Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR071232
SIMONS, J.
Defendant Kevin Bruce Couturier (appellant) appeals his conviction by jury trial of misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364) on the ground that it was unsupported by substantial evidence.
The jury also convicted him of possession of a dirk or dagger (Pen. Code, § 12020, subd. (a)(4)), misdemeanor possession of marijuana while driving (Veh. Code, § 23222, subd. (b)), and misdemeanor driving without a valid driver’s license (Veh. Code, § 12500, subd. (a)). The court found true three prior prison term allegations. (Pen. Code, § 667.5, subd. (b).) Defendant was sentenced to five years in state prison.
BACKGROUND
At approximately 4:00 a.m. on March 11, 2007, Eureka Police Officer Watson observed appellant driving “somewhat erratically, very slowly” and having difficulty negotiating a turn. Appellant also appeared to have difficulty parallel parking. Appellant “appeared to be impaired” when Watson spoke to him. His speech patterns were slow and somewhat slurred and his eyes were “heavy and red.” Watson approached appellant to further investigate his belief that appellant was driving under the influence. Watson questioned him about his driver’s license status, and asked to see his license, insurance and registration. A records check revealed appellant’s license was expired. During their conversation, Watson concluded appellant was not under the influence of alcohol, and appellant said he had smoked marijuana. Watson searched appellant and found in his pockets approximately 26 grams of marijuana packaged in four separate containers. In one of appellant’s pockets Watson found a bent metal spoon. Based on his training and experience, Watson opined the spoon was “an implement or item of drug paraphernalia, commonly used to ingest controlled substances, not marijuana.” Watson explained the spoon would typically be used to cook cocaine, methamphetamine or heroin so as to make it injectable. The bowl of the spoon contained a white or off white residue that was not sufficient for testing. In appellant’s jacket pocket, Watson found a screwdriver and an awl which had been sharpened into a point.
DISCUSSION
Appellant contends there was insufficient evidence that he possessed drug paraphernalia in violation of Health and Safety Code section 11364. Preliminarily, he argues that because Watson was never qualified as an expert, his opinion testimony regarding the metal spoon was inadmissible. But his failure to object to the admissibility of Watson’s testimony below waives the issue on appeal. (Evid. Code, § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.)
Health and Safety Code section 11364 provides, in relevant part: “(a) It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking” certain enumerated controlled substances.
Appellant next argues no evidence was presented that he knew the seized spoon could be used to unlawfully inject or consume a controlled substance. “To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable [factfinder] could find the defendant to be guilty on the theory presented. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529.)
The jury was instructed with CALCRIM No. 2410 that, to prove appellant guilty of this offense, the People had to establish appellant: (1) “possessed an object that can be used to unlawfully inject or consume a controlled substance”; (2) “knew of the object’s presence”; and (3) “knew that the object could be used to unlawfully inject or consume a controlled substance.” Each of these elements may be established by direct evidence and any reasonable inferences drawn from such evidence. (See People v. Eckstrom (1986) 187 Cal.App.3d 323, 331 [defendant’s exercise of dominion and control over a drug with knowledge of its presence and narcotic character may be established by circumstantial evidence].) “ ‘A reasonable inference . . . “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.” ’ [Citations.]” (People v. Raley (1992) 2 Cal.4th 870, 891.)
Appellant relies on People v. Tripp (2007) 151 Cal.App.4th 951 in asserting the evidence was insufficient to establish his knowledge that the spoon could be used to inject or consume a controlled substance. In Tripp, the police arrested a driver (Reed) following a traffic stop and discovered he was on probation for a narcotics violation and subject to a search condition. The police then went to a BalboaDrive address to conduct a probation search based on Reed’s claim that he lived at that address. The defendant opened the door of the house to police and inside one bedroom police found the defendant’s girlfriend and her child asleep. In another bedroom, police found some white crystal powder on a nightstand next to the bed, which later was identified as methamphetamine. The officer described the powder as “loose, ‘spilled out, like salt’ near the edge of the nightstand,” and the powder “appeared to be about the size of the head of a pen.” The defendant told police the bedroom was his, and his girlfriend said she usually slept in the defendant’s bedroom. (Id. at pp. 954-955.) Tripp held there was insufficient evidence the defendant had knowledge of the narcotic nature of the methamphetamine found on the nightstand, and reversed his conviction for possession of methamphetamine. (Id. at pp. 957-959.) Tripp noted the methamphetamine was not purposefully hidden, packaged or prepared for ingestion in a characteristic manner, located with characteristic paraphernalia or carried on the defendant’s person as if for personal use. “[T]here was nothing other than the methamphetamine’s presence on the nightstand in [the defendant’s] room and that was not enough. An evidentiary link was missing.” (Id. at p. 957.) Thus, the court found the circumstances did not support a reasonable inference that the defendant knew the powder was a controlled substance. (Id. at p. 959.)
Unlike Tripp, we conclude there is sufficient evidenceto establish the requisite inference that appellant knew the bent spoon could be used to inject or consume a controlled substance. First, at the time the spoon was seized, appellant appeared to be under the influence of some nonalcoholic substance, he was in possession of marijuana, stated he was under the influence of marijuana, and the jury concluded he had been driving under the influence of marijuana. Although Watson testified that marijuana is not a drug that is “cooked” in a bent spoon, appellant was under the influence of a drug at the time the spoon was seized and the jury was entitled to believe that marijuana was not the only illegal substance he had consumed. Second, unlike the defendant in Tripp, the subject contraband (the spoon) was found in appellant’s pocket, suggesting his personal use of it. Most significantly, Watson testified the bent spoon was of a type “commonly” used to “cook,” i.e., liquefy controlled substances to render them injectable. No evidence was presented that the spoon could have been possessed by appellant for other, lawful purposes. From this evidence, the jury could reasonably conclude that appellant knew that the bent spoon in his possession could be used to unlawfully inject or consume a controlled substance.
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., REARDON, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.