Opinion
A158430
03-26-2021
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DANTZLER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 19NF004743)
Anthony Dantzler appeals from a conviction of bringing contraband into a jail. He contends the conviction must be reversed because there was insufficient evidence the contraband was a "usable amount." We affirm.
BACKGROUND
Appellant was arrested on April 2, 2019, and subsequently charged by information filed on April 30, 2019, with one felony count of bringing contraband into a jail (Pen. Code, § 4573, subd. (a)) and one misdemeanor count of aggravated trespass (§ 602.5, subd. (b).) A jury convicted him of the felony count but was unable to reach a verdict on the misdemeanor, which the trial court dismissed on the prosecutor's motion. Appellant was placed on formal probation for a period of three years.
Further statutory references will be to the Penal Code unless otherwise specified.
The only facts relevant to this appeal are those relating to the charge of bringing contraband into a jail. After his arrest, appellant was taken to the Maguire Correctional Facility for processing. Deputy Sheriff Stephen O'Malley conducted an intake search, as part of which he had appellant begin removing articles of clothing for a strip search. O'Malley testified that when appellant took off his pants, "he actually kind of turned them up. And as he turned them up, I noticed something drop onto the floor." The thing that dropped looked like a piece of plastic. When O'Malley picked it up, he saw it was a "little . . . plastic bindle" with "a crystal-like shard inside of it."
O'Malley suspected the shard was crystal methamphetamine based on his training and experience over 19 years of working as a peace officer, which included having found crystal methamphetamine on the street during arrests and classes on drug investigation and identification. Asked on cross-examination, "So it is just kind of debris that you saw, isn't that correct?" O'Malley said, "No." Defense counsel then asked, "It wasn't a significant amount; isn't that correct?" and O'Malley replied, "No. But if I described it as a shard, then it would be a piece that I would have seen."
Criminalist Amanda Munemitsu testified as an expert in controlled substance analysis and identification. She performed six types of "presumptive color tests" on the substance in the plastic baggie recovered during appellant's search, as well as two types of "micro-crystalline tests," which are considered confirmation tests. When she received the baggie, she could see "a crystalline material" inside it. For each of the presumptive color tests she performed, she added a drop of a color agent onto a small amount of the crystal substance and looked for a color change; the colors resulting from the different tests gave her "an indication that I may have methamphetamine." The confirmation tests consisted of adding a drop of re- agent to a glass slide holding a very small amount of the sample, then looking through a microscope at the shape of crystals formed by the reaction. Each of these tests resulted in crystals of a specific shape that would only be formed with methamphetamine and particular re-agent used in the test, thereby confirming the substance contained methamphetamine. She did not test for purity of the substance, only presence of methamphetamine in the sample.
The net weight of the sample was 0.091 grams. Asked about the notation in her report that the substance was a "usable amount," Munemitsu testified that for purposes of her employment "usable" meant the minimum amount required to permit actually conducting all the necessary tests, which her laboratory designated as 0.01 grams. The amount in the present case was nine times the usable amount as defined by her laboratory. She testified that she often received "just residues in bags," amounts too small for testing; in this case, she was able to test the substance and determine its weight.
DISCUSSION
Under section 4573, it is a felony to knowingly bring a controlled substance into a penal institution. (People v. Low (2010) 49 Cal.4th 372, 375.) The jury was instructed that in order to prove this offense, one of the elements the prosecutor was required to prove was that "the controlled substance was a usable amount." (CALCRIM No. 2748.) The instruction stated: "A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user." (Ibid.)
Appellant contends there was insufficient evidence the methamphetamine found during his search was a usable amount under this definition. In his view, the only evidence that the methamphetamine was a usable amount was the criminologist's testimony to that effect, and her definition of usable amount—an amount sufficient for testing—was irrelevant to the question whether the amount was enough to be used as a controlled substance as required for conviction under section 4573.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) " ' "The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on " 'isolated bits of evidence.' " [Citation.]' " (People v. Bradford (1997) 15 Cal.4th 1229, 1329, quoting People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) "We ' " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " [Citation.]' " (People v. Clark (2011) 52 Cal.4th 856, 943, quoting People v. Davis (1995) 10 Cal.4th 463, 509.) The question for a reviewing court is " ' "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citation]." (People v. Polk (2019) 36 Cal.App.5th 340, 348 (Polk).) A reasonable inference must be based on the evidence and not " ' " 'on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.' " ' " (Id. at pp. 348-349; People v. Hughes (2002) 27 Cal.4th 287, 365 [inference is not reasonable if based only on speculation].)
"A usable quantity of a controlled substance is shown if 'it was of a quantity which could be potentiated by consumption in any of the manners customarily employed by users, rather than useless traces or debris of narcotic.' " (Polk, supra, 36 Cal.App.5th at p. 349, quoting People v. Piper (1971) 19 Cal.App.3d 248.) The California Supreme Court held in People v. Leal (1966) 64 Cal.2d 504, 512, that "in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such substance." "[T]he Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used." (People v. Rubacalba (1993) 6 Cal.4th 62, 66 (Rubacalba).) "The chemical analysis of the material possessed need only establish the existence of a controlled substance. . . . No particular purity or narcotic effect need be proven." (Id. at p. 65.)
Appellant is correct that Munemitsu's definition of usable amount as the minimum amount allowing necessary tests to be performed differs from the definition used in possession cases, which define it as the amount sufficient to be used as a controlled substance. But her testimony supports an inference that the amount in the bindle was sufficient for use as a controlled substance and not simply debris or residue: Munemitsu distinguished the substance in this case from those in which she had received "just residues in bags; a small, small amount that is just not enough for us to test." The baggie she received for testing contained "crystalline material" that could be seen clearly with the naked eye. She was able to weigh it, and at 0.091 grams it was nine times greater than the minimum amount she would have needed to perform the six separate tests she conducted to confirm the presence of methamphetamine.
In addition to Munemitsu's testimony, O'Malley described the contents of the bindle as a "crystal-like shard" that he suspected was crystal methamphetamine because, based on his experience and training, it "looked like a substance that I thought was crystal." O'Malley disagreed with defense counsel's characterization of the contents of the baggie as "debris" and, although he acknowledged it was not a "significant amount, clarified that by describing it as a "shard," he meant a "piece." This testimony makes clear that O'Malley was describing something more than residue.
Appellant emphasizes that there was no testimony from law enforcement officers or anyone else concerning the amount of methamphetamine necessary for use as a controlled substance, or otherwise establishing that 0.091 grams is a usable amount for that purpose (as opposed to for laboratory testing). (E.g., Polk, supra, 36 Cal.App.5th at p. 345 [officer testified based on education and experience that cut-up pieces of paper infused with methamphetamine constituted usable amount]; People v. Camp (1980) 104 Cal.App.3d 244, 247 [officer testified based on training that 4 gram cigarette of mint leaves laced with PCP was "very large" and would produce narcotic effect from two puffs].) We are not aware of any case holding such testimony is required, however, if the evidence is sufficient to permit a non-speculative conclusion without it.
Appellant points to People v. Riley (2010) 185 Cal.App.4th 754 (Riley), as suggesting it is insufficient for the prosecution to simply prove the existence of a small amount of a drug or substance containing a drug. In that case, the defendant was convicted of possessing marijuana in a prison in violation of section 4573.6 on the basis of 0.46 grams of marijuana found in her possession. At the close of the prosecution's case in chief, the defense had moved for a judgment on acquittal (§ 1118.1), arguing the prosecution had not presented any testimony that 0.47 grams was a usable amount of marijuana. (Riley, at p. 759.) The prosecutor believed this testimony had been presented, and the court denied the defense motion. After the defense rested, the court found there had been no testimony regarding usable amount and, finding the prosecutor had inadvertently omitted the evidence, permitted the prosecution reopen its case to present testimony from the officer who had testified at trial. (Id. at pp. 761-762.) Riley rejected the defendant's argument on appeal that the trial court erred in allowing the prosecutor to reopen.
Appellant may be correct that Riley "suggests" proof of possession of a small amount of a controlled substance, alone, is insufficient to prove the amount is "usable." But Riley did not hold additional testimony was required, only that the trial court did not abuse its discretion in permitting the additional testimony to be presented because the omission was inadvertent, not an attempt to gain advantage, and there was no surprise to the defense. (Riley, supra, 185 Cal.App.4th at pp. 765-767.) The trial court had viewed the usable amount testimony as relatively insignificant, observing that the prosecution "already ha[d] testimony in effect that it's not a trace amount. So it's really not much more evidence that we're talking about." (Riley, at p. 763.)
Appellant's challenge to his conviction rests on the contention that while mere debris or residue is insufficient to show possession, it does not follow that anything more than debris or residue is sufficient. Appellant notes that Rubacalba, supra, 6 Cal.4th at page 66, used "residue or a useless trace" only as an example of an amount insufficient to support a possession offense: "[T]he Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace." (Ibid., italics added.) But Rubacalba's next remarks confirm that the amount can indeed be very small: The Leal rule "does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven." (Rubacalba, at p. 66.) CALCRIM No. 2748 thus explains the distinction established by the caselaw: A "usable amount" must be "enough to be used by someone as a controlled substance" but "does not have to be enough . . . to affect the user," and "[u]seless traces or debris are not usable amounts."
People v. Karmelich (1979) 92 Cal.App.3d 452, which the Rubacalba court quoted as typical of the cases limiting Leal to substances useless in form or quantity, noted that Leal "distinguished, but did not overrule" a series of cases in which "convictions of possession had been sustained, on the ground that, in those cases, there was found actual narcotics, even though in minute quantities, whereas in Leal . . . there was found only the residue showing that an instrument had been used for the preparation of heroin for use." (Karmelich, at p. 456; Rubacalba, supra, 6 Cal.4th at p. 65.)
Here, the evidence as a whole was sufficient to support a conclusion that the amount of methamphetamine in appellant's possession was decidedly more than a "useless trace," "debris" or "residue" and, therefore, sufficient to support the jury's verdict.
As part of his insufficiency of the evidence argument, appellant contends the trial court erroneously shifted the burden of proof to the defense when it denied his motion for judgment of acquittal (§ 1118.1) at the close of the prosecution's case in chief. The motion argued the prosecution failed to prove appellant possessed a usable amount of methamphetamine in that the only evidence presented was Munemitsu's testimony, which was irrelevant because her definition of usable amount was for purposes of laboratory testing, not use as a controlled substance. Denying the motion, the trial court stated that Munemitsu testified a usable amount was the amount needed to perform laboratory tests (0.01 grams) and the bindle contained nine times that amount, commented that there was "no evidence to the contrary," and told defense counsel he was free to argue his point to the jury, viewing it as "an issue of fact."
This contention is a distraction. Appellant does not argue the trial court erred in denying his motion for a judgment of acquittal, and he makes no suggestion the jury was misled as to the burden of proof. He offers the argument only as a means of demonstrating what he views as the lack of relevant evidence, and fails to explain how it bolsters his position.
Appellant also emphasizes the prosecutor's reliance on Munemitsu's testimony in opposing the motion for judgment of acquittal and in argument to the jury. It is not apparent what significance the argument on the section 1118.1 motion has on this appeal, except to demonstrate that the prosecutor did in fact present Munemitsu's testimony as evidence that the case involved a usable amount of methamphetamine—a point that has never been disputed. In closing argument, after reading the jury instruction defining usable amount, the prosecutor argued he had proven this element of the offense by Munemitsu's testimony that the substance in appellant's possession was nine times greater than what the laboratory defined as a usable amount for purposes of performing the necessary tests—again, the same position advanced on this appeal.
The prosecutor argued, "I recognize that we are dealing with a relatively minimal amount of a substance. And while Mr. Smith does not like the fact that it is not a significant amount and does not like the fact that Ms. Munemitsu opined that it is a usable amount, she was qualified as an expert. She does testify in these cases. She did indicate that based on her opinion, the fact that it was able to be tested suggests that pursuant to the CALCRIM definition, it is more than simple debris. [¶] So if Mr. Smith wants to argue that Ms. Munemitsu's opinion does not make it a usable amount, I suppose that is fine. But the fact remains that she is an expert. She testified based on her training and experience; and that opinion should stand. There is no reason that it should not. [¶] The CALCRIM definition says, 'Usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts.' Well, we are not dealing with a useless trace or debris. If we were, she would not have been able to test it."
The prosecutor argued, "So how do we ascertain what is or is not a usable amount? [¶] Well, first and foremost, I would submit to you that it is very clear from this that useless traces or debris are not usable amounts. That would suggest that it might be very difficult to test something that does not exist. [¶] You heard the testimony of Amanda Munemitsu who indicated that when she receives substances that are incapable of being tested, it is both difficult and nearly impossible to say what that substance is or test it; therefore, that debris or traceless amount would not be a usable amount. [¶] On the other hand, you heard the testimony from Amanda Munemitsu, and you will have with you for the purposes of evidence in this particular case the Controlled Substances report. And I asked Ms. Munemitsu about language on the bottom of the Controlled Substances report, which essentially says the forensic laboratory defines as being usable if its net weight is equal to or greater than 0.01 grams. [¶] Well, you know from this Controlled Substances report and the testimony of Amanda Munemitsu, that the methamphetamine here is nine times that amount. 0.09 grams. [¶] That may not be a huge amount based on your interpretation or your impression or your ideas. That may not be an extremely significant amount of a controlled substance to you. [¶] The question isn't what you feel about the law. The question is what the law is. And the law says very clearly that we are only required to prove a usable amount. [¶] You heard testimony from Amanda Munemitsu, who is qualified as an expert in this case, that 0.09 grams net is nine times the 'usable amount' definition used by the lab. [¶] And so for the purposes of this element, the People have proven beyond a reasonable doubt that there was, in fact, a usable amount. [¶] Even if you look at this substance and say, God, that really isn't a lot of anything. But we know it is at least something because it was tested and the test showed that it was 0.09 grams net."
Respondent maintains that usable amount is not actually an element required to be proven for conviction of bringing contraband into a penal facility because section 4573 does not define a possession offense. The instruction given in the present case was modified from the pattern instruction for the offense of possession of contraband in a penal institution (§ 4573.6). Respondent suggests the prosecution "likely unknowingly placed the element into controversy when it agreed to use the modified CALCRIM No. 2748 at trial here."
Having concluded the evidence was sufficient to support the verdict, we need not address this argument.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.