Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA318386, Kathleen Kennedy-Powell, Judge.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
FACTS AND PROCEEDINGS
On March 6, 2007, Los Angeles Police Officers Carter Fenstemacher and Andre Plummer saw Eula Montellano walk toward a Cadillac sitting at a stop sign. Fenstemacher and Plummer were sitting directly behind the Cadillac in an unmarked car. The Cadillac was driven by a man while appellant, Vickie Marcia Dillard, sat in the passenger seat. After speaking to the occupants of the Cadillac, Montellano signaled to the Cadillac that it should move forward by waving her arms. The Cadillac then drove about 50 yards north and parked. Fenstemacher and Plummer followed the Cadillac. After appellant exited the Cadillac, Montellano walked up to appellant and gave her some money. Appellant then reached into her waistband and pulled out several small, off-white solid objects. Appellant and Montellano then walked down a driveway out of the officers’ sight. A few seconds later, Montellano walked out of the driveway holding an off-white object in her hand. The officers arrested Montellano as she exited the driveway and found rock cocaine and a crack pipe on Montellano’s person. Montellano had no money on her.
The officers returned to the Cadillac’s location about 30 minutes later and saw four to five more people walk down the driveway where they had earlier seen appellant. As Officer Plummer approached appellant to make the arrest, appellant dropped a purse between her legs. The purse contained over $50 in cash, all in $5 and $1 bills. At the police station, appellant admitted she had sold Montellano rock cocaine.
Appellant was charged with one count of sale of a controlled substance, cocaine, in violation of Health and Safety Code section 11352, subdivision (a). Following a trial, appellant was convicted of this charge and sentenced to 10 years in prison, consisting of 4 years for the one count of selling a controlled substance and 6 years for prior felony enhancements. Appellant now appeals, arguing the trial court should have excluded her confession because the prosecution failed to establish a corpus delicti.
DISCUSSION
1. The Prosecution’s Evidence Sufficiently Established the Corpus Delicti of Drug Selling
The corpus delicti rule is a common law rule that lacks constitutional magnitude or statutory mandate. (People v. Jablonski (2006) 37 Cal.4th 774, 826.) The rule requires that “the corpus delicti of a crime be proved independently from an accused’s extrajudicial admissions.” (People v. Jennings (1991) 53 Cal.3d 334, 364 (Jennings).) However, for corpus delicti purposes, the amount of proof required independent of the defendant’s admissions is “quite small; we have described this quantum of evidence as ‘slight’ [citation] or ‘minimal’ [citation].” (People v. Jones (1998) 17 Cal.4th 279, 301.) The proof need not establish the accused committed the crime. Rather, the People must merely make a prima facie showing giving rise to a reasonable inference that a crime was committed. (Jennings, at p. 364.) The inference need not be “the only, or even the most compelling, one . . . [but need only be] a reasonable one.” (Id. at p. 367, italics in original.) An example is illustrative of the ease with which the threshold of corpus delicti proof is met.
In Jennings, the defendant appealed his conviction, arguing, among other things, that the prosecution failed to establish the corpus delicti of rape. (Jennings, supra,53 Cal.3d at p. 366.) The court acknowledged “the evidence of rape was not strong.” (Id. at p. 367.) No seminal fluids were found on the victim’s body, no evidence of penetration existed, and there was “no evidence that the victim’s clothes were arranged in such a manner as to suggest a sexual assault.” (Ibid.) Nonetheless, the court held the corpus delicti of rape was established, relying only on the evidence of a woman’s body being found unclothed in a remote site with a broken jaw. (Id. at pp. 367-368.) The court reasoned that when a “young woman is found unclothed in a remote locale, an inference arises that some sexual activity occurred.” (Id. at p. 367.) The court then reasoned the condition of the body at the time of discovery permitted a reasonable inference that, “whatever sexual activity occurred, it occurred against the victim’s will.” (Id. at p. 368.)
In the context of drug sales, the corpus delicti can be established even if officers do not observe the defendant providing drugs to others. (People v. Lopez (1967) 254 Cal.App.2d 185, 190 (Lopez).) In Lopez, Agent Armenta of the California Bureau of Narcotic Enforcement and his informer met with the defendant in a hotel room where a drug sale was to occur. (Id. at p. 187.) Armenta remained in the hotel room while the informer and the defendant left the room. Shortly thereafter, the informer returned to the room alone with marijuana, which he gave to Armenta. While leaving the hotel, Armenta saw the defendant and asked him “ ‘if the marijuana was any good,’ ” and the defendant replied that it was. (Id. at p. 188.) Despite Armenta’s not having witnessed the actual transfer of drugs, the court held the corpus delicti of drug selling was established, acknowledging “all that was needed to establish the corpus delicti of selling narcotics . . . was a prima facie showing, independent of defendant’s extrajudicial declarations . . . that someone sold, bartered, exchanged or gave away marijuana knowing that it was a narcotic.” (Id. at p. 190, italics in original.) The court reasoned, “[t]hese circumstances, taken together, show a reasonable probability that an act of another was the direct cause of [the informer’s] possession of the marijuana cigarettes and warrant the drawing of the inference that someone, with knowledge of the narcotic character of the marijuana cigarettes, either sold them or gave them to [the informer].” (Ibid.)
Given the relatively minimal threshold of evidence required to satisfy the corpus delicti rule and the factual similarities between this case and Lopez, we find ample evidence here. Officer Fenstemacher saw Montellano walk up to appellant with money in hand and give appellant the money. Officer Fenstemacher then saw appellant reach into her waistband and pull out several small, off-white objects. When Montellano re-emerged from the hidden driveway, she was holding small, off-white objects, later identified as rock cocaine, and when officers arrested Montellano, she no longer had any money on her. After Montellano was arrested, officers observed four to five more people walk down the driveway where appellant had disappeared. Finally, when arrested, appellant attempted to hide a purse full of money, all in $5 and $1 bills. The totality of circumstances strongly suggests that it was appellant who sold drugs, but at a minimum, that gives rise to a reasonable inference that someone sold cocaine. The clandestine nature of the entire transaction, as evidenced by appellant’s concealing the drugs in her waistband, walking down a hidden driveway to make the exchange, and attempting to hide a purse full of money strongly suggests that she was aware of the narcotic nature of the substance. That the evidence could potentially give rise to other inferences, as appellant contends, is wholly irrelevant. A corpus delicti having been established, appellant’s statements to police were admissible. Such an inference is plainly reasonable.
2. The Abstract of Judgment Should Reflect That Appellant Was Sentenced to the Midterm of Four Years
Appellant also argues the abstract of judgment should be corrected to show she was sentenced to the midterm of four years, and not the upper term of four years, for the count of selling a controlled substance. Respondent agrees, as do we. The abstract of judgment should be corrected to reflect a midterm sentence.
DISPOSITION
The judgment is affirmed with directions that the abstract of judgment be corrected to reflect that appellant was sentenced to the midterm of four years for the count of selling a controlled substance.
WE CONCUR: COOPER, P. J., FLIER, J.