P. v. Williams

 

 

 

 

Filed 12/19/13  P. v. Williams CA1/4

 

 

 

 

 

 

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NOT TO BE PUBLISHED IN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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST APPELLATE DISTRICT

 

DIVISION FOUR

 

 
>

THE PEOPLE,             Plaintiff and Respondent, v. CHRISTOPHER WILLIAMS,             Defendant and Appellant.

A136945         (href="http://www.sandiegohealthdirectory.com/">Solano County       Super. Ct. No. FCR284024)

 

            Defendant Christopher Williams appeals from a judgment
following a jury verdict finding him guilty of transportation of heroin (Health
& Saf. Code, § 11352, subd. (a)).href="#_ftn1" name="_ftnref1" title="">>[1]  He contends: 
(1) There was insufficient evidence to support the verdict; (2) the
guilty verdict was inconsistent with the jury’s verdict of not guilty on a
related possession count; (3) the trial
court misled the jury when it responded to a question during deliberations;
and (4) the court’s order to pay a $50 drug program fee was not supported by a
finding of ability to pay.  We reject
defendant’s contentions and affirm.

>I.
FACTS

            Defendant was driving in the City of
Fairfield during the afternoon on April
12, 2011, when he was pulled
over for a traffic infraction.  After
initiating the traffic stop, Fairfield Police Officer Matthew Thomas approached
defendant on the driver’s side of the car. 
Thomas’s partner, officer Derrick Fok, approached on the passenger
side.  A passenger, Kenneth Owens, was
sitting in the front passenger seat of the car. 


            Officer Thomas noticed a strong odor
of marijuana when he reached the driver’s side window.  He then noticed an unlit marijuana “cigar” in
defendant’s lap.  Thomas asked for the cigar
and defendant complied by handing it to Thomas. 
One or both of the officers told defendant and his passenger to get out
of the car.  The officers searched the
men and found nothing of note.  Officer
Fok then searched the car and found two plastic baggies in a compartment in the
roof above the center console.  Fok described
the compartment as “where the sunglasses are normally held.”  Fok believed one baggy contained marijuana
and that the other contained heroin.

            After Thomas read defendant his >Miranda rights, defendant denied knowledge
and ownership of the substances in the baggies. 
He added that he had just bought the car.

            An analysis of the contents of the
baggy of suspected heroin confirmed that it contained 9.55 grams of
heroin.  The baggies were examined for
fingerprints, but none were found.

>II.
PROCEDURAL BACKGROUND

            The People charged defendant with
one count of transportation of heroin in violation of section 11352,
subdivision (a), and one count of possession of heroin in violation of section
11350, subdivision (a).  After a brief
trial, the jury found defendant guilty on the transportation count, but not
guilty on the possession count.  The
trial court suspended imposition of sentence and placed defendant on probation
for three years.  The court ordered
defendant to pay several fees, including a $50 drug program fee
(§ 11372.7).

>III.
DISCUSSION

A. Sufficiency of the Evidence to Support the
Verdict

            Defendant contends there was
insufficient evidence of his knowledge that heroin was present in his car.  Knowledge of the presence and character of
the drug is an essential element of the offense of transportation.  (People
v. Rogers (1971) 5 Cal.3d 129, 133 (>Rogers); see § 11352, subd. (a).)href="#_ftn2" name="_ftnref2" title="">[2]  Defendant characterizes the evidence of his
knowledge as a “mere smidgen.”

            “The law is clear and well
settled.  ‘On appeal we review the whole
record in the light most favorable to the judgment 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. 
(People v. Johnson (1980) 26
Cal.3d 557, 578 . . . ; see also Jackson
v. Virginia (1979) 443 U.S. 307, 317-320 . . . .)’ â€  (People
v. Abilez (2007) 41 Cal.4th 472, 504.)

            Here, the substance was found in
defendant’s car, and he was the driver. 
While the heroin was not in plain view, it was found in a baggy in an
ordinary compartment of the car, and Officer Fok apparently had no trouble
finding it.  In the same compartment was
a second baggy containing marijuana. 
Defendant, at the time of the traffic stop, had a marijuana cigar in his
lap.  This constitutes reasonable,
credible, and solid evidence from which a rational finder of fact could find,
beyond a reasonable doubt, that defendant knew he was transporting heroin in
his car.  A driver’s knowledge of the
character and presence of the drug, together with his control over the vehicle,
is sufficient to establish his guilt for transporting the drug.  (Rogers,
supra, 5 Cal.3d at pp. 135-136)  The crime can be established by href="http://www.mcmillanlaw.us/">circumstantial evidence and any
reasonable inferences drawn from that evidence. 
(People v. Meza (1995) 38
Cal.App.4th 1741, 1746.) 

            Taking all the possible scenarios
into account, the most logical inference remains that defendant, as owner and
driver of the car, knew there was a baggy of heroin in his car.  The jury could reasonably reject the
contention that defendant’s passenger, Owens, put the heroin in defendant’s car
without his knowledge.  Although it is
not inherently implausible that the car’s former owner left the baggies of
heroin and marijuana in the car, it is not likely that a person would leave
behind items of value; nor was it established exactly how recently defendant
had purchased the car.href="#_ftn3"
name="_ftnref3" title="">[3]  Further, because the heroin was not found in
a hidden recess or cavity in the car, the jury could reasonably conclude
defendant knew it was there.

            In arguing otherwise, defendant
cites People v. Redrick (1961) 55
Cal.2d 282, 285 (Redrick)> for the proposition that “proof
of opportunity of access to a place where narcotics are found, without more,
will not support a finding of unlawful possession.”  From this premise defendant argues the many circumstances that were >not present—lack of furtive movements,
lack of intoxication, lack of fingerprints, lack of chemical testing of the
marijuana, and lack of drug paraphernalia, among other things—and cites cases
in which convictions were upheld (and knowledge found) based on the presence of
the narcotics plus other incriminating circumstances.  (See, e.g., People v. Richardson (1970) 6 Cal.App.3d 70, 77 [furtive movement
and defendant’s admission of heroin use]; People
v. Vasquez (1969) 1 Cal.App.3d 769, 778-780 [defendant’s admitted
familiarity with narcotics, his attempt to bar officers from apartment, and
large quantity of heroin found]; People
v. Watkins (1950) 96 Cal.App.2d 74, 77 [erratic driving upon seeing the
police, furtive movements, and anger when passenger made admission].)  These cases, however, do not hold that in the
absence of one or more of these additional factors there is always insufficient
evidence of knowledge.  Nor is this a
case in which defendant merely had “opportunity of access to a place where
narcotics were found.”  Here, defendant
was the driver and the owner of the car in which the heroin was found.  (Cf. Redrick,
supra, 55 Cal.2d at pp. 288-289
[defendant had nonexclusive access to a storeroom where heroin was found].)

            Defendant also cites> People v. Boddie (1969) 274 Cal.App.2d
408 (Boddie), a case in which a
heroin possession conviction was reversed for lack of sufficient evidence to
establish knowledge of the presence of the narcotics.  (Id.
at pp. 411-412.)  As in the instant case,
the narcotics in Boddie were found in
an automobile, but there the defendant was a passenger in the car.  Thus, Boddie
is inapposite because defendant here was the driver/owner, not the passenger.

            Defendant’s conviction for
transportation of heroin is supported by substantial evidence.

B. Inconsistent Verdicts

            Defendant asserts the jury’s verdict
of guilty on the transportation count is inconsistent and irreconcilable with
its acquittal on the possession count. 
He argues that if he did not have possession of the heroin, he could not
have transported the drug.  Citing a
footnote in Rogers, supra,
defendant suggests the offense of possession was a necessarily included offense
of transportation in his case.  (See >Rogers, supra, 5 Cal.3d at p. 134, fn. 5; but see People v. Watterson (1991) 234 Cal.App.3d 942, 946-947 [footnote in
Rogers was dicta and possession for
sale count was not necessarily included in a transportation count].)

            The law is well settled that
inconsistent verdicts do not require reversal of a guilty verdict.  Indeed our Legislature has expressly
decreed:  “An acquittal of one or more
counts shall not be deemed an acquittal of any other count.”  (Pen. Code, § 954.)

            The Legislature’s statement is in
harmony with United States and California Supreme Court precedent.  “As a general rule, inherently inconsistent
verdicts are allowed to stand.  (>United States v. Powell (1984) 469 U.S.
57, 64-69 . . . (Powell); >People v. Lewis [(2001)] 25 Cal.4th
[610,] 656.)  For example, ‘if an
acquittal of one count is factually irreconcilable with a conviction on
another, or if a not true finding of an enhancement allegation is inconsistent
with a conviction of the substantive offense, effect is given to both.’  (People
v. Santamaria (1994) 8 Cal.4th 903, 911.) 
Although ‘ â€œerror,” in the sense that the jury has not followed the
court’s instructions, most certainly has occurred’ in such situations, ‘it is
unclear whose ox has been gored.’  (>Powell, supra, 469 U.S. at
p. 65.)  It is possible that the
jury arrived at an inconsistent conclusion through ‘mistake, compromise, or
lenity.’  (Ibid.)  Thus, if a defendant
is given the benefit of an acquittal on the count on which he was acquitted,
‘it is neither irrational nor illogical’ to require him to accept the burden of
conviction on the count on which the jury convicted.  (Id.
at p. 69.)”  (People v. Avila (2006) 38 Cal.4th 491, 600.)

            Defendant cites no authority
providing for an exception to the general rule in this case.  He does cite People v. Hamilton (1978) 80 Cal.App.3d 124 (Hamilton), a decision that purported to find a “limited judicial
exception . . . where all of the essential elements of the crime of
which the defendant was acquitted are identical to some or all of the essential
elements of the crime of which he was convicted, and proof of the crime of
which the defendant was acquitted is necessary to sustain a conviction of the
crime of which the defendant was found guilty.” 
(Id. at p. 130.)

            If such an exception exists, it
would not apply here.  The elements of
transportation and possession offenses are not identical.  “Although possession is commonly a
circumstance tending to prove transportation, it is not an essential element of
that offense and one may ‘transport’ marijuana or other drugs even though they are
in the exclusive possession of another.” 
(Rogers, supra, 5 Cal.3d at p. 134.) 
As the People suggest, it is possible in this case that the jury
believed Owens possessed the heroin, and that defendant was transporting Owens
and his heroin.  Or, stated another way,
the prosecution proved beyond a reasonable doubt that defendant transported
heroin, but failed to prove beyond a reasonable doubt that he possessed
it.  Of course the jury may also have
just reached a compromise verdict.

            In any event, we also concur with
our colleagues in Division Three of this district that the statement from >Hamilton that defendant relies on “is
inaccurate and misleading.”  (>People v. Pahl (1991) 226 Cal.App.3d
1651, 1660 (Pahl).)  The one settled exception to the rule that inconsistent
verdicts must stand involves conspiracy cases. 
(See id. at p. 1657
[defendants charged and acquitted of offenses also alleged as overt acts of
conspiracy are necessarily acquitted of conspiracy].)  As our Division Three colleagues explained, however,
that exception is narrow, and any suggestion in >Hamilton or earlier cases of other, broader exceptions
to the general rule are contrary to the language of Penal Code section 954 and
current California Supreme Court authority. 
(Pahl, supra, at pp. 1657-1660.)

            Defendant was not charged with
conspiracy and there was substantial evidence to support the transportation
verdict.  (See Pahl, supra, 226
Cal.App.3d at p. 1657 [inconsistent verdicts no longer compel reversal if there
is substantial evidence to support the conviction].)  Therefore, the general rule applies and the
verdicts on both the transportation and possession counts must stand.

C. Response to Jury Questions

            Defendant next takes issue with the
trial court’s response to two questions posed by the jury during its
deliberations.  A note from the jury to
the court stated:  “1) When was the
defendant arrested? (DATE)  2) When did
he purchase the car officially? (DATE).” 


            The trial court, defense counsel,
and the prosecutor all recognized there was no direct evidence on these
questions.  One could infer that
defendant was arrested at the time the suspected heroin was seized on April
12, 2011, but neither of the
witnesses (officers) testified that defendant was arrested that date.  Similarly, the only evidence on when
defendant “purchased” the car was indefinite. 
Officer Fok testified regarding defendant’s statement that, “[H]e just
bought the car.”  As we have noted, there
was also DMV paperwork admitted into evidence, but no one testified regarding
that exhibit.  According to defendant, it
was a title document that was processed by the DMV on April 13,
2011, the day after the
traffic stop.  The prosecution noted
during the discussion of the jury questions that it appeared from the DMV
document that the car was a gift to defendant.

            The court proposed to tell the jury
that defendant was arrested on the “date of this incident, April 12th.”  Defense counsel objected:  “Well, I don’t want them instructed on that
issue unless they heard evidence of it.” 
When it was confirmed, after consultation with the court reporter, that
there was no testimony on when defendant was arrested, the court gave the
following answer to the jury:  “No
testimony regarding that.”

            With respect to when defendant
purchased the car, defense counsel and the prosecution were in agreement that
there was no evidence on the question other than defendant’s statement to
Fok.  So the court responded to the
jury’s second question with, “Per Officer Fok the defendant stated, he quote,
‘just bought the car.’ â€

            Defendant contends the court’s
answers misled the jury, violating his due process right to a fair trial.

            Defendant invited any error by
directly participating in crafting the responses to the jury questions.  “Inasmuch as defendant both suggested and
consented to the responses given by the court, the claim of error has been
waived.”  (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; see also >People v. Boyette (2002) 29 Cal.4th 381,
430 [defendant’s failure to object when trial court proposed not to respond to
juror’s note waived claim of error].) 
Although defendant cites authority for the proposition that
instructional error may be reviewed without an objection by the defendant (>People v. Coffman
(2004) 34 Cal.4th 1, 103, fn. 34; People
v. Thompkins (1987) 195 Cal.App.3d 244, 251, fn. 4; Pen. Code, § 1259), those authorities do
not apply to the situation here—responses to jury questions crafted with the
aid of defendant.  (See >People v. Roldan (2005) 35 Cal.4th 646,
729-730, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22).

            We note, in any case, that the trial
court’s responses to the questions were accurate.  Defendant does not point to any direct
evidence showing the date he was arrested. 
Similarly, there is nothing in the record showing when he purchased the
car, other than his statement to Officer Fok that he just bought the car.  Defendant does not claim the DMV document
established an official date of purchase. 
Of course the more pertinent question would have been when did defendant
take possession of the car.

            In sum, there was no error, and even
if there were, defendant invited it and waived any claim of error.

D. Drug Program Fee 

            Defendant contends the trial court’s order to pay a $50
drug program fee (§ 11372.7) should be vacated because the trial court
failed to make a finding of ability to pay.

            Defendant has forfeited this claim
of error by failing to object below.  In >People v. McCullough (2013) 56 Cal.4th
589, our Supreme Court held a defendant who failed to object to the imposition
of a similarly de minimis booking fee (Gov. Code, § 29550.2, subd. (a))
forfeited his right to challenge the fee on appeal.  (People
v. McCullough, supra, at p.
591.)  “[W]e hold here that because a
court’s imposition of a booking fee is confined to factual determinations, a
defendant who fails to challenge the sufficiency of the evidence at the
proceeding when the fee is imposed may not raise the challenge on appeal.”  (Id.
at p. 597.)

            For purposes of the necessity to
make an objection, we find no way to distinguish the drug program fee at issue
here from a booking fee, or from any of the other fees and fines for which
courts have required an objection to preserve an ability to pay issue for
appeal.  (See, e.g., People v. Nelson (2011) 51 Cal.4th 198, 227 [victim restitution
fine]; People v. Snow (2013) 219
Cal.App.4th 1148, 1151 [probation report and supervision fees]; >People v. Crittle (2007) 154 Cal.App.4th
368, 371 [crime prevention fine]; People
v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 [probation fee]; see also >People v. Martinez (1998) 65 Cal.App.4th
1511, 1518 [prosecution waived any error by trial judge in failing to state
reasons for not imposing drug program fee].)

            Accordingly, we will uphold the
trial court’s order to pay a $50 drug program fee.

>


> 

>IV.
DISPOSITION

            The judgment is affirmed.

 

 

 

                                                                                    _________________________

                                                                                    Rivera,
J.

 

 

We concur:

 

 

_________________________

Ruvolo, P.J.

 

 

_________________________

Reardon, J.