Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR017164B, Edward P. Moffat, Judge.
Richard L. Fitzer, 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, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J. and Hill, J.
STATEMENT OF THE CASE
On April 30, 2007, the Madera County District Attorney filed a consolidated information in superior court charging appellant Ruben Camillus Acuna and codefendants Nicholas Castillo and Paul Gonzales as follows: count 1—possession of methamphetamine for sale (Health & Saf. Code, § 11378) in an excess quantity (Pen. Code, § 1203.073, subd. (b)(2)), and count 2—possession of marijuana for sale (Health & Saf. Code, § 11359).
Castillo and Gonzales are not parties to the instant appeal.
On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegation.
On May 1, 2007, jury trial commenced.
On May 3, 2007, the court denied appellant’s motion for acquittal on count 1.
On May 4, 2007, the jury returned verdicts finding appellant guilty of counts 1 and 2 and finding the special allegation as to count 1 to be true.
On June 29, 2007, appellant filed a statement of mitigation attributing the methamphetamine offense to codefendant Castillo.
On July 18, 2007, the court denied appellant probation and sentenced him to the middle term of two years on count 1 and a concurrent term of two years on count 2. The court ultimately imposed a $200 restitution fine, imposed and suspended a second such fine pending successful completion of parole, and awarded one day of custody credit. The court also imposed a $650 fine under Penal Code section 672 (offenses for which no fine prescribed).
The Penal Code section 672 fine consisted of a $200 base fine, a $200 penalty assessment (Pen. Code, § 1464), a $140 county penalty assessment (Gov. Code, § 76000), a $50 state court facilities construction fund penalty (Gov. Code, § 70372, subd. (a)), a $40 surcharge (Pen. Code, § 1465.7), and a $20 court security fee.
On July 19, 2007, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
In 2000, codefendant Nicholas Castillo, his girlfriend Nancy Gallegos, and her children moved into a home on Raymond Thomas Street in Madera. According to Gallegos, they moved out in August or September 2003. Their landlord, David Beattie, said they did not move out until February 2004. Gallegos claimed appellant never lived with her and Castillo.
On November 25, 2003, a multi-agency narcotic enforcement team under the leadership of Deputy Probation Officer Staci LaFontaine went to that same home on Raymond Thomas Street in Madera to serve a search warrant. No one was inside the three-bedroom residence when the officers entered the premises. Gallegos spoke to LaFontaine sometime after the search and told LaFontaine that Castillo maintained the residence after they had moved out.
Officer LaFontaine entered the kitchen and smelled a strong odor of marijuana. She found a plastic bag of marijuana on a shelf above the refrigerator. The bag contained 19.92 grams of marijuana. LaFontaine also found an operational digital scale on top of the refrigerator. The black scale contained white residue and a green-brown substance that officers believed to be marijuana. LaFontaine found mail addressed to Castillo inside a cupboard and on top of a hutch next to the kitchen table.
In the north bedroom of the home, officers found an identification card on the closet floor. The card bore the name of codefendant Castillo. The room contained a bed and male clothing. An amusement park photograph of Castillo and two unidentified Hispanic males was tacked to the wall of the bedroom. Inside the closet were two boxes filled with plastic sandwich bags. One of the boxes contained a bag filled with 83.73 grams of methamphetamine. The officers detected the strong odor of methamphetamine in the room. Officer LaFontaine said the methamphetamine itself consisted of “large whole pieces” and was not broken down into small amounts. Officers did not find any pay/owe sheets in the bedroom.
In the southwest bedroom of the home, officers found male clothing and shoes in the room and in the closet. They also saw a mattress and blankets on the floor. They found a black leather wallet on a shelf inside the bedroom closet. The wallet contained appellant’s California identification card. The closet also contained a bag containing 25.24 grams of marijuana. They did not find any pay/owe sheets in that bedroom. The bedroom also contained two letters addressed from the County of Madera to appellant at another address. One of the letters was located under the bag of marijuana. Officers also found an August 11, 2003, payroll earnings record in appellant’s name. In the southeast bedroom of the home, officers found a bullet-proof vest stored inside a closet. They also found letters addressed to codefendant Paul Gonzales on the floor of the southeast bedroom
At trial, Officer LaFontaine testified the street value of the recovered methamphetamine was between $1,500 and $2,500 and the street value of the marijuana was between $500 and $700. In LaFontaine’s opinion, both drugs were possessed for purposes of sale.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE ON COUNT 1
Appellant contends the evidence was insufficient to support his guilty verdict on the methamphetamine count. He submits there was no evidence that appellant even knew there was methamphetamine in the residence or that he had any possessory interest in those drugs.
He specifically argues:
“It is virtually impossible to infer knowledge of the presence of a controlled substance in one bedroom from the discovery of an identification card and a few pieces of mail in a different bedroom. It is impossible to reasonably infer from those same items, that a person who has neither been seen in the home nor who is on the rental agreement has control or authority over that controlled substance. Appellant was essentially found guilty by association. Appellant knew the other co-defendants and some of his stuff was in the house, so he must be guilty of all that went on in that house, right? Wrong! Just because a few of his things were found in one bedroom, does not mean appellant had any interest at all in things discovered in a different bedroom. There is no evidence that this was his residence. While the documents bearing appellant’s name were circumstantial evidence that he had been in the residence at least once, they only established that appellant had been inside the residence at least as recently as August, 2003–the month on the pay stub. Nothing established that appellant had been in the residence from September through November 25, 2003, when the warrant was executed. Nor was there any evidence as to when the methamphetamine got in the residence or how long the residence had been supposedly used to sell drugs.
“Finally, there was no evidence, direct or circumstantial, that appellant had ever been in the North bedroom where the methamphetamine was found. The prosecution tied each co-defendant to a different room in the residence. Since there was no proof of a conspiracy or of a drug selling enterprise of which the three defendants were a part, each defendant is only legally culpable for what was found in ‘his room.’”
The essential elements of unlawful possession of a controlled substance are dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially. Although the possessor’s knowledge of the presence of the controlled substance and its nature as a restricted dangerous drug must be shown, no further showing of a subjective mental state is required. (People v. Martin (2001) 25 Cal.4th 1180, 1184-1185.) Possession, actual or constructive, may be established by circumstantial evidence and any reasonable inferences to be drawn therefrom. 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. (People v. Williams (1971) 5 Cal.3d 211, 215.)
In reviewing the sufficiency of the evidence supporting a criminal conviction, the critical inquiry is whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt. This inquiry does not require a court to ask itself whether it believes the evidence at trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In determining whether a reasonable trier of fact could have made such a finding, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Staten (2000) 24 Cal.4th 434, 460.)
On appeal, appellant concedes “the nature of the substance was clear and there certainly was a usable quantity.” However, he goes on to argue “there simply was no evidence that appellant either knew the methamphetamine was in the residence or, even if he did, that he exercised any control or authority over those drugs.”
As noted above, officers entered the home on November 25, 2003, and detected the strong odor of methamphetamine in the north bedroom. Inside the closet of that bedroom, officers found two boxes of plastic sandwich bags. One box contained 83.73 grams of methamphetamine inside a plastic bag. In the southwest bedroom they found male clothing and shoes, a mattress and bedding, appellant’s wallet and identification card, two pieces of mail addressed to appellant, and appellant’s August 2003 payroll earnings record. They also found a working digital scale on top of the refrigerator in the kitchen. The scale contained residue of what officers believed to be methamphetamine and marijuana.
From the foregoing facts and circumstances, the jury could reasonably conclude appellant had been in the house as recently as August 2003, that he resided in and exercised joint dominion and control over the house, and that joint dominion extended to the kitchen, which contained a digital scale bearing methamphetamine and marijuana residue. Based on that circumstantial evidence, the jurors could also rationally infer that appellant had joint dominion and control over the methamphetamine in the north bedroom and the marijuana in the kitchen and the southwest bedroom.
California law clearly provides that neither exclusive possession of the premises nor physical possession of the drug is required to support a judgment of conviction of possession of a controlled substance for sale. (People v. Harrington (1970) 2 Cal.3d 991, 998.) Given these guiding principles, we may reasonably conclude that judgment of conviction of possession of methamphetamine for sale was supported by substantial evidence and reversal is not required.
II. CALCULATION OF THE PENAL CODE SECTION 672 FINE
Appellant initially contends the superior court erroneously calculated the Penal Code section 672 fine and maintains the fine should be reduced from $650 to $540.
In response, the People observe:
“Here, appellant was convicted of possession of methamphetamine for sale a violation of Health and Safety Code section 11378, and possession of marijuana for sale, a violation of Health and Safety Code section 11359, for which no fines are prescribed. Therefore, the trial court had statutory authority under Penal Code section 672 to impose a discretionary fine up to $10,000.
“State penalty assessments are governed by Penal Code section 1464 and Government Code section 76000 governs county penalty assessments. State penalty assessments accrue at $10 and county penalty assessments accrue at $7 for every $10 or fraction thereof upon every fine, penalty, or forfeiture imposed and collected for criminal offenses. (Pen. Code, § 1464, subd. (a); Gov. Code, § 76000, subd. (a).) Applying this statutory formula, the trial court was empowered, and did, impose state and county penalty assessments of $200 and $140 respectively.
“Government Code section 70372 provides for the imposition of a state court construction penalty, ‘in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses.’ (Gov. Code, § 70372, former subd. (a) [see now subd. (a)(1)). Because appellant was assessed a $200 fine, the court should have imposed $100, not $50, under Government Code section 70372.
“Appellant’s total fine under Penal Code section 672 should be increased to $700.”
Appellant concedes the point in his reply brief:
“… Appellate counsel has recalculated the fines and penalties using respondent[’s] method and it appears that respondent’s calculation is correct.”
The trial court is directed to recalculate the Penal Code section 672 fine, to amend the abstract of judgment accordingly, and to transmit certified copies of the amended abstract to all appropriate parties and entities.
DISPOSITION
The judgment is affirmed. The trial court is directed to recalculate the Penal Code section 672 fine, to amend the abstract of judgment accordingly, and to transmit certified copies of the amended abstract to all appropriate parties and entities.