Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF22377, Donal B. Donnelly, Judge
McDONALD, J.
Refugio Hernandez appeals a judgment following his jury conviction of one count of possession of marijuana for sale (Health & Saf. Code, § 11359) and one count of attempted transportation of marijuana (Health & Saf. Code, § 11360). On appeal, he contends: (1) the trial court erred by denying his Penal Code section 1538.5 motion to suppress evidence of marijuana seized from a trailer in violation of his right against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution; (2) the trial court erred by denying his motion to exclude test results of samples taken from packages without a sufficient showing of chain of custody; (3) the evidence is insufficient to support findings he was guilty of the charged offenses; and (4) the trial court abused its discretion by imposing a three-year upper term for his conviction of possession of marijuana for sale.
FACTUAL AND PROCEDURAL BACKGROUND
At about 7:00 p.m. on August 8, 2008, Imperial County Narcotics Task Force Agents Reymundo De La Rosa and Richard Sotelo drove their unmarked car onto a field access road and used binoculars to observe activity near a residence at 2292 McConnell Road in El Centro. The agents saw more than four men carrying heavy black bags and loading them into a semitrailer through its open rear doors. Sotelo drove the car up to and stopped about eight feet from the trailer's open doors. Wearing plain clothes, Sotelo got out and walked up to a group of six men standing within eight feet of the trailer's open doors. When Sotelo approached them, Hernandez was among the group of men and was standing within one foot of the open doors with one hand on the trailer's bed. Wearing a tactical vest bearing the word "Police, " De La Rosa then got out of the car. Hernandez took two steps away as if he were about to run. De La Rosa told him to stop and Hernandez complied. Hernandez appeared nervous and fidgety, and looked all around. Hernandez and the other men appeared to have been working, as they were sweaty and seemed tired. When De La Rosa walked within six feet of the trailer's open doors, he smelled a strong odor of marijuana coming from inside the trailer. Sotelo also smelled that marijuana odor. Sotelo entered the trailer and, behind stacks of tires, found black trash bags that contained cellophane-wrapped packages. Inspecting the packages, he found they contained material he recognized as marijuana. The marijuana packages were later determined to weigh a total of 4, 207 pounds.
Sotelo asked all the men whether they knew who resided at the nearby residence. Hernandez and the others replied they did not know who lived there. De La Rosa and Sotelo heard Hernandez tell the other men in Spanish: "[N]obody knows nothing."
An information charged Hernandez with possession of marijuana for sale and transportation and attempted transportation of marijuana. Hernandez moved to suppress evidence seized from the trailer and a nearby truck. Following an evidentiary hearing, the trial court granted the motion to suppress the evidence found in the truck, but denied the motion to suppress the evidence found in the trailer. Before trial, Hernandez filed an in limine motion to exclude evidence of test results from samples purportedly taken from the trailer marijuana based on an insufficient showing of chain of custody. Following an evidentiary hearing, the court denied the motion.
At trial, the prosecution presented the testimonies of witnesses substantially as described above. It also presented De La Rosa's testimony that 4, 000 pounds of marijuana had a wholesale value of over $1,000,000. Laboratory tests performed on five samples taken from the seized packages confirmed they were marijuana.
Hernandez testified in his defense. On August 8, 2008, he and his family had lived in a rented home at 2292 McConnell Road for eight years. He was a truck driver and owned a truck that towed semitrailers between Imperial County and Los Angeles. He changed his truck's 10 tires at least once a year. On August 8, he had about 25 used tires at his residence and arranged for Roberto Garcia to haul them away. Garcia and three or four other men arrived that morning. One of the men agreed to pay Hernandez $150 for the tires and arranged to pick them up later that day. Hernandez testified there were no trailers there that morning. After the men drove away, Hernandez also left. When Hernandez returned after 5:00 or 6:00 p.m., he saw a 53-foot-long semitrailer parked near his home and some men near it. While he spoke with Garcia for about 20 or 30 minutes, he thought the other men were loading the used tires into the trailer. A vehicle then drove up to and parked near the rear of the trailer. As Hernandez walked over to meet the car's driver (Sotelo), Garcia and another man began to run away. Hernandez testified that the only time he was near the back of the trailer was when he approached Sotelo. He denied knowing there was marijuana in the trailer. He denied loading, or seeing anyone load, bags into the trailer.
On cross-examination, Hernandez testified he had never smelled marijuana and did not smell any strange odors when he was outside the trailer. He walked toward the trailer when he saw Sotelo's car approach and was standing four or five feet from the rear of the trailer when Sotelo got out of his car. Hernandez denied that Sotelo asked him who lived at the residence and who owned the trailer. He denied telling Sotelo he did not know who lived at the residence or who owned the trailer. He testified there were only two trucks parked nearby at the time—his white truck and his brother's yellow truck. He denied he planned to use either truck to tow the trailer. He denied telling the other five men, "nobody knows nothing."
The jury found Hernandez guilty of possession of marijuana for sale and attempted transportation of marijuana. The trial court imposed the upper term of three years in prison for the possession conviction and stayed pursuant to Penal Code section 654 execution of the upper term of two years it imposed for the attempted transportation conviction. Hernandez timely filed a notice of appeal.
DISCUSSION
I
Motion to Suppress Evidence
Hernandez contends the trial court erred by denying his Penal Code section 1538.5 motion to suppress evidence of the marijuana seized from the trailer in violation of his right against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution. He argues he had a reasonable expectation of privacy in the area unlawfully searched by the government agents without a warrant.
A
In ruling on a Penal Code section 1538.5 motion to suppress evidence, the trial court finds historical facts, selects the applicable rule of law, and applies that law to its findings of fact to determine whether the rule of law as applied to those facts was violated. (People v. Ayala (2000) 23 Cal.4th 225, 255.) On appeal, we apply the substantial evidence standard in reviewing the trial court's findings of historical facts. (Ibid.) We review de novo, or independently, the trial court's selection of the applicable rule of law. (Ibid.) Likewise, because the trial court's determination whether the rule of law as applied to the facts was violated is predominantly a question of law, we review de novo, or independently, that determination. (Ibid.)
The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The California Supreme Court stated: "The Fourth Amendment protects an individual's reasonable expectation of privacy against unreasonable intrusion on the part of the government. A warrant is required [to search an individual or his or her property] unless certain exceptions apply, including the exception that permits consensual searches. [Citations.] [¶] As the high court has explained: 'The touchstone of the Fourth Amendment is reasonableness. [Citation.] The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.' [Citation.]... [¶]... The defendant must assert a reasonable expectation of privacy in ' "the particular area searched or thing seized in order to bring a Fourth Amendment challenge." ' " (People v. Jenkins (2000) 22 Cal.4th 900, 971-972.) "[T]he Fourth Amendment protects people, not places." (Katz v. U.S. (1967) 389 U.S. 347, 351.)
"A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized. [Citations.] The prosecution has the burden of establishing the reasonableness of a warrantless search." (People v. Jenkins, supra, 22 Cal.4th at p. 972.) "[T]o claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable." (Minnesota v. Carter (1998) 525 U.S. 83, 88.)
B
Before trial, Hernandez apparently filed a Penal Code section 1538.5 motion to suppress the evidence of marijuana found in both the trailer and a nearby truck. In December 2008, the trial court conducted an evidentiary hearing on the motion to suppress. The prosecution presented the testimonies of Sotelo and James Preece, Hernandez's landlord. Sotelo testified he had 240 hours of training on the detection, odor, and investigation of marijuana and had smelled the odor of marijuana at least 200 times. On August 8, 2008, he was on duty on McConnell Road in El Centro based on information he had received that marijuana might be being loaded into a trailer. As he drove past 2292 McConnell Road, he saw several persons loading black trash bags into a trailer located on the south side of the property. The trailer was not attached to a truck, although a truck was parked nearby. The trailer was located about 40 feet from McConnell Road on a dirt road that appeared to be used to access the surrounding fields. There was a line of trees between the house and the trailer. Sotelo continued driving and turned onto a road between two fields where he parked and used binoculars to observe the trailer activity. During a period of three minutes, he saw four to six people loading black trash bags into the trailer. Sotelo then drove up to and parked his car behind the trailer. Wearing plain clothes, Sotelo got out and, in Spanish, greeted Hernandez, who was standing "right next to" the open trailer. Sotelo smelled a strong odor of marijuana coming from the trailer. When De La Rosa (Sotelo's partner), wearing a vest marked "Police, " got out of the car, Hernandez saw him and started to run. De La Rosa told him to stop and Hernandez apparently complied. In Spanish, Sotelo asked all of the men if any of them owned the trailer. Hernandez and the others replied they did not own the trailer and did not know who owned it. Sotelo then entered the trailer "[t]o make sure that there was no one else in the trailer, and to see if [he] could see the marijuana." He found truck tires stacked from the back to the front of the trailer. He also found several black bags in the center of the trailer, stacked three to four feet high. Some of the bags were closed and some were torn open. A canine unit arrived and the dog alerted to marijuana contained inside the packages in the black bags. The dog also alerted on a nearby truck, owned by Hernandez's brother. Several bundles of marijuana were found during a search of that truck.
Although the record on appeal does not contain a copy of that motion, the trial court's minutes refer to it.
Although the record shows the truck is occasionally referred to as a tractor, semi-tractor, or truck-tractor, we use the more common term "truck" to avoid confusion.
Sotelo testified the trees were about 12 to 20 feet tall with foliage starting about four feet above the ground. The trees were located along the entire side of the property about 20 feet from the house.
James Preece testified that in August 2008 he was renting the residence at 2292 McConnell Road to Hernandez. He had rented the property to Hernandez for seven or eight years. When Preece first rented the house to Hernandez, he explained to him that the rented property included the house and the property up to the tree line. Preece testified that the dirt road area on which the trailer was located was not included in the area rented to Hernandez. Preece and his employees used that dirt road to access his fields. Preece personally used that road at least once a week to access his fields, and his employees used it at least four times a month. He did not have a problem with law enforcement using the dirt road. He knew Hernandez had been keeping a trailer on the dirt road, but he did not have a problem with it. The prosecution also submitted a photograph showing the dirt road, trailer, trees, house, and surrounding area.
Hernandez testified he had rented and lived at the property for about seven years and the property he rented included the dirt road area on which the trailer was located. He testified that when he first rented the property, Preece told him he could not use the garage toward the back of the property. He denied that anyone other than him had ever used the dirt road area during that seven-year period. He had never seen Preece or his employees drive on that road to access the fields.
On December 17, 2008, following arguments of counsel, the trial court denied Hernandez's motion to suppress evidence of the marijuana found in the trailer, but granted his motion to suppress evidence of the marijuana found in the truck. The court found Hernandez did not have a reasonable expectation of privacy in the trailer or in the dirt road area on which the trailer was located. The court found the dirt road area was not within the curtilage of Hernandez's residence and the agents had a lawful right to be there under the "open fields" doctrine. Furthermore, the court found Hernandez and the other men in effect abandoned the trailer by disclaiming any ownership or possessory interest in it. Hernandez did not have an actual or subjective expectation of privacy in the dirt road area or the trailer. Accordingly, the agents did not violate Hernandez's Fourth Amendment right by going onto the dirt road area, searching the trailer, and seizing the marijuana packages found in the trailer.
C
Hernandez asserts the trial court erred by finding the dirt road area on which the trailer was located was not within the curtilage of his residence. He also asserts the court erred by finding he abandoned the trailer by disclaiming any ownership in it. He argues that because the court erred in making those findings, it erred in concluding he did not have a reasonable expectation of privacy in the dirt road area or the trailer.
Curtilage. The concept of residential "curtilage" has been defined as "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.' " (Oliver v. U.S. (1984) 466 U.S. 170, 180.) "For purposes of the Fourth Amendment, curtilage is important because it expands the constitutional boundaries of the home beyond the four walls of the house." (U.S. v. Cannon (9th Cir. 2001) 264 F.3d 875, 880.) In determining whether exterior premises constitute "curtilage, " the United States Supreme Court has stated that courts should give "particular reference to four factors: [(1)] the proximity of the area claimed to be curtilage to the home, [(2)] whether the area is included within an enclosure surrounding the home, [(3)] the nature of the uses to which the area is put [i.e., whether the area is being used for the intimate activities of the home], and [(4)] the steps taken by the resident to protect the area from observation by people passing by." (U.S. v. Dunn (1987) 480 U.S. 294, 301.) "These factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." (Ibid.)
Applying its four-factor analysis to the facts in that case, Dunn concluded officers did not violate an individual's Fourth Amendment right by crossing (without a warrant) a perimeter fence, interior barbed-wire fences, and a wooden fence to look inside a barn located about 50 yards from a fence surrounding a ranch house because the barn was not within the house's curtilage. (U.S. v. Dunn, supra, 480 U.S. at pp. 296-298, 302-305.) The court noted the barn was not being used for intimate activities of the home (the third factor) and the defendant "did little to protect the barn area from observation by those standing in the open fields" (the fourth factor). (Id. at pp. 302-303.)
In contrast to the concept of "curtilage, " courts have held there is no reasonable expectation of privacy under the Fourth Amendment when police conduct warrantless observations from "open fields." (People v. Channing (2000) 81 Cal.App.4th 985, 990-992.) An "open field" need not be either "open" or a "field." (Oliver v. U.S., supra, 466 U.S. at p. 180, fn. 11.) An "open field" includes "all areas except the home itself and curtilage (the land immediately surrounding and associated with the home)." (Channing, at p. 992.) "Law enforcement may conduct warrantless observations from open fields; the fact that the observing officer trespasses to get to his or her observation point does not transmute the observation into an unconstitutional search." (Id. at p. 990.) The United States Supreme Court held that a government inspector's warrantless entry onto the outdoor premises of a business involved the "open fields" exception in the circumstances of that case and did not violate the business's Fourth Amendment right. (Air Pollution Variance Bd. of Colorado v. Western Alfalfa Corp. (1974) 416 U.S. 861, 862, 865.)
Based on our review of the evidence admitted during the hearing on Hernandez's motion to suppress, we conclude the trial court correctly found the dirt road area on which the trailer was parked was not within the curtilage of his residence. The most important evidence was Preece's testimony that when he first rented the house to Hernandez, he explained to him that the rented property included the house and the property up to the tree line. Preece testified the dirt road area on which the trailer was located was not included in the area rented to Hernandez. Preece and his employees used the dirt road to access his fields. Preece personally used the road at least once a week to access his fields and his employees used it at least four times a month. Based on that testimony, the trial court could reasonably infer the dirt road area on which the trailer was located was not included in the property Hernandez rented. Although Hernandez testified the property he rented from Preece included the dirt road area on which the trailer was parked, the trial court reasonably found Preece's testimony more credible and rejected Hernandez's conflicting testimony. We decline to reweigh the trial court's determination of credibility of those two witnesses and conclude substantial evidence supports the court's finding that the dirt road area was not included in Hernandez's rented property. (People v. Ayala, supra, 23 Cal.4th at p. 255 [substantial evidence standard of review applies to trial court's factual findings].)
Furthermore, our consideration of the four Dunn factors supports the trial court's finding that the dirt road area was not within the curtilage of Hernandez's residence. (U.S. v. Dunn, supra, 480 U.S. at p. 301.) First, the dirt road area was not in close proximity to his residence. The evidence showed the southern side yard to Hernandez's residence was about 20 feet wide and ended at the tree line. The dirt road area was located on the other side of the tree line, outside of Hernandez's side yard.
Second, the dirt road area was not included within an enclosure surrounding the house. The photograph admitted at trial (Exhibit 2) shows there is no fence or other enclosure surrounding the house. At most, there is the line of trees that separates the house and southern side yard from the dirt road area, supporting an inference that Hernandez would not have a reasonable expectation of privacy in the dirt road area.
Third, the nature of the uses of the dirt road area did not include intimate activities normally associated with a home. Preece testified that he and his employees used the dirt road area to access his agricultural fields and they used it at least four times a month. Even assuming arguendo Hernandez had parked the trailer there for a few months (as Preece testified), that use by Hernandez was more likely associated with his business or occupation as a truck driver than with intimate activities normally associated with a home.
Finally, Hernandez did not take any significant steps to protect the dirt road area (or trailer) from observation by people passing by. The evidence showed the trailer was parked about 40 feet from McConnell Road on the dirt road used by Preece and his employees to access fields. The photograph of that area shows no physical obstructions or barriers (e.g., fences, trees, screening, etc.) that would prevent passersby from viewing the dirt road area (or the trailer parked on it). Sotelo testified that as he drove past 2292 McConnell Road on August 8, 2008, he saw several persons loading black trash bags into a trailer located on the dirt road south of that property. Therefore, although the trailer's open rear doors were facing away from McConnell Road and toward the fields, the orientation of the trailer did not preclude passersby from viewing the dirt road area or the trailer.
Likewise, the line of trees adjacent to the dirt road area and trailer did not provide any substantial obstruction to viewing by passersby.
Accordingly, considering the four Dunn factors and all other relevant factors in the circumstances of this case, we conclude the trial court correctly concluded the dirt road area and trailer parked on it were not within the curtilage of Hernandez's residence. (U.S. v. Dunn, supra, 480 U.S. at p. 301.) Alternatively stated, "the area in question [i.e., dirt road area was not] so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." (Ibid.) Because Hernandez did not have a reasonable expectation of privacy in the dirt road area, he did not have a Fourth Amendment right prohibiting Sotelo or De La Rosa from searching that area without a warrant. Alternatively stated, the dirt road area was an "open field" on which Sotelo and De La Rosa could go without a warrant to observe the suspicious activity of the men carrying the black bags. (People v. Channing, supra, 81 Cal.App.4th at pp. 990-992.)
Abandonment of Trailer. "Property that is abandoned is no longer subject to Fourth Amendment protection because one does not have a reasonable expectation of privacy in property that has been abandoned." (People v. Pereira (2007) 150 Cal.App.4th 1106, 1112.) Accordingly, "a warrantless search and seizure involving abandoned property is not unlawful, because a person has no reasonable expectation of privacy in such property." (People v. Parson (2008) 44 Cal.4th 332, 345.) "[T]he intent to abandon [property] is determined by objective factors, not the defendant's subjective intent. ' "Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts. [Citations.] Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search." ' " (People v. Daggs (2005) 133 Cal.App.4th 361, 365-366.) In particular, "a disclaimer of proprietary or possessory interest in the area searched or the evidence discovered terminates the legitimate expectation of privacy over such area or items." (People v. Stanislawski (1986) 180 Cal.App.3d 748, 757 [defendant had no privacy right in campsite to which he disclaimed any interest].) "The question whether property is abandoned is an issue of fact, and the [trial] court's finding must be upheld if supported by substantial evidence." (Daggs, at p. 365.)
Based on our review of the evidence admitted during the hearing on Hernandez's motion to suppress, we conclude the trial court correctly found he did not have a reasonable expectation of privacy in the trailer because he abandoned any interest in the trailer by disclaiming any ownership interest in it. During the hearing on Hernandez's motion to suppress, Sotelo testified that he asked, in Spanish, all of the men near the trailer if any of them owned it. Hernandez and the others replied they did not own the trailer and did not know who owned it. Applying the substantial evidence standard of review, we conclude that testimony by Sotelo constitutes substantial evidence to support the trial court's finding that Hernandez in effect abandoned any privacy interest in the trailer by disclaiming any ownership or possessory interest in it. (Cf. U.S. v. Hastamorir (11th Cir. 1989) 881 F.2d 1551, 1553, 1559-1560 [defendant abandoned any privacy interest in vehicle and contents by denying any knowledge thereof]; Duncan v. State (Md. 1977) 378 A.2d 1108, 1112, 1119-1121 [defendants abandoned any privacy interest in vehicle by disclaiming ownership of or knowledge regarding it]; Thompson v. State (Ala.App. 1996) 680 So.2d 1014, 1015, 1117-1118 [defendant abandoned any Fourth Amendment privacy interest in vehicle or contents therein by disclaiming any ownership of or knowledge about vehicle].)
The cases cited by Hernandez are not apposite to this case and otherwise do not persuade us to reach a contrary conclusion.
The fact that Hernandez resided in the nearby residence did not necessarily show he had a Fourth Amendment privacy interest in the trailer located on the dirt road area. As discussed above, Hernandez did not have any privacy interest in that dirt road area. Absent any subjective or reasonable expectation of privacy in the trailer, Hernandez could not assert a Fourth Amendment right prohibiting Sotelo or De La Rosa from searching the trailer and seizing the marijuana found in it. The trial court correctly concluded the search of the trailer and seizure of the marijuana found in it did not violate Hernandez's Fourth Amendment right. Therefore, we conclude that because Hernandez did not have any Fourth Amendment right in the dirt road area or the trailer, the trial court properly denied his motion to suppress the evidence of the marijuana found in the trailer. (People v. Jenkins, supra, 22 Cal.4th at pp. 971-972; Minnesota v. Carter, supra, 525 U.S. at p. 88.)
II
Motion to Exclude Evidence
Hernandez contends the trial court erred by denying his motion to exclude evidence of the test results of samples taken from the seized packages without a sufficient showing of chain of custody. He argues the prosecution did not make a sufficient showing that the samples were taken from the packages seized from the trailer and not from the truck.
A
"In determining the admissibility of evidence, the trial court has broad discretion.... A trial court's ruling on admissibility implies whatever finding of fact is prerequisite thereto; a separate or formal finding is... [generally] unnecessary. [Citation.]... On appeal, a trial court's decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of discretion." (People v. Williams (1997) 16 Cal.4th 153, 196-197.)
The abuse of discretion standard of review applies to a trial court's ruling on a party's motion to exclude evidence based on an insufficient showing of chain of custody of that evidence. (People v. Catlin (2001) 26 Cal.4th 81, 134.) "The burden of the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." (People v. Riser (1956) 47 Cal.2d 566, 580-581, disapproved on another ground in People v. Chapman (1959) 52 Cal.2d 95, 98.)
B
On March 30, 2009, Hernandez filed a motion in limine to exclude evidence of marijuana purportedly found in the trailer, arguing the prosecution could not prove the marijuana came from the trailer and not the truck. In support of Hernandez's motion, George Wallet, a defense investigator, submitted his declaration, dated March 30, in which he stated: "3. I was able to set up viewing the evidence on March 26, 2009. Myself [sic], and Mr. Storey[, ] the attorney for the Defendant[, ] went to the Narcotic Task Force Agency... [and] took photographs of the one item that remained, which appeared to be a twelve pound[] block of something wrapped in cellophane.... [¶] 4. At our request[, ] Agent Sotelo came to the evidence locker and we asked him which packages were [the] samples taken from. He advised he did not recall at this time where the samples were taken from. He further advised the package they maintained was similar to those packages that were found in the tractor...." (Italics added.)
On June 11, 2009, the trial court held a pretrial Evidence Code section 402 hearing on the motion to exclude evidence. Hernandez's counsel confirmed that his motion challenged the chain of custody of the marijuana tested by the laboratory. He stated: "[W]e don't know from which packages the marijuana samples were taken. We don't know what marijuana is still there. [¶]... [T]he thing that caused or gave rise to this issue is the suppression motion that was granted in part previously by this court regarding marijuana from the [truck]."
The prosecution presented the testimony of Sotelo, who stated he was present at the scene on August 8, 2008, when he and his task force seized over 4, 000 pounds of marijuana from the trailer and over 20 pounds of marijuana from the truck. He testified they took "five random core samples totaling an ounce... from different packages. We package [those samples] into one package and send that to the Department of Justice." The prosecutor asked him: "[A]t this point in time do you recall if you took those core samples from the marijuana... in the trailer, the marijuana... in the truck, or from both?" Sotelo answered: "Only from the trailer." (Italics added.) Months later, Wallet asked Sotelo if he knew where the marijuana was from. Thinking Wallet was asking from which packages the samples were taken, Sotelo answered "no" at the time. However, after his conversation with Wallet, he thought about where the marijuana samples had come from and discussed it with his colleagues. Based on those discussions, he now had a "clear recollection" that the marijuana samples sent to the laboratory came from the trailer packages and not the truck packages.
On cross-examination, Sotelo testified that 304 packages came from the trailer and six packages came from the truck. Photographs were taken of the packages. He placed the truck packages in the back of a Honda Ridgeline, while he and others placed the trailer packages in a rental truck. The packages were taken to the United States Port of Entry at Calexico. The packages were initially placed in a small evidence room where each package was weighed, and later transported to the evidence vault located on the other side of the compound. Sotelo explained:
"I took [the truck packages] in first. I weighed those individually, and then I [set] them [apart] on top of a desk inside of the evidence room. I was planning to take those packages back and book them into the I.C.N.T.F. evidence vault.
"Then we began to bring in the packages from the trailer, and some [United States] Customs people began to assist us with transporting the marijuana from that evidence room to the vault on the other side of the compound.
"Sometime during the transporting someone took the packages that I had put on top of the desk, threw them in with the packages from the trailer, and took them to the evidence vault, so I was never able to obtain a sample from those packages."
Sotelo took the samples and booked them into the task force evidence vault the next day. When he subsequently told Wallet and Storey he could not remember where the samples came from, he meant he could not remember which package each sample came from. He did not recall any discussion with Wallet or Storey regarding whether the samples came from the trailer packages or from the truck packages. Nevertheless, Sotelo testified: "I can recall that I did not take any samples from the marijuana that came from the... truck." Sotelo stated: "I know [the samples] came from the trailer only because I did not take any samples... from the truck." He was not sure whether he told Wallet and Storey that.
On redirect examination, Sotelo testified he first took the marijuana from the truck and placed it on a separate desk. Some people took the truck marijuana to the vault. Because he did not take any samples from marijuana in the vault, he knew the samples he took were from the trailer packages. He believed it was possible he and Wallet had a different understanding of the question Wallet asked him regarding where the samples came from. Nevertheless, Sotelo testified that he "knew all the samples had come from the trailer, because I knew I didn't take any from the truck." (Italics added.)
Hernandez presented the testimony of Wallet, who stated he and Storey went to the task force office on March 25, 2009, to view the evidence. He asked Sotelo whether the five samples came from the trailer or truck packages. Sotelo replied he did not know because all of the packages had been thrown together. Because of the prior order suppressing evidence from the truck, Wallet and Storey were interested in whether the samples had come from the trailer or the truck. Wallet believed he made it clear to Sotelo what he was asking about. On cross-examination, Wallet confirmed that in his declaration he stated Sotelo told him he could not recall at that time where the samples were taken from. On redirect examination, Wallet stated that Storey wrote the declaration he (Wallet) signed.
Hernandez also presented the testimony of Storey, who stated he represented Hernandez and went with Wallet to the task force office to view evidence a couple of months before. He had a general recollection of their conversation with Sotelo. Sotelo told them he did not recall whether he took the marijuana samples from the larger or smaller bales or from the trailer or the truck packages. Storey had no doubt in his mind that at the time he asked Sotelo whether the samples came from the trailer, the truck, or both. He did not see how Sotelo could have misunderstood their questions. Sotelo told then he was not sure which size packages he took the samples from. On cross-examination, Storey admitted he could not recollect the exact questions he asked Sotelo and Agent Moreno. Nevertheless, Storey testified he "specifically recall[ed] talking to Agent Sotelo about the different sizes of the packages, and then [Sotelo] specifically telling me the larger ones were in the trailer, and [then] specifically telling me he wasn't sure whether he took... the samples from the larger ones or the smaller, which were the [truck]."
The prosecutor recalled Sotelo, who testified that all of the truck packages were basically one size. Furthermore, he testified the "trailer had packages the same size as the ones in the [truck], but it also had some other different sizes." By just looking at the size of the package, Sotelo could not distinguish the packages from the truck from the packages from the trailer.
Following arguments of counsel, the trial court denied Hernandez's motion to exclude evidence of test results from the marijuana samples. The court stated:
"I'm convinced, based on what I heard, there may be confusion over what questions were asked and how they were answered.
"I'll note specifically that I heard various references to Agent Sotelo as having stated that either he wasn't sure, he didn't recall, didn't recall at this time, or didn't know. That, to me, suggests there was some confusion by these speakers and these listeners as to what was meant by both the questions and the answer[s], and, therefore, I certainly—on the issue of credibility, I do not find anyone to be untruthful. I do find that there was some confusion over what was said and what was meant, and I harken back to the classic CALJIC instruction that two people witnessing the same event may often see or hear it differently, and then the jury's instructed to weigh that factor.
"There is a presumption that official duties have been performed. Agent Sotelo was certainly clear this morning as to the source of the marijuana samples, and as far as the attack on his credibility, based on previous conversations I'm not convinced that that destroys that credibility.
"Again, I find confusion as opposed to untruthfulness, and with that I also find the prosecution has laid a sufficient foundation for the chain of custody to permit evidence relating to the D.O.J. testing of the samples."
C
Based on our review of the record, we conclude the trial court did not abuse its discretion by finding the prosecution set forth a sufficient chain of custody showing it was reasonably certain the tested samples were taken from the trailer packages and not the truck packages. (People v. Riser, supra, 47 Cal.2d at pp. 580-581.) Sotelo consistently testified that the samples were taken from the trailer packages and not the truck packages. He described how he first weighed the six truck packages and placed them on a desk. The 304 trailer packages were then hauled in and weighed. Before he had an opportunity to take samples from the truck packages, other persons took the truck packages from the desk to the evidence vault on the other side of the compound. Sotelo did not take any samples from marijuana stored in the evidence vault (i.e., he took samples only in the evidence room where he weighed the packages). His recollection was clear that he took samples only from the trailer packages, which were later combined with the truck packages during transport to and storage in the evidence vault. After his conversation with Wallet, Sotelo reflected on the sequence of events and now had a "clear recollection" that the marijuana samples sent to the laboratory came from the trailer packages and not the truck packages. The trial court reasonably exercised its discretion in determining that Sotelo's testimony was credible and proved with reasonable certainty that the five marijuana samples came from the trailer packages and not the truck packages. It is not our function as an appellate court to reweigh the evidence or make our own determination of witnesses' credibility. Furthermore, the trial court in this case was in a better position to make credibility determinations, having seen and heard the witnesses testify during the Evidence Code section 402 hearing.
Sotelo's testimony was not inherently unreliable or incredible. Although Sotelo's testimony occurred after the trial court granted Hernandez's motion to suppress evidence seized from the truck, that factor does not necessarily show Sotelo subsequently fabricated his recollection that he took samples only from the trailer packages. The trial court properly considered that possibility and rejected it, finding Sotelo's testimony to be truthful. Likewise, although Wallet's and Storey's testimonies could have supported an inference by the trial court that Sotelo did not, in fact, recall whether the samples were taken from truck or trailer packages, the trial court properly deemed their apparent conflicting testimony to be a result of confusion, rather than untruthfulness, as to what questions were asked and what answers were given during their conversation with Sotelo. The court could have reasonably believed Sotelo's testimony that he thought Wallet and Storey had asked him whether he knew which particular packages the samples were taken from (and not whether the samples had been taken from the truck packages or the trailer packages). In accepting Sotelo's testimony, the trial court did not abuse its discretion. Furthermore, to the extent Hernandez argues the evidence presented at the hearing could have supported a finding that the truck packages could have been mixed with the trailer packages before Sotelo took the samples, he either misconstrues and/or misapplies the applicable standard of review. In reviewing the trial court's exercise of discretion on a motion to exclude evidence, we defer to the court's reasonable inferences from the evidence presented at an Evidence Code section 402 hearing and any subordinate factual findings supported by substantial evidence. Here, the trial court reasonably chose to accept Sotelo's testimony and reject Hernandez's suggestion that the trailer and truck packages may have been mixed before Sotelo took samples. We conclude the trial court did not abuse its discretion in so doing. The trial court did not abuse its discretion by finding a sufficient chain of custody was shown by the prosecution that the samples were taken from the trailer packages and, based on that finding, denying Hernandez's motion to exclude evidence of the test results of those samples. (People v. Williams, supra, 16 Cal.4th at pp. 196-197; People v. Catlin, supra, 26 Cal.4th at p. 134; People v. Riser, supra, 47 Cal.2d at pp. 580-581.)
III
Sufficiency of the Evidence
Hernandez contends the evidence is insufficient to support findings that he was guilty of the charged offenses. Because of that insufficiency, he argues his two convictions must be reversed and the trial court also erred by denying his Penal Code section 1118.1 motion for a directed verdict.
A
In reviewing the sufficiency of the evidence to support a jury's verdict finding a defendant guilty of a criminal offense, we apply the substantial evidence standard of review. (People v. Johnson (1980) 26 Cal.3d 557, 575-579.) "Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics added in Cuevas.) We "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) "We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor...." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
Furthermore, "[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones, supra, 51 Cal.3d at p. 314.) In particular, "[t]he credibility of the experts and their conclusions [are] matters [to be] resolved... by the jury" and "[w]e are not free to reweigh or reinterpret [that] evidence." (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.) "The testimony of one witness [e.g., an expert witness], if believed, may be sufficient to prove any fact. (Evid. Code, § 411.)" (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508.)
B
Hernandez asserts there is insufficient evidence to support his conviction for possession of marijuana for sale. He argues the evidence was insufficient to support findings that he had dominion and control of the marijuana and that he knew of its presence and character as a controlled substance.
In general, unlawful possession of marijuana for sale requires proof the defendant possessed the marijuana with the intent of selling it and with knowledge of both its presence and its illegal character. (Health & Saf. Code, § 11359; People v. Harris (2000) 83 Cal.App.4th 371, 374; People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746 (Meza).) To prove a defendant is guilty of that offense, the prosecution must prove beyond a reasonable doubt the following elements: (1) the defendant exercised dominion and control over the marijuana; (2) the defendant was aware he or she was in possession of marijuana; (3) the defendant knew the nature or character of marijuana as a controlled substance; (4) the marijuana was in an amount sufficient to be used for sale or consumption as a controlled substance; and (5) the defendant possessed the marijuana with the specific intent to sell it. (See, e.g., CALCRIM No. 2352; cf. People v. Parra (1999) 70 Cal.App.4th 222, 225-226 [elements of possession of a controlled substance for sale].) The offense, including the intent to sell, "can be established by circumstantial evidence and any reasonable inferences drawn from that evidence." (Meza, at p. 1746; see also Harris, at p. 374.)
Based on our review of the record, we conclude there is substantial evidence to support the jury's verdict finding Hernandez guilty of possession of marijuana for sale. There is substantial evidence to support a finding he had dominion and control over the marijuana found in the trailer. Sotelo testified at trial that he observed at least four men carrying black bags and loading them into the open rear doors of the trailer. When he drove up to and approached the men, Hernandez was standing within one foot of the trailer's open doors with his hand resting on the trailer's bed. De La Rosa also saw Hernandez standing close to the trailer's open doors when he and Sotelo approached the trailer. The jury could reasonably reject Hernandez's conflicting testimony that he walked up to the trailer only after Sotelo and De La Rosa arrived in their car and therefore was merely present at the scene without any dominion or control of the marijuana. (Cf. People v. Johnson (1984) 158 Cal.App.3d 850, 854-855.) Furthermore, when Sotelo asked the men whether they knew who lived at the nearby residence, Hernandez directed the other men in Spanish, "nobody knows nothing." Other evidence showed Hernandez lived in the nearby residence and was a truck driver. Based on Hernandez's physical positioning at the rear of the trailer containing the marijuana and his directions to the other men to, in effect, deny knowledge about anything (e.g., who lives at the nearby residence, who controls the marijuana in the trailer), the jury could reasonably infer Hernandez was a leader of the men and exercised dominion and control over the marijuana in the trailer (e.g., by ordering the men to load it into the trailer).
To the extent Hernandez argues the prosecution was required to show he owned the trailer in which the marijuana was found, we are unpersuaded by that argument. He does not cite any case holding that dominion and control of a controlled substance can only be shown by ownership or possession of the vehicle, vessel, or container in which the controlled substance is found.
Likewise, there is substantial evidence to support a finding by the jury that Hernandez knew he possessed the marijuana and knew its nature and character as a controlled substance. In addition to the evidence described above, both Sotelo and De La Rosa testified that a strong odor of marijuana emanated from the rear of the trailer where Hernandez was standing. Although Hernandez testified he did not smell that odor and had never smelled marijuana before, the jury could reasonably reject his testimony and instead infer that he smelled the odor and knew it was emitted from marijuana. Furthermore, De La Rosa testified that when he got out of the car (wearing his vest marked "Police"), Hernandez took a couple of steps and appeared to begin to flee before De La Rosa told him to stop. Hernandez (along with the other men) denied any knowledge of who lived at the nearby residence, although it was shown Hernandez had lived there for at least seven years. The jury could reasonably infer from Hernandez's dominion and control of the marijuana, the strong odor of marijuana emanating from the rear of the trailer where he was standing, his apparent attempt to flee, and his untruthful denial of knowledge of who lived at the residence, that Hernandez not only had a guilty conscience, but actually knew of the presence of the marijuana in the trailer and knew of its nature and character as a controlled substance. The jury could reasonably reject Hernandez's assertion at trial that he was merely an innocent bystander who only recently arrived at the scene.
Because Hernandez does not specifically address the insufficiency of the evidence to support the other elements of possession of marijuana for sale, we need not address the evidence supporting the jury's findings that those elements were proved beyond a reasonable doubt. We conclude there is substantial evidence to support the jury's verdict finding Hernandez guilty of possession of marijuana for sale. To the extent Hernandez cites his testimony and other evidence, or makes inferences therefrom, that would have supported a contrary finding by the jury, he either misconstrues and/or misapplies the substantial evidence standard of review. (Meza, supra, 38 Cal.App.4th at p. 1747 ["[w]here the circumstances support the trier of fact's finding of guilt, an appellate court cannot reverse merely because the evidence is reasonably reconciled with the defendant's innocence"].)
C
Hernandez also asserts there is insufficient evidence to support his conviction for attempted transportation of marijuana. He argues there was insufficient evidence to support findings that he knew of its presence and its character as a controlled substance. Furthermore, he argues there is insufficient evidence that he took a direct, but ineffective, step toward transporting the marijuana.
In general, the offense of "[t]ransportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character." (Meza, supra, 38 Cal.App.4th at p. 1746; see also People v. Rogers (1971) 5 Cal.3d 129, 133-134.) Possession is not required for conviction of transportation of a controlled substance. (Rogers, at p. 134 [aiding and abetting the transportation, without possession, of a controlled substance is sufficient].) The offense of transportation may be committed even if the distance the controlled substance is carried or conveyed is short. (CALCRIM No. 2361.) An attempt to transport marijuana requires a direct, but ineffective, step toward committing transportation of marijuana and the specific intent to commit transportation of marijuana. (CALCRIM No. 460.) To attempt to commit a crime, "[o]ther than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense." (People v. Medina (2007) 41 Cal.4th 685, 694.)
Hernandez argues there is insufficient evidence to support a finding he knew of the presence of the marijuana and knew of its nature and character as a controlled substance. Without repeating our discussion above, we conclude the jury could reasonably infer from Hernandez's dominion and control of the marijuana, the strong odor of marijuana emanating from the rear of the trailer where he was standing, his apparent attempt to flee, and his untruthful denial of knowledge of who lived at the residence that Hernandez not only had a guilty conscience, but actually knew of the presence of the marijuana in the trailer and knew of its nature and character as a controlled substance.
Furthermore, there is substantial evidence to support the jury's finding that he took a direct, but ineffective, step toward transporting marijuana. The jury could reasonably infer that Hernandez was a leader of the men and either assisted them in carrying, or directed them to carry, the bags of marijuana into the trailer. The jury could further reasonably infer that Hernandez's act was a direct, but ineffective, step toward transporting the marijuana (e.g., loading the trailer with marijuana before it is hitched to a truck and driven away). Hernandez was a truck driver and there were two trucks parked nearby belonging to Hernandez and his brother. Furthermore, the trailer was parked on a dirt road and was facing McConnell Road, only about 40 feet away. The jury could infer the trailer could quickly be hitched to a truck and driven away with its marijuana load. The fact that the trailer was not hitched to a truck at the time the marijuana was loaded into it does not necessarily show it was intended only to be stored there and not transported. Rather, the jury could reasonably infer Hernandez knew the trailer was to be hitched to a truck and driven away and therefore his act of assisting in or directing the loading of the marijuana into the trailer was a direct, but ineffective, step in transporting it. To the extent Hernandez cites his testimony and other evidence, or makes inferences therefrom, that would have supported a contrary finding by the jury, he either misconstrues and/or misapplies the substantial evidence standard of review. (Meza, supra, 38 Cal.App.4th at p. 1747 ["[w]here the circumstances support the trier of fact's finding of guilt, an appellate court cannot reverse merely because the evidence is reasonably reconciled with the defendant's innocence"].)
Because Hernandez does not specifically address the insufficiency of the evidence to support the other elements of attempted transportation of marijuana, we need not address the evidence supporting the jury's findings that those elements were proved beyond a reasonable doubt. We conclude there is substantial evidence to support the jury's verdict finding Hernandez guilty of attempted transportation of marijuana.
D
Hernandez also argues the trial court erred by denying his Penal Code section 1118.1 motion for a directed verdict. However, based on our discussion in parts III.B. and C., above, we conclude there was substantial evidence presented by the prosecution in its case-in-chief that would have supported guilty verdicts on the two charged offenses. Accordingly, the trial court properly denied Hernandez's Penal Code section 1118.1 motion.
IV
Sentencing
Hernandez contends the trial court abused its discretion by imposing a three-year upper term for his conviction for possession of marijuana for sale because the aggravating circumstances did not outweigh the mitigating circumstances.
A
At the sentencing hearing, the trial court considered the probation officer's report and two letters submitted on Hernandez's behalf. Following arguments of counsel, the trial court denied probation, imposed the upper term of three years for Hernandez's conviction for possession of marijuana for sale, and imposed, but stayed pursuant to Penal Code section 654, the upper term of two years for his conviction for attempted transportation of marijuana. In so doing, the trial court stated:
"I find a factor in mitigation to be that Mr. Hernandez has a very minimal prior reported record involving a Vehicle Code offense.
"I find in aggravation that this offense involved a large quantity of contraband, that the manner in which the crime was carried out indicates planning and professionalism, and that there's some evidence—some substantial evidence that Mr. Hernandez occupied a position of leadership in the commission of the offense."
The court further stated: "I do find that the factors in aggravation, the large quantity of contraband, position of leadership, and professional[ism] of the enterprise far outweigh the mitigating factor of no criminal record."
B
Although Hernandez initially argued in his opening brief that the trial court erred by relying on the large quantity of marijuana to both deny him probation and also impose the three-year upper term for his conviction for possession of marijuana for sale, he in effect abandoned that argument in his reply brief by agreeing with the People that the trial court is not precluded from using the same aggravating circumstance to both deny probation and impose an upper term. Accordingly, we need not address the merits of that argument.
In any event, we note the California Supreme Court apparently rejected that argument in People v. Scott (1994) 9 Cal.4th 331, in which the court noted: "It also appears that the same fact may be used both to deny probation and to impose the upper term." (Id. at p. 350, fn. 12.)
Hernandez argues the trial court abused its discretion by imposing the three-year upper term because the one mitigating factor strongly outweighed the one well-founded aggravating factor (out of three aggravating factors cited by the court). On appeal, we review the trial court's decision to impose an upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court is "required to specify reasons for its sentencing decision, but [is not] required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances." (Id. at pp. 846-847.) Under California's determinate sentencing law, "a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions." (Id. at p. 848.) "[T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813.) "The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.' " (Sandoval, at p. 848.)
Hernandez argues that although one aggravating factor relied on by the trial court was well-founded, the other two aggravating factors were not supported by the record and therefore were insufficient to support imposition of the upper term when compared to the one mitigating factor. He concedes the aggravating factor of the large quantity of marijuana is supported by the record. Clearly, possession for sale of marijuana in excess of 4, 000 pounds was properly considered by the trial court to be a large quantity of contraband, constituting an aggravating factor. (Cal. Rules of Court, rule 4.421(a)(10).) The record also supports the trial court's finding that two other aggravating factors apply in this case. The court found the manner in which the possession for sale offense was carried out indicated planning and professionalism on Hernandez's part. (Rule 4.421(a)(8).) The evidence supports a finding that a significant degree of planning was required to commit that offense. Six men were required to carry and load over 4, 000 pounds of marijuana into the trailer, requiring more than a spontaneous act of possession. Rather, a significant degree of planning was required to coordinate the participation of six men in loading such a large quantity of marijuana. Also, the use of a trailer to store, if not transport, that large quantity of marijuana required planning. Furthermore, planning was required to hide the bags of marijuana behind stacks of tires in the trailer. These same considerations support a finding the offense involved a significant degree of professionalism, if not sophistication. (Rule 4.421(a)(8).) Therefore, there is substantial evidence to support the trial court's finding that the planning and professionalism used in committing the offense was an aggravating circumstance.
All further rule references are to the California Rules of Court.
Finally, the record supports the trial court's finding that Hernandez's leadership position in committing the offense was an aggravating factor. (Rule 4.421(a)(4).) As described above, Hernandez was standing close to the trailer's open rear doors when Sotelo and De La Rosa arrived. That physical positioning could support a reasonable inference that he was overseeing the loading of the marijuana into the trailer. Also, when the agents began asking questions of the men, Hernandez told the men that "nobody knows nothing, " in effect directing them to not divulge any incriminating information. That direction to the other five men could support a reasonable inference that Hernandez was in a position of leadership among the group of six men loading over 4, 000 pounds of marijuana into the trailer. There is substantial evidence to support the trial court's finding that Hernandez occupied a position of leadership in the commission of the offense.
The only mitigating factor was Hernandez's lack of any significant criminal record. That mitigating factor was not so overwhelming that it necessarily outweighed the three aggravating factors cited by the trial court as supporting its decision to impose the upper term for his conviction for possession of marijuana for sale. Rather, it appears the three aggravating circumstances overwhelmed the sole mitigating circumstance. We conclude the trial court did not abuse its discretion by concluding the three aggravating circumstances outweighed the one mitigating circumstance and, based thereon, imposing the three-year upper term for his possession for sale offense. Furthermore, although the probation officer recommended imposition of the middle term (incorrectly designated three years) for Hernandez's count 2 conviction (for attempted transportation of marijuana), that recommendation was only advisory and the trial court was free to reject it. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 366.) In so doing, the trial court in this case did not abuse its discretion. Therefore, the trial court did not abuse its discretion in imposing the three-year upper term for Hernandez's conviction for possession of marijuana for sale.
As the trial court noted at the sentencing hearing, the probation report erred in describing Hernandez's count 2 conviction as one for transportation of marijuana, rather than attempted transportation of marijuana, which error apparently led the officer to mistakenly recommend a "middle term" of three years for count 2. The court corrected that mistake and ultimately imposed a total term of three years, less than the three-year eight-month term (erroneously) recommended by the probation officer.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., AARON, J.