P. v. Arriola





Filed 1/27/11 P. v. Arriola CA6




NOT TO BE PUBLISHED IN OFFICIAL REPORTS



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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ANTOINETTE LEE ARRIOLA, Defendant and Appellant.

H034278 (San Benito County Super. Ct. No. CR0900073)

I. Statement of the Case
Defendant Antoinette Lee Arriola appeals from a judgment entered after a jury convicted her of possessing for sale cocaine, methamphetamines, and marijuana and further found that she previously suffered a conviction for a drug-related offense. (Health & Saf. Code, §§ 11351, 11378, 11359, 11370.2, subd. (a).) On appeal, she claims there is insufficient evidence to support her convictions. She also claims that she is entitled to additional presentence credits.
We affirm the judgment.
II. Facts
Around 3:00 p.m., on January 9, 2009, San Benito County Probation Officer Jason Scimeca went to defendant’s residence at 74 Karen Court in Hollister because she had missed her appointment that day. He knocked on her door. It took a while for her to open the door. Upon entering, Officer Scimeca asked if anyone else was there. Defendant said her niece was in the bathroom. Officer Scimeca searched the house and found a duffel bag in the master bedroom. The bag contained contraband, cash, pay/owe sheets, bullets, and a letter from the district attorney to Ernest Salas at that address concerning his drug case. Defendant told Officer Scimeca that Salas had left 30 minutes earlier. She said that the bag was his.
Officer Scimeca checked the bedroom closet and then the bathroom, where he encountered defendant’s niece. She pulled the shower curtain aside, and Officer Scimeca saw defendant hiding there. Officer Scimeca found cash, a meth pipe, a digital scale, baggies, and contraband in the tub. Salas also had methamphetamine, cash, and a key to the house in his pockets. Although Salas said that the drugs were his, Officer Scimeca arrested Salas and defendant.
San Benito County Deputy Sheriff Michael Mull testified that defendant’s residence was previously searched in July 2008, and police found $56,000 in a safe and a substantial amount of methamphetamine. At that time, Salas reported that he lived at the residence. The recent search revealed a quarter pound of methamphetamine, 15 grams of cocaine, and 19 grams of marijuana. A total of $5,545 in cash, a scanner, and surveillance camera were also found, although the camera was not hooked up. Deputy Sheriff Mull testified as an expert on possession of drugs for sale. He opined that both defendant and Salas possessed the drugs found in the residence for sale and estimated their value at $5,600.
The Defense
Defendant denied that she missed her probation appointment. She said she only had to call the probation department, which she had done. She testified that Salas did not live with her; and on January 9, she was unaware that he was inside the house. She explained that the male clothing in the house belonged to her son, who had recently moved out. She said that in 2007, Salas was selling and using drugs and staying at her house. At one point, she was arrested for punching him. In June 2008, he begged her to take him back, but she refused.
Defendant admitted that in 2000, she passed a bad check. She admitted having a 2002 conviction for selling drugs. And she admitted lying to Officer Scimeca when she told him that Salas had left the house 30 minutes earlier. Defendant denied that she was selling drugs from her house.
Salas admitted that he had served time in prison for robbery, false imprisonment, and selling drugs. He testified that he and defendant’s brother went to defendant’s house around 3:00 p.m., on January 9. She was not there. He did not have a key, but they got in anyway without defendant knowing. He fell asleep in defendant’s bedroom and later went to the bathroom. Defendant then came home. Later, someone knocked, defendant said it was her probation officers, and Salas told defendant’s niece not to reveal his presence. Later, he told Officer Scimeca that defendant did not know he was there and that all the drugs and the duffel bag were his. Salas wrote the prosecutor and said the drugs were his. He said that he lived in Gilroy.
III. Sufficiency of Evidence
Defendant contends that there is insufficient evidence to support the convictions for possession of drugs for sale. She notes that Salas admitted the drugs were his. She asserts that she was merely present when his drugs were found and argues that her mere presence is not enough to prove beyond a reasonable doubt that she knowingly possessed, or exercised dominion and control over, the drugs.
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
A conviction for unlawful possession of a controlled substance for sale requires proof of dominion and control over the substance in a quantity usable for consumption or sale, with knowledge of its presence and its character as a restricted and dangerous drug. (People v. Martin (2001) 25 Cal.4th 1180, 1184; People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)
Proof of control or dominion over drugs with knowledge of their character can be established by circumstantial evidence and reasonable inferences drawn from it. (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474-475; People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Williams (1971) 5 Cal.3d 211, 215; People v. Meza (1995) 38 Cal.App.4th 1741, 1746; People v. Kortopates (1968) 264 Cal.App.2d 176, 179-180.) Illegal possession may be established by evidence of exclusive or joint actual or constructive possession or control. (People v. Valerio (1970) 13 Cal.App.3d 912, 921.) Thus, if a defendant has access to controlled substances in a place that is under his or her control, the defendant may be deemed in constructive possession of them. (People v. White (1958) 50 Cal.2d 428, 431; e.g., People v. Redrick (1961) 55 Cal.2d 282 [possession of contraband, found in a rooming house storeroom to which defendant had joint access]; People v. Maese (1980) 105 Cal.App.3d 710, [possession based on defendant being one of several occupants of a house in which contraband was found].) As stated in People v. Jenkins (1979) 91 Cal.App.3d 579, “The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation]. However, when the contraband is located at premises other than those of the defendant, dominion and control may not be inferred solely from the fact of defendant's presence, even where the evidence shows knowledge of the presence of the drug and its narcotic character.” (Id. at p. 584.)
Here, drugs were found in a duffel bag on the floor in the master bedroom and in the bathroom tub. Obviously, defendant enjoyed dominion and control over her own bedroom and bathroom. She is no stranger to drugs. And Deputy Sheriff Mull opined that defendant and Salas possessed the drugs for sale. Finally, the jury had substantial reasons to reject Salas’s insistence that the drugs where solely his and defendant’s testimony that she did not sell drugs and that Salas did not live or stay with her.
Given defendant and Salas’s history and background, the circumstantial evidence, and the expert testimony, the jury could reasonably conclude that defendant shared her home with Salas, she had knowledge and constructive possession of the drugs found there, and possessed them for purpose of selling them.
II. Custody Credit[1]
Defendant contends that she is entitled to credit for 41 days of actual time that she spent in custody prior to sentencing. She also claims that she is entitled to additional presentence work and conduct credit under amendments to section 4019.
Credit for Actual Custody
According to defendant, she was arrested on January 9, 2009, and was in custody until January 13, at which time she was released on her own recognizance. Thus, she claims she is entitled to five days of actual custody credit.
Defendant further notes that on March 25, 2009, after the jury returned its verdict, she was remanded to the custody of the sheriff without bail until sentencing on April 29, 2009. Therefore, she claims she is entitled to an additional 36 days of credit.
“Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [Citations.]” (People v. Buckhalter (2001) 26 Cal.4th 20, 30, italics added.)
The record reflects that at trial, Officer Scimeca testified that on January 9, defendant was taken into custody because he learned there was a preexisting warrant for her arrest. On January 13, defendant pleaded not guilty to the charges in this case. The minutes for that hearing reveal that defendant was released on her own recognizance in this case but remained in custody on a body-only hold based on a separate charge that she had violated probation.
At sentencing, on April 29, the court announced that it had two cases involving defendant—the present case and the probation violation case. At that time, the court asked the probation officer about credits in this case. The probation officer stated, “According to our records, your Honor, the defendant was held on another case and not this case, and so she’s not entitled to credits.” The presentence probation report for this case stated that defendant had no days in jail at the time of the report. The report noted that defendant had been detained on a “Body Only Hold for Case No. CR08-00984,” which was the separate probation violation case. In response to the probation officer’s statement, the court said, “So I show zero credits.” Both the prosecutor and defense counsel agreed.
The record supports defendant’s assertion that she was in custody from January 9 until January 13 and then from March 25 to April 29. However, the record does not clearly establish, and defendant fails to persuasively demonstrate, that those periods of presentence custody were attributable solely to this case. On the contrary, the record, including the probation report and the probation officer’s statement at sentencing, supports an inference that the basis of custody was the body-only hold in the probation violation case. Accordingly, we reject defendant’s claim for presentence custody credit.

Work and Conduct Credit
Defendant argues that since she is entitled to 41 days of actual custody credit, she is entitled to additional presentence conduct credits based on the retroactive application of an amendment to section 4019 that became effective in January 25, 2010, after judgment was entered in her case but before it became final.
Section 4019 permits a criminal defendant to earn additional credit prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior during detention (§ 4019, subd. (c)(1)). Such credits are collectively referred to as “ ‘[c]onduct credit[s].’ ” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The recently enacted Senate Bill No. 18 (2009-2010 3d Ex.Sess.) amended section 4019, effective January 25, 2010, to enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex.Sess., ch. 28, § 50.) The formula in place for calculating credits under section 4019 at the time of sentencing in this case was that a defendant could accrue conduct credit of two days for every four days of actual presentence custody (former § 4019, subds. (b), (c)); under the new formula provided in Senate Bill No. 18, a qualifying defendant may accrue conduct credit of four days for every four days of presentence custody (§ 4019, subds.(b)(1), (c)(1)).
We reject defendant claim for two reasons. First, she is not entitled to any credit for actual custody. Thus, she would not be entitled to additional credit even if the amendment to section 4019 were retrospective.
Second the issue regarding the retroactivity of the amendment has divided the district courts of appeal and is presently pending before the California Supreme Court. The First, Second, and Third District Courts of Appeal have held that the amendment to section 4019 applies retroactively. (People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
However, this court and the Fourth and Fifth Districts have held that the amendment applies prospectively. (People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 [Sixth District]; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
Defendant offers no new argument to convince us that the Legislature intended the amendment to apply retrospectively. Accordingly, we see no reason to alter our position that section 4019 applies prospectively. Section 3 provides that no part of the Penal Code is “retroactive, unless expressly so declared.” Section 3 thus reflects the general rule that legislative provisions are presumed to operate prospectively. “ ‘It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise. [Citations.]’ [Citations.] ‘We may infer such an intent from the express provisions of the statute as well as from extrinsic sources, including the legislative history. [Citation.]’ [Citation.] Nonetheless, ‘in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.’ ” (People v. Whaley (2008) 160 Cal.App.4th 779, 793-794.)


IV. Disposition
The judgment is affirmed.




______________________________________
RUSHING, P.J.






WE CONCUR:






____________________________________
PREMO, J.






____________________________________
ELIA, J.




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