P. v. Nguyen
Filed 8/24/12 P. v. Nguyen CA4/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MAN MINH NGUYEN,
Defendant and Appellant.
G045443
(Super. Ct. No. 10WF0900)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Gregg L. Prickett, Judge. Reversed.
David Andreasen, 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, William M. Wood and Kathryn Kirschbaum,
Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
Introduction
In
the middle of the night, police officers discovered defendant Man Minh Nguyen
sleeping in his car with the motor running; marijuana was found inside the
glove box and trunk of the car. The
arresting officers did not see defendant drive the car.
Defendant
argues the trial court erred by denying his Penal Code section 1118.1
transportation of marijuana, based on the prosecution’s failure to prove the
element of transportation. The record
does not show sufficient evidence at the close of the prosecution’s
case-in-chief to establish transportation; therefore, the motion should have
been granted. We reverse the judgment,
and direct that a judgment of acquittal be entered.
Statement of Facts and Procedural History
About
2:50 a.m. on April 25, 2010, Garden Grove Police Officer Marcos Alamillo
noticed exhaust coming from defendant’s car, which was parked on a residential
street. Officer Alamillo found defendant
in the driver’s seat, Tung Lu in the front passenger seat, and a third person,
referred to only as Kau, in the rear seat behind defendant; all were
asleep. The car was parked in front of
Lu’s house. The car was registered to
defendant; his driver’s license showed defendant’s residence to be in
Fullerton.
Officer
Alamillo knocked on the car window to awaken defendant and asked him to present
his driver’s license and vehicle registration.
When defendant opened the glove box to retrieve his registration,
Officer Alamillo noticed marijuana inside a glass jar in the glove box. The marijuana was later weighed, and
determined to be 4.3 grams. Officer
Alamillo and another officer, who responded to the scene, removed the occupants
from the car and searched the interior.
Officer Alamillo searched the trunk of the car and found 2.04 ounces
of marijuana in a jar inside a box, along with Ziploc baggies, air freshener,
pipe cleaners, and a scale. The officers
did not find any marijuana on defendant when he was searched.
Another
police officer, who testified for the prosecution as an expert witness, opined
that defendant was transporting marijuana to sell or furnish it; his opinion
was based on the totality of the circumstances, including the scale, the
baggies, the amount of marijuana in the car, the marijuana’s location in two different
areas of the car, the large amount of marijuana in the trunk, and the time of
night. Three text messages were found on
defendant’s cell phone. One incoming
message, dated February 14, 2010, read:
“How much the QP of some bomb?â€
Another message on the same date in response read: “I got what I gave you for 8.†Another incoming message, dated February 26,
2010, read: “Cool. What you got on deck?†The expert witness testified these messages
strengthened his opinion that defendant was transporting marijuana on April 25,
2010, for the purpose of selling or furnishing it.
Defendant
was charged in an amended information with one count of transportation of
marijuana (Health & Saf. Code, § 11360, subd. (a)). At the close of the prosecution’s case-in-chief,
defendant made a motion to dismiss pursuant to Penal Code section 1118.1, on
the ground the prosecution had failed to establish the necessary element of
transportation. The court took the
motion under submission, and denied it at the close of evidence. The jury found defendant guilty. Imposition of sentence was suspended, and
defendant was placed on three years’ formal probation; terms and conditions
were imposed, including, but not limited to, serving 90 days in county
jail. Defendant timely appealed.
Discussion
Defendant
argues there was insufficient evidence
of the element of transportation because the prosecution failed to prove he
drove the car while it contained the marijuana.
In reviewing the denial of a Penal
Code section 1118.1 motion, we test the sufficiency of the evidence as it stood
at the close of the prosecution’s case-in-chief. (People
v. Trevino (1985) 39 Cal.3d 667, 695.)
We independently review the record to determine whether there is
substantial evidence of the existence of each element of the charged offense,
considering all the evidence presented by the prosecution and all reasonable
inferences that may be drawn from the evidence.
(People v. Cole (2004) 33
Cal.4th 1158, 1212-1213.) “‘A reasonable
inference “‘may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work.’†[Citation.]
It must logically flow from other facts established in the action.’ [Citation.]â€
(People v. Velazquez (2011)
201 Cal.App.4th 219, 231.)
“Transportation of a controlled
substance is established by carrying or conveying a usable quantity of a
controlled substance with knowledge of its presence and illegal character. [Citations.]
The crimes [of transportation and possession for sale] can be
established by circumstantial evidence
and any reasonable inferences drawn from that evidence. [Citations.]â€
(People v. Meza (1995) 38
Cal.App.4th 1741, 1746.) “[T]o satisfy the element of ‘transportation’
. . . , the evidence need only show that the vehicle was moved
while under the defendant’s control.†(
1313, 1318.)
The
prosecution’s evidence relevant to the transportation charge consisted of the
following: Officer Alamillo found
defendant asleep in the driver’s seat of his car with the engine running in the
middle of the night. The car was parked
in front of the home of defendant’s friend, Lu, who was also asleep in the
car. Defendant’s driver’s license listed
his residence in another city. An expert
witness opined defendant was transporting the marijuana, based on the amount
and location of the marijuana in the car, and the presence of a scale and
baggies, among other things. The expert
witness also opined that the text messages defendant sent and received more
than two months earlier strengthened his opinion.
Based
on this evidence, any inference that defendant’s car was moved while the
marijuana was even in the car would be based on pure speculation. Such an inference would not be reasonable,
and the trial court should have granted the Penal Code section 1118.1
motion. There was no evidence defendant
was the last person to drive the car or whether the marijuana was in the car
the last time it was driven. We
acknowledge that the car, the marijuana, and defendant did not simply appear in
the location where defendant was arrested.
But there is a difference between inferring defendant drove his car to
the location, on the one hand, and inferring the marijuana was in the car when
he drove it, on the other. The evidence
before the trial court at the time the dismissal motion was made does not
support a reasonable inference of the latter, and therefore does not satisfy
the applicable legal test.
name="_ftnref1" title="">[1]
Disposition
The judgment is
reversed. We direct the trial court to
enter a judgment of acquittal.
FYBEL,
J.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
title="">[1] Because of our holding, we need not fully
address defendant’s separate argument that the trial court erred by failing to
instruct the jury, sua sponte, on attempted transportation of marijuana as a
lesser included offense. Briefly,
because attempted transportation is equally punishable under Health and Safety
Code section 11360, subdivision (a), there is not a separate lesser
included offense of attempted transportation of marijuana.
