P. v. Camus
Filed 7/9/12 P.
v. Camus 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN R.
CAMUS,
Defendant and Appellant.
F062961
(Super. Ct. No. 11CM8505)
THE COURT
APPEAL from a judgment of the Superior Court of
Donna L. Tarter, Judge.
Rex
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez
and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant, Steven R. Camus, was
convicted by a jury of possession of a
controlled substance in prison (Pen. Code, § 4573.6). Following the jury trial, Camus admitted the
prior strike allegation and a prior prison term allegation. Camus was sentenced to the upper term of four
years, doubled to eight years for the prior strike conviction, plus one year
for the prior prison term, for a total of nine years in prison. Camus contends there was no
heroin, and the trial court violated the dual use prohibition in
sentencing. We will affirm.
FACTS
On
April 24,
2010, Salvador Ochoa, a correctional
officer at Avenal State Prison, and his partner, Robert Buttal, prepared to
conduct random locker searches in housing unit 450, which contained 24
dorms. Each dorm houses 12 to 14 inmates
and contains their beds and lockers. As
Ochoa walked towards dormitory four, he saw Camus walking away from it. Ochoa testified that Camus was walking
“pretty fast to get out of the way when he saw us coming.†Camus was not housed in dormitory four. Inmates were not supposed to visit other
dormitories, but the correctional officers tolerated inmates’ movement from one
dormitory to another.
As
he and Buttal approached, Ochoa ordered Camus back into dormitory four. Ochoa estimated there were five or six inmates
present in the dormitory. He stated that
he told Camus he wanted to search him and that Camus seemed nervous and walked
toward the bed area in the back of the dormitory. Then Ochoa ordered Camus back to the front so
he could search him first. Ochoa
testified that as Camus walked back towards the front of the dormitory, near
the row of lockers, he noticed that Camus had his left fist closed. Camus then reached his left arm out to the
side of one of the lockers and, as he started to take off his shoe, put his
left hand behind the locker. As Camus
put his hand behind the locker, Ochoa asked Camus what he had dropped, to which
Camus did not reply. Ochoa did not see
Camus’s fist open, and did not see an item drop. When he received no response, Ochoa looked on
the side of the locker and saw a latex bindle.
Then he placed Camus in restraints, and Officer George Kidd subsequently
took Camus to the program office.
At
the program office, Amy Franco, a licensed vocational nurse, performed a
medical examination of Camus. Franco
noticed puncture wounds on his left arm.
She testified that it was possible that any kind of needle entered into
his skin, but could not say if it was a blood draw or a needle mark from
something else. Following the medical
examination, Kidd asked Camus to provide a urine sample, to which Camus
refused.
The
bindle contained 0.44 grams of heroin.
Mike Jeske, a correctional officer with the investigative services unit,
processed the bindle, tested it for narcotics, and sent the contents to the
Department of Justice lab for confirmatory testing. Jeske also testified that it was uncommon for
inmates to leave drugs lying around in a housing unit.
DISCUSSION
I. There Was Sufficient Evidence Supporting the
Conviction
Camus
asserts the evidence was insufficient to sustain the conviction of possession
of heroin in prison. In particular, he
claims there was no substantial evidence showing he possessed the heroin. We disagree.
Challenges
to a judgment based on insufficient
evidence are reviewed under well-established rules. We must “review the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence … such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.†(
11 (Rodriguez).) We must affirm even if the circumstances and
evidence would support a contrary finding, and the “standard of review is the
same in cases in which the prosecution relies mainly on circumstantial
evidence.†(Ibid.) Rodriguez explained:
“‘“Although it is the duty of the jury
to acquit a defendant if it finds that circumstantial evidence is susceptible
of two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court[,] which must be convinced
of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the
[jury’s] findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a
reversal of the judgment.â€â€™
[Citations.]â€â€™â€ (
The
elements of possession of a controlled substance include (1) a specific
controlled substance, in a sufficient quantity and in a usable form; (2)
possession, which may be actual or constructive, exclusive or joint; and (3)
knowledge of the fact of possession and of the illegal character of the
substance. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175.) Each of the elements may be proved by
circumstantial evidence and any reasonable inferences drawn from such
evidence. (People v. Tripp (2007) 151 Cal.App.4th 951, 956.) “Circumstantial evidence is like a chain which
link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of
fact, but if there has been a conviction notwithstanding a missing link it is
the duty of the reviewing court to reverse the conviction.†(People
v. Redrick (1961) 55 Cal.2d 282, 290.)
Here, Camus argues there is insufficient evidence showing he
constructively possessed the heroin.
Camus
contends he did not have constructive possession of the heroin because he did
not have dominion and control over dormitory four. He correctly states that mere opportunity of
access to a place where narcotics are found does not constitute
possession. (People v. Tripp, supra,
151 Cal.App.4th at p. 956; People v.
Vasquez (1969) 1 Cal.App.3d 769, 777.)
Camus cites a series of cases in which the finding of dominion and
control over narcotics hinged on whether the defendant lived in or owned the
premises where the narcotics were found.
(See People v. Busch (2010)
187 Cal.App.4th 150, 162 [possession of marijuana supported by sufficient
evidence where marijuana was found in center console, immediately accessible to
defendant, and defendant was owner and driver of truck]; People v. Stanford (1959) 176 Cal.App.2d 388, 391 [evidence of
possession of cocaine and heroin held insufficient where narcotics found in
bathroom where defendant was present, but defendant did not live at the house];
People v. Glass (1975) 44 Cal.App.3d
772, 775-778 (Glass) [possession of
amphetamine not upheld where amphetamine found under couch on which the
defendant was ordered to sit, and defendant did not reside at the
residence].) He argues that, because he
did not live in dormitory four and did not have control of the premises, his
proximity to the place where the heroin was found does not establish
possession.
However,
this court explained in Glass, “[A]n
opportunity of access to a place where narcotics were found …,
a finding of unlawful possession.†(
finding of constructive possession than Camus’s mere proximity to the heroin
found.
Ochoa
testified that Camus appeared nervous and that it appeared as if he was trying
to “get out of the way when he saw us coming.â€
Further, Ochoa stated that Camus had his left fist closed as he came to
the front of the dorm to be searched, which he then moved out of view, behind a
locker. After Camus did not respond to
Ochoa’s question asking him what he had dropped, Ochoa went over to the locker
and discovered a bindle containing 0.44 grams of heroin behind it. Later, a nurse conducted a medical
examination of Camus and discovered apparent puncture wounds. Camus also refused to provide a urine
sample. The evidence of puncture wounds,
the nervousness that Ochoa testified to, the refusal to provide a urine sample,
the closed fist, and its removal from sight are all links in a chain that could
lead a trier of fact to reasonably conclude that Camus dropped the bindle that
Ochoa discovered and, thus, possessed the heroin.
Camus
also contends that the absence of evidence showing the bindle was there only
after he placed his hand behind the locker is a crucial link missing from the
chain. Camus argues that the evidence is
insufficient because of the possibility that the bindle was already on the
floor behind the locker before he entered dorm four. However, Jeske testified that it would be
uncommon for inmates to leave drugs lying around. Camus ignores the standard of review, which
requires us to review the evidence in the light most favorable to the judgment,
drawing all inferences the jury reasonably could have drawn from the
evidence. (Rodriguez, supra, 20
Cal.4th at p. 11.) The jury could have
taken Jeske’s testimony that it would be uncommon for inmates to leave drugs
lying around to reasonably infer that the bindle was not present on the floor
behind the locker before Camus put his fist behind it. Thus, there is sufficient evidence supporting
the jury’s finding that Camus dropped the bindle behind the locker and
possessed the heroin.
II. The Trial Court’s Reliance on Dual Use of
Facts Was Harmless Error
Camus
also claims that even if substantial evidence supported the conviction, the
court violated the dual use prohibition by using the facts of his prior
convictions and prior prison term to select the upper term and to enhance the
sentence. We disagree.
Penal
Code section 1170, subdivision (b) provides, in relevant part, that “the court
may not impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law.â€
At
sentencing, the trial court selected the upper term of four years, which
doubled to eight years under the three strikes law, for Camus’s prior strike
conviction, and then a one-year sentence enhancement for his prior prison
term. The court, in choosing the upper
term, based its decision on Camus’s prior convictions of increasing
seriousness, his unsatisfactory performance on probation and parole, and his prior
prison term.
Camus
argues that the trial court erred in its sentencing decision because it used
the fact of his prior prison term as both an aggravating factor to select the
upper term and to impose the one-year enhancement. He relies on People v. McFearson (2008) 168 Cal.App.4th 388, 395, in which we
held the court could not use a prior conviction to impose an aggravated
sentence and also use the prison term served for that conviction to enhance the
sentence.
But
here, in contrast to People v. McFearson,
the trial court did not rely on any single fact to impose the upper term. The trial court cited numerous aggravating
factors, including Camus’s numerous prior convictions of increasing
seriousness, his unsatisfactory prior performance on probation and parole, and
his prior prison term. There were
numerous convictions apart from those that led to prison terms. While Camus is correct in arguing that the
trial court erred in using his prior prison term as an aggravating factor in
imposing the upper term as well as the one-year enhancement, the court’s error
was harmless. As respondent notes, a
sentencing court’s decision will be reversed “‘only if it is reasonably
probable that the trial court would have chosen a lesser sentence had it known
that some of its reasons were improper.’â€
(People v. Jones (2009) 178
Cal.App.4th 853, 861.)
The
trial court did make improper dual use of the prior prison term, but it is not
reasonably probable the trial court would have imposed a lesser sentence had it
been aware of this. Only a single
aggravating factor is necessary to support an upper term sentence. (People
v. Jones, supra, 178 Cal.App.4th
at p. 863, fn. 7.) While the prior
prison term may be eliminated from the trial court’s list of aggravating
factors, the prior convictions of increasing seriousness and Camus’s
unsatisfactory prior performance on probation and parole remain valid support
for imposing the upper term. Further,
the trial court did not find any mitigating circumstances. Given the trial court’s explanation of other,
valid, aggravating factors and the lack of any mitigating circumstances, we
will not disturb the trial court’s sentencing decision.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">*Before Wiseman, Acting P.J., Levy, J. and Poochigian, J.
