P. v. Odell
Filed 6/13/13 P. v. Odell CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RONALD JAMES ODELL,
Defendant and
Appellant.
F062979
(Super.
Ct. No. BF134685A)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
Sylvia
Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice
Su, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant
Ronald James Odell challenges his convictions for
of methamphetamine, and possession of marijuana on the grounds the evidence
was insufficient to establish he had knowledge of and exercised dominion and
control over the controlled substances.
He also contends the trial court erred when it failed to instruct sua
sponte that mere proximity to controlled substances is not sufficient to
constitute constructive possession.
Finally, he claims his conviction for driving on a suspended license
should be reversed because the trial court erred when it refused to instruct on
the defense of necessity. We reject
Odell’s contentions and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The evening
of November 26, 2010,
California Highway Patrol Officers Eric Martinez and Mark McGary were on patrol
in Kern
County. Martinez
saw a gray Toyota Corolla make a right turn and then stop beyond the limit line
at a red light. Martinez
activated his vehicle’s front red lights to effectuate a traffic stop; the Toyota
accelerated onto an onramp. After the Toyota
accelerated, Martinez activated his
siren. The Toyota
eventually stopped and Martinez
pulled up behind it.
When Martinez
walked up to the Toyota, Odell was
in the driver’s seat. There were no
other occupants in the Toyota. Odell was leaning back in the seat, his eyes
were partially closed, and his hand was up at his chest area. Odell told Martinez
he was having a medical issue and the officers radioed for an ambulance. Odell was transported to the hospital around 11 p.m.
After the
ambulance arrived and Odell had been placed on the gurney for transport, the
officers conducted an inventory search of the Toyota. Odell was not the registered owner of the Toyota
and nothing with his name was found in the vehicle.
When the vehicle was searched, a
cigarette package was on the center console between the driver and passenger
seats. Inside the package were a baggie
of methamphetamine and a baggie of marijuana.
The package was within inches of where Odell had been sitting in the Toyota. The weight of the marijuana was determined to
be .7 grams; the weight of the methamphetamine was determined to be 2.08 grams,
a usable amount.
After
searching the Toyota, Martinez
and McGary went to the hospital. It was
determined that Odell was not suffering from any medical issues. Martinez
and McGary transported Odell from the hospital to the jail, where he was
booked.
Odell was
charged with transportation of methamphetamine (count 1), possession of
methamphetamine (count 2), possession of marijuana (count 4), and driving on a
suspended license (count 3). It also was
alleged as to count 1 that Odell had suffered three prior controlled substance
related convictions within the meaning of Health and Safety Code section
11370.2, subdivision (a).
Odell asked
to bifurcate the trial; his request was granted. The parties stipulated that Odell knew
methamphetamine was a controlled substance.
At trial, Catherine Stoy testified
she and Odell previously were in a romantic relationship and had remained
friends. Stoy was Odell’s primary source
of transportation. The evening of November 26, 2010, Stoy had taken
Odell to someone’s house, where she saw the Toyota
parked at that house. Someone at the
house was going to give Odell a ride home.
Stoy testified she had seen a woman she knew as Nicole drive the Toyota
on at least six occasions and also had seen Odell drive the Toyota one time.
A jury
convicted Odell of all charges. The
trial court found the three enhancements true.
At sentencing, the trial court granted Odell’s motion to strike one of
his prior convictions. A sentence of
nine years in state prison was
imposed.
DISCUSSION
Odell challenges
his convictions for transportation of methamphetamine, possession of
methamphetamine, and possession of marijuana on the grounds the evidence was
insufficient to establish he had knowledge of and exercised dominion and
control over the controlled substances.
He also contends the trial court erred when it failed to instruct sua
sponte that mere proximity to controlled substances is not sufficient to
constitute constructive possession and that his counsel was ineffective for
failing to request such an instruction.
Finally, he claims his conviction for driving on a suspended license
should be reversed because the trial court erred when it refused to instruct on
the defense of necessity.
I.
Knowledge
and Dominion and Control
Odell contends the evidence was
insufficient to demonstrate that he knew the cigarette package contained
methamphetamine and marijuana and that he exercised dominion and control over
the package. We disagree.
Standard of Review
In
reviewing the sufficiency of the evidence supporting a
is whether the record evidence reasonably could support a finding of guilty
beyond a reasonable doubt. The relevant
question is 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. In determining whether a reasonable trier of
fact could have made such a finding, this court views the evidence in the light
most favorable to the People and presume in support of the judgment the
existence of every fact the trier of fact reasonably could deduce from the
evidence. (People v. Staten (2000) 24 Cal.4th 434, 460.)
Analysis
The essential elements of
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. Each of these elements may be established
circumstantially. [Citation.]†(People
v. Camp (1980) 104 Cal.App.3d 244, 247-248; see People v. Palaschak (1995) 9 Cal.4th 1236, 1241-1242 (
by proof that the defendant (1) transported the controlled substance (2) with
knowledge of its presence and illegal character. (People
v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
“[P]ossession 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.]â€
(People v. Williams (1971) 5
Cal.3d 211, 215.) “Constructive possession
occurs when the accused maintains control or a right to control the
contraband.†(Ibid.) “The elements of
unlawful possession may be established by circumstantial evidence and any
reasonable inferences drawn from such evidence.†(Ibid.) However, “proof of opportunity of access to a
place where narcotics are found, without more, will not support a finding of
unlawful possession.†(
285.)
“Knowledge
of the presence of contraband and of its narcotic content may be inferred from
the accused’s conduct or statements at or near the time of his arrest. [Citations.]â€
(People v. Solo (1970) 8
Cal.App.3d 201, 206, disapproved on other grounds in People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 4.)
Here,
Odell challenges the sufficiency of the evidence on the grounds he did not have
exclusive access or dominion and control over the Toyota, and, further, there
was no evidence to indicate he knew of the presence of controlled substances in
the Toyota or exercised dominion and control because he did not do any act
indicating a consciousness of guilt.
Odell’s arguments fail because (1) exclusive dominion and control over
the location where controlled substances are found is not a prerequisite to
possession, and (2) he did act with a consciousness of guilt.
Odell’s argument that he did not
own the Toyota and that others had exercised dominion and control over the
vehicle, thus indicating he merely had an opportunity for access to the
controlled substances but did not possess them, is unpersuasive. Equally unpersuasive is his claim he had no
knowledge of the presence of the controlled substances.
The evidence established that Odell
drove the Toyota on at least one previous occasion before November 26,
2010. Odell was the only occupant and
the driver of the Toyota at the time he was stopped by Martinez and
McGary. The fact that others had access
to the Toyota on other occasions does not negate a finding that Odell exercised
dominion and control, particularly on this occasion; exclusive possession is
not required. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.)
The cigarette package was found a
few inches from where Odell had been sitting in the car. Physical possession on Odell’s person of the
controlled substance is not required. (
Cal.App.2d 176, 179.) The location of
the contraband in close proximity to Odell while in the driver’s seat and while
he was the sole occupant of the vehicle is further evidence supporting
constructive possession. (
417.)
Contrary to Odell’s claim, he did
evidence a consciousness of guilt. When
Martinez initially attempted to effect a traffic stop, Odell accelerated and
drove away onto an onramp; Martinez had to give pursuit. When stopped, Odell falsely claimed to be
suffering a medical emergency. Odell’s
actions in accelerating away from the officers when they attempted to effect a
traffic stop and in claiming to have a nonexistent medical emergency are acts from
which a reasonable jury could infer consciousness of guilt—guilty knowledge of
the presence of controlled substances in the cigarette package. (People
v. Tripp (2007) 151 Cal.App.4th 951, 956.)
In sum, the evidence established
that Odell acted with a consciousness of guilt and the controlled substances
were found in a location over which Odell had immediate, and at that time
exclusive, dominion and control. Each of
the elements of knowledge and possession may be established by circumstantial
evidence. (Palaschak, supra, 9 Cal.4th at pp. 1241-1242.) The reasonable inferences to be drawn from
the evidence in this case establish more than a mere presence or mere
opportunity. We accept all logical
inferences that may be drawn from the circumstantial evidence. (People
v. Maury (2003) 30 Cal.4th 342, 396.)
We conclude substantial evidence
exists from which a reasonable jury could, and did, conclude that Odell had
knowledge of, and exercised dominion and control over, the controlled
substances in the cigarette package found in the Toyota. (People
v. Jenkins (1979) 91 Cal.App.3d 579, 584.)
II.
Mere
Proximity Instruction
Odell contends the trial court
should have sua sponte instructed the jury that mere proximity to narcotics
does not constitute constructive possession and failure to do so was
prejudicial error. Alternatively, Odell
contends that if the trial court had no sua sponte duty, defense counsel was
ineffective for failing to request such an instruction. We reject Odell’s contentions because considering
the instructions as a whole, the jury was instructed that mere proximity was
insufficient for a guilty verdict.
A trial court is obligated to
instruct on all elements of a charged offense.
(People v. Cummings (1993) 4
Cal.4th 1233, 1311.) In reviewing a
challenge to jury instructions, we must consider instructions as a whole; we
assume the jurors are capable of understanding and correlating all the
instructions given to them. (
1082, 1088 (Ramos);
Cal.App.4th 1285, 1294.) “Instructions
should be interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation. [Citations.]â€
(People v. Laskiewicz (1986)
176 Cal.App.3d 1254, 1258.)
The jury was instructed with
CALCRIM No. 2300, transportation of a controlled substance, CALCRIM No. 2304,
possession of a controlled substance, and special instruction No. 1, possession
of a controlled substance while driving a motor vehicle. Each of these three instructions informed
the jury that in order to return guilty verdicts, it must find that Odell (1)
“knew of the presence of the substance†and (2) “knew of the substance’s nature
or character as a controlled substance.†In addition, the jury was instructed that in
order to find Odell guilty of the charges, it must find he intentionally
committed the prohibited acts with the specific mental state set forth in the
instruction for each crime. The jury
also was instructed that the People must prove each element beyond a reasonable
doubt.
In
1170 (Montero), the appellate court
rejected a claim similar to that raised by Odell here and upheld the giving of
CALCRIM No. 2302, possession for sale of a controlled substance. The appellate court acknowledged that “[m]any
courts have long stated†that the possession element of offenses prohibiting
possession of a controlled substance require a showing of “dominion and control
over the controlled substance.
[Citations.]†(
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’â€]; People
v. Parra (1999) 70 Cal.App.4th 222, 225-226 [“prosecution must prove beyond
a reasonable doubt that … the defendant exercised dominion and control over the
controlled substanceâ€].)
This
factor notwithstanding, the appellate court in Montero rejected the defendant’s claim that the trial court erred
in not using the phrase “dominion and control†in defining the possession
element and held that CALCRIM No. 2302 correctly states the possession
requirement. (Montero, supra, 155 Cal.App.4th at p. 1176.) CALCRIM No. 2302 instructs the jury on the
knowledge and possession elements of a controlled substance offense using
language identical to that used in CALCRIM Nos. 2300 and 2304 and in special
instruction No. 1.
Considering the instructions as a
whole, the jury would not have understood that mere proximity to the controlled
substances alone was sufficient for a guilty verdict. (Ramos,
supra, 163 Cal.App.4th at p. 1088.)
The instructions clearly informed the jury that Odell had to have
knowledge of the controlled substances and their nature as controlled
substances, and he had to have possessed the controlled substances by exercising
dominion and control. (
1176.) Therefore, the trial court did
not err in failing to sua sponte issue a special instruction on mere proximity.
Because the instructions given
properly and fully instructed the jury on the knowledge and possession requirements
for controlled substance offenses, defense counsel was not ineffective for
failing to request a special instruction on mere proximity. Defense counsel is not required to request
additional instructions when pattern instructions fully and adequately instruct
on the elements of the offense or to otherwise engage in idle acts in order to
appear competent. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091-1092.)
III.
Necessity
Instruction
Odell’s last contention is that the
trial court committed reversible error when it refused to instruct the jury on
the defense of necessity for the count 3 offense of driving on a suspended
license. Defense counsel did request
that the jury be instructed with CALCRIM No. 3403, but the trial court rejected
the request and refused to issue the instruction.
Again, we reject Odell’s claim of
error for two reasons. First, there is
no indication that his claim of a medical emergency had any basis in fact. It appears to have been nothing more than a
ruse, since the hospital found no medical issues. Second, assuming arguendo there was a medical emergency, Odell failed to establish
the elements of a necessity defense.
The
necessity defense traditionally has covered the situation where physical forces
beyond the actor’s control have rendered illegal
conduct the lesser of two evils. (
583, 586.) Thus, the defendant must be
presented with a situation of an emergency nature that threatens physical harm
and cannot be resolved through an alternative legal course of action. (People
v. Heath (1989) 207 Cal.App.3d 892, 901.)
The necessity defense represents a public policy decision not to punish
an individual who opts to commit an offense in order to avoid a greater harm or
evil. (Ibid.)
Although
necessity is not recognized in California by statute, it was judicially
sanctioned as a defense to a charge of nonviolent escape in
823. However, this “extremely limitedâ€
defense is available only if certain conditions are met. (Id.
at p. 831.) For example, the defendant’s
belief that his or her criminal act was the only viable and reasonable choice
available must have been objectively reasonable under the circumstances. (People
v. Condley (1977) 69 Cal.App.3d 999, 1010.)
Further, the threat, i.e., the greater harm or evil, must have been “a
specific threat of death, forcible sexual attack or substantial bodily injury
in the immediate future.†(
justification distinct from the elements of the particular crime, the burden is
on the defendant to prove all of the elements by a preponderance of the
evidence. (Condley, at p. 1013.)
Here, Odell cannot establish the
basic elements of the defense, specifically, that driving on a suspended
license was the only viable and reasonable choice under the circumstances. Obviously, if Odell had been suffering a
other legal options available to him:
(1) calling 911 for an ambulance, (2) calling Stoy to transport him, or
(3) requesting someone at the residence where he picked up the Toyota to
transport him for medical treatment.
The evidence was insufficient to
warrant an instruction on the defense of necessity because Odell failed to
establish there was an imminent danger; and if a danger existed, there were
other legal alternatives available to Odell.
(People v. Verlinde (2002) 100
Cal.App.4th 1146, 1165.)
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Kane, J. and Peña, J.
