Filed 9/6/18 P. v. Aldave CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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, Frances Munoz, Judge. (Retired Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part. Remanded for resentencing.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Gabriel Williams Aldave of possessing methamphetamine for purposes of sale (Health & Saf. Code, § 11378),[1] false personation (Pen. Code, § 529, subd. (a)(3))—both felonies, possession of heroin (§ 11350, subd. (a)), and narcotics paraphernalia (§ 11364, subd. (a))—both misdemeanors. In a bench trial, the court found true three separate enhancement allegations regarding prior narcotics convictions (§ 11370.2, subd. (c)); one in 2013, and two in 2015). In addition, the trial court found true two prior prison commitment enhancement allegations (Pen. Code, § 667.5, subd. (b)). Finally, as to the methamphetamine possession for sale conviction, and because of his prior narcotics convictions, the trial court found defendant ineligible for probation (Pen. Code, § 1203.07, subd. (a)(11)).

At sentencing, the court imposed a five-year term, comprising a 16-month sentence for the possession for sale count, an eight-month consecutive sentence for the false personation count, and a three-year consecutive sentence for one of the section 11370.2, subdivision (c) enhancements. As to the heroin and paraphernalia misdemeanor counts, the court suspended or stayed sentence.[2] Pursuant to Penal Code section 1385, subdivision (c), the remaining section 11370.2 enhancements were “stricken for purposes of sentencing only,” as were the two Penal Code section 667.5, subdivision (b), prior prison commitment enhancements.[3]

On appeal, defendant challenges both of his drug possession convictions and his paraphernalia conviction, arguing there was insufficient evidence to show he knowingly possessed this contraband.[4] We find substantial evidence supports these convictions and therefore affirm that portion of the judgment.

In addition, defendant challenges the three-year enhancement imposed by the court under section 11370.2, subdivision (c). The Attorney General concedes recent amendments to the Health and Safety Code have eliminated the application of this enhancement to defendant in this case, and it must therefore be stricken. We agree. (People v. Millan (2018) 20 Cal.App.5th 450, 454-456; People v. Zabala (2018) 19 Cal.App.5th 335, 344.)

FACTS

Just after noon on a Thursday in July 2016, Fullerton police officers responded to a report of a suspicious vehicle occupied by a sleeping individual that had been parked over-night in front of a residence. When the officers arrived, they found an older-model Honda Civic hatchback. It appeared to them its occupant was living in the car, since there were men’s clothes and “stuff” strewn throughout, including shampoo, deodorant, and empty beer cans.

Inside was the shirtless defendant, fully reclined in the driver’s seat and apparently sleeping. The front passenger seat was folded forward, the passenger door locked, and no one else was in the car. The officers knocked on the driver’s-side window to awaken defendant, and had him get out of the car. He claimed to have no identification and gave a false name and date of birth when officers asked.

Lying on the folded front passenger seat and floorboard were clothes and a backpack. In the back seat and hatchback area were more clothes, with one officer testifying “it was just a mess, a lot of clothes.” A cellphone was found on the front passenger seat, but the investigating officers could not recall whether or not it rang during the approximately 30 to 45 minute encounter.

Defendant was searched and an officer discovered a folded up $1 bill containing methamphetamine in the coin pocket of his pants. A search of the backpack, found on the passenger side floorboard, revealed a plastic bag containing three hypodermic syringes and a folded up piece of foil with two small bindles of heroin inside. In the Honda’s rear area officers found another backpack, and inside it was a pill bottle with a plastic baggie containing more methamphetamine. The name on the prescription pill bottle was not defendant’s, and the medication was labeled as Viagra. Neither backpack contained any specific identifying evidence regarding ownership.

When booked into custody, defendant had $298.13 in cash and currency on his person, including two $100 bills, four $20 bills, two $5 bills, seven $1 bills, and the $1 bill with the methamphetamine. The Honda was not registered to defendant, but he did have a pink slip in his wallet. At some point when speaking to the officers, defendant removed the pink slip from his wallet and handed it to an officer. The car had not been reported stolen, but the testifying officer could not recall if the pink slip was for the Honda.

The parties stipulated the folded up dollar bill contained a net amount of 0.86 grams of methamphetamine, the tinfoil contained a net amount of 1.152 grams of heroin, and the pill bottle contained a net amount of 23.704 grams of methamphetamine.[5]

When first contacted by police, and again later when booked into custody, defendant gave the name “Eddie Felipe Aldave” and a date of birth of November 19, 1970. On one of his booking documents, defendant signed as Eddie Aldave.

The prosecution called an experienced narcotics officer to testify as an expert in the sales of methamphetamine and its possession for purposes of sale.[6] He testified as follows: A single usable dose of methamphetamine is about 0.02 grams. Most users only buy a usable amount and do not carry too many doses for fear of being robbed or being asked to share it with others. Users can and do develop a higher tolerance for methamphetamine after repeated use, and some people may occasionally consume as much as a gram in a day. Similarly, the purity of the drug also may affect the amount a user consumes.

Users will commonly buy a half of a gram to a full gram at a time, which is about what they would consume in a full day, and is what they normally have in their possession at any given moment. The cost of a single gram of methamphetamine in 2016 was between $20 and $40. The 23.704 grams of methamphetamine found in the rear area of the Honda would provide about 1,187 usable doses, and would be worth about $460 if broken down into grams and sold on the street.

In 2016, the street price for a full ounce of methamphetamine ranged between $200 and $350. However, regular drug users do not carry this amount of methamphetamine. Low-level street dealers, however, typically buy ounces of methamphetamine and sell it in gram amounts.

Since simple possession of methamphetamine became a misdemeanor, sellers now carry larger amounts, often a full ounce, in a single baggie so as to make it appear to be for personal use. Dealers store their supply in a variety of containers, including plastic baggies, prescription pill bottles, cigarette packages, and Altoid cases. They keep these containers concealed on their person or in their car in case they are contacted by police.

Street-level methamphetamine dealers may also often sell heroin and prescription pills. Commonly, they may have “clean” syringes. These can be purchased, or given to customers with a heroin purchase. A single dose of heroin for a typical user is about 0.02 grams, and it sells for about $10. The 1.152 grams of heroin located on the front passenger floorboard would provide about 57.6 doses. Many methamphetamine dealers are also users, and they sell to support their own habits. Thus, they often sell a portion of their supply, but keep a part for personal use. It is also common for a dealer to have cash on his or her person.

When presented with a hypothetical question based on the underlying facts of this case, the prosecution’s expert opined the methamphetamine found in the prescription bottle was possessed for purposes of sale.

The defense presented no evidence.

DISCUSSION

Sufficient Evidence Supports a Conviction for Possession of Methamphetamine for Purposes of Sale

In a prosecution for possession of methamphetamine for purposes of sale, the prosecution must prove beyond a reasonable doubt that: (1) the defendant exercised dominion and control over the methamphetamine; (2) the defendant knew or was aware that he or she was in possession of the methamphetamine; (3) the defendant was aware of the nature of methamphetamine; (4) the methamphetamine was in an amount sufficient to be used for sale or consumption; and (5) the defendant possessed the methamphetamine with the specific intent to sell it. (People v. Mooring (2017) 15 Cal.App.5th 928, 943; see CALCRIM No. 2302.)

On appeal, defendant challenges elements (2) and (5); i.e., the sufficiency of the evidence of his knowledge of the presence of the methamphetamine found in the prescription bottle in the rear of the car, as well as his intent to sell it.[7]

“‘In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’” (People v. Davis (2013) 57 Cal.4th 353, 357.) “The crime[] can be established by circumstantial evidence and any reasonable inferences drawn from that evidence.” (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) The same standard of review applies when a defendant’s conviction is based primarily on circumstantial evidence, as opposed to direct evidence. (People v. Houston (2012) 54 Cal.4th 1186, 1215.) In either situation, the defendant “bears an enormous burden” to prevail on a sufficiency of the evidence claim. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

Sufficient Evidence Supports an Inference of Knowing Possession

“‘Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others.’” (People v. Busch (2010) 187 Cal.App.4th 150, 161.) “[P]ossession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.] . . . [Citation.] ‘The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation].’” (Id. at p. 162.)

Absent an admission, direct evidence of a defendant’s mental state is rarely found, but circumstantial evidence can provide sufficient proof of a defendant’s knowing possession of a controlled substance. Thus, circumstantial evidence and any reasonable inferences drawn from it may establish knowing possession. (People v. Martin (2001) 25 Cal.4th 1180, 1184-1185.) Moreover, “[o]rdinarily the fact that a narcotic is found in the personal effects of the defendant is compelling proof that defendant knew what he possessed and its nature.” (People v. Williams (1971) 5 Cal.3d 211, 216.)

Here, of course, the contraband in question was located in the Honda in which defendant appeared to be living. Men’s clothing was strewn throughout, and toiletries were found. Defendant was the sole occupant, the passenger seat was folded forward, and even though a Department of Motor Vehicles check showed the then-current registration records were not in defendant’s name, defendant did have a pink slip for a vehicle in his wallet. It is not unreasonable to infer from these facts that defendant had dominion and control over the vehicle, and its contents.

Defendant had a small amount of methamphetamine wrapped inside a $1 bill in the change pocket of his trousers. It contained 0.86 grams of methamphetamine, a fairly significant amount when viewed in light of the fact that 0.02 grams is a usual dose. In fact, 0.86 grams is almost a full gram. Expert testimony established low-level street dealers typically buy ounces of methamphetamine and then sell in gram amounts. A roughly one-gram bindle in the defendant’s coin pocket is consistent with the expert’s testimony that drug dealers are usually also drug users, and keep part of their supply for sales and part for their own use. Thus, it is reasonable to infer defendant knew exactly what methamphetamine was, and how it is packaged and apportioned.

Although neither party discusses it, to us one quite salient fact in this case provides significant support to an inference defendant was fully aware of the presence and nature of the contraband inside the Honda: throughout his encounter with police, he consistently lied about his name and his true date of birth. Indeed, although not contested on appeal, he was convicted in count 2 for these lies.

It is well-settled that an adverse inference may be drawn when a defendant makes false or misleading statements. As a result, “false statements by a defendant are admissible to demonstrate consciousness of guilt.” (People v. Hughes (2002) 27 Cal.4th 287, 335, fn. omitted; see People v. Kimble (1988) 44 Cal.3d 480, 497 [“Deception, falsehood, and fabrications as to the facts of the case are treated as tending to show consciousness of guilt, and are admissible on the same theory as flight and concealment of the person when charged with crime”].)

Here, the evidence shows defendant gave a false name from the outset. When awakened by police and out of the car, defendant purportedly had no identification and immediately gave a false name and date of birth when police asked. This was before any search had occurred, or any contraband uncovered. Here, the jury was specifically instructed with CALCRIM No. 362, and told they could consider whether a defendant’s lies might show a consciousness of his guilt.[8] It is reasonable to infer defendant lied at the outset because he knew there were drugs in the car, and if they were eventually found, he could pretend to be someone else in an attempt to avoid ultimate culpability.

Finally, defendant maintains his possession convictions cannot stand because there are alternative inferences that may be drawn from the facts presented at trial pointing towards a lack of knowing possession. But that is not our standard of review. “[W]e review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) In a circumstantial evidence case, we must accept any logical inferences the jury might have drawn from the circumstantial evidence, because “it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Put simply, “[w]here the circumstances support the trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant's innocence.” (People v. Meza, supra, 38 Cal.App.4th at p. 1747.)

“We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio, supra, 43 Cal.4th at p. 357.) Here, substantial evidence supports a reasonable inference defendant knowingly possessed the contraband in the car, and was aware of its nature.

Sufficient Evidence Supports an Inference of Intent to Sell

The prosecution’s expert, an experienced narcotics officer, testified that, based on the quantity of the controlled substance seized, the packaging, and the normal dosage and use by a simple drug user, the defendant possessed the methamphetamine in the prescription bottle with the specific intent to sell at least some of it. “It is well-settled that ‘. . . experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.’” (People v. Parra (1999) 70 Cal.App.4th 222, 227.) Moreover, the testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to establish a fact and support a conviction. (People v. Allen (1985) 165 Cal.App.3d 616, 623; Evid. Code, § 411; CALCRIM No. 301.)

Defendant argues the expert’s opinion “should be given little, if any, weight,” although he does not challenge his expertise. Instead, he argues that since many of the classic drug sales accoutrements were not found in the car or on his person, the expert’s opinion should be rejected, claiming a “total absence of common indicia of sales . . . .”[9] Thus, defendant points out there were no multiple plastic baggies, no scale was found, and no guns were present.

This is true, but as the expert testified, since simple possession of methamphetamine became a misdemeanor, sellers now carry large amounts, often a full ounce, in a single baggie so as to make it appear to be for personal use. A reasonable jury could infer that a low-level street dealer would not need to invest in precise scales technology because of the small amounts involved and their relatively low cost, and could instead resort to “eyeballing” his portions when taking gram amounts out of his larger one-ounce supply baggie. In fact, this is fully consistent with the fact the bindle found in defendant’s pocket only weighed 0.86 grams instead of a full gram. Similarly, a reasonable jury could infer a low-level street dealer engaged in these small quantity transactions would be disinclined to carry a firearm, both because of its cost and because of the risk of much greater criminal liability should the police ever find him with one.

Defendant also argues the absence of the classic “pay-owe sheets” is more indicative of simple possession and not possession for sale. However, the expert witness explained modern drug dealers no longer carry “pay-owe sheets” because the now-ubiquitous smartphone is a much more accurate and efficient way to keep one’s drug-dealing accounts. Moreover, through encryption, a smartphone’s contents can be shielded from the prying eyes of law enforcement, with or without a warrant.

Simply put, the absence or presence of any or all traditional, some possibly anachronistic, indicia of possession for sale is not dispositive, and defendant points us to no authority to the contrary. Rather, in methamphetamine possession cases, experienced officers may give their opinion the drugs are held for purposes of sale based solely upon such matters as the quantity, packaging, and normal use of an individual. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) “Thereafter, it is for the jury to credit such opinion or reject it.” (Id. at p. 375.) So too here.

We find the expert evidence in this matter, including the expert’s opinion and the underlying facts upon which it was based, provides substantial evidence from which a jury could reasonably find defendant possessed the methamphetamine found in the prescription bottle for purposes of sale.

The Section 11370.2 Enhancement Must Be Stricken

As we observed above, defendant’s challenge to the three-year sentencing enhancement imposed by the trial court under section 11370.2, subdivision (c), has merit. As of January 1, 2018, section 11370.2, subdivision (c)’s sentencing enhancements were eliminated except under certain limited circumstances not applicable to this defendant. (Stats. 2017, ch. 677, § 1.) These statutory changes apply retrospectively to defendant. (People v. Millan (2018) 20 Cal.App.5th 450, 454-456; People v. Zabala (2018) 19 Cal.App.5th 335, 344-345.) Consequently, the section 11370.2, subdivision (c) enhancements must be stricken. Because the trial court exercised its discretion in the original sentencing, the matter must be remanded for that court to reconsider its sentencing choices in light of these changed circumstances. (People v. Calderon (1993) 20 Cal.App.4th 82, 88.)

DISPOSITION

Defendant’s sentence is reversed, and the matter is remanded to the trial court with directions to strike the section 11370.2, subdivision (c) enhancements and to resentence him. The trial court is directed to prepare an amended abstract of judgment. In all other respects, the judgment is affirmed.

IKOLA, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.