P. v. Esparza
Filed 2/22/13 P. v. Esparza 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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and Respondent,
v.
JOE JOHN ESPARZA
Defendant and Appellant.
E056278
(Super.Ct.No. BAF1100248)
O P I N I O N
APPEAL from the Superior Court of
County. Gary B.
Tranbarger, Judge. Affirmed in part and
reversed in part with directions.
Athena Shudde, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, and Melissa Mandel and Eric A. Swenson, Deputy
Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and
appellant Joe John Esparza guilty of multiple counts, including assault with a
firearm, second degree robbery, and possession of methamphetamine (counts 14,
15, 18, 29-32, 35, & 37). In a
bifurcated trial, the court made true findings as to certain sentence enhancement
allegations. Defendant was sentenced to
21 years 4 months in prison.
On appeal, defendant argues
there was insufficient evidence to support his conviction of
37). He contends there is no evidence to
support any of the elements of possession of methamphetamine in that the baggie
containing the drug was found on the ground in a parking lot 5 to 10 feet from
where defendant and his accomplices were arrested.
He further argues that the
29 should be corrected to properly reflect the court’s oral pronouncement of
judgment.
The People concede both
points. We agree with the parties on
both arguments. We reverse the
conviction for possession of methamphetamine and vacate the sentence. The convictions on all other counts are
affirmed. We will also direct the trial
court to make a new minute order to properly reflect the court’s oral
pronouncement of judgment as to count 29.
II. FACTUAL SUMMARY
On April 22, 2011, defendant was involved in an early morning
armed robbery of a convenience store in Cabazon. As Margaret Vaughn, an employee of the store,
was leaving the store around 6:15 a.m., a man wearing a mask entered the store with
a shotgun held to his side. The masked
man jumped over the counter, shoved the shotgun into store clerk Debra Law’s
stomach, and demanded money.
As Vaughn attempted to call
911, she was approached by another man in light jeans, a black hoodie, and a bandanna
covering his face. The man ran up to
her, grabbed her, threatened her safety, and took her telephone. The hooded man ran back to a beige Honda
Accord, where a third man waited in the driver’s seat.
The masked man came out of the
store minutes later with a store bag full of money. The masked man got into the beige Honda and
all three drove away.
Law immediately called
911. Vaughn reentered the store and was
able to give a partial license plate number and provided a description of the
car. A police broadcast was sent to
patrol units in the area informing officers of the robbery and to be on the
lookout for three suspects and a champagne or gold Honda Accord.
Around 8:00 a.m., David Abasta, an off-duty sheriff’s deputy,
observed the Honda in a diner parking lot in Cabazon. The deputy watched the three men and the car
while waiting for backup to arrive. He
observed all three men exit the car and saw at least one of them change
clothing.
When uniformed officers
arrived, the three men were detained and searched. A search of the Honda revealed gloves,
cigarettes, a bag from the convenience store, a balaclava, a number of
sweatshirts, and two cell phones, including one belonging to Vaughn. Money was found on the men and a loaded
shotgun was found in the engine compartment.
Approximately 5 to 10 feet
from the car a sheriff’s deputy found a baggie containing a white crystalline
substance. The baggie was later found to
contain 0.19 grams of methamphetamine.
III. ANALYSIS
A.
Methamphetamine Conviction
Defendant argues there was
insufficient evidence to support the methamphetamine conviction under Health
and Safety Code section 11377, subdivision (a).
He specifically argues there was no evidence to support the elements of
dominion and control, possession, or knowledge of the character of the
methamphetamine necessary for a conviction of that offense. We agree.
When reviewing an
insufficiency of the evidence claim, the appellate court must decide “whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.†(Jackson
v. Virginia (1979) 443 U.S. 307, 319.)
Unlawful possession of
methamphetamine requires proof that the accused: (1) possessed, exercised control over, or had
the right to control an amount of methamphetamine; (2) knew of its presence;
(3) knew of its nature as a controlled substance; and (4) possessed a usable
quantity of methamphetamine. (
1170, 1175.)
“‘It is well settled, of
course, that in a prosecution for unlawful
possession of narcotics, it is incumbent upon the prosecution to present
evidence from which the trier of the facts reasonably may infer and find that
the accused had dominion and control over the contraband . . . .
Mere proof of opportunity of access to a place where narcotics are found will
not support a finding of unlaw[f]ul possession.
[Citation.]’ [Citation.]†(People
v. Tripp (2007) 151 Cal.App.4th 951, 956.)
In this case, Officer Abasta
recognized the gold Honda Accord from a police broadcast as the car used in the
convenience store robbery. He called for
backup and kept an eye on defendant and his cohorts until backup arrived. Officer Abasta was approximately 100 feet
from the car while waiting for backup.
He watched the three men get out of the car at different times and saw
one take a sweatshirt off. The officer
stated that the men were never more than three to five feet from the car.
When backup arrived, the men
were detained and the car and surrounding area were searched. The baggie containing the methamphetamine was
found on the ground about 5 to 10 feet from defendant and his accomplices. However, there was no evidence that defendant
or his accomplices either threw or dropped the baggie on the ground.
Defendant never discussed the
baggie with the officers, and there was no evidence that defendant was under
the influence of methamphetamine or possessed drug paraphernalia. Defendant was not agitated, and did not seem
to notice the baggie on the ground because he never made a movement toward or
away from it.
The People agree that the
methamphetamine conviction was based solely on defendant’s close proximity to
the baggie and that such evidence is insufficient to support the conviction for
possession. As they recognize, “[m]ere
presence . . . is not sufficient to justify a finding of guilt.†(People
v. Foster (1953) 115 Cal.App.2d 866, 868.)
For these reasons, the conviction on count 37 for possession of a
controlled substance is reversed and the sentence vacated.
B.
Defendant contends the minute
order does not properly reflect the trial court’s oral pronouncement of
judgment as to count 29. We agree.
If there is a discrepancy
between the oral pronouncement and the minute order, the oral pronouncement
controls and the appellate court can correct the error. (People
v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
Under count 29, defendant was
convicted of conspiracy to commit robbery under Penal Code section 182,
subdivision (a)(1).
name="_ftnref1" title="">[1] The
crime is punishable by two, three, or five years in prison. (§§ 182, subd. (a), 213, subd.
(a)(2).) Because the court found true a
prior strike allegation, the sentence must be doubled. (§§ 667, subd. (e)(1), 1170.12, subd.
(c)(1).) Under section 654, the sentence
may be imposed and stayed.
Here, the court pronounced
defendant’s sentence on count 29 by stating:
“[O]ne-third doubled of six years, stayed pursuant to [section]
654.†Although the statement is not
perfectly clear, both defendant and the People interpret it to mean that
defendant was sentenced to a six-year term on count 29 (which was stayed under
§ 654). This is consistent with the
selection of the middle term of three years, doubled under the “Three Strikesâ€
law for a total of six years.
The court’s minute order
regarding sentencing states that
the sentence is: “1/3 the MID term of 10
years for a total of 6 years and 0 months.â€
There are several problems with this statement. First, the middle term for the conspiracy to
commit robbery under count 29 is three years, not 10 years. Second, using one-third of the middle term is
inappropriate because the sentence was stayed under section 654. (See § 1170.1, subd. (a).) Third, one-third of 10 years does not equal
six years. Most importantly, however,
the statement is not consistent with the oral pronouncement of the sentence,
which imposed a six-year term based on a doubling of the middle term of three
years.
The People join in defendant’s
request to correct the error. We agree
with the parties and will direct the court to issue a new minute order as set
forth below.
IV. DISPOSITION
The judgment is affirmed in part and reversed in part. Count 37 is reversed and the sentence on that
count is vacated. Following remand, the
trial court shall issue a new minute order stating that the sentence on count
29 shall be six years (double the middle term of three years) and stayed under
section 654. The court shall prepare an
amended abstract of judgment to reflect the reversal of
the conviction on count 37 and forward a copy of the amended abstract of
judgment to the Department of Corrections
and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RICHLI
Acting
P. J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The court’s reference to “one-third†suggests
it used one-third of the middle term of three years to calculate the
sentence. Using one-third of the middle
term would be appropriate, however, only if the court was imposing a
consecutive sentence not stayed by section 654.
(See § 1170.1, subd. (a).)
The court’s reference to “one-third†thus appears to be either a mistake
or a mistranscription.
