed the record, and having viewed all the evidence in the light most favorable to the judgment of conviction, we conclude the prosecution did not sustain its burden of proof with regard to defendant's conviction for possession of methamphetamine, and that conviction is reversed. The prosecution, however, did sustain its burden of proof with regard to defendant's conviction for possession of marijuana. The matter is thus affirmed in part, reversed in part, and remanded for resentencing on the convictions for possession of marijuana, possession of a hypodermic needle or syringe, and making a false representation to a peace officer.

Statement of Facts and Procedural History

On May 9, 2004, at approximately 4:30 a.m., Buena Park Police Officers Stephen Craig and Christopher Nyhus conducted a vehicle stop in a motel parking lot. A male and a female were in the car; both told the officers they were staying in room 332 of the motel. (The room was actually registered in the name of another person.) The officers found a key for room 332 while performing a search of the male passenger.

The officers used the key to enter room 332.[1] Defendant was lying on top of the covers on one of the beds. Another man was sitting on a second bed. On a nightstand no more than six feet to defendant's left was a bong (a device used for smoking narcotics). The bong contained a cloudy liquid. A plastic baggie with methamphetamine residue was also on the nightstand. A woman's makeup compact containing a baggie with methamphetamine residue, a baseball cap, money, and a hypodermic needle and syringe were also in the room. A baggie containing 2.6 grams of marijuana was found in the bed defendant was lying on; the marijuana was visible after Officer Craig shook the sheets on the bed. Officer Craig was unable to testify whether the baggie was on top of or under the bedcovers before he shook them.

On top of a light fixture in the bathroom, the officers found a red bottle cap containing a liquid alternately described as cloudy and clear. A presumptive test on the liquid indicated it was a liquid solution of methamphetamine. Later testing by the Orange County Sheriff's Department crime lab concluded the bottle cap contained 295 milligrams of a liquid containing methamphetamine. The solution in the cap was a usable quantity. Officer Craig testified the red bottle cap was a device in which a drug, including prepared methamphetamine, can be placed for intravenous drug use. Officer Nyhus testified the substance in the bottle cap would normally be injected with a hypodermic needle. None of the objects seized in the motel room or the bathroom was preserved for fingerprint analysis or DNA analysis.

When asked for identification, defendant provided the officers with a false name and date of birth. Officer Nyhus arrested defendant for providing the police with a false identity, searched defendant, and found a hypodermic needle and syringe in his right front pants pocket.

Defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, and told the officers he had used methamphetamine â€