P. v. Acosta
1/14/13 P. v. Acosta CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
(Kern Super. Ct. No. BF119844B)
from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II and John R.
M. Leavitt, under appointment by the Court of Appeal, for Defendant and
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen
and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Miguel Acosta, Jr., stands
convicted of transportation of
methamphetamine, narcotic possession for sale, narcotic possession while
armed, felon in possession of a firearm, and felon in possession of
ammunition. Multiple enhancements also
were found true. Acosta challenges the
sufficiency of the evidence to support the convictions, contending there was a
lack of evidence he was in possession.
He also contends the trial court erred in denying his suppression motion
and in calculating the penalty assessments imposed at sentencing. The penalty assessments imposed are
incorrect. Acosta’s other contentions
lack merit. We will correct the penalty
assessments and in all other respects affirm the judgment.
FACTUAL AND PROCEDURAL
June 13, 2007, around 4:10
p.m., Rebecca Long was in her Chevy SUV,
along with her five children and nephew, traveling on Highway 99. Acosta was in his pickup with his
daughter. When Acosta merged into Long’s
lane, both drivers flipped each other off with their middle fingers.
was enraged and tailgated Long’s vehicle at speeds of up to 70 miles per
hour. As Acosta sped up and pulled up
alongside the passenger side of Long’s vehicle, one of Long’s children yelled, “[T]he guy has a gun.” The children saw that Acosta was pointing a
gun at their mother. Acosta appeared to
be shouting at them.
passed a California Highway Patrol vehicle and honked to signal for help. Long asked the children to write down
Acosta’s license plate number. Acosta
immediately turned off at the next exit; Long drove home and dialed 911.
officer who responded to the 911 call retrieved the license plate number and
tracked it to a residence, where the officer saw Acosta washing his
pickup. Acosta admitted to an incident
on the freeway involving an SUV and a female driver; he denied pointing a gun
two weeks later, on June 24, around 10:30 p.m., Jolene Clement
picked up Acosta in an alley in East
Bakersfield. Clement was driving her Mustang; Acosta sat
in the front passenger seat. Clement
drove to a nearby gas station and Acosta paid for the gas for the car. Clement drove back through the alley and
spotted a patrol car. She pulled over
and parked. Acosta told Clement to step
out of the vehicle with him and they both exited the Mustang.
Claudia Payne and Charles Sherman asked Clement for permission to search the
Mustang. Clement gave permission and
handed over the keys to the Mustang.
Clement felt she had nothing to hide.
Clement told the officers she was on probation for the crime of being
under the influence of methamphetamine.
Clement and Acosta were detained by Sherman, Payne
walked over to the Mustang and used a flashlight to look through the front
passenger window; she saw a clear plastic baggie and some type of metal object
between the passenger seat and the center console. Payne walked around the Mustang, entered the
car through the driver’s door, and leaned over to look at the passenger
side. Payne notified Sherman she had
found a gun and that Clement and Acosta should be handcuffed. Sherman called for backup.
Daniel Champness arrived in response to the request for backup. Sherman directed Champness to search the car while the other officers
detained Clement and Acosta. Champness
found a loaded .22-caliber revolver under the front passenger seat, along with
17.89 grams of methamphetamine, a large amount of marijuana, a pack of Marlboro
cigarettes, and an Altoids mint tin.
There was no drug paraphernalia commonly associated with use of the
expressed surprise that the drugs and gun had been found in her car. Clement told Sherman her
fingerprints would not be on the items.
Acosta and Clement were arrested.
As a result of a search incident to arrest, Acosta was found to have
$125 in cash in his possession. Acosta
did not have a cell phone, but one was found on Clement. The phone continued to ring during the search
April 10, 2008, Acosta was charged with transportation of methamphetamine, in
count 1, narcotic possession for sale in count 2, narcotic possession while
armed with a loaded and operable firearm in count 3, being a felon in
possession of a firearm in count 4, and being a felon in possession of
ammunition in count 5. In the same
amended information, charges of drawing a firearm in a motor vehicle and being
a felon in possession of a firearm were added as counts 6 and 7,
respectively. Enhancements also were
initially was charged as a codefendant in the first three counts. The charges against her were dismissed when
she agreed to testify at Acosta’s trial.
trial, the parties stipulated that the revolver found in the Mustang was
operational and functional, meeting the Penal Code requirements. They also entered into a stipulation that the
17.89 grams of methamphetamine were a usable amount and that Acosta had
sustained a prior felony conviction.
at trial that the methamphetamine was equal to 80 to 200 doses for a normal
user. Sherman opined that
the methamphetamine was possessed for sale based upon the large quantity, the
absence of any narcotic user paraphernalia, and the presence of a firearm
typically used for protection during the business of selling narcotics.
testified that the cash on his person was money he had earned from his
business. He produced a business license
and a cash receipt dated June 24, 2007. He stated he did not hide, or attempt to
hide, a gun or methamphetamine in the Mustang.
Regarding the incident on Highway 99, Acosta admitted being involved in
the incident, but denied pointing a gun at Long’s car. Acosta stated he did not own or possess a gun
because of his status as a felon.
jury found Acosta guilty of all six counts.
As to counts 1 and 2, the jury also found true that Acosta was
personally armed with a firearm. In a
bifurcated proceeding, the trial court found true that Acosta had a prior
was sentenced to a total term of 16 years four months in prison; various fines
and assessments were imposed.
three issues in this appeal: (1) the
trial court erred in denying his motion to suppress the evidence found in the
Mustang; (2) the evidence was insufficient to support the jury’s determination
that he was in possession of the drugs, gun, and ammunition described in counts
1 through 5; and (3) the DNA collection fee imposed was erroneous and should be
Motion to Suppress
the trial court erred in denying his suppression motion. We disagree.
On March 6, 2008, Acosta moved to suppress all evidence obtained from the Mustang,
claiming there were no grounds upon which to detain him in the alley. The People filed opposition to Acosta’s
motion, contending in part that Acosta had no expectation of privacy to items
in Clement’s Mustang, Clement consented to the search of her car, and the items
were in plain view.
The trial court
held an evidentiary hearing on April 16, 2008. Payne testified that she
and Sherman were dispatched to a liquor store.
Upon arriving around 10:38 p.m., Payne noticed a
motorcycle with a partially peeled registration tag. A Mustang pulled up in the alley and parked;
the occupants got out and walked toward Payne.
Acosta if the motorcycle belonged to him and Acosta replied affirmatively. Acosta showed Payne the keys to the
motorcycle, but stated it was not yet registered in his name. Payne noticed Acosta did not have a motorcycle
helmet with him.
Clement spoke up
and told Payne she had just given Acosta a ride in her car. Clement volunteered she was on probation for
possession of methamphetamine. Payne was
alone at this moment and asked Acosta and Clement, “Do you have anything that
could hurt me?” Clement turned around
with her arms apart and Payne conducted a pat search. Acosta did the same. Payne found no weapon on either of them.
Payne and ran a records check for a valid driver’s license for Acosta and
Clement. Payne asked Acosta for his
motorcycle license and helmet; Acosta had neither.
Clement if the Mustang belonged to her and if anything illegal was inside. Clement replied, “No. You can check if you want,” and handed the
keys to Payne. Payne found the clear
plastic baggie and the gun on the passenger side floorboard next to the center
argument, the trial court found that Acosta had been illegally detained after
showing his motorcycle key to Payne. The
trial court also found, however, that there was no causal link between the
illegal detention and the search of the vehicle because the search was
conducted by virtue of Clement’s consent and probation status. Alternatively, if the search of the car was
derivative to the illegal detention of Acosta, the trial court found the
evidence could be admitted under the attenuation doctrine (i.e., that the
connection between the source and the evidence was so attenuated that it would
serve no legitimate purpose to suppress the evidence). Finally, the trial court found that Acosta
had no expectation of privacy to Clement’s car.
The trial court denied the motion to suppress.
Acosta filed a
second motion to suppress the evidence
obtained from the search of his person and of Clement, claiming it was the fruit
of an illegal detention. The People
opposed this suppression motion on several grounds, including that the evidence
was obtained incident to a lawful arrest and inevitable discovery.
On May 13, 2008,
the trial court held a second evidentiary hearing. Sherman testified that he received
information from Payne that drugs and a weapon were found in the Mustang on the
passenger side, where Acosta had exited.
Based on this information, Sherman arrested Acosta. Sherman also walked to the Mustang and saw for
himself the firearm and narcotics on the floorboard protruding from under the
front passenger seat. Sherman conducted
a “booking search” of Acosta.
argument, the trial court ruled that Sherman had cause to arrest Acosta. Accordingly, the second motion to suppress
also was denied.
The standard of review to determine
whether the trial court properly denied a motion to suppress evidence 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.’ [Citation.]” (People
v. Maury (2003) 30 Cal.4th 342, 384.)
On review of a motion to suppress evidence, “ ‘the power to judge
the credibility of the witnesses, resolve any conflicts in the testimony, weigh
the evidence and draw factual inferences, is vested in the trial court.’ ” (People
v. Manning (1973) 33 Cal.App.3d 586, 599.)
appeal we consider the correctness of the trial court’s ruling itself, not the correctness of the trial
court’s reasons for reaching its
decision. (People v. Zapien (1993) 4 Cal.4th 929, 976 [if the trial court’s
ruling is correct ‘ “ ‘upon any theory of the law applicable to the
case, it must be sustained regardless of the considerations which may have
moved the trial court to its conclusion’ ” ’]; People v. Braeseke (1979) 25 Cal.3d 691, 700-701.)” (People
v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
The trial court
did not err in denying either the first or second motion to suppress. Regardless of whether Acosta’s detention was
illegal, the search of the Mustang was conducted pursuant to the consent of the
owner, Clement, and also based on her probation status. The Mustang was not a focus of any
investigation and was not searched until after Clement volunteered that she was
on probation for possession of methamphetamine.
Acosta does not argue
that Clement lacked authority to grant permission to search the Mustang or that
her consent was not freely and voluntarily given. Clement felt she had nothing to hide, freely
admitted her probation status, and offered her keys to officers to search her
car. Clement, in fact, was surprised
that drugs and a gun were found in her car and exclaimed that her fingerprints
would not be on the items. If any taint
to the search of the Mustang existed from an illegal detention, Clement’s
consent was “sufficiently an act of free will to purge the primary
taint .…” (Wong Sun v. United States (1963) 371 U.S. 471, 486.)
claim any right to privacy in Clement’s Mustang. “[A] warrantless search, justified by a
probation search condition, may extend to common areas, shared by
nonprobationers, over which the probationer has ‘common authority.’ [Citation.]”
(People v. Smith (2002) 95
Cal.App.4th 912, 916.) Thus, “[i]t is
true that if persons live with a probationer, common or shared areas of their
residence may be searched by officers aware of an applicable search
condition. [Citations.]” (People
v. Robles (2000) 23 Cal.4th 789, 798, fn. omitted.) Moreover, “ ‘[t]hose associating with a
probationer assume the ongoing risk that their
property and effects in common or shared areas of a residence may be
subject to search.’ [Citations.]” (Smith,
at p. 919.)
California Supreme Court noted that both drivers and passengers of a vehicle
have a reduced expectation of privacy in the interior of a car and its
contents. (People v. Schmitz (2012)55 Cal.4th 909, 920, 924 (Schmitz).) In Schmitz,
a front seat passenger was on parole and contraband was found in the rear
seat. In rejecting a challenge to the
reasonableness of the search, the court noted that “a reasonable officer may
take all of the circumstances into account when conducting a parole search of
an automobile for property, contraband, or weapons” and held that a search
based on a passenger’s parole status may extend beyond the parolee’s person and
seat he or she occupies. (Id. at p. 926.)
of whether the Mustang was searched pursuant to a probation search or by virtue
of consent, Acosta has no right to privacy in a vehicle owned by Clement that
was lawfully searched by officers.
Acosta showed no property or possessory interest in the car, no right of
control, and no right to exclude anyone.
(Rakas v. Illinois (1978) 439
U.S. 128, 147-149.)
and search incident to arrest were not the result of an illegal detention,
contrary to his claim. Sherman testified
that Acosta was arrested based upon the discovery of the drugs and weapon in
Once the search
of the Mustang was executed and the drugs and weapon were recovered from the
passenger floorboard, probable cause to arrest Acosta existed. “ ‘Probable cause for arrest exists
“when the facts known to the arresting officer ‘would lead a [person] of
ordinary care and prudence to believe and conscientiously entertain an honest
and strong suspicion that the person is guilty of a crime.’ [Citations.]”
[Citation.]’ ” (People v. Limon (1993) 17 Cal.App.4th
524, 537.) When an officer has probable
cause to arrest a person, a warrantless search is justified as a search
incident to arrest. (Virginia v. Moore (2008) 553 U.S. 164,
178.) Moreover, when the formal arrest
follows quickly on the heels of the challenged search, it is not important that
the search precede the arrest rather than vice versa. (People
v. Limon, supra, at p. 538.)
The revolver and
drugs were discovered by officers pursuant to a lawful search of the Mustang –
lawful based upon Clement’s consent to search her car. Once discovered, these items provided
probable cause to arrest Acosta and to conduct a search of his person incident
to arrest. We conclude the trial court
did not err in denying Acosta’s motions to suppress evidence. (People
v. Ayala (2000) 23 Cal.4th 225, 255.)
II. Sufficiency of the Evidence
the evidence was insufficient to support the convictions in counts 1 through 5
because the evidence did not support the conclusion that he possessed the
drugs, gun, or ammunition and these convictions should be reversed. He also contends the jury’s true finding that
he was personally armed with a firearm should be reversed. We disagree.
Standard of review
“It is the
prosecution’s burden in a criminal case to prove every element of a crime
beyond a reasonable doubt.
[Citation.]” (People v. Cuevas (1995) 12 Cal.4th 252,
260-261.) The appellate court, to
determine whether the prosecution has introduced sufficient evidence to meet
this burden, must determine “ ‘whether from the evidence, including all
reasonable inferences to be drawn therefrom, there is any substantial evidence
of the existence of each element of the offense charged.’ [Citations.]”
(People v. Crittenden (1994) 9
Cal.4th 83, 139, fn. 13.) In making this
determination, “ ‘we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence–that is,
evidence that is reasonable, credible, and of solid value–from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] … We presume in support of the judgment the
existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding.’ [Citation.]” (People
v. D’Arcy (2010) 48 Cal.4th 257, 293.)
“[W]e do not
reweigh the evidence; the credibility of witnesses and the weight to be
accorded to the evidence are matters exclusively within the province of the
trier of fact. [Citation.]” (People
v. Stewart (2000) 77 Cal.App.4th 785, 790.)
“ ‘To warrant the rejection of the statements given by a witness
who has been believed by the [trier of fact], there must exist either a
physical impossibility that they are true, or their falsity must be apparent
without resorting to inferences or deductions.’ ” (People
v. Barnes (1986) 42 Cal.3d 284, 306 (Barnes).) “ ‘ “ ‘Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal
of a judgment .…’ ” ’ ”
(People v. Cantrell (1992) 7
Cal.App.4th 523, 538 (Cantrell).)
challenges the evidence of possession of narcotics, a gun, and ammunition. Possession may be actual physical possession
or constructive possession, and more than one person may possess the same
contraband. (In re Daniel G. (2004) 120 Cal.App.4th 824, 831 (Daniel G.).) Criminal possession of ammunition, and
likewise a gun, may be established by actual possession or constructive
possession. (People v. Williams (2009) 170 Cal.App.4th 587, 625.) One may be criminally liable for possession
for sale or for transportation of a controlled substance, based upon either
actual or constructive possession of the substance. (People
v. Rogers (1971) 5 Cal.3d 129, 134.)
possession means the object is in the defendant’s immediate possession or
control…. Constructive possession means
the object is not in the defendant’s physical possession, but the defendant
knowingly exercises control or the right to control the object. [Citation.]”
(Daniel G., supra, 120
Cal.App.4th at p. 831.) A defendant has
constructive possession when the weapon, or other contraband, while not in his
actual possession, is nonetheless under his dominion and control, either
directly or through others. (People v. Pena (1999) 74 Cal.App.4th
1078, 1083-1084.) The element of
possession may be established by circumstantial
evidence and any reasonable inferences drawn from such evidence. (People
v. Palaschak (1995) 9 Cal.4th 1236, 1242 (Palaschak).)
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.]”
(People v. Newman (1971) 5
Cal.3d 48, 52.) Joint constructive
possession may be inferred from joint control and accessibility. (Id.
at p. 53.)
through the window, Payne first observed the baggie and a metal object on the
floorboard between the front passenger seat and the center console. Payne made this observation shortly after
Acosta stepped out from the front passenger seat of the vehicle. The evidence established that Acosta sat in
the front passenger seat the entire time he was in Clement’s vehicle – from the
time Clement picked him up, during the drive to the gas station, and the return
drive to the alley where officers saw Acosta step out of the front passenger
side of the Mustang. To Acosta, seated
in the front passenger seat, the gun and baggie of drugs would have been in
The only two
people in the car, Clement and Acosta, both testified. Clement was surprised to learn that drugs and
a gun were found in her vehicle. She
said she had nothing to hide, which was why she volunteered that she was on
probation for being under the influence of methamphetamine, consented to a
search of the car, and offered her car keys to the officers. Although initially jointly charged with
Acosta, all charges against Clement had been dismissed approximately one year
before she testified. Acosta also
testified, claiming that he did not hide the drugs or gun in the Mustang
because he was not allowed to legally possess either by virtue of his status as
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.
[Citations.]” (People v. Rushing (1989) 209 Cal.App.3d
618, 622.) The fact that Clement and
Acosta were both in the vehicle did not preclude the jury from deciding that
Acosta was in possession of the loaded weapon and narcotics.
contends the evidence was insufficient as a matter of law to establish
constructive possession, no sharp line can be drawn to distinguish the facts
that will and will not constitute sufficient evidence of a defendant’s
knowledge of the presence of a narcotic, firearm, and ammunition in a place to
which he had access, but not exclusive access, and over which he had control,
but not exclusive control. (People v. Redrick (1961) 55 Cal.2d 282,
287.) As the court stated in Schmitz, “the law does not presume that
a front seat passenger has nothing to do with items located elsewhere in the
passenger compartment of a car.” (Schmitz, supra, slip opn. at p. 17.)
It was within
the province of the jury to credit Clement’s testimony and reject Acosta’s
version of events. (Barnes, supra, 42 Cal.3d at p. 303.) Acosta’s argument that there was no direct
evidence he placed the loaded gun and the drugs in the Mustang misses the
point. Direct evidence is not needed as
circumstantial evidence suffices. (Palaschak, supra, 9 Cal.4th at p.
1242.) Moreover, Acosta’s contention
appears to constitute an argument that this court should reject the jury’s
interpretation of the evidence and instead accept his version of events, which
we cannot do. (Cantrell, supra, 7 Cal.App.4th at p. 538.)
The testimony of
even one witness is sufficient to sustain a conviction. (People
v. Provencio (1989) 210 Cal.App.3d 290, 306.) Here, more than one witness established that
Acosta was in the front passenger seat, had ready access to and control of the
loaded gun and the narcotics, and the only other person who had access to the
vehicle had acted inconsistently with knowledge of the contraband.
DNA Collection Fee
and the People agree, that the DNA collection fee imposed pursuant to
Government Code section 76104.7 is an unauthorized amount. Government Code section 76104.7 was enacted
in 2006. (Stats. 2006, ch. 69,
§ 18.) That statute was amended
effective June 10, 2010, to increase the amount of the fee. (Stats. 2010, 8th Ex. Sess. 2009-2010, ch.
3X, § 1.)
collection fee is a penalty assessment.
(People v. Batman (2008) 159
Cal.App.4th 587, 590-592.) Penalty
assessments cannot be imposed in violation of ex post facto laws. (People
v. Voit (2011) 200 Cal.App.4th 1353, 1374.)
For a penalty assessment, the amount of the fine is determined as of the
date of the offense. (People v. Saelee (1995) 35 Cal.App.4th
trial court erroneously imposed the amount of the fee according to the statute
in effect in 2010. The amount of the fee
should have been determined according to the statute in effect at the time the
offenses were committed in 2007 and a lesser fee amount imposed.
trial court is directed to prepare an amended abstract of judgment setting
forth the corrected DNA collection fee pursuant to Government Code section
76104.7, determined as of the date of the offenses. In all other respects the judgment is
Kane, Acting P.J.
* Judge Twisselman ruled on the motions to
suppress held on April 16 and May 13, 2008; Judge Brownlee presided over the
trial and remaining issues on appeal.