P. v. Hill

Filed 11/28/07 P. v. Hill CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Douglas E. Weathers, Judge. Affirmed with directions.

Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

On appeal, defendant Carl Jerome Hill contends that there was no substantial evidence that he possessed a controlled substance in violation of Health and Safety Code section 11350. For the reasons set forth below, we shall affirm the judgment.

I

FACTUAL AND PROCEDURAL HISTORY

On May 10, 2005, Riverside police officers executed a search warrant at 3511 Chicago Avenue, apartment P, the home of Richie Howard. The one-bedroom apartment was small and contained approximately 800 square feet of living space. The police had information that Howard was involved in the sale of cocaine and that the apartment was a source of narcotic-related activity. The apartment was located on the second floor of the building and had a balcony in the rear, which faced onto a central courtyard with a pool.

Detectives Joseph Miera and Scott Impola, accompanied by Officer Gary Toussaint, took their positions in the rear courtyard as an entry team. They then moved up the stairway toward the front door of the apartment. Before police were able to announce their presence, an individual peeked out the kitchen window and ran toward the rear of the apartment. Detective Miera pulled the security screen door, which caused it to fall off its hinges; he then stepped aside so the rest of the team could make entry into the apartment.

As Detective Miera began to enter the apartment, he heard someone yell, Runners! Detective Miera then ran back down the stairway to assist his fellow officers give chase. Two men, Richie Howard and Tony Wilder, had jumped off the balcony in an attempt to escape. Howard successfully ran off, but officers were able to catch Wilder.

Sergeant Frank Assumma, the last member of the entry team to arrive inside, saw that Howard and Wilder had run out a sliding glass door from the living room onto the balcony. Although Sergeant Assumma was unsure where defendant had been when the other officers came through the door, defendant was somewhere within the confines of the apartments living room/kitchen area. Once the sergeant reached the balcony and realized that the other two occupants had managed to jump over it, he turned back toward the interior of the apartment. He then noticed a piece of rock cocaine on the living room floor. He also saw the front end of a loaded, nine-millimeter semiautomatic handgun, which was protruding from underneath a pillow, lying on top of the couch.

While the other officers were securing the apartment, Sergeant Assumma was standing next to a three-pronged candleholder, which was resting on top of a wall heater in the living room. Sergeant Assumma looked over at the candleholder and saw 21 other rocks of cocaine base inside the middle prong, in three separate packages, containing eleven, seven and three rocks, respectively.

Around the same time, Detective Toussaint had returned to the apartment with Wilder. When the detective walked inside, defendant was sitting in the kitchen area along with a five- or six-year-old child, who was related to Howard. Officers found shotgun shells, a digital scale, and an unknown amount of cash.

Sergeant Assumma testified that he had personally seen defendant at Howards apartment on two separate occasions and that he had seen defendants car parked in Howards parking space, at the apartment complex, four or five different times.

Detective Miera testified that he executed the search warrant after participating in an undercover drug buy and surveillance program focused on an apartment complex on University Avenue and the apartment complex in which Howard lived. The detective observed defendant in Howards company at those two locations on at least five different occasions. Moreover, the detective recalled seeing Howard driving defendants car and saw defendants car in Howards parking space on numerous occasions.

On February 17, 2006, the Riverside County District Attorney filed an information alleging that defendant had committed a violation of Health and Safety Code section 11351.5, possession of cocaine base for sale (count 1), and one violation of Health and Safety Code section 11370.1, possession of cocaine base while armed with a loaded, operable firearm (count 2). The information further alleged that defendant committed those offenses while released from custody within the meaning of Penal Code section 12022.1.

On July 12, 2006, a jury convicted defendant of a violation of Health and Safety Code section 11350, possession of a controlled substance, a lesser included offense of count 1. The jury was unable to reach a verdict on count 2, which the trial court ultimately dismissed. The trial court also granted the prosecutions motion to dismiss the allegation under Penal Code section 12022.1. On October 13, 2006, the trial court sentenced defendant to a term of eight months in state prison for his violation, which was to run consecutive to his three-year aggregate term in another case, No. RIF123440.

II

DEFENDANTS CONVICTION IS SUPPORTED BY SUBSTANTIAL EVIDENCE

Defendant contends that [t]here was no substantial evidence [defendant] possessed the contraband found in Howards apartment.

Our review of any claim of insufficiency of the evidence is limited. In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Bolin (1998) 18 Cal.4th 297, 331.)

Given this courts limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction for possession of a controlled substance. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hale (1999) 75 Cal.App.4th 94, 105.) The standard of review applies even when the conviction rests primarily on circumstantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Here, the record discloses ample evidence to support the jurys verdict.

The essential elements of 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. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242, quoting People v. Camp (1980) 104 Cal.App.3d 244, 247-248.)

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.] (People v. Williams (1971) 5 Cal.3d 211, 215.) Each of these elements may be established circumstantially. [Citations.] (People v. Palaschak, supra, 9 Cal.4th at p. 1242.) Constructive possession may be shown by circumstantial evidence and any reasonable inferences that can be drawn from the circumstantial evidence. (People v. Glass (1975) 44 Cal.App.3d 772, 774.)

A review of the record reveals substantial evidence of defendants constructive possession of the rock cocaine. Although the rock cocaine was found in Howards apartment, possession is still imputed to defendant since conviction for possession of the cocaine can be predicated upon a showing of nonexclusive or joint possession. (People v. Newman (1971) 5 Cal.3d 48, 52, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) Defendant was present in or immediately next to the living room where officers found a loaded firearm partially concealed under a pillow on the couch, a piece of rock cocaine in plain view on the living room floor, and 21 other pieces of rock cocaine inside a candleholder. Moreover, officers found a digital scale, cash, and shotgun shellsevidence indicating Howards involvement in the sale of illegal drugs. In addition, the evidence also showed that defendant had associated with Howard; that Howard had driven defendants vehicle; and that defendant had parked his vehicle in Howards parking space, located in the apartment complex, on numerous occasions. Officers had also observed defendant in Howards company at another undercover drug surveillance program, located at an apartment complex on University Avenue. Association with narcotic users or dealers and familiarity with a particular drug are factors that may be considered in determining whether a defendant exercised joint dominion and control over contraband. (People v. Roberts (1964) 228 Cal.App.2d 722, 729.)

Based on the evidence above, we conclude that, despite the existence of evidence that may support a contrary finding, there was substantial evidence in the record to support the jurys finding that defendant had constructive possession of the rock cocaine found in Howards apartment.

Notwithstanding the above, defendant, in his reply brief, attempts to rely on a factually distinguishable case, United States v. Esquivel-Ortega (9th Cir. 2007) 484 F.3d 1221 (Esquivel-Ortega). First, we note that we are not bound by the decisions of the Ninth Circuit. (In re Tyrell J. (1994) 8 Cal.4th 68, 79, overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128, 130.) Second, Esquivel-Ortega is not applicable.

In Esquivel-Ortega, the defendant had been a passenger in a van in which drugs were found. He was not the driver, sole occupant, or registered owner of the vehicle. (Esquivel-Ortega, supra, 484 F.3d at p. 1226.) The Ninth Circuit held that defendants mere proximity to the drug, [his] presence on the property where it is located, and [his] association with the person who controls it are insufficient to support a conviction for possession. (Id. at p. 1228.) Esquivel-Ortega, however, is distinguishable. In that case, the drugs were discoverednot in plain viewbut only when law enforcement sawed off the bumper and discovered a panel, approximately ten inches wide and two inches tall, in the back which had been covered with Bondo and painted so it looked like it was part of the factory surrounding molding. (Id. at p. 1223.) Only after the agents removed the bumper did they find the cocaine in this hidden compartment. (Id. at p. 1224.) In this case, as discussed above, the drugs were found in a candleholder and on the living room floornot in some hidden compartment.

III

DISPOSITION

The superior court clerk is directed to correct the abstract of judgment to reflect that defendant was found guilty by a jury and that the sentence is to run consecutive to case No. RIF123440. Additionally, the superior court clerk is directed to forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.