Filed 6/4/13 P. v. Perez
CA4/1
NOT TO BE PUBLISHED
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COURT OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
URIEL
PEREZ,
Defendant and Appellant.
D061548
(Super. Ct.
No. CS252761)
APPEAL
from a judgment of the Superior Court
of
County, Esteban Hernandez, Judge. Affirmed.
Patrick
J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, James D. Dutton and Sabrina Y.
Lane Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Uriel Perez contends there is insufficient
evidence to support his convictions for possession of methamphetamine for
sale, possession of a rifle and possession of ammunition. Perez argues that although he was arrested in
a motel room where methamphetamine, indicia of drug sales, the rifle and the
ammunition were found, it was unreasonable to infer that he possessed any of
those items. We reject Perez's challenge
to the sufficiency of the evidence. In
light of Perez's incriminating behavior both before he was found in the motel
room and after he was discovered there, a jury could reasonably infer his
connection to the physical evidence found in the motel room and in turn Perez's
culpability for the charged offenses.
Perez
also argues the trial court abused its discretion in imposing consecutive
sentences for his firearm and ammunition convictions. Because the two crimes were separate and
distinct offenses, they were properly punished consecutively.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Trial
Perez was prosecuted on the theory he was a drug
dealer with a prior criminal record who planned to sell drugs from a motel room
but, in an effort to avoid detection by local law enforcement, arranged for a
drug user to rent the motel room in the user's name instead of Perez's. In support of this theory, the prosecutor
presented the following evidence:
1. Motel
Room Evidence
At some point shortly before 7:50 p.m. on the evening of November 13, 2011, a Chula Vista
police officer, Brian Carter, was at a Travel Inn motel in Chula
Vista looking for stolen vehicles. While at the motel, Officer Brian Carter saw
a Jeep Cherokee pull up to the motel and a male passenger, later identified as
James Hunter, get out and go into the motel lobby for a very short period of
time, come back out and leave in the Jeep Cherokee.
Shortly
after Hunter left the motel, another Chula Vista
police officer, Eric Carter, stopped the Jeep Cherokee because it made an
illegal U-turn. The Jeep Cherokee was
being driven by Michael Cripe and Hunter was in the passenger seat. Officer Eric Carter searched the Jeep
Cherokee and found a pipe which contained methamphetamine and a checkbook which
had been stolen the night before from another vehicle.
At the
traffic stop, Officer Eric Carter learned Hunter had just rented a room at the
Travel Inn motel and obtained Hunter's permission to search the room. Officers Brian Carter and Albert Garza
responded to the scene of the traffic stop, and Officer Brian Carter also
received permission to search the room Hunter had rented.
Officers
Garza and Brian Carter returned to the Travel Inn motel to search the room
Hunter had rented. Officer Garza
returned first and saw Perez outside the target room pacing back and forth and
talking on a cell phone for five or 10 minutes.
When Officer Brian Carter arrived, he and Officer Garza began climbing
up separate flights of stairs to the target room. When Officer Garza began climbing the stairs,
he saw Perez outside the target room; however, when Officer Garza reached the
target room on the fourth floor, Perez was no longer outside the target room.
Officer
Garza knocked on the door of the target room and announced: "Chula Vista Police
Department." Both Officer Garza and
Officer Brian Carter heard the toilet flush.
Because the door to the target room had apparently been locked from the
inside, a key Officer Garza had obtained did not work and 30 seconds or one
minute after Officer Garza knocked on the door, Perez, dressed in his boxer
shorts, opened the door.
When the
two officers entered the room, they could hear the toilet still running. Perez initially told Officer Brian Carter
that his name was Francisco and denied that he was on probation or parole. Both statements were false.
On the
floor between the bed and the bathroom door, the officers found a large Ziploc
bag that was wet and had a coating of 3.15 grams of methamphetamine. Perez told the officers that he had crushed
soap in the bag in order to wash his socks in the toilet.
Officer Garza found a guitar case in the corner of
the room; inside the guitar case, Office Garza found a thirty-aught-six rifle,
loaded with one round in the chamber.
Additional ammunition was found in the guitar case. The officers found a single pair of shoes in
the room and a jacket. In the jacket,
the officers found more ammunition, $742 in cash, and a piece of paper which listed
drug amounts and the corresponding cost of those amounts.
In a nightstand, the officers found a mask that
covers an entire face except for the eyes, a knife, handcuffs, zip ties and
gloves. The officers did not find
anything in the room that could be used to inject, smoke or otherwise ingest
methamphetamine.
2. Expert
Evidence
Officer Tim Biffle
testified as a narcotics expert. Officer
Biffle stated that motels in Chula Vista are hotbeds of criminal activity and
that law enforcement officers check hotel registers daily for the names of
known criminals. Because of this law
enforcement practice, criminals and, in particular, offenders such as Perez who
have waived their Fourth Amendment rights, arrange to have associates rent
rooms in their names rather than the offenders' names.
According to Officer Biffle, methamphetamine users
typically carry the drug in small amounts of one gram or less in small
bags. Officer Biffle did not believe a
user would carry methamphetamine in a large Ziploc bag such as the one found in
Hunter's room because too much of the drug would be lost on the side of the
bag. Officer Biffle could think of no
reason a person who possessed methamphetamine would want to carry it in a wet
bag.
Officer Biffle believed that because 3.15 grams of
methamphetamine was on the sides of the Ziploc bag found in Hunter's room, it
was likely the bag had previously contained a larger quantity of
methamphetamine.
Officer Biffle stated the piece of paper found in
the jacket appeared to be a price sheet for an ounce of methamphetamine, broken
down into eight 3.5 gram portions or "eight balls," with a price of
$250 per eight ball. Officer Biffle
further stated that $250 for an eight ball was the then current market price
for methamphetamine. The price sheet
also indicated that 3 eight balls had been sold, and according to Officer
Biffle, that was consistent with the $742 the arresting officers found in the
jacket in Hunter's room.
Officer Biffle stated the face mask, knife,
handcuffs, zip ties and gloves found in the nightstand were consistent with
crimes related to the sale of narcotics and, in particular, rip-offs.
B. Verdict
and Sentence
At trial, the jury returned
a verdict finding Perez guilty of: possession for sale of methamphetamine
(Health & Saf. Code, § 11378), possession of a firearm by a possessor
of methamphetamine (Health & Saf. Code, § 11370.1, subd. (a)), being a
felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), being
a prohibited person in possession of ammunition (Pen. Code, former
§ 12316, subd. (b)(1)), destroying or concealing evidence (Pen. Code,
§ 135) and possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)). Perez admitted
two prison priors within the meaning of Penal Code section 667.5, subdivision
(b).
The trial court sentenced Perez to a total term of
eight years.
DISCUSSION
I
On
appeal, Perez argues there is insufficient
evidence he owned or possessed the drugs, rifle or ammunition found in the
motel room and hence his convictions, each of which arise out of his possession
or control of those items of contraband, must be reversed. We find ample evidence connecting Perez to
the contraband.
A. Legal
Principles
"The standard of
review is well settled: On appeal, we review the whole record in the light most
favorable to the judgment below to determine whether it discloses 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. [Citations.] '"[I]f the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness's credibility for that of the fact
finder."' [Citation.] 'The standard of review is the same in cases
in which the People rely mainly on circumstantial evidence. [Citation.]
"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."'
[Citation]." (
66.)
"The essential elements of unlawful
possession of a controlled substance are 'dominion and control of the substance
in a quantity usable for consumption or sale, with knowledge of its presence
and of its restricted dangerous drug character.
Each of these elements may be established circumstantially.' [Citations.]
It has been observed that the statute proscribing the unlawful
possession of controlled substances [citations] 'makes possession illegal
without regard to the specific intent in possessing the substance.' [Citation.]
Although the possessor's knowledge of the presence of the controlled
substance and its nature as a restricted dangerous drug must be shown, no
further showing of a subjective mental state is required. [Citation.]" (People
v. Martin (2001) 25 Cal.4th 1180, 1184, fn. omitted.)
B.
Perez argues that notwithstanding the large
quantum of evidence connecting him to the items found in the motel room, his
behavior at the motel was also consistent with his innocence, and he criticizes
Officer Garza and Officer Brian Carter for failing to test the Ziploc bag, the
rifle, the guitar case and the ammunition for fingerprints. He also notes that when Officer Garza
observed him outside the motel room, he was wearing a sweatshirt; he argues
that this fact undermines any inference he owned the jacket later found in the
motel room.
Perez is
correct that the circumstances he relies upon would support an inference he was
simply a guest of Hunter and had no connection to the items found in the
room. However, Perez's reliance on the
sweatshirt he was wearing outside the motel room is itself somewhat undermined
by the fact that shortly thereafter he came to the motel room door in his boxer
shorts. His ability and willingness to
partially disrobe in fairly short order is consistent with the possibility he
owned all the clothes found in the room, including both the jacket and the
sweatshirt.
However, more importantly, Perez ignores the very
incriminating inferences the jury could draw from the flushing toilet the
officers heard, the wet Ziploc bag with methamphetamine residue they found
shortly thereafter, the false identity Perez gave, his false denial that he was
on probation or parole, and the consciousness of guilt manifested in his
attempt to explain the wet bag as a means of washing his socks.
Perez also ignores Officer Biffle's expert
testimony and, in particular, Officer Biffle's explanation of why a criminal
with a record, such as Perez, would have an associate obtain a motel room in
the associate's name.
In sum, the jury could reasonably conclude, based
on the simple fact that in a very short period of time Perez was seen first
outside the room and then in the room with the toilet flushing, that upon
seeing the officers coming up the stairs Perez went back into the room, locked
it from the inside and flushed a large quantity of methamphetamine down the
toilet. The jury could conclude Perez
did so because he in fact was selling methamphetamine, and Hunter had merely
obtained the room as a courtesy to Perez.
Having reasonably concluded Perez was selling
methamphetamine from the motel room, the jury could further conclude that the
gun, ammunition, price sheet and "rip-off" paraphernalia were part of
Perez's methamphetamine sales operation and further corroboration of his
methamphetamine sales. The jury could
reject as improbable the suggestion that the "true" methamphetamine
seller left Perez alone in the motel room with a large quantity of the drug, a
gun, ammunition, and a price sheet.
In short,
there was ample evidence to support Perez's connection to the items found in
the motel room and his convictions based on his possession and control of those
items.
In this
regard, the circumstances here are in marked contrast to those considered in
951, 956-957, where police officers found 0.12 grams of methamphetamine on a
nightstand in a bedroom the defendant used, but to which two other adults also
had access. The drug appeared to be
about the size of a head of a pen, and no evidence of methamphetamine
paraphernalia nearby or on the defendant's person connected it to ingestion or
smoking; also absent was any evidence of packaging characteristic of
methamphetamine or any claim that the defendant attempted to flee or hide the
methamphetamine before it was discovered.
The defendant had no history of drug use, either in the past or on the
evening the drug was discovered. In
reversing the defendant's conviction for possession, the court found that given
the relatively small amount of the drug the police officers discovered and the
fact the defendant did not have exclusive access to the bedroom where it was
found, and the absence of any other evidence connecting the drug to the defendant,
it was not reasonable to infer the defendant knew the small amount of the
substance on his nightstand was methamphetamine. (See People
v. Tripp, supra, at p. 957.)
Here, the
record has ample evidence of Perez's consciousness of guilt including, as we
have noted, the flushing toilet, the quick disrobing, and the false identity
and false criminal record he gave the police officers. There was also tangible evidence of sales,
including the large, wet Ziploc bag with 3.15 grams of methamphetamine and the price
sheet. Thus, unlike the record in
reasonably infer Perez was in fact in the midst of selling methamphetamine at
the time the officers started heading toward the motel room.
II
Next,
Perez contends the trial court erred in imposing consecutive sentences for his
firearm and ammunition convictions.
While it is true that ammunition and firearm convictions cannot be
separately punished when the ammunition conviction is supported only by
ammunition found in the subject firearm, which is the basis for a firearm
conviction (see People v. Lopez
(2004) 119 Cal.App.4th 132, 138), as we have noted here in addition to a single
round found in the rifle, the police officers also found ammunition in the
guitar case and the jacket. That
additional ammunition is evidence of a crime separate and distinct from Perez's
possession of the rifle. The additional
ammunition permitted Perez to use the rifle on an ongoing basis in support of
not only the drug sales but any other crimes Perez may have been inclined to
commit, including the rip-offs discussed by Officer Biffle. The trial court did not err in punishing it
separately.
DISPOSITION
The
judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES,
J.
McINTYRE,
J.
