Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR030858, Eric C. Wyatt, Judge.
Syda Kosofsky, 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, David A. Rhodes and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
A jury convicted appellant Andrew Roggero of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2). The trial court suspended imposition of sentence and placed appellant on three years’ probation.
On appeal, appellant contends (1) the evidence was insufficient to support his convictions, and (2) his counsel’s failure to object to the testimony of a prosecution witness deprived appellant of his constitutional right to effective assistance of counsel. We will affirm.
FACTS
Prosecution Case
On February 10, 2008, City of Chowchilla Police Officer Manuel Ramirez initiated a traffic stop of a pickup for two minor Vehicle Code violations. Appellant was a passenger in the vehicle. Officer Ramirez’s partner, after making contact first with appellant and later with police dispatch, learned that a felony warrant for appellant’s arrest had been issued. At that point, Officer Ramirez placed appellant under arrest, handcuffed him and conducted a search of appellant’s person. During that search, the officer found tucked into appellant’s waistband, inside a “crumpled up, folded lottery ticket,” a plastic baggie containing a “powdery substance” that appeared to be methamphetamine. Before he unfolded the ticket and saw the baggie, Officer Ramirez asked appellant, “What is that?” Appellant responded, “It’s meth.”
Shortly thereafter, Officer Ramirez conducted a search of the pickup and found, in the glove compartment, another baggie containing what appeared to be the same substance.
Office Ramirez weighed the bags. Each bag, including its contents, weighed.2 grams.
Steven Patton, a “Senior Criminalist” employed by the California Department of Justice, testified to the following. He had an Associate of Arts degree in “math science,” a Bachelor of Arts degree in chemistry and a “masters of science chemistry.” He had been a criminalist for almost 21 years, his current assignment was “[b]asically chemical analysis” and his duties included testing substances suspected to be methamphetamine. He opened one of the plastic baggies, and removed, weighed, and conducted a series of chemical tests on the substance in the baggie. The substance weighed.05 grams, and the tests showed that it contained methamphetamine.
Patton opined that.05 grams of a substance containing methamphetamine would be a “usable” amount. He testified he considered “anything below about....02 [grams] sort of [a] gray area of whether or not you could manipulate it in a fashion that it could be used” [sic], and that.05 grams was “[m]ore than twice what [he] would consider usable.”
The “Defense Case” portion of our factual statement is taken from appellant’s testimony.
Two police officers effected a stop of the pickup in which appellant was riding. One of the officers told appellant to get out of the pickup. Appellant complied, and one of the officers handcuffed him. Shortly thereafter, the officer said “What’s this?” and “picked up... off the ground” what appeared to be a lottery ticket.
Thereafter, the other officer put appellant in the backseat of the patrol vehicle. Appellant was sitting there when the officer approached, held up what appeared to be an empty plastic baggie, stated he found it in the glove compartment, and asked appellant if it belonged to appellant. Appellant responded that “everything in the vehicle” was his. The pickup belonged to appellant. He had never seen the lottery ticket or the empty plastic baggie before.
DISCUSSION
Sufficiency of the Evidence
The offense of simple possession of a controlled substance has four elements: (1) the defendant had dominion and control of a controlled substance; (2) the substance was in an amount “‘usable for consumption or sale’”; (3) the defendant knew the substance was present; and (4) the defendant knew of the nature of the substance. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) The elements of transportation of a controlled substance are the same as those for possession if the term “transportation” replaces “possession.” (People v. Meza (1995) 38 Cal.App.4th 1741, 1746 [“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”].)
Appellant does not contest the transportation and knowledge elements of count 1 or the possession and knowledge elements of count 2. Rather, he contends his convictions must be reversed because the evidence was insufficient to establish that he possessed and transported a “usable quantity” of methamphetamine. Specifically, he argues: (1) there was no evidence presented as to how a person would use methamphetamine, “i.e., whether it is smoked, snorted, ingested, injected, or used by other means”; (2) there was no circumstantial evidence from which it reasonably could be inferred that the methamphetamine found in his possession was of a usable quantity; and (3) there was no foundation for criminalist Patton’s opinion testimony that.05 grams of a substance containing methamphetamine constituted a usable quantity of the drug. In connection with the last of these points, appellant asserts that if Patton’s testimony is deemed that of an expert, the evidence of Patton’s qualifications--that he had degrees in chemistry and “math science” and that he was experienced in performing chemical analysis--qualified him as an expert in the identification of methamphetamine but told the jury nothing about his ability to determine whether a given quantity of a substance containing the drug was usable. Appellant also asserts that if Patton’s testimony is deemed to be non-expert opinion testimony, it lacked foundation because there was no evidence Patton “had any personal experience or knowledge concerning the use of drugs, or specifically, the use of methamphetamine.”
In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine “‘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.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, “[the appellate court] must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--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. Kraft (2000) 23 Cal.4th 978, 1053.) Substantial evidence includes circumstantial evidence and the reasonable inferences drawn from that evidence. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)
As indicated above, it is only the usable-amount element of each of the instant offenses that concerns us here. A usable quantity of a controlled substance is an amount sufficient to be used in any manner customarily employed by users of the substance, as opposed to “useless traces or debris....” (People v. Piper (1971) 19 Cal.App.3d 248, 250.)
In People v. Leal (1966) 64 Cal.2d 504, 512, our Supreme Court held 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 a substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption … does not constitute sufficient evidence in itself to sustain a conviction.” In People v. Rubacalba (1993) 6 Cal.4th 62, 66, the Supreme Court clarified that “the Lealusable-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…. No particular purity or narcotic effect need be proven.” The court in Rubacalba cited with approval People v. Karmelich (1979) 92 Cal.App.3d 452, 456, where the court held: “The decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found; it does not extend to a case such as this... where the presence of heroin itself, not a mere blackened residue on a spoon, was discovered.”
Here, there was admitted into evidence a photograph, which we have examined, that depicts the baggies seized from appellant. One of the baggies, as depicted in the photograph, shows the substance in the baggie covering an area greater than one square inch. Jurors reasonably could have concluded from this photograph alone that the quantity in appellant’s possession was more than a useless “trace” or mere “residue.”
In addition, the jury reasonably could have inferred from the evidence of the one baggie containing methamphetamine found inside a folded lottery ticket, and tucked into appellant’s waistband, that appellant had attempted to hide the contraband in a place that was readily available to him. From that conclusion, the jurors reasonably could have inferred that appellant intended to use the methamphetamine. And from that conclusion, the jurors reasonably could have concluded further that the baggie contained a usable quantity of methamphetamine.
Appellant contends the evidence summarized in the preceding paragraph does not constitute substantial evidence of guilt because “that evidence is susceptible to an equally reasonable alternative finding that point to innocence, viz., “that the baggies were intended for disposal, rather than use.”
This argument puts misplaced reliance upon a principle of review appellant derives from CALCRIM No. 224, which states: “If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.” This principle, however, has relevance only to the trier of fact, and is inapplicable when this court reviews the record for substantial evidence. Even when the prosecution relies “primarily on circumstantial evidence, the [substantial evidence] standard of review is the same.” (People v. Thomas (1992) 2 Cal.4th 489, 514.) “‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’” (People v. Palmore (2000) 79 Cal.App.4th 1290, 1298.)
Moreover, we disagree with appellant’s premise. Especially in the absence of any evidence that appellant did not have the opportunity to dispose of the contraband at some point before he was stopped, the jury reasonably could have concluded (1) that if appellant wanted to dispose of the small amount of methamphetamine folded into the lottery ticket, he would have done so, and (2) the fact that he had it in his possession, in a place of easy access, yet hidden, indicated he meant to use it.
To summarize, photographic evidence, along with circumstantial evidence and reasonable inferences flowing from that evidence establish that methamphetamine recovered by police was not mere residue or a useless trace as appellant contends, but constituted a usable quantity sufficient to support appellant’s convictions. Therefore, substantial evidence supports appellant’s convictions.
Claim of Ineffective Assistance of Counsel
Appellant contends the criminalist’s testimony on the usable quantity issue was “without foundation,” and therefore trial counsel’s failure to object to that testimony deprived appellant of his constitutional right to the effective assistance of counsel. We disagree.
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish ineffective assistance of counsel, “a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant....” (People v. Lewis (2001) 25 Cal.4th 610, 674.) Defense counsel’s failure to object rarely establishes ineffective assistance of counsel. (People v. Avena (1996) 13 Cal.4th 394, 444-445.) “‘[W]hen the reasons for counsel’s actions are not readily apparent in the record, we will not assume constitutionally inadequate representation and reverse a conviction unless the appellate record discloses ‘“no conceivable tactical purpose”’ for counsel’s act or omission.’” (People v. Lewis, supra, 25 Cal.4th at pp. 674-675; accord, People v. Ray (1996) 13 Cal.4th 313, 349 [“In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission”].)
We assume for the sake of argument that, as appellant contends, the record, as it stands, does not establish that Patton qualified as an expert on the subject of what constitutes a usable quantity of methamphetamine. Even so, the record does not preclude the possibility that Patton did in fact so qualify, and that defense counsel knew this and came to the rational conclusion that any objection would create the risk that the prosecution would introduce evidence of Patton’s qualifications, and that an objection would serve only to enhance Patton’s creditability by highlighting those qualifications for the jury. (See, e.g., People v. Huggins (2006) 38 Cal.4th 175, 206 [finding no ineffective assistance of counsel when counsel’s failure to object could be explained as a tactical decision not to draw the jurors’ attention to comments by the prosecutor].) Thus, on this record, we cannot conclude that counsel had no rational tactical purpose for not objecting to Patton’s testimony.
DISPOSITION
The judgment is affirmed.