Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County No. MCR026625, Jennifer R. S. Detjen, Judge.
Sylvia Koryn, 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 Paul E. O’Connor, Deputy Attorneys General, for Defendant and Respondent.
OPINION
HILL, J.
Appellant Tana Jeanette David was convicted after jury trial of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and the trial court found true a prior prison term enhancement allegation (Pen. Code, § 667.5, subd. (b)). At sentencing, appellant received three years’ probation. On appeal, she contends: (1) insufficient evidence supports the jury’s verdict; and (2) the trial court erred when it failed to instruct sua sponte that mere proximity to narcotics is insufficient to constitute constructive possession. We reject appellant’s contentions and affirm the judgment.
FACTS
On October 19, 2006, around 11:00 p.m., Madera Police Officer Daniel Foss was on patrol in a neighborhood known for being “very high in drug sales and drug use.” In order to observe possible drug activity, he parked his patrol car at an intersection and turned out his lights. He explained he was looking for activity such as “somebody going into a residence for a brief amount of time, or a vehicle parking for a very brief amount of time and then leaving again.”
Officer Foss saw a small pickup truck stop in the area. Two apparent females got out of the pickup and started crossing the street in the direction of a house. After they crossed the street, Officer Foss lost sight of them in the shadows. Two to three minutes later they reappeared and got back into the pickup, which started to move in the officer’s direction.
Officer Foss turned on his headlights and observed that the pickup had no front license plate. When he pulled up behind the pickup, he saw that it had no rear license plate either and decided to make a traffic stop. The pickup travelled around two blocks before stopping. During that time, Officer Foss observed the three occupants of the pickup to see if they would engage in the types of suspicious activities he had seen before in his experience and training regarding crimes involving controlled substances. The only movements Officer Foss observed were from a person he later identified as appellant. Appellant was sitting sideways in the backseat of the pickup. Officer Foss testified that appellant seemed to notice him “immediately,” “kept turning her head back and forth,” and appeared “nervous.” Officer Foss never saw either of the other two occupants of the pickup reach back or throw anything into the back of the vehicle.
Officer Foss first contacted the driver of the pickup, Sal Polizzi. He informed Polizzi why he pulled him over, and asked if there were any weapons or controlled substances in the vehicle. Polizzi said there were not. Soon another officer arrived to assist, and Officer Foss went to talk to appellant and the right front passenger of the pickup, Elizabeth Tovar. Officer Foss confirmed that appellant and Tovar resembled the two subjects he had previously seen get out of the pickup in terms of their height, build, and gender.
Officer Foss asked appellant if she had any weapons, guns, or drugs that she knew of, either on her or in the vehicle. In response, appellant stated there were none on her, but there was some methamphetamine in the pickup. Appellant told Officer Foss the methamphetamine was Tovar’s and that she had observed Tovar buy the drugs from the house up the street.
Officer Foss then obtained Polizzi’s permission to search the pickup. In the back part of the pickup where appellant had been seated, Officer Foss found some tools and a small radio. Leaning against the radio and the back of the front driver’s seat were four or five CD cases stacked up. Sitting in the center of the top CD case, Officer Foss observed what appeared to be a small baggie of methamphetamine. Later testing revealed that the baggie contained .13 grams of methamphetamine, a usable amount.
When Officer Foss pulled the pickup over, appellant was sitting sideways, so that her back was against the passenger’s side and her legs were facing the driver’s side. The stack of CD cases were behind the driver’s seat and by appellant’s legs, and were closer to the driver’s door than to the center console.
Officer Foss testified that, although the back part of the pickup was within reach of all three occupants, he did not think it would be physically possible for the front driver to reach behind his back and place the baggie of methamphetamine in the location where it was found.
On cross-examination, Officer Foss confirmed that appellant and Tovar mutually accused each other of purchasing the methamphetamine. Officer Foss wrote in his report that Tovar told him, “Listen, I did not buy drugs, I know for a fact that Tana did and it’s going to be on her or in the backseat near her.”
DISCUSSION
I. Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence to support her conviction for possession of methamphetamine on the ground the evidence was insufficient to establish that she physically or constructively had possession of the methamphetamine. We disagree and find substantial evidence of possession.
On appeal, the court “must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be ‘“of ponderable legal significance ... reasonable in nature, credible and of solid value.”’” (People v. Mercer (1999) 70 Cal.App.4th 463, 466; accord, People v. Poe (1999) 74 Cal.App.4th 826, 830.) The reviewing court is foreclosed from reweighing the evidence and redetermining the credibility of witnesses and must, instead, resolve all conflicts in favor of the judgment and draw all reasonable inferences in its support. (People v. Mercer, supra, 70 Cal.App.4th at p. 467; accord, People v. Poe, supra, 74 Cal.App.4th at p. 830.)
“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.]” (People v. Williams (1971) 5 Cal.3d 211, 215.) “The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citations.]” (Ibid.; People v. Martin (2001) 25 Cal.4th 1180, 1184.)
In this case, there was ample circumstantial evidence appellant knew the drugs were in the pickup and exercised controlover them. Appellant herself told Officer Foss there was methamphetamine in the vehicle. Prior to that, Officer Foss observed the pickup stop in a neighborhood known for narcotics activity. Two women resembling appellant and Tovar exited the pickup and walked towards a house. Within a few minutes, they returned and reentered the pickup. After Officer Foss began to follow the pickup, appellant kept turning her head to look at him and appeared to be nervous. Officer Foss testified that he found the baggie of methamphetamine sitting in “plain sight” on top of a stack of CD cases behind the driver’s seat and by appellant’s legs. Officer Foss testified that he was immediately struck by the location of the baggie; because of its “smooth plastic” surface, he thought it would have fallen off when the pickup moved. This circumstance suggested the baggie had only recently been placed in that location. Appellant’s position in the backseat of the pickup, which afforded her the easiest access to the location where the methamphetamine was found, and the lack of suspicious movements by the two occupants in the front of the pickup, provided further support for the inference that appellant was the one who placed the drugs where they were found and had thus, at some point, exercised direct physical control over the drugs.
Moreover, the jury was entitled to, and clearly did, disbelieve appellant’s statement to the effect that the drugs belonged to Tovar alone. However, from the forgoing evidence and the behavior of the two women during the traffic stop – accusing each other of buying and possessing the drugs – the jury could also reasonably have inferred the drugs were subject to the joint dominion and control of appellant and Tovar. In either case, the jury could reasonably conclude from the totality of the facts and circumstances that appellant actually or constructively possessed the methamphetamine found in the pickup. Accordingly, we reject appellant’s challenge to the sufficiency of the evidence.
II. Mere Proximity Instruction
Appellant contends the trial court erred when it failed to instruct sua sponte that mere proximity to narcotics was insufficient to constitute constructive possession. We disagree.
The trial court has a duty to instruct sua sponte “on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) This includes the obligation to instruct on all of the elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) When we review the correctness of the trial court’s instructions, we consider the instructions as a whole and in light of each other, rather than each instruction in isolation. (People v. Holt (1997) 15 Cal.4th 619, 677.) “‘The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’ [Citation.]” (People v. Burgener (1986) 41 Cal.3d 505, 539, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-754.) We may also consider the arguments of counsel in determining how a reasonable juror would have understood the court’s instructions. (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
The trial court instructed the jury in relevant part as follows:
“The defendant is charged with possessing methamphetamine, a controlled substance.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant possessed a controlled substance;
“2. The defendant knew of its presence;
“3. The defendant knew of the substance’s nature or character as a controlled substance;
“4. The controlled substance was methamphetamine;
“AND
“5. The controlled substance was in a usable amount. [¶] … [¶]
“Two or more people may possess something at the same time.
“A person does not have to actually hold or touch something, to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.”
These instructions properly reflect the applicable law. (See People v. Morante (1999) 20 Cal.4th 403, 417.) The given instructions make clear that the prosecution must show appellant had “control over” or “the right to control” the drugs, and therefore appellant’s physical proximity to the drugs could not alone establish her guilt. Common sense dictates that “control” means something more than “mere proximity.” Thus, it was unnecessary to additionally instruct that appellant’s mere proximity to the drugs was insufficient to find she was guilty of possession of methamphetamine. (See People v. Jeffers (1996) 41 Cal.App.4th 917, 923-924.) A court is not required to give duplicative instructions, even if they are legally correct. (People v. Brown (2003) 31 Cal.4th 518, 559.)
Appellant alternatively argues defense counsel was ineffective for failing to request a “mere proximity” instruction. However, to prevail on this contention, an appellant must show there is a reasonable probability the appellant would have obtained a more favorable outcome absent the claimed deficiency in counsel’s performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-696.)
In this case, it is not reasonably probable the outcome could have been different if the instruction had been given. As discussed, the instruction was essentially duplicative of the given instructions. Although the proximity instruction would have highlighted the need for the jury to find that appellant was aware of the drugs and that she had control over them, the jury was told of these required elements through the given instructions and counsel’s arguments. Moreover, contrary to appellant’s suggestion, the prosecution did not base its case solely on appellant’s physical proximity to the drugs but on all the above circumstances establishing appellant’s control and dominion over the drugs. There is no reasonable probability that, but for counsel’s failure to request the instruction, a determination more favorable to appellant would have resulted.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., GOMES, J.