P. v. Seay

Filed 3/15/07 P. v. Seay CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed.

Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant Curtis Blaine Reynolds.

Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant Charleen Helene Seay.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Alana Cohen Butler, Deputy Attorney General, for Plaintiff and Respondent.

Defendants and appellants Charleen Helene Seay (Seay) and Curtis Blaine Reynolds (Reynolds) challenge their convictions after sheriffs deputies executed a search warrant on Seays home and found methamphetamine packaged for sale. As discussed below, we conclude that sufficient evidence supports the convictions and so affirm the judgment.

FACTS

On November 23, 2005, sheriffs deputies executed a search warrant on Seays mobile home. The deputies knocked and announced themselves, then entered the residence by opening the front door after they heard multiple footsteps running from the living room in the front of the residence to the rear of the residence. The deputies found five or six people in the living room and ordered them to get down on the floor. Seays 15-year-old niece, who was living with Seay, was among that group.

Deputies went to the rear of the residence and saw Seay coming out of the master bedroom. They ordered Seay to get down on the ground. Seay replied, Who? Who Me? and, after some delay, eventually complied. Deputy Pennington testified that she acted like she had no idea what was going on and that it appeared to him that she was stalling.

Deputy Pennington entered the master bedroom in the back of the residence and saw Reynolds sitting on the end of the bed and another person sitting on a stool. There was a broken glass pipe on the nightstand and a small plastic bag of methamphetamine^[1]on the floor between the bed and the nightstand. Several glass pipes were in a dresser. A purse on the bed contained Seays identification and several empty small plastic bags of the same type as the bag of methamphetamine found on the floor. Reynolds had on his person $370 in cash, consisting of a $100 bill and multiple 20s, 10s and 5s. Reynolds also had several empty small plastic bags balled up in his right sock. Nothing of interest was found on the other person in the master bedroom.

In the master bathroom, Deputy Burns found on the countertop a small plastic scale, a $20 bill, a $10 bill and a measuring cup that was used with the scale. The measuring cup had what appeared to be methamphetamine residue in it. In the waste basket, Deputy Burns saw three or four small plastic bags containing what appeared to be methamphetamine. They were sitting on top of an unused, but crumpled napkin. Deputy Burns testified that it appeared the napkin had been used to cover up what was underneath it.

Deputy Pennington entered the bathroom and looked in the waste basket. Underneath the plastic bags, he found the crumpled, unused paper napkin that covered several other plastic bags containing methamphetamine.^[2] A total of seven small plastic bags were found in the waste basket. No usable fingerprints were found on the bags.

A jury convicted Reynolds of possession for sale of a controlled substance. (Health & Saf. Code, 11378.) At a bifurcated hearing, Reynolds admitted two prior prison term allegations (Pen. Code, 667.5) and two prior drug-related conviction allegations (Health & Saf. Code, 11370.2, subd. (c)). The trial court imposed a total term of four years.

The same jury convicted Seay of possession for sale of a controlled substance, maintaining a place for selling or using controlled substances (Health & Saf. Code, 11366), and felony child endangerment (Pen. Code, 273a, subd. (a)). The trial court placed Seay on probation for 60 months on condition she serve 365 days in jail.

Discussion

1. Reynolds Sufficient Evidence of Possession for Sale

Reynolds argues that the evidence supports an equal but inconsistent inference that he was a mere purchaser of methamphetamine rather than a seller, and therefore the jury was required to acquit him.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Reynolds cites People v. Earp (1999) 20 Cal.4th 826 for its discussion of sufficiency of the evidence based on circumstantial evidence. Where, as here, the jurys findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding does not render the evidence insubstantial. [Citation.] (Id. at pp. 887-888.) More to the point, Reynolds also refers to the rule that, where proven facts give equal support to two inconsistent inferences, neither is established and the judgment, as a matter of law, must go against the People, upon whom rests the burden of proving each element of the crime beyond a reasonable doubt. (People v. Allen (1985) 165 Cal.App.3d 616, 626; People v. Acevedo (2003) 105 Cal.App.4th 195, 197-198, citing People v. Brown (1989) 216 Cal.App.3d 596, 599-600.) We conclude that the evidence weighs much more heavily toward an inference that Reynolds possessed methamphetamine for sale than that he possessed it for personal use. Thus, the conviction on this count must stand.

The elements of possession for sale of prohibited drugs are: (1) exercise of dominion and control over it, either directly or through another person; (2) awareness of its presence; (3) knowledge of its nature as a controlled substance; (4) possession of an amount sufficient to be used for sale or consumption; and (5) with the specific intent to sell it. (People v. Parra (1999) 70 Cal.App.4th 222, 226.) Here, Reynolds challenges the possession and specific intent to sell elements. Specifically, Reynolds argues that the $370 on his person and the unused small plastic bags hidden in his sock support an inconsistent but equal inference that he was present to purchase methamphetamine, not sell it.

Actual or constructive possession may be established by circumstantial evidence and any reasonable inferences to be drawn from it. (People v. Williams (1971) 5 Cal.3d 211, 215.) Possession may be imputed when the contraband is found in an area which is immediately and exclusively accessible to the defendant and subject to his dominion and control, or to the joint dominion and control of the defendant or another. (Ibid.) Neither physical possession of the substance nor exclusive possession of the premises is required. (People v. Harrington (1970) 2 Cal.3d 991, 998.) In addition, a conviction may be upheld based upon the opinion of an experienced officer that an individual possessed narcotics for sale based on such matters as quantity, packaging and normal use of an individual. (People v. Parra, supra, 70 Cal.App.4th at p. 227.)

Here, Deputy Burns testified that the most common denominations used to purchase methamphetamine are 10s and 20s. He also testified that the amount of methamphetamine purchased for personal use is normally one gram or less. Deputy Burns testified that the small scale found on the bathroom counter is of the type usually used in street level drug sales. He gave his opinion, using his experience and training, based on the scale, the $10 and $20 bills right next to the scale, and the baggies containing what appeared to be methamphetamine, that the methamphetamine was possessed for sale.

Deputy Burns testified that the unused small plastic bags he found hidden in Reynoldss sock appeared to be the same type as those he found in the master bathroom that appeared to contain methamphetamine. Based on this similarity and what he found in the master bathroom, Deputy Burns believed that Reynolds was involved in the sale of methamphetamine. Deputy Pennington expressed the same opinion, based on the numerous baggies found in his sock and the quantity of cash that he had in his pocket as well as the scale found in the master bathroom.

Deputy Catalano testified that when methamphetamine is packaged for personal use, it is normally found in a single small plastic bag or bindle, not in multiple bags, and not accompanied by multiple denominations of money, such as 5s, 10s and 20s. He also testified that, based on his training and experience, the methamphetamine in the residence was possessed for sale, based on the presence of the scale, the amount and denominations of money, the unused baggies for packaging, and the multiple baggies that were already weighed out and sealed and packaged ready for sales. He also testified that, based on his training and experience and the evidence found at the scene, he believed Reynolds possessed the methamphetamine for sale.

Deputy Pennington testified that persons possessing methamphetamine for personal use do not normally have more than $100 dollars on them, but that persons possessing for sale often have larger amounts of money, sometimes $100 bills, 50s and 20s, depending what their connection is as far as the sales, how high up they are in the range. He also stated that Reynolds was sitting closer to the master bathroom than was the other person in the master bedroom.

The above evidence weighs much more heavily toward the inference that Reynolds possessed the methamphetamine and that he did so for the purpose of sale, than that he was a mere purchaser of the drug. We conclude that the jurys verdict on this count is supported by substantial evidence.

2. Seay Sufficient Evidence of Maintaining a Drug House

Seay argues there is insufficient evidence to support her conviction for maintaining a drug house. Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance . . . shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. (Health & Saf. Code, 11366.) The statute is aimed at places intended to be utilized for a continuing prohibited purpose, and a single or isolated instance of misconduct does not suffice to establish a violation. [Citations.] (People v. Vera (1999) 69 Cal.App.4th 1100, 1102.) Specifically, Seay contends the People did not meet their burden to prove beyond a reasonable doubt that Seays home was being used as a drug house on a repetitive or continuing basis.^[3]

Seay cites People v. Hawkins (2004) 124 Cal.App.4th 675 for the proposition that evidence of a single instance of drug sales at a residence is not sufficient to affirm a conviction for maintaining a drug house. This is a true statement of the law. However, that case also suggests that evidence of a single instance, accompanied by circumstances supporting a reasonable inference that the house was used for the prohibited purposes continuously or repetitively, would support a conviction for maintaining a drug house. (Id. at p. 682.) Here, the circumstances supporting a reasonable inference of repetitive use are Deputy Penningtons statements on the witness stand that he had prior contacts at that residence, which lead him to believe that the residence had been used as a drug house on a continuing basis, as well as the fact that neighbors in the neighborhood called on the house nonstop. While we would prefer that the testimony was more exact as to the nature of the previous contacts and the numerous complaints from neighbors, we find this evidence supports a reasonable inference of repetitive use as a drug house because: 1) the prior contacts and phone calls from neighbors formed the basis for Deputy Penningtons testimony that he believed that the residence was used as a drug house on a continuing basis; and 2) the presence of the scale and numerous bags of methamphetamine packaged for sale support an inference that the sales were more than a one-time occurrence. Thus, we conclude that substantial evidence supports the jurys verdict on this count.

3. Seay Sufficient Evidence of Abetting Possession for Sale

Seay was convicted of possessing methamphetamine for sale as an aider and abettor, based on her actions in providing Reynolds with a place from which to sell the drug. Seay also argues that, based on the lack of evidence that she maintained a drug house on a repetitive or continuing basis, she also could not be convicted of possession for sale as an aider and abettor. Similarly, because we conclude that sufficient evidence supports the jurys verdict that Seay maintained a drug house, the conviction for possession for sale must also stand.

4. Seay Sufficient Evidence of Felony Child Endangerment

Seay argues that insufficient evidence supports her conviction for felony child endangerment. Any person who, under circumstances or conditions likely to produce great bodily harm or death . . . having the care or custody of any child . . . willfully causes or permits that child to be placed in a situation where his or her person or health is endangered . . . is guilty of felony child endangerment. (Pen. Code, 273a, subd. (a).)

Here, Seay contends that there is insufficient evidence that conditions in the residence were likely to produce great bodily harm or death. This is because, at the time of the arrest no one in the residence was harmed, no one acted erratically, there was no violence, and the minor was not found in the same part of the residence as the drugs.

The term likely in the context of Penal Code section 273a is defined as a substantial danger, i.e., a serious and well-founded risk, not more likely than not. (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.) The inquiry does not focus on the immediacy of the risk to the child, but rather would the consequences . . . reasonably have been foreseen by a careful, prudent person[.] (People v. Kinkead (2000) 80 Cal.App.4th 1113, 1121.)

Here, Deputy Pennington testified that he had been to at least 100 residences where drugs were sold and that certain dangers were associated with having a minor at such a drug house. He highlighted the dangers from the type of people that go to these houses. Youre going to have people with long criminal records, drug use, sexual abuse, just numerous people smoking the methamphetamine in the house around the minor child. He also mentioned that the minor might have access to use the drugs herself. It is common for other criminals to raid drug houses to get their drugs or money, shoot people, beat them up, which is an obvious danger to the minor. He agreed with the prosecutors characterization of that type of situation as one where the minor was in danger possibly of losing his or her life or seriously bodily injury or harm. He went on to describe that he had been to the residence more than once before and that he had chased armed subjects into that residence.

On cross-examination, Deputy Pennington testified that no weapons were found at the home, no one was acting erratically and there was no violence at the time the search warrant was served, and there was no evidence that the minor had ingested any illicit drug.

Although there is no evidence that the minor suffered actual harm, a careful, prudent person would have reasonably foreseen the dangers to the minor, about which Deputy Pennington testified. These risks to the minor from living in a home where drugs were regularly sold were serious and well founded, rather than merely speculative. Thus, the conviction on this count is affirmed.

5. Seay Instruction on Lesser Included Child Endangerment Offense

Seay argues her conviction for felony child endangerment must be reversed because the evidence required the trial court to instruct the jury, sua sponte, on the lesser included offense of misdemeanor child endangerment, and it is reasonably probable she would have been convicted of the lesser charge had the jury been so instructed.

A trial court has a sua sponte duty to instruct on a lesser included offense if the record contains substantial evidence that would support a guilty verdict on the lesser offense, but not the greater. (People v. Waidla (2000) 22 Cal.4th 690, 733.) In determining whether it has a duty to instruct, the court must not discount evidence that is substantial based on its own assessment of the credibility or sufficiency of the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Misdemeanor child endangerment is a lesser included offense of felony child endangerment. (People v. Sheffield (1985) 168 Cal.App.3d 158, 167, overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12.) All the elements of misdemeanor child endangerment are contained in felony child endangerment. The only additional element found in felony child endangerment under Penal Code section 273a, subdivision (a), is that the defendants act or omission placed the child under circumstances or conditions likely to produce great bodily injury or death. (See Pen. Code, 273a, subds. (a) & (b);^[4]People v. Lee (1991) 234 Cal.App.3d 1214, 1220.)

Here, the evidence was overwhelming that the danger to the minor was likely, i.e., a substantial danger, constituting a serious and well-founded risk (People v. Wilson, supra, 138 Cal.App.4th at p. 1204) and that the risk was of great bodily injury or death, rather than something lesser. Being in the home into which law enforcement had on one occasion chased armed suspects, in itself, constitutes a risk of bodily injury or death. In addition, the other dangers described by Deputy Pennington, such as raids by other criminals to obtain drugs or money, danger from the types of people who frequent drug houses, and the risk that the minor might choose to use or be encouraged to use methamphetamine, are all well-founded risks from living in a drug house that could result in death or bodily harm. Thus, the trial court did not err when it did not instruct the jury on the lesser included charge of misdemeanor child endangerment.

Disposition

The convictions are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ King

J.

/s/ Miller

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1]The bag was found to contain .22 grams of methamphetamine.

^[2]Four of the seven bags were tested and found to contain .71 to .73 grams of methamphetamine each.

^[3]The jury was instructed on this element using CALJIC No. 12.08: In order to prove this crime, each of the following elements must be proved: [] 1. A person opened or maintained any place; and [] 2. That person did so with the specific intent to sell, give away, or use [a controlled substance or narcotic drug] on a repetitive or continuing basis.

^[4]Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death . . . having the care or custody of any child . . . willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor. (Pen. Code, 273a, subd. (b).)