P. v. Pascua

Filed 6/13/06 P. v. Pascua CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed.

After the trial court denied a motion in limine to exclude evidence found during a search (Pen. Code, § 1538.5), a jury convicted Jhonnalyn Pascua of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), unlawfully possessing ammunition (Pen. Code, § 12316, subd. (b)(1)), and possessing narcotics paraphernalia (Health & Saf. Code, § 11364). The court suspended imposition of sentence and placed her on three years' probation, including a condition that she serve 365 days in custody or at a residential rehabilitation facility.

FACTS

On November 18, 2004, probation officers and police officers went to a home to arrest Marcus Pascua for a probation violation. Marcus Pascua shared the home with his mother, Jhonnalyn Pascua, his father, and siblings. Probation Officer Denise Jacques searched a bathroom from which Marcus exited and found one round of ammunition in a drawer that also contained towels and bathroom products. Officer Jacques accompanied Pascua to the garage to get keys to open a safe. When Jacques opened a cabinet in the garage, she saw a glass pipe that she associated with methamphetamine use. Officer Tom Underwood found additional glass pipes used to smoke methamphetamine in the garage.

While Officers Jacques and Underwood were in the garage, Officer Fernando Ramirez searched the master bedroom. He found additional ammunition in a dresser drawer and a substance he recognized as methamphetamine in a jewelry box. The parties stipulated that 1.74 grams of methamphetamine was found in the jewelry box. Pascua waived her Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), and Officer Underwood questioned her. She told Underwood that the bedroom was hers and that she shared it with her husband and no one else. She said she found the ammunition while cleaning the house, and put it in the drawer intending to dispose of it later. She said she had found the pipes throughout the house and that, believing her daughter was using drugs, she put the pipes in the cabinet to confront her daughter about her drug use. Her daughter had run away. Pascua told Underwood that only she and her daughter had access to the jewelry box, but she did not know that there were drugs in the jewelry box. When asked why she had not looked in the jewelry box since her daughter ran away, Pascua told Underwood she did not have a key. However, police found a key to the jewelry box with Pascua's other keys.

Pascua testified that she found the ammunition while doing laundry and put it in a container so her husband could dispose of it. A week before November 18, 2004, she argued with her daughter after Pascua found a glass pipe in her daughter's pants. Pascua found additional pipes in her daughter's dresser drawer. Pascua put the pipes in the garage cabinet so she could confront her daughter. For the purpose of the charge that she unlawfully possessed firearm ammunition, Pascua stipulated to having incurred a prior felony conviction.

Pascua's husband testified that he placed the ammunition in the drawer and the bathroom.

Pascua's daughter testified that she had been using methamphetamine and would run away to use drugs. She left the pipes at home when she ran away. She obtained the pipes and drugs from her boyfriend. She stored the drugs in her mother's jewelry box.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether the trial court erred in denying the motion in limine to exclude evidence obtained in the search; (2) whether the evidence was sufficient to support the convictions; (3) whether the trial court prejudicially erred in denying Pascua's request for an instruction on momentary possession; (4) whether the trial court prejudicially erred in failing to instruct the jury sua sponte on the limited use of evidence of the prior felony conviction; and (5) whether the trial court prejudicially erred in instructing the jury that a false statement can be considered as evidence of consciousness of guilt.

We granted Pascua permission to file a brief on her own behalf. She has responded. Pascua contends that the police officers illegally entered her home without consent, and illegally searched her home, her jewelry box, and her cabinet in the garage. She further maintains that the officers' claim that they were in the home for a probation visit was a pretext to obtain incriminating evidence against her. She also contends that there is insufficient evidence to support the convictions.

The Search

In her motion to suppress evidence, Pascua sought to exclude evidence found in search of her home on the ground that she was not advised of, and did not waive, her Miranda rights before consenting to the search. She argued that after the ammunition was found in the bathroom, she was suspected of criminal activity and should have been advised of her Miranda rights before being asked to consent to the search. Regarding Pascua's claim that the officers entered her home on a pretext, in ruling on the motion, the trial court noted that the parties were in agreement that the officers were lawfully in the house to arrest Pascua's son who was on probation, that the son had given a waiver of his Fourth Amendment rights as a condition of probation, and that the bathroom and bedroom that were searched were common areas. The court noted that the issue was whether the officers had a right to search the locked safe. The officers asked Pascua for consent to search, which she gave. The court held that the consent was valid because Pascua was not in custody when the officers asked her if there were weapons in the house and when she gave her consent to search. The trial court was correct. Miranda applies only to a custodial interrogation. (People v. Morris (1991 53 Cal.3d 152, 197.) Pascua bases her claim that the evidence seized during the search of her residence should have been suppressed on grounds she did not raise in the trial court. In the trial court, she specifically withdrew any Fourth Amendment claim other than the claim that officers failed to advise her of her Miranda rights.

"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.) When a defendant appeals denial of a motion to suppress, she may not rely on a new theory not raised in the trial court. (People v. Auer (1991) 1 Cal.App.4th 1664, 1670.)

In any case, defense counsel expressly told the trial court that Pascua had consented to the search. Counsel claimed the consent was tainted because Pascua had not been given a Miranda warning after the officers found the ammunition, since at that point they had probable cause to arrest her.

" 'A consent to search . . . is neither testimonial, nor communicative in the Fifth Amendment sense. If appearing in a lineup and speaking words used by a robber is not a "disclosure of any knowledge [the accused] might have" [citation], neither is a consent to search. The fact that the search leads to incriminating evidence does not make the consent testimonial, any more than the victim's identification at the lineup gives such a quality to the words spoken by the suspect.' [Citations.]" (People v. Ruster (1976) 16 Cal.3d 690, 700; see also Schneckloth v. Bustomonte (1973) 412 U.S. 218, 243-244, fn. 31.)

The fact that Pascua was not advised of her Miranda rights before she consented to a search of the residence does not invalidate the consent.

Sufficiency of Evidence

Pascua claims the evidence does not support the convictions because her husband testified that the ammunition was his, and her daughter testified that the drugs were hers. We will affirm a judgment that is supported by substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505.) The court must review the entire record in the light most favorable to the judgment below and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. If the evidence permits a reasonable trier of fact to conclude that the charged crime was committed, the opinion of a reviewing court that the circumstances may also be reconciled with a contrary finding will not warrant reversal. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)

Regarding the conviction for possessing ammunition, possession requires proof that the defendant had dominion and control over the ammunition and knowledge of its presence. (People v. Cordova (1979) 97 Cal.App.3d 665, 669.) Pascua admitted knowledge of the presence of the ammunition.

Regarding the conviction for possession of a controlled substance, a person is guilty of the crime of illegal possession of a controlled substance when she exercised control over a usable amount of a controlled substance, and had knowledge of its presence and knowledge of its nature as a controlled substance. (In re Christopher B. (1990) 219 Cal.App.3d. 455, 466.) Here, the jury implicitly found that Pascua had knowledge of the presence of the methamphetamine.

With respect to dominion and control, the ammunition was found in a dresser drawer in the master bedroom, and the jewelry box that contained methamphetamine was also found in the master bedroom. This is circumstantial evidence that Pascua possessed the ammunition and the methamphetamine. Neither exclusive nor physical possession is required. (People v. Villanueva (1963) 220 Cal.App.2d 443, 450.) "Constructive possession occurs when the accused maintains control or a right to control the contraband . . . ." (People v. Newman (1971) 5 Cal.3d 48, 52.)

While Pascua's husband testified that the ammunition belonged to him, and her daughter testified that the drugs belonged to the daughter, this does not reduce the substantial evidence supporting the convictions. This court will not usurp the trier of fact's assessment of credibility. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) Substantial circumstantial evidence supports the jury's finding that Pascua had dominion and control over, and knew of, the presence of the ammunition and the methamphetamine.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues Pascua has raised has disclosed no reasonably arguable appellate issue. Competent counsel has represented Pascua on this appeal.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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