P. v. Sosa

Filed 12/17/09 P. v. Sosa CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. Affirmed in part, reversed in part and remanded for resentencing.

A jury convicted Gilbert Sosa, Jr., of six drug related charges and two counts of felony child endangerment. He appeals, contending substantial evidence does not support his convictions. He also contends that the conviction on one of the drug counts should be reversed because the trial court failed to give a unanimity instruction. Finally, he asserts that the trial court should have stayed the sentences on three of the drug counts because they arose from an indivisible course of conduct.

As we shall explain, we agree that substantial evidence does not support Sosa's convictions for child endangerment; accordingly, we reverse the judgment on those counts. We reject Sosa's claim that the trial court erred by failing to give a unanimity instruction because the prosecution made a valid election during closing argument. Finally, the People concede the sentencing error, but assert that the appropriate remedy is to remand the matter for resentencing. We agree. Otherwise, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Special Agent Andrew Niermeier of the Drug Enforcement Administration (DEA), was investigating a residence located on Castle Avenue in San Diego. The residence belonged to codefendant Cherry Leon, who lived there with her boyfriend, Enrique Delcampo, and their two children, 6-year-old C. and 2-year-old G. The couple owned a black Ford Expedition.

On December 19, 2007, San Diego Police Officer Joshua Odom conducted a traffic stop on the Expedition at the request of the DEA. Delcampo was driving, Sosa was the front seat passenger, and a woman sat in the backseat with a child. Officers searched Delcampo and Sosa. They found 10 grams of marijuana on Sosa and 7 grams of marijuana on Delcampo.

The officers arrested the men and searched the Expedition. In the passenger side door panel compartment, the officers found a baggie wrapped in black cloth containing a total of 8.9 grams of crack cocaine packaged in separate bags, and 5.0 grams of powder cocaine. The compartment containing the cocaine was at the bottom of the door, which was generally used for storing maps or trash. There was a similar compartment on the driver's side door. Under the front passenger seat, officers found a Postal Express package addressed to an individual in Ponce, Puerto Rico containing four cigarillo boxes. Inside each box were five cigarillos stuffed with marijuana. Under the backseat, directly behind the front passenger seat and within Sosa's reach, officers found about one pound of marijuana in a package wrapped in tape.

Sometime after December 19, 2007, Special Agent Niermeier observed Sosa sitting on the front porch of the Castle Avenue residence, but could not recall having any information that Sosa lived there.

On February 27, 2008, Special Agent Niermeier obtained a search warrant for the Castle Avenue residence and the Expedition. The agents saw the Expedition leaving when they arrived at the residence. Police stopped the vehicle and discovered Sosa in the front passenger seat. They did not find any drugs in the Expedition.

Agents found Leon and her two children at the residence. Special Agent Niermeier observed G. behaving erratically and uncontrollably. Child Protective Services removed both children. Urine samples taken from the children tested positive for cocaine. G.'s urine sample also tested positive for marijuana and amphetamines.

Special Agent Niermeier searched the master bedroom, hallway and second bedroom. In the master bedroom, he found male and female clothing, letters addressed to Leon and Delcampo, and $2,751 in cash in small denominations. The hallway contained a desk with "pay-and-owe-sheets" used by drug dealers to track drug sales. The second bedroom contained a bed, children's clothing, toys, a dresser and a crib. A wallet on top of the dresser contained a large amount of cash, several identification cards, including a voter card from Puerto Rico with Sosa's name. The top dresser drawer contained a letter addressed to Sosa at the Castle Avenue residence, with a return address in Ponce, Puerto Rico. The top drawer also contained 3.1 grams of crack cocaine, 1.4 grams of marijuana, some marijuana seeds, and a functional digital scale. The second drawer contained 1.1 grams of methamphetamine. There was also adult male clothing in the closet, which Special Agent Niermeier believed belonged to Sosa.

The information charged Sosa with six counts relating to the drugs found in the Expedition: possession for sale of cocaine base and cocaine (counts 1, 2); transportation of cocaine base and cocaine (counts 3, 4); possession of marijuana for sale (count 5); and transporting more than 28.5 grams of marijuana (count 6). He was also charged with two counts for the drugs found in the Castle Avenue residence: possession for sale of cocaine base (count 7); and possession of methamphetamine (count 8). Finally, the information charged him with two counts of felony child endangerment (counts 9, 10), and alleged that he had suffered a prior drug conviction in New York.

At trial, a jury heard testimony regarding the facts surrounding the discovery of the drugs, the condition of the children, and expert testimony about drug dealing. The jury found Sosa guilty on all counts. The court found true the prior New York drug conviction and later sentenced Sosa to a total of nine years in prison.

DISCUSSION

I. Sufficiency of the Evidence

A. Standard of Review

In assessing the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

"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. "'If the circumstances reasonable justify the trier of fact'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.'" [Citations.]' [Citation.] '"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt."' [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)

B. Drug Charges

1. Legal Principles

Unlawful possession of a controlled substance requires proof that the defendant exercised dominion and control over the drug with knowledge of its presence and narcotic character. (People v. Redrick (1961) 55 Cal.2d 282, 285 (Redrick).) Unlawful possession of a controlled substance for sale requires the additional element that the defendant possessed the contraband with the intent of selling it. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) "Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. [Citations.]" (Id. at p. 1746.)

"Knowledge by the defendant of both the presence of the drug and its narcotic character is essential to establish unlawful transportation, sale, or possession of narcotics. [Citations.]" (Rideout v. Superior Court of Santa Clara County (1967) 67 Cal.2d 471, 474-475.) Knowledge of the presence of contraband "may be established by circumstantial evidence and any reasonable inferences drawn from such evidence." (People v. Newman (1971) 5 Cal.3d 48, 52 (Newman), overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.)

Possession may be actual or constructive. (People v. Williams (1971) 5 Cal.3d 211, 215 (Williams), superseded by statute on another issue as stated in People v. Romero (1997) 55 Cal.App.4th 147, 152-153.) "Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.] The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citations.]" (Newman, supra, 5 Cal.3d at p. 52.) Dominion and control may be inferred when the contraband is discovered in an accused's residence, automobile, or personal effects. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.) But "proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession." (Redrick, supra, 55 Cal.2d at p. 285.)

2. February 2008: Counts 7-8

The jury convicted Sosa of possessing for sale the 3.1 grams of cocaine base found in the top dresser drawer (count 7). It also convicted him of possessing the 1.1 grams of methamphetamine found in the second dresser drawer (count 8). Sosa contends the evidence was insufficient to support an inference that he exercised dominion and control over the drugs because he was merely a casual visitor at the Castle Avenue residence. We disagree.

The jury could reasonably infer that Sosa frequented the Castle Avenue residence because law enforcement saw him sitting outside the residence, and twice found him inside Delcampo's Expedition. Sosa left his wallet, identification and large amounts of cash on top of the dresser in the children's room, and the police found a letter addressed to him at the residence in the same dresser as the methamphetamine, cocaine, marijuana and a functioning digital scale. Clothes in the children's closet fit Sosa, and Special Agent Niermeier believed that the clothing belonged to Sosa because there was plenty of space in the master bedroom for Delcampo and Leon to store their clothing.

This evidence shows that Sosa was more than a casual visitor, as he had sufficient contact with the Castle Avenue residence and its occupants to use the address as his own. Additionally, leaving his wallet, identification, clothing and large amounts of cash in a private area of the residence suggests he felt at home there. This evidence also shows that Sosa had access and joint dominion and control over the dresser in the children's room. (People v. Rushing (1989) 209 Cal.App.3d 618, 622 (Rushing) [substantial evidence of possession where the contraband was located in the same desk drawer where documents with the defendant's name were found]; People v. Patino (1984) 160 Cal.App.3d 986, 995 [conviction for possession upheld where officers found PCP in a sweater and in a shirt in a bedroom that had a questionnaire addressed to the defendant at that address on the dresser and there was testimony that the sweater would fit the defendant].) Sosa cannot avoid a conviction because he shared dominion and control over the dresser with others. (Rushing, supra, 209 Cal.App.3d at p. 622.)

3. December 2007: Counts 1-6

The jury convicted Sosa of possessing for sale cocaine base and cocaine (counts 1, 2), and transporting these two controlled substances (counts 3, 4). The jury also convicted Sosa of possessing marijuana for sale (count 5) and transporting more than 28.5 grams of marijuana (count 6). Sosa contends the evidence was insufficient to support an inference that he exercised dominion and control over the drugs or knew of their existence. He argues that the evidence established only his proximity to the drugs in the Expedition. We disagree as this case involved additional evidence from which the jury could reasonably infer that Sosa constructively possessed the drugs inside the Expedition jointly with Delcampo.

A person could not see the marijuana and cocaine inside the Expedition without going inside the vehicle and looking for it. Additionally, a person could not smell the marijuana secreted in the Expedition. Despite this, the jury could reasonably infer that Sosa knew that the drugs were inside the Expedition and that he intended to sell them.

Significantly, when the jury evaluated the evidence against Sosa on counts 1 to 6, it knew about the drugs and other evidence found at the Castle Avenue residence. The jury could reasonably infer that Sosa was a drug dealer because he had a salable quantity of loose marijuana on his person, and a sellable quantity of cocaine base in the children's dresser, along with marijuana, methamphetamine and a functional digital scale. Expert testimony established that drug users typically did not use four different types of drugs or own scales, but that drug dealers needed different drugs to sell and scales to weigh drugs for their customers. Additionally, marijuana users tend to use about one-half gram per use and users do not keep much drug on hand based on fear of robbery or law enforcement. The large amount of cash inside Sosa's wallet suggested that he dealt drugs, and the pay-and-owe sheets found in plain view inside the Castle Avenue residence indicated that persons using the residence dealt drugs.

The jury could similarly conclude that Delcampo was a drug dealer because he had a salable quantity of loose marijuana on his person, there were pay-and-owe sheets at the Castle Avenue residence, and $2,751 in cash in the master bedroom. After comparing Delcampo and Leon's monthly income of $1,500 with Leon's expenses, Special Agent Niermeier believed that Delcampo and Leon would have "negative income" and be unlikely to have bulk cash laying around. An expert testified that the drug business is very lucrative, that it is all done in cash, and that drug dealers do not use banks because large cash transactions are "flagged." Accordingly, drug dealers tend to have large amounts of cash on hand. Drugs found near large amounts of cash suggested to the expert that the drugs were for sale.

The record also supports a reasonable conclusion that Sosa and Delcampo dealt drugs together, and that Sosa knew about the cocaine and marijuana in the Expedition based on his proximity to the drugs and their easy accessibility. Joint constructive possession may be inferred from joint control and accessibility. (Newman, supra, 5 Cal.3d at p. 53.) If the drugs inside the Expedition belonged exclusively to Delcampo, Delcampo would likely have placed the bundle of cocaine in the compartment of the driver's side door and the marijuana within his easy reach. Although the jury could have concluded that the drugs belonged exclusively to Delcampo, it was not unreasonable for it to conclude that Sosa and Delcampo had joint dominion and control over the drugs in the Expedition. In fact, the prosecutor made drug dealing as the "family business" the central theme of his closing argument.

C. Child Endangerment: Counts 9-10

Sosa contends his conviction of child endangerment is not supported by sufficient evidence that he had care or custody of C. and G. We agree.

To support a conviction for felony child endangerment, the evidence must show that the defendant had "care or custody" of the endangered child. (Pen. Code,  273a, subd. (a); CALCRIM No. 821.) No special meaning applies to the phrase "care or custody" beyond the plain meaning of the terms themselves. (People v. Cochran (1998) 62 Cal.App.4th 826, 832 (Cochran).) The terms "do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver." (Ibid.)

Here, the record is devoid of even a modicum of evidence suggesting that Sosa undertook any caregiving responsibilities, that he supervised the children, or was ever alone with them. (Compare People v. Culuko (2000) 78 Cal.App.4th 307, 335 [defendant lived with mother, "took care of the baby," and "at times, [he] was left alone with the baby"]; Cochran, supra, 62 Cal.App.4th at pp. 832-833 [child lived in defendant's home at defendant's invitation, and defendant had assumed "parent-like" role].) At most, the evidence shows that Sosa frequented the Castle Avenue residence and felt sufficiently comfortable there to leave his clothing and wallet in the children's room.

Although the People assert that the jury could reasonably infer from this evidence that Sosa slept in the room with the children and thus "cared" for them, the evidence does not support this contention. The children's room contained a small twin bed, but Special Agent Niermeier did not know who slept in the bed, and did not believe that Leon, Delcampo and the children could comfortably sleep in the master bedroom bed. Photographs of the children's room reveal there was little floor space and no piles of bedding to suggest anyone slept on the floor.

Viewing the record in the light most favorable to the trial court's judgment, we conclude that substantial evidence does not support Sosa's conviction of child endangerment.

II. Unanimity Instruction: Count 5

Sosa contends the trial court committed reversible error by failing to instruct the jurors, sua sponte, that they had to agree unanimously on the specific act that supported the charge of possession of marijuana for sale in count 5. Sosa argues that, because there was no unanimity instruction, the jurors could have convicted him on count 5 even if they disagreed as to which of the three packages of marijuana at issue he possessed for sale (i.e., the marijuana found in his pocket, the marijuana stuffed cigarillos, or the pound of marijuana under the backseat of the Expedition). We conclude that the failure to give a unanimity instruction was not reversible error because the prosecutor made a valid election during closing argument.

A defendant's constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act it is relying upon, or the trial court must instruct the jurors sua sponte that they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The election "must be made with as much clarity and directness as would a judge in giving instruction." (Id. at p. 1539.)

During closing argument the prosecutor stated: "Count 5, again, Sosa. This is possession of marijuana for sale, one pound of marijuana. And count 6, again, Sosa. And it's the same pound of marijuana, but this time it's the charge of transportation. So same drug here, the possession of that pound for sale in count 5 and transporting that same pound of marijuana in count 6. To tell you the truth, the ‑ the one ‑ the 10 grams and the 7 grams in their pockets also qualifies for a transportation, but we've charged it as over 28.5 grams. So if you add that together with the pound, that's the transportation in count 6."

This argument made it clear to the jury that the prosecutor selected the pound of marijuana to prove count 5. Although Sosa asserts that the prosecutor muddied any election by mentioning the marijuana found in Sosa's and Delcampo's pockets, we reject this assertion because after the prosecutor mentioned these drugs he told the jury that he was discussing count 6, the transportation charge. Sosa also points out that during closing argument the prosecutor talked about the marijuana found in Sosa's pocket, and the other drugs found in the Expedition. However, the prosecutor did this to tie Sosa to the other marijuana packages in the Expedition, and to support his argument that Sosa was selling drugs. In both instances the prosecutor never specifically mentioned count 5.

Because the prosecutor's closing argument elected what conduct by Sosa amounted to the crime charged, we conclude that no unanimity instruction was required.

III. Multiple Punishment

The jury convicted Sosa of possession for sale of cocaine base (count 1), cocaine (count 2), and marijuana (count 5), and transportation of cocaine base (count 3), cocaine (count 4), and marijuana (count 6). The trial court later sentenced him on all six counts, imposing the middle term on counts 1, 2, 3, 4 and 6, one-third the middle term on count 5. Exercising its discretion, the trial court imposed some consecutive and some concurrent terms. Sosa contends, the Attorney General concedes, and we agree that Penal Code section 654 (section 654) prohibits multiple punishment for possession for sale and transportation of the same substances. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)

Sosa contends the appropriate remedy is to simply stay the sentences on the transportation charges (counts 3, 4, and 6). The Attorney General disagrees, arguing that the matter needs to be remanded for resentencing because the trial court was required to impose the longest potential term of imprisonment and it could structure Sosa's sentence in different ways. We agree with the Attorney General.

Section 654 provides that "(a) [a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Italics added.) Enhancements are included in determining which count provides for the longest term. (People v. Kramer (2002) 29 Cal.4th 720, 723 (Kramer).) Thus, where section 654 applies to several counts, the longest term provided by any of those counts, including any enhancements, is the one imposed, while the shorter terms are stayed. (Ibid.)

Accordingly, the matter is remanded for the trial court to: (1) sentence Sosa under the possession or transportation count related to each of the three controlled substances that provides the longest potential term of imprisonment, taking into consideration any enhancements ( 654; Kramer, supra, 29 Cal.4th at p. 723); and (2) exercise its discretion regarding whether the terms it imposes are consecutive or concurrent. (Pen. Code,  669; People v. Morales (1967) 252 Cal.App.2d 537, 547.)

DISPOSITION

Appellant's convictions for child endangerment, counts 9 and 10, are reversed. The matter is remanded to the trial court for resentencing consistent with this opinion. In all other respects the judgment is affirmed.

McINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

McDONALD, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com