In re Richard R.



























Filed 5/10/13 In re Richard R. CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
EIGHT




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In re RICHARD R., a Person Coming Under the Juvenile Court Law.	B240719
THE PEOPLE, Plaintiff and Respondent, v. RICHARD R., Defendant and Appellant.	(Los Angeles County Super. Ct. No. VJ41446)

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Fumiko H. Wasserman, Judge. Affirmed.



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, Steven D. Matthews and
Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.



___________________________

Richard R. was declared a ward of
the juvenile court and placed home on probation pursuant to Welfare and
Institutions Code 602href="#_ftn1"
name="_ftnref1" title="">[1]
upon a finding that he possessed
marijuana for sale. On appeal, he
contends there was insufficient evidence of the juvenile court’s finding. We affirm the judgment.

FACTS

Deputy Bryan Lamb of the Los
Angeles County Sherriff’s Department was patrolling the area near Rose
Hills Cemetery
in Whittier on May 21, 2011, at approximately 7:30 p.m. when he observed a Honda Civic
parked near the cemetery sign. There
were four people standing around the car and three people sitting inside, two
in the front and one in the back. Lamb
and his partner stopped near the Civic and as Lamb approached it on the
passenger side, he smelled fresh marijuana smoke coming from the car. Richard was sitting in the back of the car
and Lamb saw him “attempting to hide something underneath the driver’s seat.” Lamb did not see what was in Richard’s hands,
if anything, before and during the time his hands were under the seat.

After a lawful search, Deputy Lamb
found three small baggies of marijuana underneath the driver’s seat. This is the space Lamb observed Richard reach
down into when he saw Lamb approach the car.
The combined weight of the five baggies was just in excess of three
grams of marijuana. Two other baggies
were found under the driver’s side floorboard.
Richard was carrying two $5 bills and five $1 bills and a cell phone on
his person. On the cell phone, an
outgoing message read, “Do you want to pick up?” and the incoming text message
read, “Yes, $20.”

In a petition under Welfare and
Institutions Code section 602, Richard was charged with one count of possession
of marijuana for sale in violation of Health & Safety Code 11359. At trial, Lamb opined that Richard possessed
the marijuana for sale. The opinion was
based on his 40 hours of training on the growth, packaging, transport and sale
of marijuana and his experience in 100 marijuana-related arrests and
investigations. He also cited to “the U.S.
currency, being the denominations which are consistent with low-level sales of
marijuana, text messaging, the individual packaging, the like-size and
quantity . . . .” He
added that it is not unusual for people he arrests to have less than $20 on
them even though drug dealers usually have more. Lamb testified that the baggies at issue were
of equal quantity and, in his opinion, showed careful selection and packaging
in relation to a price to be charged per baggie.

Lamb admitted that Richard did not
appear to be under the influence of marijuana at the time of the arrest. He also did not find any “pay/owe” records on
Richard or on the cell phone. He did not
recall the dates of the text messages and he did not take the cell phone into
evidence. Lamb also admitted that it was
not unusual for someone to have three grams of marijuana for personal use. However, he testified, users typically only
purchase one bag at a time.

The trial court found the
allegation to be true and sustained the petition. Richard was ordered to be placed home on
probation. He appealed.

DISCUSSION

Richard
contends the evidence does not support a finding that he possessed marijuana
for sale. Specifically, he claims the
evidence does not establish he possessed the marijuana with knowledge of what
it was and with the specific intent to sell it.
We disagree.

In a juvenile href="http://www.fearnotlaw.com/">criminal proceeding, as in an adult
criminal proceeding, we “must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (>People v. Johnson (1980) 26 Cal.3d 557,
562; In re Babak S. (1993) 18
Cal.App.4th 1077, 1088.) “ ‘An
appellate court must accept logical inferences that the [finder of fact] might
have drawn from the circumstantial evidence.’
[Citation.] ‘Before the judgment
of the trial court can be set aside for the insufficiency of the evidence, it
must clearly appear that on no hypothesis whatever is there sufficient
substantial evidence to support the verdict of the [finder of fact].’ [Citation.]”
(People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573.) “Perhaps the
most fundamental rule of appellate law is that the judgment challenged on
appeal is presumed correct, and it is the appellant’s burden to affirmatively
demonstrate error. [Citation.] Thus, when a criminal defendant claims on
appeal that his conviction was based on insufficient evidence of one or more of
the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements
was sufficient, and the defendant
bears the burden of convincing us otherwise.
To meet that burden, it is not enough for the defendant to simply
contend, ‘without a statement or analysis of the evidence, . . . that the
evidence is insufficient to support the judgment[] of conviction.’ [Citation.]
Rather, he must affirmatively
demonstrate that the evidence is insufficient.” (Ibid.)

Here, the prosecution was required
to prove beyond a reasonable doubt that “(1) the defendant exercised
dominion and control over the controlled substance, (2) the defendant was aware
that he or she was in possession of a controlled substance, (3) the defendant
was aware of the nature of a controlled substance, (4) the controlled substance
was in an amount sufficient to be used for sale or consumption as a controlled substance,
and (5) the defendant possessed a controlled substance with the specific intent
to sell it.” (People v. Parra (1999) 70 Cal.App.4th 222, 226.)

I. Dominion
and Control

Richard first argues that he lacked
the requisite dominion and control because there is no evidence he had actual
or constructive possession of the marijuana.


The caselaw tells us that “[p]roof
of opportunity of access to a place where narcotics are found will not, without
more, support a finding of unlawful possession.
[Citation.] But the necessary
elements (that the accused exercised dominion and control over the drug with
knowledge of both its presence and its narcotic character) may be established
by circumstantial evidence and any reasonable inferences drawn from such evidence;
and neither exclusive possession of the premises nor physical possession of the
drug is required. [Citations.]” (People
v. Harrington (1970) 2 Cal.3d 991, 998, italics added.) “As might be expected, no sharp line can be
drawn to distinguish the congeries of facts which will and that which will not
constitute sufficient evidence of a defendant’s knowledge of the presence of a
narcotic in a place to which he had access, but not exclusive access, and over
which he had some control, but not exclusive control.” (People
v. Redrick (1961) 55 Cal.2d 282, 287.)

The California Supreme Court’s
analysis in People v. Hutchinson (1969)
71 Cal.2d 342, 344 (Hutchinson), is
instructive on this issue. There, the
mother of the 18-year-old defendant discovered marijuana in a closet and under
a bed in a bedroom that the defendant shared with two brothers and a
stepbrother. Two of these boys were away
on vacation in the week preceding the discovery of the contraband. However, the night before the discovery,
“friends of defendant and his brothers and sisters had visited
the . . . house for a swimming party” and “[t]he boys who
attended such swimming parties dressed and undressed in
the . . . bedroom [where the marijuana was found].” (Id. at
p. 345.) The high court stated that if
the evidence had shown only that the marijuana was hidden where it was found in
the shared room, a finding of unlawful possession would not be supported. (Id.
at pp. 345-346.)

However, the fact that the
defendant fled through his bedroom window when his mother threatened to call
the police was sufficient additional evidence from which to draw an inference
of consciousness of guilt. (>Hutchinson, supra, at p. 346.) The court explained: “The jury was not
required to accept defendant’s explanation that his flight was motivated only
by a wish to escape from his mother’s emotional outburst. The jury could
reasonably infer that his flight reflected consciousness of guilt and that he
therefore knowingly possessed the marijuana found in the bedroom and
closet.” (Ibid.) Under >Hutchinson, the evidence is sufficient
to establish possession where (1) the contraband is located in a place to which
persons other than defendant had access, and (2) there is conduct by the
defendant indicating consciousness of guilt.

Here, the marijuana was found in a
place to which defendant did not have exclusive access; there were two other
people in the car with him at the time of the search. However, there was evidence of consciousness
of guilt by Richard. Lamb testified that
Richard was moving or hiding something when he approached the car. There is no indication that any of the other
occupants of the car exhibited similar behavior. As in Hutchinson,
the evidence was sufficient to establish Richard had constructive possession of
the marijuana.

II. Knowledge
of the Presence and Character of the Narcotics Found

Richard next contends the evidence
was insufficient to establish he knew of the presence and nature of the
marijuana. According to Richard, “the
marijuana was found on the floor of a vehicle in which appellant was merely a
passenger. No marijuana was apparently
found on him nor among any of his affects and, apart from his alleged furtive
movements, which may or may not have been in response to Lamb’s presence, there
is no evidence of any physical or verbal signs of consciousness of guilt. Appellant did not attempt to flee, give false
identifying information, or give implausible or conflicting excuses or
explanations. As such, appellant asserts
that the fact that baggies containing marijuana were found in an area of a
vehicle to which appellant had access, was insufficient to impute knowledge of
their presence and nature.”

In support of this contention,
Richard relies on a number of cases that follow the rule that mere “proof of
opportunity of access to a place where narcotics are found, without more, will
not support a finding of unlawful possession.”
(People v. Redrick, supra, 55
Cal.2d at p. 285.) These cases are
distinguishable from the facts at hand.
The cases relied upon lacked evidence that the defendant either knew of
or had control over the narcotics.

More relevant here are those cases
which involve opportunity to access coupled with a defendant’s suspicious
conduct or attempt to mislead the police.
In those cases, knowledge of a substance’s narcotic nature was shown by
evidence of a 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. (>People v. Redrick, supra, 55 Cal.2d at
pp. 287-288 [defendant told police he did not have key and did not know where
key to storeroom containing narcotics was although he told his employer a few
days before that he had the storeroom key]; People
v. Eckstrom (1986) 187 Cal.App.3d 323, 331-332[defendant was wearing
camouflage and attempted to hide by moving further into the brush when police
officers announced themselves]; People v.
Maese (1980) 105 Cal.App.3d 710, 717 [defendant did not open the door
after the police announced themselves and was heard moving away from the door];
People v. Simmons (1971)
19 Cal.App.3d 960, 965 [officers observed defendant drop needle and red
balloon from car].) Knowledge of the
nature of the substance may also be proven 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. Simmons, supra, at
p. 965 [needle marks on defendant’s arms]; People
v. Thornton (2000) 85 Cal.App.4th 44, 49-50 [defendant volunteered he tried
heroin several times]; People v. Maese,
supra, at p. 717 [admitted drug use at time of arrest].)

The evidence here showed that
Richard not only had access to the marijuana, he exhibited suspicious behavior
when he attempted to hide something under the driver’s seat when Lamb
approached. Moreover, Lamb smelled fresh
marijuana smoke coming from the car.
There is sufficient evidence on this record to support a finding that
Richard knew of the presence and nature of the marijuana in the car.

III. Intent
to Sell

Last, Richard argues that there is href="http://www.mcmillanlaw.com/">insufficient evidence to support a
finding of a specific intent to sell.
Proof of possession of narcotics for sale may be shown by circumstantial
evidence. (People v. De La Torre (1968) 268 Cal.App.2d 122, 126.) Such evidence may consist of the quantity of
the narcotic, the equipment found with it, the place it was found, the manner
of packaging, and the opinion of an expert that the narcotic was being held for
sale. (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another
point in People v. Daniels (1975) 14
Cal.3d 857, 862.)

At trial, Lamb opined that Richard
possessed the marijuana for sale. In
particular, Lamb based his opinion on the text messages, the quantity and the
individual packaging. Lamb observed that
the baggies at issue were of equal quantity and, in his opinion, showed careful
selection and packaging in relation to a price to be charged per baggie. Also, Richard’s cell phone showed an outgoing
message asking, “Do you want to pick up,” and a reply stating, “Yes, $20.” Under the above caselaw, this is sufficient
evidence to support the trial court’s finding that Richard had the intent to
sell the marijuana. That there may have
been additional facts supporting an intent to keep the marijuana for personal
use – the smell of marijuana smoke, the small amount of cash found on Richard,
the absence of pay/owe records – is immaterial.
We are in no position to weigh any conflicts or disputes in the
evidence. We are bound by the
findings of the trier of fact if they are supported by href="http://www.fearnotlaw.com/">substantial evidence. (In re
Ryan N. (2001) 92 Cal.App.4th 1359, 1373.)


DISPOSITION

The
judgment is affirmed.



BIGELOW, P. J.

We concur:



RUBIN, J.





GRIMES, J.