P. v. Elmore
Filed
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. MORRIS ELMORE, Defendant and Appellant. | D047555 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian, III, Judge. Affirmed.
Morris Elmore appeals a judgment following his jury conviction of one count of offering to sell or furnish cocaine base (Health & Saf. Code, § 11352, subd. (a))[1] and one count of possession of cocaine base (§ 11350, subd. (a)). On appeal, he contends the evidence is insufficient to support each conviction.
FACTUAL AND PROCEDURAL BACKGROUND
At about
Elmore told Schneider, " 'Let's walk down here.' " Elmore appeared nervous and repeatedly looked over his shoulder as they walked south along
Elmore then told Schneider they needed to walk. As they walked, Elmore asked Schneider a couple of times to lift up his shirt in the front and back. Schneider complied. Elmore also reached out and patted Schneider's clothing a couple of times. On reaching Seventh Avenue and E Street, they sat down quietly for a long time. Schneider repeatedly asked Elmore, " 'Where's my rock?' " Elmore became agitated and told Schneider to be cool and patient and not ask that question again. They stood up and began walking north along Seventh Avenue. Schneider began feeling uncomfortable and concerned for his safety. After they crossed Broadway, Officer William Martinez, who was in uniform and part of the narcotics street team, stopped and arrested Elmore. The arrest occurred about 45 minutes to one hour after Schneider's initial contact with Elmore. Martinez conducted a pat-down search of Elmore's outer clothing and searched his pockets.[5] Martinez did not find any narcotics on Elmore during that search. However, when Martinez placed handcuffs on Elmore, he saw a white residue on Elmore's right palm that appeared to be cocaine residue.
Martinez transported Elmore to, and placed him in a holding cell at, the police department's central division. Before placing Elmore in the holding cell, Martinez searched the cell to make sure it was clean. There were no rocks, pieces of rock cocaine, plastic wrap, or powdery substances in the holding cell when Martinez placed Elmore in the cell. There were no other persons in the holding cell when Martinez placed Elmore in the cell.[6] Although the holding cells are within the view of nearby officers, none of the officers were assigned to constantly observe Elmore or other persons in the cells. When Schneider arrived to remove Elmore from the holding cell, Elmore was alone in the cell. Schneider saw a bright white powdery substance directly beneath the bench on which Elmore was seated. He had Elmore stand up. Schneider saw the same white powdery substance on the bench and down the back wall (along its rib) to the floor.[7] Schneider also saw a plastic wrapper stuffed directly behind the bench inside one of the wall's ribs. The plastic wrapper was the same one with the green writing he had seen earlier in Elmore's hands at the public telephone. Also underneath the bench where Elmore had been seated, Schneider found a yellowish, or off-white, chunk or rock-like substance, later determined to be .45 grams of rock cocaine or cocaine base.[8]
The $20 bill Schneider gave Elmore was subsequently found on Johnson.
An information charged Elmore with offering to sell or furnish cocaine base (§ 11352, subd. (a)) and possession of cocaine base (§ 11350, subd. (a)). It also alleged Elmore had four no-probation prior convictions (Pen. Code, § 1203, subd. (e)(4)). At trial, Schneider, Martinez, and other prosecution witnesses testified substantially as described ante. In Elmore's defense, Officer Jose Laguda testified he did not know if Rudy Cosby was in the same holding cell as Elmore. On cross-examination by the prosecutor, Laguda testified suspects often hide narcotics in places where they cannot be easily found during a pat-down search (e.g., in underwear, under a waistband, or between their buttocks). Arrestees occasionally have " dumped" controlled substances in holding cells.
The jury found Elmore guilty of the two charged offenses. After striking one of the four no-probation prior conviction allegations, the trial court found true the remaining three allegations. The court sentenced Elmore to the middle four-year term for his section 11352, subdivision (a) conviction and, pursuant to Penal Code section 654, suspended execution of a two-year term for his section 11350, subdivision (a) conviction.
Elmore timely filed a notice of appeal.
DISCUSSION
I
Substantial Evidence Standard of Review
When on appeal a defendant challenges his or her conviction for insufficient evidence, we apply the substantial evidence standard of review. " Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ' " isolated bits of evidence." ' [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics added in Cuevas.) We " must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) " We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . ." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) Furthermore, " [a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones, supra, 51 Cal.3d at p. 314.)
" The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]" (People v. Stanley (1995) 10 Cal.4th 764, 792.) If the circumstances reasonably justify the trier of fact's findings, our opinion that the circumstances might also be reasonably reconciled with a contrary finding does not warrant reversal of the judgment. (Id. at p. 793; People v. Bean (1988) 46 Cal.3d 919, 933; People v. Hillery (1965) 62 Cal.2d 692, 702.)
II
Section 11352, Subdivision (a) Conviction
Elmore contends the evidence is insufficient to support his section 11352, subdivision (a) conviction for offering to sell or furnish cocaine base.
A
Section 11352, subdivision (a), provides: " [E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, . . . any controlled substance . . . shall be punished by imprisonment in the state prison for three, four, or five years." (Italics added.) " In an offer to sell a narcotic, the proscribed act is the making of the offer. An accompanying intent to do a further act, i.e., to sell, is inherent, making the offense a specific intent crime." (People v. Daniels (1975) 14 Cal.3d 857, 861.) People v. Encerti (1982) 130 Cal.App.3d 791 stated:
" The elements of the offense here in question--offering to sell heroin--are an offer to sell the drug with the specific intent to make a sale. [Citations.] The proscribed act is the making of the offer. [Citation.] But, the offense is complete when an offer is made with the accompanying requisite intent; neither delivery of the drug, an exchange of money, nor a direct, unequivocal act toward a sale are necessary elements of the offense. [Citations.]" (Id. at pp. 800-801, italics added.)
Because specific intent to sell a narcotic is an essential element of the crime of offering to sell a narcotic, " [p]ersons who offer to sell narcotics with no intention of performing are not engaged in narcotics traffic. Their behavior is not materially different from that of other 'bunco' offenders . . . ." (People v. Jackson (1963) 59 Cal.2d 468, 469-470.) " [D]elivery is not an essential element of the offense of offering to sell a narcotic. [Citations.]" (Id. at p. 469.)
In this case, the trial court instructed the jury with a modified version of CALJIC No. 12.03 on the charged section 11352, subdivision (a) offense of offering to sell or furnish cocaine base, a controlled substance:
" Defendant is accused in Count One of having violated section 11352 of the Health and Safety Code, a crime.
" Every person who offers to sell, furnish, administer, or give away cocaine base, a controlled substance, is guilty of a violation of Health and Safety Code section 11352, a crime.
" In order to prove this crime, each of the following elements must be proved:
" 1. A person offered to sell, furnish, administer or give away cocaine base, a controlled substance; and
" 2. The person making the offer had the specific intent to sell, furnish, administer or give away the controlled substance." (Italics added.)
The trial court also instructed with a modified version of CALJIC No. 3.31:
" In the crime charged in Count One, namely, Offer to Sell/Furnish Cocaine Base, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the crime to which it relates is not committed. [¶] The specific intent required is included in the definition of the crime set forth elsewhere in these instructions."
In support of his assertion the evidence is insufficient to support a finding he had the specific intent to sell cocaine base, Elmore argues the evidence " suggests" his intent was to swindle Schneider by selling the innocuous white powdery substance to him, or to take Schneider's money and run, or to delay the formation of an intent to sell until he verified Schneider was not an undercover officer. However, in so arguing, Elmore misconstrues and/or misapplies the applicable substantial evidence standard of review. In applying that standard, we do not review the record looking for evidence that would have supported a contrary finding by the jury (e.g., that Elmore did not have the requisite specific intent to sell); rather, we review the whole record to determine whether there is substantial evidence to support the finding actually made by the jury (e.g., that Elmore had the requisite specific intent to sell). (People v. Cuevas, supra, 12 Cal.4th at pp. 260-261; People v. Stanley, supra, 10 Cal.4th at p. 793; People v. Bean, supra, 46 Cal.3d at pp. 932-933; People v. Hillery, supra, 62 Cal.2d at p. 702.) In so doing, we consider the evidence, and make all reasonable inferences therefrom, favorably to support the jury's verdict. (People v. Jones, supra, 51 Cal.3d at p. 314; Jessup Farms v. Baldwin, supra, 33 Cal.3d at p. 660.)
Our review of the whole record in this case shows there is substantial evidence to support the jury's finding that Elmore had the specific intent to sell cocaine base to Schneider. First, when Schneider inquired aloud whether anyone had drugs for sale, Elmore made eye contact with Schneider, walked past him, and then wiggled his fingers behind his back, indicating Schneider should follow him. Schneider followed Elmore to a nearby outdoor public telephone. While pretending to make a call, Elmore asked Schneider, " 'What are you looking for?' " Understanding that to mean how much rock cocaine he wanted, Schneider replied he wanted " a fat dub," indicating he wanted twice the amount for the price. Elmore patted the inside of the telephone enclosure and told Schneider, " 'Put the money down.' " Schneider placed a $20 bill next to Elmore's hand. Elmore picked up the $20 bill, closely examined it, folded it into a small square or rectangle, and then put it in his pants pocket. As Elmore led Schneider along
Based on the whole record, we conclude the jury could reasonably infer from the evidence that Elmore had the specific intent to sell cocaine base to Schneider because Elmore responded to Schneider's request for drugs, asked him what drugs he was looking for, told him to put his money down, took Schneider's $20 bill, proceeded to find Johnson, and then obtained rock cocaine from Johnson with Schneider's $20 bill in a parking lot while Schneider watched for police. Although Elmore never delivered the rock cocaine to Schneider, delivery is not required for an offer to sell. (People v. Jackson, supra, 59 Cal.2d at p. 469.) The jury could reasonably infer he had the specific intent to sell or furnish cocaine base to Schneider even though Elmore was arrested before he delivered any cocaine base to him.
Although the evidence in the record could have supported a different inference by the jury (i.e., that Elmore did not have the requisite specific intent to sell), it is not our function to make reasonable inferences different from those made by the jury or to otherwise second-guess the jury's consideration of the evidence. Although Elmore appeared cautious during his interaction with Schneider and purchase of rock cocaine from Johnson, his caution did not necessarily disprove that he had the requisite specific intent to sell cocaine to Schneider. On the contrary, the jury could reasonably infer that Elmore was cautious because he, in fact, had the specific intent to sell cocaine base to Schneider and did not want to be arrested for offering to sell (or selling) cocaine base to him. The jury reasonably rejected other possible inferences from the evidence--e.g., that his intent was to swindle Schneider by selling the innocuous white powdery substance to him, or to take Schneider's money and run, or to delay the formation of an intent to sell until he verified Schneider was not an undercover officer. Elmore has not carried his burden on appeal to show there is insufficient evidence to support the jury's finding he had the specific intent to sell cocaine base.[9]
To the extent Elmore also asserts the evidence is insufficient to support the jury's finding that his offer to sell cocaine base was concurrent with his specific intent to sell it, he does not present any substantive analysis of the evidence in the record showing the absence of a concurrence. Although he apparently argues the extended period over which the incident occurred (i.e., from 45 minutes to one hour) shows the absence of a concurrence, we conclude the jury could reasonably infer Elmore had the requisite specific intent to sell cocaine base to Schneider at the same time he offered to sell it to him. Although the jury's verdict did not expressly set forth when that concurrence occurred, considering the evidence favorably to support that verdict, we conclude the jury could have reasonably inferred Elmore had the requisite specific intent to sell cocaine base to Schneider at the time he (Elmore) asked him what drugs he was looking for and, after being informed he wanted to purchase rock cocaine, Elmore accepted the $20 bill from him. We conclude there is substantial evidence to support the jury's finding that when Elmore offered to sell cocaine base to Schneider he concurrently had the requisite specific intent to sell it. There is substantial evidence to support Elmore's section 11352, subdivision (a) conviction for offering to sell or furnish cocaine base.
III
Section 11350, Subdivision (a) Conviction
Elmore contends the evidence is insufficient to support his section 11350, subdivision (a) conviction for possession of cocaine base.
A
Section 11350, subdivision (a), provides: " [E]very person who possesses . . . any controlled substance . . . shall be punished by imprisonment in the state prison." People v. Groom (1964) 60 Cal.2d 694 stated:
" Unlawful possession of narcotics is established by proof (1) that the accused exercised dominion and control over the contraband, (2) that he had knowledge of its presence, and (3) that the accused had knowledge that the material was a narcotic. [Citation.] The foregoing elements may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citation.] And finally when the sufficiency of the evidence is challenged an appellate court must affirm if the record contains substantial evidence of all elements of the crime. [Citation.]" (Id. at pp. 696-697, italics added.)
" Exclusive possession of the premises where the drug is found is not required, nor is physical possession of the drug. [Citation.] Possession need not be exclusive; while mere access to the place where the contraband is found in not enough, the fact that other persons had access does not negative a finding of joint possession and control. [Citation.]" (People v. Fusaro (1971) 18 Cal.App.3d 877, 891, italics added, disapproved on another ground in People v. Brigham (1979) 25 Cal.3d 283, 292, fn. 14.) " Possession may be actual or constructive. [Citations.]" (People v. Showers (1968) 68 Cal.2d 639, 643.) " Constructive possession is sufficient . . . ." (People v. Boddie (1969) 274 Cal.App.2d 408, 411.) " The narcotic need not be found on the person of the defendant. It is sufficient if found in a place or area under the possession and control of the accused. [Citations.]" (Hacker v. Superior Court (1968) 268 Cal.App.2d 387, 392.) Showers stated:
" Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control. [Citations.] Even if the accused does not have exclusive control of the hiding place, possession may be imputed if he has not abandoned the narcotic and no other person has obtained possession. [Citations.]" (People v. Showers, supra, 68 Cal.2d at p. 644.)
In this case, the trial court instructed with a modified version of CALJIC No. 12.00 on the elements of a section 11350, subdivision (a) offense for possession of cocaine base. That instruction stated: " 'Constructive possession' does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons." The court also instructed with CALJIC No. 2.01 on circumstantial evidence.
Elmore argues the evidence is insufficient to support a finding he had the requisite dominion and control over the rock cocaine found in his holding cell.[10] First, he argues only circumstantial evidence supports a finding he exercised dominion and control over the rock cocaine. However, circumstantial evidence, and reasonable inferences therefrom, may be sufficient to prove the elements of a possession offense, including the element of dominion and control. (People v. Groom, supra, 60 Cal.2d at pp. 696-697.) Furthermore, to the extent Elmore argues we must reverse his conviction for insufficiency of evidence if circumstantial evidence could also have supported a contrary rational inference that he did not exercise dominion and control over the rock cocaine, he misconstrues the applicable substantial evidence standard of review.[11]
Second, Elmore argues there is substantial evidence that other persons may have been in his holding cell and therefore those persons could have had dominion and control over the rock cocaine found in that cell. However, in so arguing, Elmore again either misconstrues and/or misapplies the applicable substantial evidence standard of review. In applying that standard, we do not review the record looking for evidence that would have supported a contrary finding by the jury (e.g., that Elmore did not have the requisite dominion and control over the rock cocaine); rather, we review the whole record to determine whether there is substantial evidence to support the finding actually made by the jury (e.g., that Elmore had the requisite dominion and control). (People v. Cuevas, supra, 12 Cal.4th at pp. 260-261; People v. Stanley, supra, 10 Cal.4th at p. 793; People v. Bean, supra, 46 Cal.3d at pp. 932-933; People v. Hillery, supra, 62 Cal.2d at p. 702.) In so doing, we consider the evidence (both direct and circumstantial), and make all reasonable inferences therefrom, favorably to support the jury's verdict. (Stanley, at pp. 792-793; People v. Groom, supra, 60 Cal.2d at pp. 696-697; People v. Jones, supra, 51 Cal.3d at p. 314; Jessup Farms v. Baldwin, supra, 33 Cal.3d at p. 660.)
Our review of the whole record in this case shows there is substantial evidence to support the jury's finding that Elmore exercised dominion and control over the rock cocaine found in his holding cell. Martinez testified that when he placed Elmore in the holding cell, Elmore was the only person in that cell. Furthermore, when Schneider arrived to remove Elmore from the cell, Elmore was the only person in the cell. At trial, there was no substantial direct or circumstantial evidence proving there were other persons in the holding cell during Elmore's period of detention there. The jury could reasonably infer that Elmore was alone in the holding cell during his entire period of detention. It is speculation by Elmore that there may have been other persons (e.g, Johnson) in his cell during that period (or, for that matter, that those other persons had exclusive dominion and control over the rock cocaine). In any event, assuming arguendo there may have been substantial evidence to support a contrary finding that other persons were in Elmore's holding cell during his period of detention, applying the substantial evidence standard of review, we nevertheless conclude there is substantial evidence to support a finding by the jury that there were, in fact, no other persons in his cell during that period. (Cf. People v. Ross (1957) 149 Cal.App.2d 287, 289 [despite defendant's testimony he shared room with another, trier of fact found defendant had exclusive possession of room]; People v. Elliott (1960) 186 Cal.App.2d 178, 185 [" The finding of narcotics in a room occupied by an accused raises a reasonable inference that the illegal drug is his even though he may share the room with another." ].)
Furthermore, we conclude there is substantial evidence to support the jury's finding Elmore exercised dominion and control over the rock cocaine found in his holding cell. Martinez testified that before he placed Elmore in the holding cell, he (Martinez) searched the cell to make sure it was clean. There were no rocks, pieces of rock cocaine, plastic wrap, or powdery substances in the holding cell when Martinez placed Elmore in the cell. There were no other persons in the holding cell when Martinez placed Elmore in the cell. When Schneider arrived to remove Elmore from the holding cell, Elmore was alone in that cell. Schneider saw a bright white powdery substance directly beneath the bench on which Elmore was seated. He had Elmore stand up. Schneider saw the same white powdery substance on the bench and down the back wall (along its rib) to the floor. Schneider also saw a plastic wrapper stuffed directly behind the bench inside one of the wall's ribs. The plastic wrapper was the same one with the green writing that he had seen earlier in Elmore's hands at the public telephone. Also underneath the bench where Elmore had been seated, Schneider found a yellowish, or off-white, chunk or rock-like substance, later determined to be .45 grams of rock cocaine or cocaine base. Based on that evidence, the jury could reasonably infer Elmore exercised dominion and control over the .45-gram piece of rock cocaine found directly under the bench where Elmore had been seated in the holding cell in which he was the only person detained. (People v. Webb (1967) 66 Cal.2d 107, 127 [substantial evidence supported jury's finding defendant exercised dominion and control over drugs found on floor of car beneath seat where defendant sat as its driver and sole occupant]; People v. Wilborn (1999) 70 Cal.App.4th 339, 341-342, 348-349 [substantial evidence supported jury's finding defendant exercised dominion and control over drugs found on floor of car beneath seat where defendant sat as its driver]; cf. People v. Elliott, supra, 186 Cal.App.2d at p. 185.)
The fact Elmore was searched by police twice before being placed in the holding cell did not disprove that he possessed the .45-gram piece of rock cocaine found in his holding cell. The jury could reasonably infer those prior pat-down and inventory searches by police were insufficient to, and did not, find that piece of rock cocaine Elmore, in fact, possessed and had hidden somewhere on his person. Furthermore, to the extent Elmore also argues he could not have possessed the .45-gram piece of rock cocaine because Schneider's testimony could have supported a finding he (Elmore) purchased only two smaller pieces of rock cocaine (apparently about .2 grams each) from Johnson, that testimony by Schneider did not preclude the jury from reasonably inferring either that Elmore did, in fact, purchase the .45-gram piece from Johnson (and Schneider's estimate of the rocks' sizes was mistaken) or that Elmore obtained and possessed that .45-piece independently of the transaction with Johnson. The .45-gram piece of rock cocaine was found directly beneath the bench on which Elmore had been seated while alone in the holding cell, supporting a reasonable inference he had exclusive dominion and control over that rock cocaine regardless of where he may have obtained it.
We conclude there is substantial evidence to support Elmore's section 11350, subdivision (a) conviction for possession of cocaine base.
DISPOSITION
The judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
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[1] All statutory references are to the Health and Safety Code unless otherwise specified.
[2] A " dub" apparently means the person is looking for twice as much rock cocaine for his or her money (e.g., a $40 piece for $20).
[3] Schneider thought the wrapper may have been a piece of a plastic grocery bag.
[4] Elmore and Johnson either embraced or shook hands.
[5] Because of the public area in which Elmore was arrested, Martinez did not search Elmore's underwear or body cavities.
[6] Records are not maintained showing whether there may have been other persons in that cell during Elmore's detention.
[7] Subsequent testing of the bright white powder that was mixed with some chunky material showed it did not contain a controlled substance, but its chunks were possibly pill fragments.
[8] Schneider later testified .45 grams of rock cocaine generally sells for about $40 on the street. However, Martinez testified that if a person asked for twice the amount of cocaine for his or her money (e.g., " dub me up" ), .45 grams of rock cocaine could be sold for $20.
[9] None of the cases cited by Elmore are apposite or persuade us to conclude otherwise. (See, e.g., People v. Jackson, supra, 59 Cal.2d at pp. 469-470 [reversing defendant's conviction because instructions omitted element of specific intent to sell]; People v. Camarillo (1964) 225 Cal.App.2d 127, 131-132 [same]; People v. Innes (1971) 16 Cal.App.3d 175.)
[10] Elmore does not argue on appeal that there is insufficient evidence to support the other elements of a section 11350, subdivision (a) offense for possession of cocaine base.
[11] Citing People v. Rivera (2003) 109 Cal.App.4th 1241, at page 1245, Elmore argues: " A finding of guilt may not be based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the defendant is guilty of the crime, but also cannot be reconciled with any other rational conclusion." In so doing, Elmore merely restates a portion of CALJIC No. 2.01 regarding the jury's consideration of circumstantial evidence. That principle of law does not apply to our review on appeal of the record for substantial evidence to support the jury's finding that Elmore exercised dominion and control over the rock cocaine. Rivera did not hold that an appellate court must apply that principle of law in reviewing the jury's finding; rather, it only quotes CALJIC No. 2.01 regarding the jury's consideration of circumstantial evidence and concluded substantial circumstantial evidence supported the jury's finding in that case. (Rivera, at p. 1245.)
