P. v. Christopher

Filed 4/29/08 P. v. Christopher CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Affirmed.

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Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.

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Joan Christopher appeals from her conviction of possession of cocaine base pursuant to Health and Safety Code section 11350, subdivision (a).^[1] Christopher contends the evidence was insufficient to establish that she possessed cocaine base as charged. We disagree and affirm.

BACKGROUND

On January 8, 2007, at approximately 5:00 in the morning, two Los Angeles police officers responded to a radio call concerning an alleged robbery at a motel at 3787 Western Avenue. The officers, however, found that the address did not exist and proceeded to the nearest motel. While in the motels courtyard, they saw Christopher talking with a man in the doorway of a room on the second floor. Christopher and the man exchanged a small item or items hand-to-hand, and the man then looked toward the police with visible surprise, abruptly went back into the room, and shut the door. Christopher, whose back was to the officers and apparently did not see them, then walked downstairs. Based on his experience as a narcotics expert and his knowledge that the area was known for narcotics trafficking, Officer Kane, the senior officer, believed a narcotics transaction had taken place. The officers walked toward the base of the staircase and asked Christopher to stop. As she approached them, Officer Kane saw that she was holding something in her left hand but was trying to conceal it. He asked her if she had anything in her hands. She said no and opened her hands. At that moment, Officer Kane saw an off-white, rock-like substance wrapped in clear plastic fall to the ground. The officers handcuffed and arrested Christopher, and Officer Kim, the junior officer, retrieved the wrapped substance from the ground. Officer Kane later weighed the substance, photographed it, and booked it into evidence. The police laboratory test showed that the substance contained .20 grams of rock cocaine.

On February 6, 2007, the Los Angeles County District Attorney filed a one-count information charging Christopher with possession of cocaine base in violation of section 11350, subdivision (a). At a jury trial in May 2007, the prosecution presented testimony from the two arresting officers and a police criminalist. On direct examination Officer Kane testified regarding the events that caused him to suspect that a narcotics sale had occurred and his observation of Christopher dropping the rock cocaine. On cross-examination, he acknowledged that he never actually saw any items exchanged between Christopher and the man in the doorway. Officer Kim testified that he saw no trash or anything else on the ground in the parking stall where he and his partner talked to Christopher. When Officer Kane told him to check for something that Kane had seen drop from Christophers hand, Kim picked up the rock cocaine. On cross-examination, Officer Kim acknowledged that he had not seen anything fall from Christophers hand.

Christopher testified that she lived and worked as a housekeeper at the motel where she was arrested, which she described as drug infested, and that on the morning of her arrest she was on her way to clean up any drugs or drug paraphernalia in the motel parking lot. She denied that the man in the doorway and she had engaged in a drug transaction and said that the man had asked her to heat some food for him in her microwave oven because no other room in the motel contained that appliance. She was aware of two strangers whom, in the dark, she did not recognize as police officers. As she was on her way to alert her manager, she was startled to encounter the officers at the base of the stairs and threw up her hands in surprise. The officers persistently interrogated her regarding which tenants were selling drugs from their rooms and became angry when she told them she did not know what the tenants did in their rooms. The senior officer then suddenly found a cocaine rock and threatened to arrest her if she would not inform on the drug transactions at the motel. She protested that the cocaine rock was not hers, but to no avail and was arrested. She admitted that she had suffered a prior felony conviction for possessing drugs for sale, had allowed another person to sell drugs from her house, and had used drugs up until 2000, but claimed not to have used any drugs since then.

The jury convicted Christopher of possessing cocaine base. At sentencing, the court found Christophers offense to be a nonviolent drug possession offense eligible for probation pursuant to Penal Code section 1210.1, suspended the imposition of a sentence, and sentenced her to three years probation. The court imposed various conditions and statutorily mandated fines and fees. Christopher timely appealed.

DISCUSSION

Christopher contends the evidence was insufficient to establish beyond a reasonable doubt that she possessed cocaine base. We disagree.

The elements of possession of a controlled substance include (1) a specific controlled substance, in a sufficient quantity and in a usable form; (2) possession, which may be actual or constructive, exclusive or joint; and (3) knowledge of the fact of possession and of the illegal character of the substance. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175; 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) 82, p. 592; CALCRIM No. 2302.) Christopher acknowledges that the standard of review is whether substantial evidence supports the jurys verdict. Applying the substantial evidence standard of review, we presume in support of the verdict the existence of every fact the trier of fact reasonably could deduce from the evidence, and if the circumstances reasonably justify the trier of facts findings as to each element of the charged offense, we must affirm even if the circumstances and evidence would support a contrary finding. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

Christopher contends that based on discrepancies between the two officers testimony, inconsistencies within Officer Kanes testimony, the general consistency of her testimony, and the totality of the circumstances, the evidence is insufficient to establish that she was in possession of the cocaine. We disagree.

Christopher asserts that because Officer Kim testified that he did not see anything drop from her hand, his testimony was inconsistent with Officer Kanes testimony that he did see something drop from her hand. She is mistaken. Officer Kim testified only that he did not see her drop the cocaine, not that she didnt drop the cocaine, and nothing in the record indicates that he was in a position to see whether something dropped from her hand. Moreover, although Officer Kim testified that he did not see whether Christopher dropped the cocaine, he did testify that he previously had seen no drugs, trash, or other debris lying in the area where he picked it up, a fact tending to negate the inference that the cocaine had been placed on the ground by someone else earlier.

Christopher also contends that Officer Kanes testimony on direct examination was inconsistent with his testimony on cross examination; on direct he testified that he saw Christopher talking to the man in the doorway and it appeared as if they had just exchanged unknown items, small in size[,] but on cross he admitted that he never saw any items exchange hands. There is no discrepancy between these two statements. It is not only possible, but even likely, that when the light is poor, as in this case, and the distance great enough, an observer may see what appears to be small objects changing hands without seeing the objects themselves.

Nor do we agree that the totality of the circumstances fails to establish sufficient evidence of possession. Although Christophers testimony may have been consistent, the jury was entitled to disbelieve her and believe the officers when, as here, the officers testimony did not disclose physical impossibility nor was inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.) In essence, Christopher asks us to reweigh the evidence and accept her version of the events as more plausible than the officers. That we cannot and will not do.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P. J. JACKSON, J.^*

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^[1] All undesignated code section references are to the Health and Safety Code.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)