In re F.R.
Filed 7/29/13 In re F.R. CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re F.R., a Person Coming
Under the Juvenile Court Law.
B244701
(Los Angeles
County
Super. Ct.
No. MJ21219)
THE PEOPLE,
Plaintiff and Respondent,
v.
F.R.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Akemi Arakaki, Judge.
Reversed.
Bruce G.
Finebaum, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, and Paul M. Roadarmel, Jr.,
Deputy Attorney General, for Plaintiff and Respondent.
F.R. was declared a ward of the juvenile court after
the court sustained a petition alleging a single count of
dihydrocodeinone (Health & Saf. Code, § 11350, subd. (a)).
insufficient evidence he knew the pills in his pocket were a controlled
substance, a necessary element of the offense.
We reverse.
FACTUAL AND
PROCEDURAL BACKGROUND
1. The Incident
On December 15, 2011 two Palmdale High School teachers directed school
security guard Michael Rigby to an area where they said two students were
smoking marijuana. F.R., then 16 years
old, was one of the students. When Rigby
walked over, he smelled marijuana but apparently did not observe either student
actually smoking it or any other evidence of its presence at the scene. Rigby searched F.R. and found several pills
in his left front pants pocket. Rigby
gave the pills to Los Angeles County Deputy Sheriff Chad Hornig, who was
assigned to Palmdale High School. After Hornig received the pills, he arrested
F.R. for possession of a controlled substance.
One of the pills was white and oblong shaped and had
the marking “M360†on it. The other
pills had the marking “9358â€; their shape was never described. Deputy Hornig sent the pills to the poison
control office for identification.
Senior Criminalist Hector Juarez examined three pills and found they had
markings indicating they contained dihydrocodeinone; one was tested and found
to contain dihydrocodeinone, also known as hydrocodone.
2.
The District Attorney filed a petition on February 16,
2012 pursuant to Welfare and Institutions Code section 602 alleging F.R. had
committed one felony count of possession of a controlled substance (§ 11350, subd. (a)).
search of F.R. and the recovery of the pills from his pocket. Rigby testified he found “some pillsâ€; he did
not specify the number or describe them and did not recall whether the pills
were loose or in a prescription bottle.
sheriff for 20 years and had narcotics training “on and off†and had had
contact with thousands of controlled substances. He testified Rigby gave him “several pills,
different kinds,†but described only two types—one marked “M360†and the others
marked “9358.†He did not identify any
other distinctive aspect of the pills.
F.R. did not testify in his own defense, and his
counsel called no other witnesses.
At the close of the People’s case, F.R.’s counsel
moved to dismiss the petition pursuant to Welfare and Institutions Code section
701.1 based on the People’s failure to prove F.R. knew the pills contained a
controlled substance, one of the elements of a violation of section 11350,
subdivision (a). The court denied the
motion and then, after hearing argument, sustained the petition,
explaining, “[T]here is the knowledge requirement, but the court can take into
consideration all of the surrounding circumstances including the markings on
the—on the items, the way they were packaged.
The court can take—can and should take into consideration all of the
surrounding circumstances with regard to the detention. And based on the circumstances, the court
does believe beyond a reasonable doubt that the minor did have knowledge of the
narcotic nature of the items.â€
name="_ftnref5" title="">[5]
3.
After sustaining the petition, the
court declared F.R. a ward of the court and placed him home on probation for
six months. The court also ordered F.R.
to perform 40 hours of community service, pay restitution, submit to drug
testing and complete counseling.
DISCUSSION
1.
The same standard governs
review of the sufficiency of evidence in juvenile cases as in adult criminal cases: “[W]e review the whole record to determine
whether any rational trier of fact
could have found the essential elements of the crime or special circumstances
beyond a reasonable doubt.
[Citation.] The record must
disclose substantial evidence to support the verdict—i.e., 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. [Citation.]
In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for
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 upon which a
determination depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence. [Citation.]’
[Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to supportâ€â€™ the
jury’s verdict.†(People v. Zamudio (2008) 43 Cal.4th 327, 357; see
537, 540.)
2. There
Is Insufficient Evidence To Support a Finding F.R. Knew the Pills Contained a
Controlled or Restricted Substance
To establish F.R. violated section 11350, subdivision
(a), the People were required to prove three elements: (1) F.R. had dominion
and control of a controlled substance in a quantity usable for consumption or
sale; (2) he had knowledge of its presence; and (3) he had knowledge of its
“restricted dangerous drug character.†(
1180, 1184; People v. Palaschak (1995) 9 Cal.4th 1236, 1242; see CALCRIM
No. 2304.)
title="">[6] F.R.’s appeal challenges solely the
sufficiency of the evidence to support the third element: knowledge of the pills’ nature as a
controlled or restricted substance.
Knowledge of the nature of the substance, like the
other elements of the crime of simple possession of a controlled substance, may
be established by circumstantial evidence
and any reasonable inferences drawn from that evidence. (People v. Williams (1971) 5 Cal.3d
211, 215 (Williams); People v.
Palaschak, supra, 9 Cal.4th at p. 1242.)
For example, “knowledge
of a substance’s narcotic nature
may be shown by evidence of the defendant’s furtive acts and suspicious conduct
indicating a consciousness of guilt, such as an attempt to flee or an attempt
to hide or dispose of the contraband [citations], or by evidence showing a
familiarity with the substance, such as needle marks or other physical
manifestations of drug use or instances of prior drug use.†(People v. Tripp (2007) 151
Cal.App.4th 951, 956; see, e.g., People
v. Rushing (1989) 209 Cal.App.3d 618, 622, fn. 2 [jury could
reasonably infer defendant knew of the controlled nature of cocaine in his
possession by the fact it was hidden in a WD-40 can with a false bottom].)
There is no evidence in the record here either that
F.R. acted in a manner indicating a consciousness of guilt or that he had any
familiarity with hydrocodone. He did not
attempt to flee from the school security guard or give any false statements to
the guard or to Deputy Hornig. (See
723, 725 [substantial evidence of knowledge where defendant with heroin in
shirt pocket fled upon seeing officers and lied about his employment and
residence].) He made no effort to hide
or dispose of the pills. (See
650, 651 [substantial evidence of knowledge where defendant hid small white
pill-shaped tablets of morphine in match box and tossed match box from his
pocket upon officer’s arrival].) There
was no showing he was familiar with prescription pain killers, had in his
possession any paraphernalia associated with this type of controlled substance
or manifested any signs of actual drug use.
(See People v. Garringer
(1975) 48 Cal.App.3d 827, 830-831 [substantial evidence where defendant
knew red phenobarbital capsules were “some kind of drugs,†had dilated, red and
watery eyes, slurred and incoherent speech and unsteady balance].) Similarly, because the pills were simply
loose in F.R.’s pants pocket and not, for example, in a prescription bottle
with someone else’s name on the label, there was nothing about their
“packaging†that indicated their restricted nature. (See People
v. Anderson (1970) 6 Cal.App.3d 364, 371 [“[i]t would be most extraordinary
that the defendant would attempt to deny that she knew the nature of the green
leafy substance which was wrapped in a cellophane bag within a box which she
was carrying in her purseâ€].)
Contrary to the People’s argument, the fact Rigby
smelled marijuana as he approached F.R. does not support the inference F.R.
knew what he possessed was a controlled substance. Rigby did not testify either of the two
students was, in fact, smoking marijuana; and nothing in the record indicates
any marijuana was found anywhere near the site, let alone in F.R.’s
possession. Moreover, possession or use
of marijuana, even if it had been proved, does not suggest familiarity with the
restricted character of hydrocodone.
(Cf. People v. Williams (1988) 44 Cal.3d 883, 905 [the other-act
evidence must serve “logically, naturally, and by reasonable inference†to
establish the disputed fact].) Marijuana
is packaged and ingested in a way completely dissimilar from prescription
pills.
In sum, the only evidence to support an inference F.R.
knew the pills contained a controlled substance was their presence in his pants
pocket and the fact he had two different types of pills, as reflected by the
alphanumeric markings on them.
(White) that “mere possession of a
narcotic constitutes substantial evidence that the possessor of the narcotic
knew its nature,†the People argue no more is needed. However, as the Supreme Court itself
recognized in Williams, supra, 5
Cal.3d at page 216, White does not
stand for such a sweeping proposition—one that would effectively eliminate
knowledge of the character of the substance as an element of the crime of
possession of a controlled substance. (
because “we find no evidence whatsoever, circumstantial or otherwise, to
support a finding that defendant knew the tablets in Shublin’s car were
restricted dangerous drugsâ€].)
In White
four marijuana cigarettes and two burnt cigarette stubs (“roachesâ€) were found
on a dresser in the defendant’s bedroom.
(White, supra, 71 Cal.2d 80 at p. 82.)
Thus, the Supreme Court’s conclusion “mere possession†constitutes
substantial evidence of the defendant’s knowledge of the restricted dangerous
nature of the substance in his possession was made in a context in which the
very appearance of the recovered items themselves signaled their illicit
character. The marijuana in the
cigarettes was necessarily prepared for ingestion with the substance ground and
rolled into papers to be lit and smoked; the roaches indicated prior drug use
or familiarity with the substance. In
addition, marijuana has a particularly distinctive and identifiable quality—a
green, leafy texture and unique odor.
(See People v. Anderson, supra, 6
Cal.App.3d at p. 371.)
In Williams,
in contrast, the Supreme Court acknowledged the presence of contraband on an
accused’s person or among his or her personal effects “ordinarily†will be
sufficient proof the accused knew what he or she possessed and its nature. (Williams,
supra, 5 Cal.3d at p. 216.) Mere
possession, however, is not always proof of knowledge, particularly when, as in
the case before it, the defendant had only “constructive possession†of the
substance—that is, “dominion and control and immediate access to
contraband.†(Ibid.) In that situation the
Court found, “[d]efendant’s knowledge of the presence of the tablets would not necessarily establish defendant’s
knowledge of their character; the
officer described these tablets as ‘white’ and ‘double-scored’ and as
‘resembling’ benzedrine, but there was no evidence in the record that these
tablets were particularly distinctive or identifiable as restricted dangerous
drugs, or that defendant or anyone else would have recognized the tablets as
such.†(Id. at p. 215.) Accordingly,
the Court held, “although defendant may have been in constructive possession of
the contraband [found on the floor in front of the passenger seat of a vehicle
in which he was riding], such possession alone does not satisfy the requirement
of knowledge developed by the cases.†(
151 Cal.App.4th at pp. 958-959 [“[w]e read Williams as clarifying that the circumstances of the defendant’s
possession in White so strongly
suggested he knew of the drug’s narcotic nature that those circumstances also
provided proof of the knowledge elementâ€].)
Here, as in Williams,
there was no evidence to suggest F.R. knew the nature of the pills in his
possession. A white oblong tablet with
alphanumeric markings describes generic, off-the-shelf acetaminophen, as well
as the controlled substances F.R. actually possessed. Nothing in the record indicates the pills
were distinctive or readily identifiable as restricted dangerous drugs. That F.R. had two different types of nondescript
pills or that he was a high school student—the additional factors identified by
the juvenile court to support its finding of knowledge—is insufficient to prove
this element of the crime.
To be sure, we, like the juvenile court, have a strong
suspicion F.R. knew exactly what he had in his pocket. But as the Supreme Court held in
745, 755, and reiterated in Williams,
supra, 5 Cal.3d at pages 216 through 217, “Evidence which merely raises a
strong suspicion of the defendant’s guilt is not sufficient to support a
conviction. Suspicion is not evidence;
it merely raises a possibility, and this is not a sufficient basis for an
inference of fact.†(See
when only evidence of defendant’s knowledge of nature of methamphetamine, which
resembled spilled salt, was its presence on the nightstand in defendant’s room
in a house he shared with others].) The
evidence was insufficient to support the finding F.R. knew the pills contained
hydrocodone.
DISPOSITION
The juvenile court’s order is reversed.
PERLUSS,
P. J.
We
concur:
WOODS,
J. ZELON,
J.
are to the Health and Safety Code unless otherwise indicated.
minute order from the jurisdiction hearing states F.R.’s counsel stipulated
Juarez analyzed the tablets and determined they contained dihydrocodeinone
although the reporter’s transcript of the oral stipulation identifies the
substance phonetically as “hydrocodinine.â€
Dihydrocodeinone is also known as hydrocodone. (National Center for Biotechnology
Information, PubChem Substance, Dihydrocodeinone – Substance Summary at
[as of July 29, 2013].) According
to the United States Drug Enforcement Administration website, “Hydrocodone is
the most frequently prescribed opioid in the United States and is associated
with more drug abuse and diversion than any other licit or illicit
opioid.†(Drug Enforcement
Administration, Drug Fact Sheet, Hydrocodone, at
[as of July 29, 2013].) Two
well-known prescription brand versions of hydrocodone in combination with
acetaminophen are Vicodin and Lortab. (
