Filed 2/17/22 P. v. Perez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Jonathan Fish, Judge. Affirmed in part, reversed in part, and remanded with directions.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Butler and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Johnny Jose Perez appeals from his conviction on charges of possession of methamphetamine (Pen. Code,[1] § 11377, subd. (a); count 5) and possession of methamphetamine while armed with a firearm (§ 11370.1, subd.(a); count 7). He argues the evidence is insufficient to support the conclusion he had constructive possession of the methamphetamine. He also argues the trial court erred in denying his motion for acquittal on the same grounds.

We agree and reverse the convictions. When Perez was detained, he was one of three people sitting in a car. Perez was in the rear passenger seat and there were two firearms under a sweatshirt on the floor near his feet. The majority of the methamphetamine was in a bag on the floor near the front seat passenger; an additional small amount was found in the front seat passenger’s lap and in her pockets. None of it was directly accessible to Perez, and there is no evidence he shared dominion or control over it.

The Attorney General argues Perez had constructive possession of the methamphetamine and that the jury’s finding in this regard was supported by circumstantial evidence suggesting the vehicle occupants were preparing to use the methamphetamine together when the police intervened. We are not persuaded. Even if we assume the front seat passenger was preparing to ingest the methamphetamine and that she intended to share the drugs with Perez when they were interrupted by the police, that would not establish Perez had dominion or control over the methamphetamine before the police arrived on the scene.

The alternative suggestion that Perez’s possession of the firearms demonstrates he was engaged in protecting the methamphetamine is entirely speculative. There is no evidence to support it other than the fact Perez was seated closest to the firearms in a car where someone else possessed the drugs. In any event, the theory was forfeited when the prosecutor failed to make it in the court below.

The Attorney General also points to evidence that Perez displayed “consciousness of guilt” to support his contention that Perez must have shared constructive possession of the methamphetamine. But as Perez points out, such evidence is not a substitute for evidence supporting the elements of the charge. In any event, the fact Perez was also convicted of other crimes arising out of the incident undermines the inference that his conduct reflected any “consciousness of guilt” related to the presence of the methamphetamine.

FACTS

Mid-day on September 1, 2019, a Newport Beach police officer, responding to a call about a suspicious vehicle, encountered a Toyota Camry partially blocking an alleyway. There were three occupants, two in the front seat and one in the back seat. When the officer approached the car, the occupants rolled down their windows and identified themselves.

Perez, the back seat occupant, identified himself as Troy Mendez with a birthdate of July 13, 1982. He also claimed the woman in the front passenger seat (Reynozo) was his mother.[2] However, when the officer performed a records check after additional officers arrived, he was unable to confirm either the name or date of birth Perez had provided.

Based on that discrepancy, the officer requested that all three occupants get out of the car. As Reynozo was getting out of the car, the officer saw several chunks of a white crystal substance fall from her clothing and onto the seat and floor of the car. The substance was collected; it was later determined to be methamphetamine. Reynozo was detained and placed in the back of the officer’s police vehicle. When the officer returned to the vehicle, he observed two baggies on the floor near where Reynozo’s feet had been; the baggies were collected, and their contents were also determined to be methamphetamine. The officers also found loose shards of what proved to be methamphetamine in Reynozo’s pockets, and a glass narcotics pipe was found on the floor of the car. In total, the methamphetamine possessed by Reynozo added up to 40 grams; the officer testified this was “an extremely large amount . . . which would literally be . . . several hundred, if not well over a thousand doses of methamphetamine.”

After Reynozo and the driver were removed from the car, Perez remained in the back seat, with his feet on the floor on top of the sweatshirt. When Perez got out of the car, the officers removed the sweatshirt and discovered a small caliber semiautomatic pistol and a sawed-off 12‑gauge shotgun on the floor. The weapons were not examined for fingerprints or DNA. Nothing illegal was found on Perez after he was removed from the car.

The officer who first encountered the Toyota testified it is common for persons who are involved in drug sales or possess a large amount of drugs to also have a weapon for protection.

Perez was charged with possession of a firearm while being a felon (§ 29800, subd. (a)(1); counts 1-2), possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 3), false representation to a peace officer (§ 148.9, subd. (a); count 4), possession of methamphetamine (§ 11377, subd. (a); count 5), and possession of methamphetamine with a firearm (§ 11370.1, subd. (a); count 7).

At trial, Perez stipulated that he was a previously convicted felon in California and a prohibited person under the California Penal Code sections 29800, subdivision (a)(1) and 30305, subdivision (a)(1).

At the close of the prosecution’s case, Perez moved for an acquittal on the counts alleging he possessed the guns hidden under the sweatshirt on the floor of the car, as well as the counts alleging he possessed the methamphetamine. As to the latter, his counsel argued, “[t]here’s no evidence that Mr. Perez ever exercised . . . dominion and control over the methamphetamine. [The driver] may have known about it because he was acting suspicious, but there was no similar behavior on the part of Mr. Perez. [¶] And all of the methamphetamine was directly connected to Ms. Reynozo [the front seat passenger]. And there’s no evidence that Mr. Perez had any knowledge of what was on Ms. Reynozo’s person or acted in a way that he knew or should have known that she had the methamphetamine on her person.”

In response, the prosecutor offered this argument: “It’s the People’s position that a reasonable inference could be drawn that those loose shards were fully being furnished at the time that the police arrived and made contact with the parties in the vehicle. I believe that the police interrupted Ms. Reynozo from furnishing the methamphetamine directly into [Perez’s] hands.”

Although the trial court acknowledged the issue was a close one with respect to Perez’s possession of the methamphetamine, it concluded “there’s evidence to support it. I think factual arguments might be harder for this jury, but there is evidence to support it.” The court then denied the motion.

In his closing argument, the prosecutor made a similar argument to the jury regarding Perez’s possession of the methamphetamine. “I posit to you that these occupants were literally caught in the middle of a drug transaction. She had a scale under the front seat and she has loose methamphetamine that she was furnishing to the occupants of the vehicle when the officers arrived.” He concluded with this thought: “I’m not saying that all of the meth that Ms. Reynozo had was in the possession of the defendant or that the defendant knew about each piece of those things. I’m saying that the loose methamphetamine that fell from her person and was in her front pocket was being supplied to the defendant and the other occupant of the vehicle. And we know that because it was outside of its packaging. It was distinctly different than the rest of the meth found on Ms. Reynozo.”

The jury found Perez guilty of all counts. The trial court sentenced him to four years in prison, selecting count 7 (possession of methamphetamine with a firearm) as the principal term and imposing the upper term of four years on that count. The court then selected the upper term of three years on counts 1, 2, 3, and 5, and 180 days in the county jail on count 4 but stayed those sentences pursuant to Penal Code section 654.

DISCUSSION

Perez’s sole argument on appeal is that the evidence presented to the jury was insufficient to support its finding that he possessed the methamphetamine found in the clothing and at the feet of the front seat passenger. And, absent that finding, he could not be convicted of possession of methamphetamine as alleged in count 5, or of possession of methamphetamine with a firearm as alleged in count 7.[3] We agree.

“The elements of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence and narcotic character of the drug. [Citations.] Constructive possession occurs when the accused maintains control or a right to control the contraband; possession 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.” (People v. Williams (1971) 5 Cal.3d. 211, 215.)

As Perez points out, to justify his conviction for these possessory offenses, the prosecutor must prove beyond a reasonable doubt not only that he knew of the presence of the drugs, but also that he had at least shared control over them. Mere proximity to the contraband is not sufficient to demonstrate control. (People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [“Dominion and control are essentials of possession, and they cannot be inferred from mere presence or access. Something more must be shown to support inferring of these elements”]; People v. Land (1994) 30 Cal.App.4th 220, 223‑224 [stating same rule applied to possession of a vehicle].)

Thus, in People v. Stanford (1959) 176 Cal.App.2d 388, 391, cited with approval by the Supreme Court in People v. Redrick (1961) 55 Cal.2d 282, 286 (Redrick), the defendant was in the house of a narcotics dealer and likely in the bathroom with the dealer and another man at the time the latter consummated a sale. But despite his physical proximity to the transaction, the defendant’s conviction was reversed since there was no evidence the narcotics were under his control.

Similarly, in People v. Hancock (1957), 156 Cal.App.2d 305, 309, also cited in Redrick, the defendant, a narcotics user, was in the room with another user who threw a narcotic out the window after the police knocked and identified themselves. The defendant initially told the officers he saw his companion throw the object out the window, but at trial testified he saw nothing being thrown. Nonetheless, his conviction for possession was reversed because there was no evidence that the defendant himself had dominion over the discarded drugs.

In this case, the Attorney General argues there was sufficient evidence to demonstrate that Perez had shared control over the methamphetamine because “there was a narcotics pipe and several chunks of the controlled substance outside of a baggie and on [Reynozo’s] person when police contacted all of the occupants. [Citation.] These facts suggest the police interrupted the occupants from personally using the methamphetamine while in the parked car. There is nothing in the record to suggest appellant was not about to use the methamphetamine, indicating he constructively possessed the controlled substance.”

As we said at the outset, we are not persuaded. The Attorney General’s argument suggests only that Perez anticipated sharing possession of some of the methamphetamine at some future point in time, not that he had yet possessed the drug, or exercised dominion and control over it.

There was no evidence that the occupants of the car were actually using the methamphetamine when they were “interrupted” by the police. Indeed, the officer who first encountered the car—who testified he was trained in drug recognition—did not claim he saw evidence of a pipe being used when he approached the car. There is likewise no evidence that Perez had methamphetamine in his system following the arrest.

In any event, even if we were to agree that it is reasonable to conclude immediate use of the methamphetamine would necessarily follow its removal from its packaging, that assumption would only implicate Reynozo. The Attorney General’s explicit reliance on the absence of evidence that Perez “was not about to use the methamphetamine” is telling. The argument seems to flip the burden of proof here as it highlights the dearth of any evidence on the point.

“‘“In any given case, one ‘may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.’”’” (People v. Ramon (2009) 175 Cal.App.4th 843, 851; accord, People v. Gonzales (2015) 232 Cal.App.4th 1449, 1466.) Thus, “evidence that ‘merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence . . . .’” (People v. Watkins (2012) 55 Cal.4th 999, 1024.)

The Attorney General’s second assertion—that Perez’s possession of the guns under the sweatshirt at his feet “implies he had constructive possession of the methamphetamine because he was tasked with protecting the drugs”—fares no better. There is no evidence that Perez “was tasked with protecting the drugs.” He was seated closest to the guns when the police officer encountered the car, but there was no evidence, either direct or circumstantial, that he was engaged in protecting the drugs. There was no evidence the occupants of the car were currently engaged in any activity, such as drug sales, that might have created the need for an ongoing “protection” effort when the officer arrived.[4]

The Attorney General’s assertion that Perez was “tasked with protecting the drugs” appears to be based entirely on the police officer’s trial testimony that it is common for people who possess a large quantity of methamphetamine to often have a weapon for protection. The officer did not claim that any person who possesses guns in proximity to drugs is likely to be engaged in protecting those drugs, nor did he explain how a person tasked by someone else to protect her drugs would necessarily possess those drugs as well.[5]

Given these evidentiary and analytical issues, it is not surprising that the trial prosecutor declined to make the Attorney General’s argument to the jury. To the contrary, he affirmatively eschewed any claim that Perez possessed the large amounts of methamphetamine in the baggies found near Reynozo’s feet; instead, the prosecutor argued that Perez’s possession was limited to the smaller amount of drugs Reynozo was purportedly planning to share with him and the driver. The prosecution cannot change that factual theory on appeal. (People v. Koontz (2002) 27 Cal.4th 1041, 1075‑1076, fn. 4 [“Although a party generally may not change his or her theory of the case on appeal, when a claim presents only a question of law a reviewing court may permit a change in theory”].) Consequently, the claim, even if it had merit, was forfeited.

The Attorney General relies on People v. Roberts (1964) 228 Cal.App.2d 722 (Roberts) to bolster the claim of constructive possession, claiming it is instructive due to the similarity of its facts. We find it distinguishable.

In Roberts, the defendant was in the car when the driver drove to the home of a known drug dealer to obtain heroin, which was then left in open view on the front seat where it would have been easily accessible to anyone in the car, including the defendant in the back seat. That is not the case here. Further, the appellate court in Roberts relied on evidence that the defendant was a habitual drug user who was under the influence of a narcotic at the time of his arrest. The court noted that “‘[e]vidence that a person uses narcotics and has hypodermic needle marks on his arms may be considered as a circumstance indicating possession of narcotics.’” (Roberts, supra, 228 Cal.App.2d at p. 728.) Such facts are not present here.

Like the defendant in Roberts, Perez was in the back seat of a car in which drugs were found. But there was no evidence he knew the drugs were present, let alone that he had access to them or was sharing in their use. Nor was there evidence he had a habit of using similar drugs.

Finally, the Attorney General points to evidence suggesting “consciousness of guilt” to support the assertion Perez shared possession of the drugs. The specific evidence the Attorney General relies upon is that Perez lied about his identity when questioned by a police officer. But as the jury was instructed in this case, evidence that the defendant made a false or misleading statement “cannot prove guilt by itself.” (CALCRIM No. 362.) Since there was no other substantial evidence that Perez possessed the methamphetamine found on the clothing and at the feet of the front seat passenger, consciousness of guilt evidence is all the Attorney General has left to prove Perez’s guilt on the counts alleging his possession of the methamphetamine.

As our Supreme Court has explained, “A reasonable juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.’” (People v. Crandell (1988) 46 Cal.3d 833, 871, abrogated on a different ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Arias (1996) 13 Cal.4th 92, 142.) And in this case, Perez’s consciousness of wrongdoing in connection with the incident would be fully explained by his subsequent conviction on charges relating to firearms possession. It cannot be relied upon to establish his guilt for every crime charged against him.

For the foregoing reasons, we conclude Perez’s convictions on the counts of possession of methamphetamine and possession of methamphetamine with a firearm are not supported by substantial evidence.

DISPOSITION

The judgment is reversed as to Perez’s convictions on count 5, alleging possession of methamphetamine in violation of section 11377, subdivision (a), and count 7, alleging possession of methamphetamine with a firearm in violation of section 11370.1, subdivision (a). The case is remanded to the trial court with directions

to enter Perez’s acquittal on those counts and to resentence him on his remaining convictions. In all other respects, the judgment is affirmed.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All further statutory references are to this code.

[2] It was an odd claim to make, given that both Reynozo and Perez were born in 1982.

[3] Perez makes the same insufficiency of the evidence argument in support of his contention that the trial court erred in denying his motion for acquittal on those two counts at the close of the prosecution’s case. Because the analysis is the same, we need not address the latter contention separately.

[4] The Attorney General’s suggestion that the car’s occupants were preparing to engage in casual methamphetamine use, and that Perez was engaged in protecting the drugs on its face demonstrates the speculative nature of the claims.

[5] There is no assertion, nor could there be, that gun possession is by itself necessarily associated with the possession of illegal drugs. People possess guns, for reasons that are legal or illegal, without any reference to drug possession.