P. v. Freeman

Filed 8/29/08 P. v. Freeman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat, Judge.

Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Robin Freeman was convicted of possessing marijuana while in a penal facility and possessing a weapon while in a penal facility. On appeal defendant contends (1) there was insufficient evidence to sustain a conviction for possession of marijuana because no evidence was introduced to show she possessed a usable amount and (2) the trial court committed Cunningham^[1]error when it imposed the upper term sentences for both charges. We affirm.

PROCEDURAL HISTORY

On May 7, 2007, an information was filed charging defendant with possession of a controlled substance while in a penal institution (Pen. Code, 4573.6)^[2]and possession of a weapon while in a penal institution ( 4502, subd. (a)). The information also alleged that defendant had served five prior prison terms ( 667.5, subd. (b)).

On June 19, 2007, a jury trial commenced. The trial concluded the same day and the jury returned a verdict of guilty as to both charges. Following the jury verdict, defendant waived a jury finding on the prior convictions. The trial court held a bench trial and found the allegations true.

On July 18, 2007, the trial court conducted a sentencing hearing. The trial court sentenced defendant to the upper term of four years for the drug possession charge, the upper term of four years for the weapons charge, plus one year for each of the five prior prison terms.

On July 19, 2007, defendant appealed.

FACTS

On November 7, 2006, correctional officers at the Valley State Prison for Women in Madera County conducted a search of defendants cell and person. During the body search, the officers noticed clear cellophane protruding from defendants vaginal cavity. When asked by the officers to remove the cellophane, defendant denied having it. The officers removed defendant from her cell and took her to the lieutenants office.

After the lieutenant spoke with defendant, the officers performed a second body search. Defendant removed the cellophane for the officers. An officer unwrapped the cellophane and retrieved the following items: a red Bic lighter, tweezers, three blonde hair extensions, two rolled cigarettes wrapped in a separate piece of cellophane, two rolled marijuana cigarettes wrapped in a separate piece of cellophane, an unidentified pill, and a razor blade wrapped in tissue paper.

At trial, the parties stipulated that the criminalist who analyzed the marijuana cigarettes, if called to testify, would testify that the cigarettes contained marijuana, a controlled substance.

At sentencing the trial court found no factors in mitigation and found defendants repeated violations of parole and probation to be aggravating factors. The court found these factors appropriate to impose the upper term for both charges.

DISCUSSION

I. Sufficiency of the Evidence

Defendant contends the prosecution failed to introduce any evidence at trial showing she was in possession of a usable amount or a certain quantity of marijuana. Defendant further contends that because possession of a usable amount of a controlled substance is an element of the charge against her, the prosecutions failure to introduce evidence proving this element means there was insufficient evidence for the jury to convict her of the charge. We disagree.

Defendant was convicted of possessing a controlled substance while in a state correctional facility. ( 4573.6.) Possession under section 4573.6 requires that the state prove beyond a reasonable doubt the standard elements of possession found in the Health and Safety Code. (People v. Carrasco (1981) 118 Cal.App.3d 936, 947-948.) Thus, the elements for a section 4573.6 violation are (1) unlawfully exercising control over a controlled substance, (2) having knowledge of the substances presence, (3) having knowledge of the substances nature as a controlled substance and (4) possessing the substance in an amount sufficient to be used as a controlled substance. (People v. Carrasco, supra, at p. 947, fn. 2; see CALJIC No. 12.00.)

When reviewing a defendants challenge to the sufficiency of the evidence, the appellate court must consider the record in a light most favorable to the prosecution. (People v. Jackson (2005) 128 Cal.App.4th 1009, 1020.) Evidence is considered substantial if it is of ponderable legal significance. It must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials which the law requires in a particular case. (People v. Olmsted (2000) 84 Cal.App.4th 270, 277.)

Defendant cites People v. Leal (1966) 64 Cal.2d 504 (Leal) for the proposition that because the prosecution did not introduce evidence that defendant possessed a usable amount of marijuana, guilt cannot be established beyond a reasonable doubt. Leal states: [T]he possession of a minute crystalline residue of narcotic useless for either sale or consumption, as [People v. Sullivan (1965) 234 Cal.App.2d 562] points out, does not constitute sufficient evidence in itself to sustain a conviction. (Leal, supra, at p. 512.) Defendants reliance on Leal is misplaced.

[T]he decisions construing [Leal] limit its holding to substances useless in form orquantity. There is no requirement that any particularpurity or potential narcotic effect be proven. (People v. Rubacalba (1993) 6 Cal.4th 62, 65.) The decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found; it does not extend to a case such as this where the presence of heroin itself, not a mere blackened residue on a spoon, was discovered. (People v. Karmelich (1979) 92 Cal.App.3d 452, 456.) The prosecution bears its burden when it shows the substance defendant possessed was marijuana and it was of a quantity which could be potentiated by consumption in any of the manners customarily employed by users, rather than useless traces or debris of narcotic. (People v. Piper (1971) 19 Cal.App.3d 248, 250; see also People v. Schenk (1972) 24 Cal.App.3d 233, 238-239 [[w]e reject the contention that the crime of possession of a restricted dangerous drug requires that the quantity of the drug be sufficient to produce a drug effect]; People v. Pohle (1971) 20 Cal.App.3d 78, 82 [there is no requirement that evidence be produced as to the quantity of a specific ingredient within the contraband].) These cases do not require a particular quantity of the drug, only that it constitutes a usable amount.

Leal does not apply to this case because the evidence introduced was not merely a residue of marijuana. (People v. Rubacalba, supra, 6 Cal.4th at p. 66.) The prosecution introduced two rolled marijuana cigarettes as evidence at trial. Both the prosecution and defendant stipulated the criminalist who tested the cigarettes would testify that the substance in the cigarettes was marijuana. By introducing the two cigarettes containing marijuana, the prosecution bore its burden of showing a usable amount of the substance, as a rolled cigarette is one of the customary forms in which marijuana can be consumed. (People v. Piper, supra, 19 Cal.App.3d at p. 250.) In addition, the jury was instructed that as an element of the charge, it must find that defendant possessed a usable amount of the controlled substance, and the jury was able to view the cigarettes closely during deliberations. Defendants contention that no reasonable jury could have found she possessed a usable amount of marijuana without being shown evidence of the exact amount is without merit.

We conclude there was substantial evidence that defendant possessed a usable amount of marijuana.

II. Cunningham Error

Defendant argues the trial court committed Cunningham error because the aggravating factor relied on by the trial court, that defendants prior performance on probation and parole was unsatisfactory, was never found true by a jury. We disagree.

Defendants probation report noted two circumstances in aggravation: her prior convictions were numerous, and her prior performance on probation and parole was unsatisfactory as evidenced by her violations and commission of new crimes while on probation and parole. The court considered the probation report and stated, The aggravating [factor] that I see and consider [as] important is the failure to perform adequately on probation and parole in the past. Its been unsatisfactory.

The United States Supreme Court in Cunningham ruled that the Sixth Amendment prevents a sentencing court from imposing a sentence beyond the statutory maximum based on aggravating circumstances, without a jury first finding the facts of those circumstances. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].) The relevant statutory maximum for this inquiry is not the maximum sentence a court may impose on the finding of additional facts, but the maximum sentence allowed without finding any additional facts. (Ibid.) The court in Cunningham concluded that because the upper term under California sentencing law requires the finding of additional facts, the middle term is to be considered the statutory maximum. (Id. at p. 868.) The court further concluded that, [e]xcept for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Ibid.) The maximum sentence a court may impose is a sentence that rests solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. 865, italics omitted.)

The California Supreme Court has ruled that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (People v. Black (2007) 41 Cal.4th 799, 813 (Black II).) Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Ibid.; People v. Osband (1996) 13 Cal.4th 622, 728.) A prior conviction constitutes an aggravating circumstance that makes a defendant eligible for an upper term sentence. (Black II, supra, at p. 818.) As Cunningham and its antecedents make clear, the right to a jury trial does not apply to the facts of prior convictions. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868]; Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [recidivism is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence].)

Here, defendant was eligible for the upper term by virtue of her prior convictions, regardless of whether the trial court relied on another factor. (Black II, supra, 41 Cal.4th at p. 813.) No Cunningham error occurred.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.

^[1]Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham).

^[2] All statutory references will be to the Penal Code unless otherwise specified.