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People v. Warner

California Court of Appeals, Second District, Fifth Division
May 28, 2008
No. B196143 (Cal. Ct. App. May. 28, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. YA063688, Lori Ann Fournier, Judge and William R. Hollingsworth, Jr. (Retired judge of the L.A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Sheldon L. Levitin for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.


TURNER, P. J.

I. INTRODUCTION

Defendant, Emilios Warner, appeals from his cocaine base possession for sale conviction (Health & Saf. Code, § 11351.5) and findings he was previously convicted of a serious felony and served a prior prison term. (Pen. Code, §§ 667, subd. (b)(i), 667.5, subd. (b), 1170.12.) Defendant argues: there was insufficient evidence to support his cocaine base possession conviction; the upper term was improperly imposed; and certain peace officer personnel records should have been disclosed. The Attorney General argues that additional fines and penalties should have been imposed. We conclude certain peace officer personnel records should have been disclosed and additional fines should have been imposed. We conditionally reverse the judgment in order to allow disclosure of certain documents to the defense. Defendant shall have the opportunity to demonstrate had the new matters been disclosed, there is a reasonable probability defendant would have secured a more favorable result.

II. FACTUAL BACKGROUND

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.) At approximately 9 p.m. on December 27, 2005, Los Angeles County Sheriff’s Deputies Mark Sunagawa and John Finney were working in the area of Vermont Street south of 93rd Street in a marked patrol car. Deputy Sunagawa, who was in the passenger seat, saw defendant standing near a liquor store in a well-lit area. Defendant, who was facing the street, appeared startled as the patrol car approached. Defendant immediately placed his hands in his jacket pockets. Defendant watched the patrol car as it passed him and continued down the street. Deputy Finney put the patrol car in reverse, backing up toward defendant. Defendant moved his right hand from his jacket pocket and tossed something out of his hand toward the street. Deputy Sunagawa saw defendant toss the object into the street. Defendant then began walking toward the liquor store. Deputy Sunagawa got out of the patrol car. Deputy Sunagawa made contact with defendant. Defendant did not appear to be under the influence of any drugs or alcohol. Deputy Sunagawa patted defendant down for weapons. Deputy Sunagawa placed defendant in the back of the patrol car. Deputy Sunagawa went to the area of the street where he saw the item being thrown. Deputy Sunagawa found a plastic baggie containing 10 individual off-white, rock-like objects which were 2.18 grams of cocaine base.

Detective Mike Octave had been a deputy sheriff for 15 years and was assigned to the narcotics division for more than 3 years. In those capacities, Detective Octave received extensive training in narcotics identification, packaging, and transportation. Detective Octave had been trained in the processing and sale of cocaine base. Based upon his experience and training, Detective Octave believed that the 10 pieces of cocaine base in this case were possessed for sale. The similar shape and size of the “rocks” would insure that equal amounts were sold for a specific price. In addition, the fact that they were in a plastic baggie was indicative of possession for sale. The 2.18 grams amounted to approximately 100 doses. Detective Octave believed that would be too much cocaine for personal consumption.

III. DISCUSSION

A. Sufficiency of the Evidence

Defendant argues there was insufficient evidence to support his cocaine base possession conviction. In reviewing the sufficiency of the evidence, 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. Maury (2003) 30 Cal.4th 342, 396; 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 provides, “[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.]” (Superseded by statute on other grounds as noted in People v. Romero (1997) 55 Cal.App.4th 147, 152-153.) 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 6 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.]”’ (Ibid., quoting People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746; see also 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, who was standing on a sidewalk, appeared startled when he saw the patrol car approach. Thereafter, he placed his hands in his pockets while watching the patrol car continue down the street. Deputy Finney put the patrol car in reverse to return to where defendant was observed tossing a plastic baggie containing 10 cocaine base pieces weighing 2.18 grams. Detective Octave testified that the amount of cocaine base far exceeded that required for personal use. Detective Octave testified that the quantity would provide approximately 100 doses of cocaine base. Moreover, the number of rocks and packaging were consistent with cocaine possession for purposes of sale. Although defendant presented testimony that contradicted that of the deputies, we may not second guess the trier of fact nor reweigh the evidence on appeal. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.) The jury could have reasonably inferred from the evidence that defendant knew of and had dominion and control over the cocaine base found in the street. Substantial evidence supported the verdict.

B. Independent Review of Peace Officer Personnel Records

Defendant has requested that we review the sealed documents and transcripts prepared in connection with a motion to compel disclosure of peace officer personnel records. (Evid. Code, § 1045, subd. (b); People v. Mooc (2001) 26 Cal.4th 1216, 1232; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535-540.) The motion to compel the disclosure of peace officer personnel records was granted in part and denied in part during an in camera review by Retired Judge William R. Hollingsworth, Jr. We review Retired Judge Hollingsworth’s ruling on the motion to compel disclosure of peace officer personnel records for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330 [“A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion”]; see also People v. Samayoa (1997) 15 Cal.4th 795, 827; Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.) After examining the relevant peace officer records in chambers, the trial court has a duty to disclose to the defendant such information that is relevant to the subject matter involved in the pending litigation. (People v. Mooc, supra, 26 Cal.4th at p. 1226; Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1086; § 1045, subd. (a).) An additional aspect of a trial court’s standard of review is: “Relevant information under section 1045 is not limited to facts that may be admissible at trial, but may include facts that could lead to the discovery of admissible evidence. (See People v. Memro (1985) 38 Cal.3d 658, 681-682; People v. Hustead (1999) 74 Cal.App.4th 410, 423.)” (Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1087.)

In this case, defendant’s motion requested materials which related, directly or indirectly, to accusations and evidence that Deputies Sunagawa and Finney had engaged in acts of misconduct. The term misconduct was defined in the motion thusly, “For purposes of this motion, evidence of misconduct shall be defined as evidence relating to accusations that the above-named deputies engaged in acts of excessive force, bias, dishonesty, coercive conduct or acts constituting a violation of the statutory or constitutional rights of others.” (Fns. omitted.) After augmenting the record, we have reviewed the documents reviewed in camera. We have also read the transcript of the in camera hearing to determine if Retired Judge Hollingsworth acted outside the allowable scope of judicial discretion in refusing to disclose additional records. The reports related to case Nos. IAB IV 2124860 and SCR 127515 should have been disclosed to defense counsel. Upon remittitur issuance, Judge Lori Ann Fournier, who tried the case, is to order the aforementioned reports disclosed to defense counsel with the requisite protective order. (Evid. Code, § 1045, subd. (e); Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039-1047.) Defendant shall be given a reasonable period of time to locate and interview any witnesses. At the conclusion of that reasonable period of time, defendant shall produce those witnesses in open court. Any witness must be placed under oath, examined by defense counsel, and subject to cross-examination by the prosecutor. Judge Fournier shall then decide whether if the witnesses had been called to testify, there is a reasonable probability defendant would have received a more favorable result. If the Judge Fournier finds there is a reasonable probability of a different result, then a new trial is to be ordered. If Judge Fournier finds there is no reasonable probability of a different result, the judgment is to be reinstated. (People v. Guevara (2007) 148 Cal.App.4th 62, 68-69; People v. Hustead, supra, 74 Cal.App.4th at pp. 422-423.) Of course, if at the conclusion of the reasonable period of time, defendant cannot or does not produce any witnesses, Judge Fournier is to reinstate the judgment.

C. Sentencing

1. Imposition of upper term

Defendant, relying on Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856], argues the upper term was improperly imposed based upon facts that were neither found by the jury nor admitted by him. Judge Fournier based her selection of the upper term on the fact defendant was on parole and the present offense occurred within six months of his release. Judge Fournier found no factors in mitigation to be present. In the recent case of People v. Black (2007) 41 Cal.4th 799, 805-824, the California Supreme Court examined the imposition of an upper term under the determinate sentencing law in light of Cunningham v. California, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 863-864]: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, 41 Cal.4th. at p. 812, original italics; see Blakely v. Washington (2004) 542 U.S. 296, 303-304.) The Black court further held: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th. at p. 816; see Blakely v. Washington, supra, 542 U.S. at pp. 303-304.) As a result, defendant’s constitutional right to a jury trial was not violated when Judge Fournier imposed the upper term.

2. Additional fines and penalties

Following our request for further briefing, the Attorney General argues that Judge Fournier should have imposed a $50 laboratory fee pursuant to Health and Safety Code section 11372.5, subdivision (a). Additional penalties and fines 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; a $10 state court surcharge pursuant to Penal Code section 1465.7, subdivision (a); and a $15 state court construction fee 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; People v. Turner (2002) 96 Cal.App.4th 1409, 1414-1416.) The trial court is to personally insure 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.)

3. Parole revocation fine

At the sentencing hearing, Judge Fournier orally imposed a $500 restitution fine pursuant to Penal Code section 1202.4, subdivision (b) and imposed and stayed a $200 parole revocation fine. The abstract of judgment indicates that a $200 fine was imposed as to each of these restitution fines. The oral pronouncement of a sentence is controlling over the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) Penal Code section 1202.45 mandates that the parole revocation restitution fine should be assessed “in the same amount” as the restitution fine. We therefore modify the parole revocation fine and impose a $500 fine pursuant to section 1202.45.

IV. DISPOSITION

The judgment is reversed. The matter is remanded to allow defendant the opportunity to demonstrate whether the newly discovered evidence would have led to any relevant, admissible evidence that he could have presented at trial and for Judge Fournier to determine whether a new trial is required. If Judge Fournier determines that a new trial is not required by law, the previously imposed judgment shall be reinstated, subject to the following modifications: a $50 laboratory fee pursuant to Health and Safety Code section 11372.5, subdivision (a); 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 fee pursuant to Government Code section 70372, subdivision (a); and a $500 Penal Code section 1202.45 parole restitution fine which is stayed unless defendant violates a condition of his parole. Upon remittitur issuance, 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: ARMSTRONG, J. KRIEGLER, J.


Summaries of

People v. Warner

California Court of Appeals, Second District, Fifth Division
May 28, 2008
No. B196143 (Cal. Ct. App. May. 28, 2008)
Case details for

People v. Warner

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EMILIOS WARNER, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: May 28, 2008

Citations

No. B196143 (Cal. Ct. App. May. 28, 2008)