In re Dylan L.

Filed 6/17/08 In re Dylan L. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Thomas S. Burr, Commissioner.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a contested jurisdiction hearing, the juvenile court found true an allegation that appellant Dylan H., a minor, possessed a controlled substance without a prescription, in violation of Business and Professions Code section 4060 (section 4060).^[1] Following the subsequent disposition hearing, the court placed appellant on six months probation pursuant to Welfare and Institutions Code section 725, subdivision (a)).

On appeal, appellant contends the People did not establish the corpus delicti of the instant offense independently of appellants extrajudicial statements and therefore the adjudication of that offense cannot stand. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts

At approximately noon on January 17, 2007, City of Los Banos Police Officer Eddie Dolzadelli, who was assigned to Los Banos High School as a resource officer, was on the school campus when he received a telephone call from a teacher who stated that a student in her class [first student] had advised that a subject was attempting to sell a pill form substance.^[2] The first student identified a second student as the person who was attempting to sell pills. Officer Dolzadelli and the Dean of Students (the dean) then interviewed and searched the second student, and at some point thereafter, [Officer Dolzadellis] attention [became] focused on [appellant]. The officer became concern[ed] for [appellant] because [the officer] was advised [appellant] had taken three of the pills in the presence of [another] juvenile.

Thereafter, Officer Dolzadelli and the dean spoke with appellant in the office. At that time, appellant seemed extremely agitated . He also appeared to be under the influence. Appellant stated he had taken pills he had obtained from [another] juvenile who had identified the pills as being a prescription, brand name of Soma .

Officer Dolzadelli opined that appellant was under the influence of a central nervous system stimulant. He based that opinion on his observations that appellant was unable to sit still, was breathing very heavily and seemed very excited. These observations corresponded with certain listed side effects of Soma indicated on a printout Officer Dolzadelli obtained from the internet. Those listed side effects were [a]gitation, rapid heart rate, and irritability.

Officer Dolzadelli conducted an investigation and learned that Soma is not a scheduled narcotic, but it is a drug that cannot be dispensed without a prescription. The officers investigation consisted of contacting by telephone a pharmacy in town and the Poison Control Center, and consulting a book entitled Drug Identification Bible. (DIB.) The court took judicial notice of the DIB.

Appellant also stated, in response to questioning by the dean, that he had received three tablets for free from the original juvenile and that he had purchased an additional three from the second juvenile that was involved in the case.

Appellant wrote and signed the following statement, which was admitted into evidence: Derrick [H.] gave me three pills. I took them at brunch . First lunch I bought three more from Chad [A]. I put these pills in the drain and flushed them.

After talking further with appellant, Officer Dolzadelli concluded, The numbers didnt line up with the statement from the first two students. The numbers, the money, there should have been either less money or less pills in the possession of the students and it didnt line up so we continued to talk to the juveniles.

In talking to other juveniles, Officer Dolzadelli learned that appellant lied about flushing the pills. Appellant eventually admitted to handing them to his friend, another juvenile, [whom] he refused to identify in [the officers ] presence but did take the Dean of Students to locate this other student. Officer Dolzadelli made contact with this student and witnessed a statement from her as well as what had happened. The officer also recover[ed] some pills from [that] student, but those pills were not the same ones that had been in appellants possession.

As did the trial court, we take judicial notice of the DIB. (Evid. Code, 459, subd. (a) [reviewing court shall take judicial notice of each matter properly noticed by the trial court].) The 2007 edition of the DIB indicates that Soma is the brand name of a drug known as carisoprodol. (Drug Identification Bible (2007), p. 72.)^[3]

Procedural Background

After the parties had rested, defense counsel, in closing argument, asserted there is a corpus [delicti] problem because [a]ll the prosecution has presented are admissions by [appellant] but the officer did not present any evidence as to the fact that [appellant] actually had any of these pills in his possession .

DISCUSSION

As indicated above, appellant contends [t]here was simply no evidence, other than [his] extrajudicial admissions, that [he] ever possessed any prescription drug without a prescription so as to violate section 4060.

Under what is commonly called the corpus delicti rule, the prosecution must prove the corpus delicti, or the body of the crime itself--i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168.) In any criminal prosecution, the corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant. [Citations.] Such independent proof may consist of circumstantial evidence [citations], and need not establish the crime beyond a reasonable doubt [citations]. (People v. Jones (1998) 17 Cal.4th 279, 301.)

The California decisions have addressed the independent-proof requirement in various contexts. At trial, the defendants extrajudicial statements have been deemed inadmissible over a corpus delicti objection absent some independent evidence of the crime to which the statements relate [citations], and we have said that the corpus delicti rule is one governing the admissibility of evidence [citations]. Whenever an accuseds extrajudicial statements form part of the prosecutions evidence, the cases have additionally required the trial court to instructsua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations.] Finally, appellate courts have entertained direct claims that a conviction cannot stand because the trial record lacks independent evidence of the corpus delicti. [Citations.] (People v. Alvarez, supra, 27 Cal.4th at pp. 1169-1170, fns. omitted.)

The amount of independent proof of a crime required is quite small; we have described this quantum of evidence as slight [citation] or minimal [citation]. The People need make only a prima facie showing permitting the reasonable inference that a crime was committed. [Citation.] The inference need not be the only, or even the mostcompelling, one . . . [but need only be] a reasonable one . . . . [Citation.] (People v. Jones, supra, 17 Cal.4th at pp. 301-302.) Thus, the prosecution need not eliminate all inferences tending to show a noncriminal cause of [the harm]. Rather, the foundation may be laid by the introduction of evidence which creates a reasonable inference that the [harm] could have been caused by a criminal agency [citation], even in the presence of an equally plausible noncriminal explanation of the event. (People v. Ochoa (1998) 19 Cal.4th 353, 405.)

We reemphasize that the quantum of evidence the People must produce in order to satisfy the corpus delicti rule is quite modest . This minimal standard is better understood when we consider that the purpose of the corpus delicti rule is to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator. [Citation.] As one court explained, Todays judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically. [Citation.] [] Viewed with this in mind, the low threshold that must be met before a defendants own statements can be admitted against him makes sense; so long as there is some indication that the charged crime actually happened, we are satisfied that the accused is not admitting to a crime that never occurred. (People v. Jennings (1991) 53 Cal.3d 334, 368.)

The People argue that appellants failure to raise his corpus delicti claim before the close of presentation of evidence precludes appellate review. We disagree.

Two of the three cases upon which the People base their waiver claim -- In re Wright (1990) 52 Cal.3d 367 and People v. Mitchell (1966) 229 Cal.App.2d 318 -- stand for the proposition that a defendant may not challenge the admission of his or her extrajudicial statements on corpus delicti grounds if her or she does not object at the time the statements were proffered. The Peoples reliance on these cases, however, is problematic. Appellants claim is that evidence was insufficient to support his adjudication because the corpus delicti of the instant offense was not established, and as the court in People v. Alvarez, supra, 27 Cal.4th 1161 noted, No decision of this court, including Wright, has suggested that an evidentiary objection at trial is a prerequisite to raising instructional or sufficiency claims on appeal. (Id. at p. 1172, fn. 8.) Moreover, the continuing viability of Wright and Mitchell, even in the context of a corpus delicti challenge to the admission of evidence, is highly questionable given our Supreme Courts holding in Alvarez that [b]ecause of the adoption of section 28(d) [of the California Constitution] through Proposition 8 [and the resulting limitations on a courts ability to exclude relevant evidence in criminal proceedings], there no longer exists a trial objection to the admission in evidence of the defendants out-of-court statements on grounds that independent proof of the corpus delicti is lacking. (Id. at p. 1180).

We recognize that post-Wright Court of Appeal decisions have split on whether, by virtue of Wrights reasoning, the defendant must either give the prosecution trial notice of his insistence on independent proof or forfeit the benefit of the independent-proof rule entirely (People v. Alvarez, supra, 27 Cal.4th at p. 1172, fn. 8), and that in one of these decisions, People v. Sally (1993) 12 Cal.App.4th 1621, 1628, also cited by the People, the court, citing Wright, stated that [a] defendant cannot on review complain of insufficiency of evidence based on improper admission of corpus delicti evidence where defendant omitted to interpose a specific objection on the ground of the corpus delicti rule .

Sally, however, is inapposite. There was no objection in that case on either evidentiary or sufficiency grounds, whereas in the instant case, counsel raised the corpus delicti claim. But more fundamentally, we conclude there could be no waiver of appellants challenge to the sufficiency of the evidence on corpus delicti grounds because

in general, sufficiency of the evidence issues are never waived. (People v. Parra (1999) 70 Cal.App.4th 222, 224, fn. 2; see People v. Rodriguez (1998) 17 Cal.4th 253 262 [defendant could not waive his right to challenge the sufficiency of the evidence on which the [Three Strikes] allegation was found true until it was found true and, then, only by failing to file a timely notice of appeal]; People v. Cuccia (2002) 97 Cal.App.4th 785, 795 [Attorney General incorrectly contends defendant waived any issue as to the sufficiency of the evidence by failing to move for acquittal after the prosecutor rested].)

However, although we conclude appellants corpus delicti claim is properly before us, we also conclude it is meritless.

Appellant argues that the only evidence of corpus delicti was Officer Dolzadellis testimony -- which the officer based on his observations that appellant was unable to sit still, was breathing very heavily, seemed very excited -- that appellant was under the influence of a central nervous system stimulant. This testimony was insufficient to establish the corpus delicti of the offense, appellant argues further, because, according to various internet websites cited by appellant, Soma is a depressant, not a stimulant, and it has sedative effects, and not the kind of effects the officer described. Accordingly, appellant asserts, the stimulated state described by Officer Dolzadelli is not consistent with [appellant] having allegedly possessed the prescription drug Soma.

We note first that none of the website evidence appellant cites for his claims about the nature and effects of Soma was before the juvenile court and is not part of the record on appeal, and therefore we may not consider it. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [review on a direct appeal is limited to the appellate record].) Moreover, even if the cited evidence was properly before us, it would do no more than contradict Officer Dolzadellis testimony as to the effects of Soma and support an inference that appellant did not possess that drug. However, as indicated above, the People were not required to eliminate all possible noncriminal explanations so long as evidence in the record supported a permissible inference of criminal conduct. (People v. Ochoa, supra, 19 Cal.4th at p. 405.)

Here, the officer testified that appellant appeared agitated and excited and was breathing heavily. He testified further that these symptoms corresponded to the effects of Soma, as indicated in written material he had obtained, and that Soma may not be dispensed without a prescription. This evidence, though far from compelling, was sufficient to meet the minimal standard required to establish by evidence independent of appellants statements that the offense of possession of a controlled substance in violation of section 4060 occurred. Accordingly, appellants challenge to his adjudication of that offense fails.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Kane, J.

^[1] Section 4060 provides, in relevant part, subject to exceptions not applicable here, that No person shall possess any controlled substance, except that furnished to a person upon the prescription of a physician .

^[2] Except as otherwise indicated, our factual statement is taken from Officer Dolzadellis testimony.

^[3] Meprobamate is a metabolite of carisprodol. (People v. Duvall (1995) 9 Cal.4th 464, 471.) Subject to exceptions not applicable here, any material, compound, mixture, or preparation which contains any quantity of meprobamate is a controlled substance. (Health & Saf. Code., 11057, subd. (d)(18).)