Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA065311, Eric Taylor, Judge.
Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Eugene Lamont Nix, appeals from his convictions for: felony transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)); felony possession of cocaine base for sale (Health & Saf. Code, § 11351.5); and misdemeanor driving with a suspended license. (Veh. Code, § 14601.1, subd. (a).) The trial court also found that defendant was previously convicted of a serious felony and served a prison term. Defendant argues there was insufficient evidence to support his convictions and the parties raise various contentions regarding the fines. The Attorney General argues the Penal Code section 667.5, subdivision (b) enhancement should have either been imposed or stricken rather than stayed. We affirm in part and reverse in part with directions.
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Just after midnight on June 22, 2006, Gardena City Police Sergeant James Heitmeyer was on patrol with Officer Edward Stancavage. Sergeant Heitmeyer was driving a black and white marked police car. As Sergeant Heitmeyer and Officer Stancavagedrove through the parking lot of the Patio Hotel, they saw a white Toyota Tercel automobile that did not have a current license “tab” driving out of the parking lot. The car drove out of the parking lot onto 139th Street. The car then turned southbound on Normandie Avenue. Sergeant Heitmeyer and Officer Stancavage stopped the Toyota. Defendant was the only occupant of the car. Defendant was asked for his driver’s license, registration, and proof of insurance. Defendant said he did not have the items. Defendant said his driver’s license was back in his motel room. Sergeant Heitmeyer asked defendant to get out of the car. When defendant got out, the officers searched him. Sergeant Heitmeyer found a California identification card in defendant’s wallet. Thereafter, Officer Stancavage ran a computer check from the police car on defendant’s license status. Defendant’s license was found to be suspended or revoked. The computer printout indicated that defendant had been notified of the suspension. Defendant said he was living at the Patio Motel in room 222. Defendant admitted that his license was suspended.
Sergeant Heitmeyer used a flashlight to thoroughly search the Toyota that defendant had been driving. Sergeant Heitmeyer found what appeared to be a crumpled fast food wrapper on the front passenger seat of the car. Inside the wrapper, Sergeant Heitmeyer found a clear plastic bag that had been tied shut. Inside the wrapper were several pieces of cocaine base which weighed 2.55 grams. Other papers in the car were flat rather than crumpled. There was no narcotic paraphernalia in the car.
Thereafter, the office manager of the motel allowed Sergeant Heitmeyer and Officer Stancavage to search defendant’s room. The officers encountered a woman inside the room. The officers found an operable digital scale in the top drawer of a night stand. The officers noted men’s clothing on hangers in the room. There were also men’s clothing, personal toileteries, and effects visible in the cabinets and drawers. The woman’s clothing appeared to be in bags. No narcotic paraphernalia was found on defendant’s person or in his motel room. There was no indication that defendant was under the influence of a controlled substance. Officer Stancavage spoke to the woman in room 222 while Sergeant Heitmeyer searched the room. Based on his observations of the woman, Officer Stancavage believed that she was not under the influence of any narcotic.
Sergeant Heitmeyer had extensive training regarding narcotics use and sales. Based upon his training and experience, Sergeant Heitmeyer believed the cocaine base was sufficient quantity to supply 27 individual pieces, which in turn could produce in excess of 100 individual doses, and was possessed for sale. An individual would need a pipe or other instrument to use the cocaine base. Defendant was not under the influence of nor did he demonstrate any signs of a typical cocaine user. No paraphernalia for smoking the cocaine was found in the car or motel room. Sergeant Heitmeyer believed the cocaine base was possessed for sale. Sergeant Heitmeyer believed that the fact that defendant was leaving his motel room rather than returning was significant. A narcotic user would not normally bring that much cocaine base to use at another place. Moreover, a narcotic user would not use such a large amount of cocaine base at one time. Serious health risks or death could result. Defendant had registered at the Patio Motel for two weeks.
Defendant argues there was insufficient evidence to support his transportation and possession convictions. More specifically, defendant argues there was insufficient evidence he had knowledge of the presence and character of the cocaine base and the transportation was merely incidental to its possession. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Valdez (2004) 32 Cal.4th 73, 104; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Health and Safety Code section 11351.5 states, “[E]very person who possesses for sale or purchases for purposes of sale cocaine base . . . shall be punished by imprisonment in the state prison . . . .” In People v. Williams (1971) 5 Cal.3d 211, 214-215, the California Supreme Court held: “The elements of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence and narcotic character of the drug. [Citations.] Constructive possession occurs when the accused maintains control or a right to control the contraband; possession 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.]” (See In re Daniel G. (2004) 120 Cal.App.4th 824, 831; People v. Mejia (1999) 72 Cal.App.4th 1269, 1272.) In People v. Tripp (2007) 151 Cal.App.4th 951, 956, our colleagues in the Court of Appeal for the Fifth Appellate District recently held: “‘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 with knowledge of its presence and narcotic character. 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.] It is also well settled, however, that each of these essential elements may be proved by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citations.] For example, knowledge of a substance’s narcotic nature may be shown by evidence of the defendant’s furtive acts and suspicious conduct indicating a consciousness of guilt, such as an attempt to flee or an attempt to hide or dispose of the contraband [citations] . . . [citations.]” (See also People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Williams, supra, 5 Cal.3d at p. 215-216; People v. Redrick (1961) 55 Cal.2d 282, 287-288; People v. Vasquez (1969) 1 Cal.App.3d 769, 777.) In People v. Harris (2000) 83 Cal.App.4th 371, 374, our colleagues in Division Six of this appellate district held: “‘Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.’ [Citations.] Intent to sell may be established by circumstantial evidence. [Citation.]” (See People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746; People v. Parra (1999) 70 Cal.App.4th 222, 225-226; People v. Glass (1975) 44 Cal.App.3d 772, 774.)
In this case, defendant was the sole occupant of the car which he drove out of the motel parking lot. Defendant was unable to provide registration and proof of insurance. Defendant then lied about his driver’s license, indicating that it was in his motel room. After defendant got out of the car and was searched, Sergeant Heitmeyer found a California identification card in defendant’s wallet. A computer check revealed defendant’s driver’s license was suspended or revoked and he had been notified of its suspension or revocation. Only then did defendant admit he had been notified of the suspension. Thereafter, the cocaine base was found on the front passenger seat within defendant’s reach. The plastic bag containing the cocaine base was wrapped in a fast food wrapper. A search of room 222 at the Patio Motel, where defendant admitted he was staying and where he was registered as the occupant, uncovered a digital scale. Such a scale is commonly used by those who sell cocaine base. No driver’s license in defendant’s name was found in the motel room. The California Supreme Court has held, “An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Rodriguez, supra, 20 Cal.4th at p. 11.) When viewed together, the circumstantial evidence in this case could lead a reasonable juror to find defendant knowingly possessed the cocaine base for sale. (See People v. Tripp, supra, 151 Cal.App.4th at p. 959; People v. Meza, supra, 38 Cal.App.4th at p. 1746 [“The crimes [of possession of a controlled substance for sale and transportation of a controlled substance] can be established by circumstantial evidence and any reasonable inferences drawn from that evidence. [Citations.]”].) Substantial evidence supports the verdict.
We also reject defendant’s additional argument regarding the sufficiency of evidence that he transported the cocaine base within the meaning of Health and Safety Code section 11352, subdivision (a). The California Courts of Appeal have repeatedly held the word “transport” in connection with controlled substances has no technical meaning but is used as commonly understood to move contraband from one place to another. (See People v. Arndt (1999) 76 Cal.App.4th 387, 398; People v. Emmal (1998) 68 Cal.App.4th 1313, 1318-1319; People v. Cortez (1985) 166 Cal.App.3d 994, 998-999; People v. Kilborn (1970) 7 Cal.App.3d 998, 1003.) Here, defendant drove across the parking lot of the motel, turned onto 139th Street, and then on to Normandie Avenue. A reasonable juror could find the requisite transportation of the cocaine base from one place to another.
Health and Safety Code section 11352, subdivision (a) provides in pertinent part, “[E]very person who transports . . . (1) any controlled substances . . . shall be punished by imprisonment in the state prison . . . .”
Second, the trial court should have imposed additional penalty assessments, a surcharge, and a penalty. The trial court imposed a $50 laboratory fee pursuant to Health and Safety Code section 11372.5, subdivision (a). The abstract of judgment does not reflect that fine. Hence, the abstract of judgment must be corrected to comport to the orally imposed judgment. (People v. Delgado (May 29, 2008, S141282) ___ Cal.4th ___, ___; People v. Mitchell (2001) 26 Cal.4th 181, 185.) Moreover, additional assessments and a penalty related to that laboratory fee should have been imposed as follows: a $50 Penal Code section 1464, subdivision (a)(1) penalty assessment; a $35 Government Code section 76000, subdivision (a) penalty assessment; and a $15 state court construction penalty pursuant to Government Code section 70372, subdivision (a). (People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) Also, the trial court should have imposed a $10 state court surcharge pursuant to Penal Code section 1465.7, subdivision (a). In addition, the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to all three counts. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court is to personally ensure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
Penal Code Section 1465.7, subdivision (a) provides, “A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.”
Finally, the Attorney General argues that the trial court improperly stayed the one-year section 667.5, subdivision (b) enhancement. We agree. The trial court had jurisdiction only to impose or strike the section 667.5, subdivision (b) enhancement pursuant to section 1385, subdivision (a). (§ 12; People v. Bradley (1998) 64 Cal.App.4th 386, 390-392; People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589; People v. Floyd P. (1988) 198 Cal.App.3d 608, 612; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122-1124; People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 537, disapproved on other grounds in People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3; People v. Santana (1986) 182 Cal.App.3d 185, 190-191; see People v. Alexander (1992) 8 Cal.App.4th 602, 604.) The imposition of a legally unauthorized sentence is an issue that can be raised for the first time on appeal by the Attorney General. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; People v. Scott (1994) 9 Cal.4th 331, 354; People v. Welch (1993) 5 Cal.4th 228, 235; People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; In re Ricky H. (1981) 30 Cal.3d 176, 191; People v. Davis (1981) 29 Cal.3d 814, 827 & fn. 5; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; In re Sandel (1966) 64 Cal.2d 412, 414-418.) As a result, the matter should be remanded to allow the trial court to either strike or impose the section 667.5 subdivision (b) enhancement in accord with all of the requirements of section 1385, subdivision (a) and state its reasoning for the exercise of its discretion on the record.
The judgment is modified to impose: a $50 Penal Code section 1464, subdivision (a)(1) penalty assessment; a $35 Government Code section 76000, subdivision (a) penalty assessment; a $10 state court surcharge pursuant to Penal Code section 1465.7, subdivision (a); a $15 state court construction penalty pursuant to Government Code section 70372, subdivision (a); and two additional $20 Penal Code section 1468.5, subdivision (a) court security fees. Upon remittitur issuance, the trial court shall either strike or impose the Penal Code section 667.5, subdivision (b) prior prison term enhancement. Thereafter, the superior court clerk shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.