Opinion
F053116
2-20-2009
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LAIL REEVES, Defendant and Appellant.
James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
PROCEDURAL HISTORY
On January 31, 2007, the Stanislaus County District Attorney filed an information in superior court charging appellant with one count of felony possession of a controlled substance, i.e., methamphetamine. (Health & Saf. Code, § 11377).
On January 31, 2007, appellant was arraigned, pleaded not guilty to the charge, and requested a jury trial.
On April 10, 2007, jury trial commenced.
On April 12, 2007, the jury returned a verdict finding appellant guilty of the charged offense. That same day, appellant waived time for sentencing and a referral to probation for a report. The court suspended imposition of sentence, granted appellant formal probation for three years, and committed him to a Proposition 36 program subject to various terms and conditions.
On May 23, 2007, the court revoked appellants probation.
On June 8, 2007, appellant filed a timely notice of appeal.
FACTS
On August 1, 2006, Modesto Police Officer Cameron Cromwell was working the graveyard shift. During his 8:00 p.m. to 7:00 a.m. shift, he stopped a Pontiac automobile with an inoperable passenger side headlight. Cromwell spoke with the driver, one Marcus Nichols, and learned he was driving on a suspended license. Cromwell instructed Nichols to step out the vehicle. Cromwell handcuffed Nichols, searched, him, and then ordered him to sit on the front bumper of Cromwells patrol car. A short time later, Cromwells supervisor, Sergeant Doug Ridenour, arrived at the scene. Cromwell asked Sergeant Ridenour to watch Nichols while he contacted the passenger, appellant Daniel Lail Reeves. Cromwell then asked appellant to step out of the vehicle so that Cromwell could conduct an inventory search of the interior before having the vehicle towed.
In addition to asking appellant to step outside the vehicle, Cromwell asked whether appellant would submit to a search of his person for drugs or weapons. Appellant agreed and Cromwell conducted a patdown, placing his hand in appellants pockets as part of the search. Cromwell found and retained a legal pocket knife on appellants person but nothing else. Cromwell then escorted appellant to the patrol car and instructed him to sit on the front bumper of the passenger side.
Cromwell conducted an inventory search of the vehicle and found a cigarette box under the front passenger seat. The box, which appeared to contain a controlled substance inside a plastic bag, was located in the middle of the seat area and about six inches back. However, the box was not taken into evidence. At trial, Cromwell believed the box was a Marlboro cigarette box. Cromwell did not find any smoking devices or needles in the vehicle.
Cromwell went to the front of his patrol car to arrest appellant. He handcuffed appellant and planned to place him in the back seat of the patrol car. Cromwell then took everything out of appellants pockets. Because the rear passenger door of the patrol vehicle was locked, Cromwell had appellant lean against the passenger side panel near the trunk with his feet spread. Cromwell had appellant do so until the door was unlocked. Cromwell checked the ground to verify that appellant actually spread his feet. Once he observed appellants feet spread apart, Cromwell unlocked the door. Cromwell said appellant did not make any movements during the five to ten seconds it took to unlock the door. After unlocking the door, Cromwell looked down again and saw a second plastic bag containing a crystal-like substance. Scott Bauer, a criminalist with the California Department of Justice Regional Crime Laboratory, later analyzed and weighed the substance and determined the bag contained 0.15 grams of methamphetamine.
Officer Cromwell went back to the Pontiac, wrote Nichols a citation for driving on a suspended license, and released him at the scene of the stop. Cromwell said he found no evidence that Nichols possessed the methamphetamine and did not arrest him for it. However, Cromwell believed he had evidence that appellant possessed the methamphetamine. Cromwell said he did not recall finding any other cigarette packs in the car. If he had found one containing drugs, he would have remembered it. Cromwell did not remember finding a blue cigarette lighter and did not remember having any conversation with Nichols or appellant about a pack of cigarettes and a lighter. Cromwell acknowledged the area of the traffic stop was known for "drug activity" but is not considered a "high drug area." Cromwell said he had made approximately 50 arrests for controlled substance offenses in that neighborhood over an 18-month period of time.
Modesto Police Officer Joseph Pimentel testified the quantities measured by Criminalist Bauer constituted usable amounts of methamphetamine. Pimentel said individuals who conceal controlled substances often hide them in locations other than their pockets. Pimentel said he has missed something in a first search of a suspect and then found it in a subsequent search. Pimentel said he has also witnessed other officers go through that same process.
Defense
Marcus Nichols said he was appellants "really close friend" and testified on his behalf. On August 1, 2006, Nichols was driving his mothers Pontiac when he was pulled over for a burned-out headlight. The detaining officer, Officer Cromwell, asked Nichols for his license but Nichols could not produce one. Officer Cromwell checked the names of Nichols and appellant in his computer while they waited in the Pontiac. The computer check revealed that Nichols had a suspended drivers license.
During the prosecutions case-in-chief, Cromwell said he checked his "unit history," a readout that is "pretty much our computer screen with the names that we run and has our license information in it." According to Cromwell, appellant and Nichols had their names run once, appellant never provided a false name, and if appellant had supplied another name it would have been given to dispatch and reflected on the unit history.
At Cromwells request, Nichols got out of the Pontiac, was placed in handcuffs, and was searched. Officer Cromwell asked him to wait by the patrol car. Cromwell then asked appellant to get out of the Pontiac. Although appellant was not handcuffed, Cromwell did ask him to wait by the patrol car. According to Nichols, appellant consented to a search by Cromwell and did not appear to throw or drop anything. Nichols then consented to a search of the Pontiac. According to Nichols, Cromwell searched the drivers side of the car for five or ten minutes and appeared empty handed. Cromwell then began searching the passenger side of the car. Cromwell got out of the passenger side of the car with a pack of Winston cigarettes in one hand and showed the pack to both men. Nichols said Winston was his brand of cigarette. Cromwell had a pack of Marlboro cigarettes in his other hand. Nichols said this was appellants brand of cigarettes. According to appellant, the Marlboro cigarettes had been on the passenger side of the dashboard along with his blue lighter.
Cromwell arrested appellant for possession, searched him again, handcuffed him, and placed him in the patrol car. Testifying on his own behalf, appellant admitted he was "mouthy," became upset, swore, and stated that he was the wrong person. Appellant said Cromwell threatened to whip his "ass ... in the middle of the street" if appellant refused to be quiet and continued to give Cromwell trouble. Appellant said Cromwell said this in appellants ear while the latter was being handcuffed.
After cuffing appellant, Cromwell spoke to Nichols about the pack of cigarettes with the drugs. Cromwell searched the Pontiac again. Nichols said he claimed responsibility for the cigarettes but Cromwell argued with him, said they were located under appellants seat, and that they belonged to appellant. Cromwell ignored Nicholss admission, searched appellant again, and arrested him. After appellant was in the patrol car, Nichols repeatedly yelled the cigarette box was his. According to Nichols, Officer Cromwell and Sergeant Ridenour ignored his claims of responsibility. Nichols said he knew the cigarette package contained methamphetamine and he had been using the substance for a few months. Nichols said he had never seen appellant use methamphetamine and knew nothing about the methamphetamine found on the ground near the car.
After searching the Pontiac a second time, Cromwell spoke with appellant. Although the two men spoke loudly, Nichols could not hear what they were saying and Nichols continued to yell that the pack of cigarettes belonged to him. Appellant said Cromwell told him he had one more chance to be honest. Appellant said he was "irate" and "pretty upset" because the Winston cigarettes and drugs in the Winston box were not his. According to appellant, Cromwell said the drugs were his and refused to hear anything else on that subject. At trial, appellant admitted the cigarette box under the passenger seat was his. He denied knowing anything about the item on the ground.
Nichols said he was not testifying for the defense simply because he and appellant were friends. Rather, Nichols said he was testifying because he was angry that Cromwell seized his mothers car and because the methamphetamine in the car was his. Nichols acknowledged that he never went to the police or the office of the district attorney to report that appellant had been wrongly arrested. Nichols said he first reported this information to the defense investigator on the first day of appellants trial. Nichols said appellant had brought him to court that day. In a written statement, Nichols claimed Cromwell had accused appellant of giving a false name when they were asked to identify themselves to officers. According to Nichols, Cromwell accused appellant of giving a false name, removed Nichols from the car, and then handcuffed him.
Rebuttal
Officer Cromwell testified he placed appellant under arrest after finding the cigarette pack containing the methamphetamine. Cromwell said he spoke to Nichols about the cigarettes only after placing appellant in his patrol car. Nichols denied ownership of the cigarette pack and the controlled substance when they spoke. Cromwell said he noted Nichols denial in his written report. Appellant also denied ownership of the cigarettes.
According to Cromwell, Nichols did not tell or yell that the methamphetamine belonged to him. Had Nichols done so, Cromwell would have placed him under arrest. Sergeant Ridenour testified he was standing five to eight feet from Nichols throughout their encounter and he never heard Nichols claim responsibility for the methamphetamine. Ridenour said he and Cromwell would have placed Nichols under arrest had they heard him claim responsibility for the methamphetamine.
Officer Cromwell also testified that Nichols never said he smoked Winston cigarettes and appellant never said he smoked Marlboro cigarettes. According to Cromwell, neither Nichols nor appellant revealed the brand of cigarettes each smoked. At the preliminary hearing, Cromwell did not remember the branded box in which the methamphetamine was located. At trial, he remembered the methamphetamine was located in the Marlboro cigarette pack.
Officer Cromwell said he never threatened to whip appellants ass in the street. However, he did advise appellant not to give any trouble when Cromwell placed the handcuffs on him. Cromwell did not remember appellant swearing, making rude comments, or being "mouthy" with officers. Sergeant Ridenour testified he never heard any arguing between Cromwell and appellant and did not hear Cromwell threaten appellant. Ridenour said he stood between five and eight feet from Nichols and appellant when he was watching them at the scene of the stop.
DISCUSSION
I. Did Sufficient Evidence Support the Element of Possession of the Controlled Substance?
Appellant contends the evidence of possession was legally insufficient because the element of possession was dependent upon circumstantial evidence, and the inferences drawn from those circumstances were unreasonable.
In reviewing a criminal conviction for the alleged lack of evidentiary support, an appellate court must review the whole record in the light most favorable to the judgment. The appellate court must determine whether the record discloses substantial evidence, i.e., 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. Hillhouse (2002) 27 Cal.4th 469, 496.) The appellate court must view the evidence in a light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. If the circumstances reasonably justify the findings of the trial court, reversal is not warranted simply because the circumstances might also be reconciled with a contrary finding. The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact and not whether guilt is established beyond a reasonable doubt. (People v. Williams (1971) 5 Cal.3d 211, 214.)
The common elements of all drug possession offenses are: (1) a specified controlled substance, in a sufficient quantity, and in a usable form; (2) possession, which may be physical or constructive, exclusive or joint; and (3) knowledge of the fact of possession and of the illegal character of the substance. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175.) Each of these elements may be established circumstantially. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)
In the instant case, appellant contends it was unreasonable for the jury to infer possession under all of the circumstances:
"Here, there was insufficient evidence to prove that the contraband found near the patrol vehicle came from appellant, or from the vehicle in which appellant was a passenger. Concerning the likelihood of appellants direct possession of the contraband, the record demonstrates that he was thoroughly searched by Cromwell at least twice before the plastic baggy containing the substance was found. [Citation.] Appellant was subjected to a full pat-down search, including a search of his pockets before he was arrested. [Citation.] When he was arrested he was again patted down and his pockets and clothing were searched. [Citation.]
"While the prosecutor argued that contraband could have been missed in a search [citation], it is not reasonable to infer that the same officer would miss the same contraband twice. Just as importantly, appellant was handcuffed behind his back and was being closely watched by Cromwell while appellant was standing next to the patrol car where the baggy was found. The prosecutors further argument that, because the substance was found on the ground means that it had fallen from appellants person `in some manner is mere baseless speculation, particularly when coupled with her assertion that she did not have to prove that appellant had `actually had it or touched it. [Citation.] By that argument, appellant would be `guilty if the baggy had been on the floorboard of the Nichols vehicle, had gotten stuck to the bottom of appellants shoe, and `in some manner had fallen off the shoe next to the patrol vehicle."
Appellants contention must be rejected. During an inventory search of Nichols car, Officer Cromwell found a Marlboro cigarette box containing a plastic bag filled with a quantity of methamphetamine. The cigarette box was located under the passenger seat, which appellant occupied prior to the vehicle stop. Cromwell found the box six inches back, in the middle of the passenger seat area. At the scene of the stop, both appellant and Nichols denied ownership of the pack. At trial, appellant admitted and Nichols confirmed the box belonged to appellant. However, at trial Nichols claimed the methamphetamine in the box belonged to him. Appellant acknowledged ownership of the cigarettes but denied ownership of the methamphetamine. The presence of contraband under the front passenger seat at a time when appellant occupied that seat was, at the very least, circumstantial evidence supportive of a finding of joint or constructive possession, custody or control of the contraband by appellant, and sufficient to sustain his conviction. (See People v. Nieto (1966) 247 Cal.App.2d 364, 368 [guns found under the front seat of defendants car at a time he was driving the vehicle was circumstantial evidence of possession].)
Appellants acknowledgment that the box was his and the location of the box six inches back in the middle of the passenger seat area constituted sufficient circumstantial evidence that appellant possessed the methamphetamine in the box. Where the circumstances in evidence would reasonably justify an inference of guilt and the trier of fact so found, the fact an inference of innocence might also have been predicated on such circumstances does not present a question of law reviewable by an appellate court. (People v. Torres (1950) 98 Cal.App.2d 189, 193.)
As to the contraband found on the ground, Officer Cromwell handcuffed appellant after finding the methamphetamine under his passenger seat. Cromwell searched appellant by feeling the outside of his clothing and inside of his pockets. He removed all the property from his pockets, walked him to the back passenger side of the patrol vehicle, and directed appellant to lean against the car with his feet spread. Appellant did so and Cromwell checked the ground to ensure appellants feet were spread. After so checking, Cromwell unlocked the car door. After unlocking the door, Cromwell looked down again and saw a second plastic bag containing a substance, ultimately determined to be methamphetamine.
Appellant maintains it was unreasonable for the jury to infer that the controlled substance on the ground came from him because Cromwell had twice searched him and found no methamphetamine located on his person. Officer Cromwell testified he watched appellant while he was unlocking the patrol car and admitted he did not see appellant make any movements. Nevertheless, as respondent points out, Cromwell could have missed a slight actual movement on appellants part or the movement of appellant from the front of the patrol car to the passenger side of the patrol car could have dislodged the bag from its hiding place on appellants person. Further, the bag contained a very small quantity of methamphetamine and a searching officer might not have detected such a slender item from a patdown of the outside of a suspects clothing. Officer Joseph Pimentels testimony was supportive of such inferences. Pimentel said those concealing controlled substances often hide them in places other than their pockets. Pimentel testified that he had missed items in a first search of a person and later found those items in a subsequent search of the person.
Appellant vigorously argues a lack of possession and cites a number of cases to assert an insufficient factual basis on which to infer possession here. Those cases are factually inapposite. In In re Elisabeth H. (1971) 20 Cal.App.3d 323, 330-331, this court reversed an order of wardship for knowing presence in a location where narcotics were being used (Health & Saf. Code, former § 11556). The minor was one of five juveniles in a vehicle filled with smoke and the aroma of burned marijuana. Although a jacket in the car contained marijuana, there was no direct evidence of the minor having smoked or been under the influence of marijuana. No marijuana debris was found on her person or in her possession. Officers could not identify where she was seated in the car.
In People v. Foster (1953) 115 Cal.App.2d 866, 867-869, three men occupied a detained vehicle. As officers approached the vehicle, an occupant threw a "hype" kit out of the right front window. All three were convicted and one secured a new trial in the trial court. As to the remaining occupants, Division Two of the First Appellate District affirmed the possession conviction of one because he falsely testified the right window was closed, thereby allowing the jury to infer the knowledge required for a guilty verdict. The other occupant simply testified he did not see the package thrown from the car. The defendants had all been moving inside the car prior to detention and the narcotics package was very small. The appellate court deemed the prosecution theory of guilt too tenuous to sustain the conviction.
In People v. Crandall (1969) 275 Cal.App.2d 609, 610-611, deputies pursued a vehicle at night following a traffic violation. As the suspect vehicle speeded down a city block, an occupant threw a cellophane bag of marijuana onto a nearby lawn. At the time of the stop, the right front window was open and the other windows were closed. The occupants included two adults and one juvenile. The defendant, one of the adults, occupied the right front passenger seat and was convicted of possession. Division Four of the Second Appellate District reversed, finding the defendants presence insufficient to establish aider and abettor status and finding no evidence to support an inference of joint possession.
In United States v. Weaver (9th Cir. 1979) 594 F.2d 1272, 1273-1274, federal drug enforcement officers arranged to buy $30,000 in cocaine in a motel parking lot. The defendant and his companion arrived at the scene in the companions pickup truck. The companion removed a package of cocaine from a footlocker in the bed of the truck. After an undercover officer inspected the package, the companion placed the package partly under the passenger seat of the pickup cab. The defendant was seated in the passenger seat during the entire transaction prior to arrest. The Ninth Circuit Court of Appeals reversed the defendants conviction for conspiracy to distribute and possess cocaine. Among other things, the court concluded the evidence did not show the defendant ever touched the package, had actual possession of it, or knew its contents.
In United States v. Soto (9th Cir. 1986) 779 F.2d 558, 559-560, a Stanislaus County deputy sheriff stopped a van six miles outside of Modesto. Three people occupied the van and the defendant was seated in the front passenger seat. When the deputy approached the van, he saw a partially concealed sawed-off shotgun on the left side of the van about four feet behind the drivers seat. After ordering the occupants out of the van, the deputy conducted a search of the interior and found two pistols behind the defendants seat and within his reach. A shotgun in the van bore the defendants fingerprint but the defense presented evidence to show the defendant had been in the van only 10 minutes before the stop. The Ninth Circuit Court of Appeals reversed the defendants conviction for possessing firearms because mere proximity of a weapon to a passenger in a car goes only to its accessibility and not to the dominion or control that must be proved to establish possession.
In United States v. Ramirez (9th Cir. 1989) 880 F.2d 236, 238, in mid-1987, federal and local law enforcement officers conducted an undercover operation and on several occasions purchased quantities of cocaine in and near the Fresno County town of Caruthers. Officers eventually obtained a warrant and searched a home associated with the cocaine seller. In the home they found narcotics, narcotics paraphernalia, and a substantial amount of United States currency. The defendant emerged from a bathroom that contained cocaine and paraphernalia. The Ninth Circuit Court of Appeals reversed his convictions for conspiracy and possession with intent to distribute cocaine and heroin. Although the defendant was a cocaine user, the evidence failed to show his possession of the drugs, intent to distribute them, or agreement to distribute them.
In Delgado v. United States (9th Cir. 1964) 327 F.2d 641, 641-642, the defendant and her boyfriend occupied a Los Angeles home. One of them consented to a police search of the premises. Officers found seven marijuana cigarettes and a small quantity of loose marijuana in the drawer of a nightstand. The couple appealed their convictions of receiving and concealing marijuana, alleging no possession. The Ninth Circuit Court of Appeals agreed, finding it "pure speculation" whether the defendant alone, her boyfriend alone, or both of them had possession.
II. Did the Trial Court Erroneously Assess Fines and Fees Against Appellant?
Appellant contends the trial court erroneously assessed fines and fees by simply stating at the time for pronouncement of judgment:
"Pay a restitution fund fine in the amount of $200 which will be doubled if you dont complete your probation successfully;
"Contribute to the cost of your treatment program as determined by the Health and Recovery Services;
"Pay a $75 placement fee and court security fee of $20.
"Pay $135 lab analysis fee; a $75 education fee and $100 AIDS education fee. Pay all those fines at the discretion of the probation officer."
Appellant notes the clerks transcript on appeal sets forth a number of fines and assessments, including: a $ 200 restitution fund fine (Pen. Code, § 1202.4, subd. (b)); a stayed $200 probation completion fine (id., § 1202.44); a $135 laboratory analysis fee (Health & Saf. Code, § 11372.5); a $100 drug education fee (id., § 11372.7); and a $70 AIDS education fee. Appellant notes that some of the assessed fines and fees lack a stated statutory basis. Appellant also notes there is a variance in the amount of some of the fines and fees as set forth in the reporters and clerks transcripts on appeal.
Although a detailed recitation of all of the fees, fines, and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. Even where the Department of Corrections and Rehabilitation has no statutory obligation to collect a fee, such as that imposed under Health and Safety Code section 11372.5, the fee must be included in the abstract of judgment. Appellate courts that have properly assumed jurisdiction of a case may order correction of an abstract of judgment that does not accurately reflect the oral judgment of the trial court. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.)
Here, respondent agrees there is a variance between the minute order and the courts oral pronouncement of judgment regarding various education fees, particularly the drug education fee and the AIDS education fee. Respondent further acknowledges the matter should be remanded to the trial court for a determination whether these errors have been corrected and, if not, for the clarification and correction of any fines and fees imposed in appellants case.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for a determination whether any variance in fines and fees as set forth in the reporters and clerks transcripts has yet been corrected. If not corrected, the trial court shall (1) clarify and correct any clerical errors with respect to the fines and fees imposed; (2) set forth the corrected and clarified amounts and statutory bases for the fines and fees in an amended minute order; and (3) transmit certified copies of the amended minute order to all appropriate parties and entities.
WE CONCUR:
VARTABEDIAN, Acting P.J.
KANE, J.