Opinion
E065098
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. RHODA CAMILLE MARTINEZ, Defendant and Appellant.
Thien Huong Tran under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVA1101155) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes and Gregory S. Tavill, Judges. Affirmed. Thien Huong Tran under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Rhoda Camille Martinez of: (count 1) possession of methamphetamine (Health & Safety Code § 11377, subd. (a) ) as a lesser included charge of possession of methamphetamine for sale (§ 11378); (count 2) possession of hydrocodone (§ 11350, subd. (a)); and (count 3) maintaining a place for selling or using methamphetamine (§11366). The trial court sentenced defendant to six months for each of count 1 and 2, for a total of 365 days' imprisonment in the San Bernardino County Jail; deemed count 3 the principal count; sentenced defendant to a term of three years and zero months' imprisonment in county prison, but suspended two years and zero months, such that defendant was sentenced to serve one year and zero months in county prison with 24 months of mandatory supervision commencing immediately upon release from custody; and ordered all county jail and county prison time to be served concurrently.
All statutory references are to the Health & Safety Code unless otherwise indicated. --------
Defendant contends that her conviction under section 11366 must be reversed on the grounds that there is insufficient evidence that she maintained her trailer for the purpose of unlawfully selling methamphetamine.
I
FACTUAL BACKGROUND
City of Fontana Police Officer Justin Laing and other officers went to a Fontana house to execute a search warrant. The date was May 4, 2011. On arrival, he observed a male and a female in the driveway. He also observed a small camping-type trailer. At trial, he identified the female as defendant and the male as Joaquin Diaz. He and the other officers detained defendant and Diaz and conducted a safety search of the trailer and the house. Officer Laing then pulled defendant aside to speak with her in an effort to obtain truthful answers away from Diaz.
He asked defendant if she had anything illegal inside of the trailer. She responded, "I'll just show you," and began walking towards the trailer. Officer Laing escorted her inside, without Diaz. Defendant pointed to the countertop, where Officer Laing observed a black digital scale, which was open. A black, see-through bag was on top of the scale. Officer Laing observed a crystal-like substance. The black bag was about one-inch by one-inch in size. When Officer Laing looked inside the black bag, he saw a white crystal substance, which he recognized as methamphetamine based on his training and experience.
Defendant then told Officer Laing to look up in the cabinet above the sink area. There, he found a mirror, on top of which was a pile of additional white crystal substance. Next to the mirror was a tin jar. He opened the tin jar and found another clear plastic baggy which had an additional amount of the crystal substance. Next, on the table, Officer Laing located a manual comprised of paper. He noticed a lot of names and numbers which were being added and subtracted. Next to the manual, Officer Laing found another tin jar, in which he found additional plastic baggies of the same shape and size as the one that contained a crystal substance. He suspected the plastic baggies to be narcotics packaging.
At trial, Officer Laing identified the baggies and testified that such smaller bags were used for possession for sales of narcotics and that the bag size usually depends on a dollar figure or the amount of narcotics packaged in the bags. He further testified that, in his opinion, the manual was a "pay and owe sheet." By example, he testified that names in the manual were associated with dollar amounts reflecting methamphetamine purchases. He testified that dealers write down the purchases so they can keep track of their product and money.
Officer Laing conducted a field test on the substance he had collected, determining it was methamphetamine, which was confirmed by a criminalist's trial testimony. He then arrested defendant and Diaz and took them to the police station. He advised defendant of her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and she signed the Miranda form.
Officer Laing then asked if defendant wanted to give a statement, and she told him she did. She told him that she was selling drugs inside the trailer for the previous several months. When she had to purchase additional narcotics for sale, or "re-ups," she does so with an eight ball of methamphetamine. An eight ball is a street term for approximately 3.5 grams of methamphetamine. Defendant said that when she re-ups, she breaks the eight ball down into smaller quantities to sell and uses some of it, also. She said her customers either call her on the phone and come over or just come over and they deal inside the trailer. She told Officer Laing that the methamphetamine he found inside the trailer belonged to both her and Diaz, but was more hers than his. She also told him that the trailer belonged to her and Diaz. The bagged methamphetamine on the black scale weighed 0.7 grams; that on the mirror weighed 0.4 grams; and that in the tin jar weighed 2.0 grams. It totaled approximately 3.1 grams.
No money, cell phone or weapons were found in the trailer, and Officer Laing did not observe any hand-to-hand transactions.
Officer Laing testified that he prepared a report at the time of the investigation. He included the defendant's statements in that report. However, he did not record her statements other than in his report, or obtain a written confession.
Defendant Martinez testified in her own behalf. She testified that after the officers detained her, Officer Laing entered the trailer and requested her to enter, then closed the door. He asked her how much she was moving and if it was a quarter or half? She asked him, "a quarter or half of what?" She testified that Officer Laing said, "Come on, you know I know—you know people are having hard times. You know sometimes you know we have to do things we don't want to do. [¶] It's okay. It's okay if you're selling, just tell me the truth. You know, admit to selling. I'm not going to take you to jail." However, she did not admit selling from inside the trailer.
Defendant testified she had only been living at that address for two months prior to the incident and that the trailer was there for a month at the maximum. She again denied that she had told Officer Laing that she had sold methamphetamine out of the trailer for several months. Regardless, she admitted that the trailer belonged to her and that she told the officer that it belonged to her and Diaz. She also admitted that she showed the methamphetamine in the trailer to Officer Laing. She further testified that at the time of the incident, she was addicted to methamphetamine. She stated that she had been in treatment, but had used methamphetamine in the trailer on the day of the incident. However, she also testified that "[t]here was no baggies in no tin jar, no," inside the trailer. She agreed that she pointed out methamphetamine to the officer that was on top of the digital scale, and that the digital scale was the same black scale that she saw in the courtroom. She said that she "didn't point to nothing in the cabinet," but admitted that she pointed out the methamphetamine that was on the mirror, which "was in plain sight" and the drugs that were in the kitchen. She was familiar with the words and meaning of "eight ball" and "re-up with an eight ball." Finally, she reiterated that she never admitted to Officer Laing that she had been selling drugs inside the trailer for the past several months; or that she would "re-up with an eight ball and divide that up"; or that she would use some of the eight ball and sell the rest; or that customers would call her and show up at her house and she would exchange narcotics for money inside the trailer; or that more of the methamphetamine in the trailer was hers than Diaz's. She did admit, though, that the narcotics inside the trailer belonged to both her and Diaz.
II
DISCUSSION
Defendant contends that her conviction under section 11366 must be reversed because there is insufficient evidence that she maintained her trailer for the purpose of unlawfully selling methamphetamine. We disagree.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.) " 'Substantial evidence' is evidence which is ' "reasonable in nature, credible, and of solid value." ' [Citation.]" (People v. Morgan (2007) 42 Cal.4th 593, 614.)
" ' "Although 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. Smith, supra, 37 Cal.4th at p. 739.)
"[T]he presence of a 'pay-owe' sheet with multiple entries, a police scanner, baby wipes, and a scale indicates defendant was engaged in an elaborate drug trafficking operation involving multiple sales to different individuals . . . ." (People v. Blake (1998) 68 Cal.App.4th 509, 512.) Pay-owe sheets or ledgers constitute "circumstantial evidence that the residence was the scene of drug sales and drug-related activity." (People v. Harvey (1991) 233 Cal.App.3d 1206, 1222-1224.) The presence of drugs, baggies and indicia of sales and use of drugs, along with an admission, is sufficient evidence to support a conviction for violation of § 11366. (People v. Hawkins (2004) 124 Cal.App.4th 675, 678, 683.)
Under section 11366, "Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance . . . shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison." A section 11366 violation occurred if " 'the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance.' " (People v Franco (2009) 180 Cal.App.4th 713, 721; see CALCRIM No. 2440.)
"To 'open' means 'to make available for entry' or 'to make accessible for a particular purpose' (Webster's New Collegiate Dict. (9th ed. 1990) p. 826), and to 'maintain' means 'to continue or persevere in' (id. at p. 718). When added to the word 'place,' the opening or maintaining of a place indicates the provision of such locality to others." (People v. Vera (1999) 69 Cal.App.4th 1100, 1103.)
Here, defendant admitted that the trailer belonged to her, so the only question is whether the record shows that the jury had substantial evidence that she repeatedly or continuously sold methamphetamine from the trailer. Officer Laing testified that defendant, advised of her rights, also admitted that she had been selling methamphetamine from inside the trailer for months prior to her arrest. He also promptly recorded her admission in his police report. Her admission demonstrates that she had maintained, provided, and made the trailer "available for entry" or "accessible for [the] particular purpose" of selling methamphetamine. (People v. Vera, supra, 69 Cal.App.4th at p. 1103) The jury had additional substantial evidence before it in the pay-owe sheet, the black digital scale, the empty baggies typically used for narcotics packaging, and methamphetamine (confirmed by testing) inside the trailer. Therefore, substantial evidence was presented, sufficient to support the conviction.
Notwithstanding, defendant argues that she disputed Officer Laing's testimony at trial, testifying herself that she never told him that she had sold methamphetamine from inside the trailer for the prior several months or that she told him that she would buy an eight ball and divide it for personal use and for sale. She also testified that she had had the trailer for only about a month at the time of the incident. She contends that the jury only found her guilty on the lesser-included charge of simple possession of methamphetamine in count 1, instead of possession for sale, meaning that the jury must have discounted Officer Laing's testimony of her admissions. Therefore, she argues, this court should also discount the evidence of her admissions and find that her conviction of section 11366 in count 3 is not supported by sufficient evidence.
First, it is not the role of this court to "substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.) Officer Laing and defendant both testified as to her admissions, as discussed above. It was the purview of the finders of fact to make the credibility determination, which the jury obviously did in this instance in favor of Officer Laing over defendant. Having heard both sides of the conflicting testimony, their determination is "much more likely to be a matter of look-him-in-the-eye believability than if they had just heard the testimony of a police officer about the admissions." (People v. Quach (2004) 116 Cal.App.4th 294, 300.) We decline to substitute our evaluation for that of the jury.
Second, the jury's verdict finding defendant guilty only of simple possession in count 1, yet also guilty as to section 11366 in count 3, is not contradictory. The elements for possession of a narcotic—whether for sale or for personal use—are different from those for maintaining a place for the purpose of unlawfully selling a controlled substance. (Compare CALCRIM No. 2302 (Possession for Sale of Controlled Substance) and CALCRIM No. 2304 (Simple Possession of Controlled Substance) with CALCRIM No. 2440 (Maintaining a Place for Controlled Substance Sale or Use).) The jury could reasonably have found that the methamphetamine actually present at the time was for defendant's personal use, yet still found that the indicia of sales and defendant's admission was evidence to support a guilty verdict on count 3.
Relatedly, defendant argues that there is no evidence that she had made any drug sales, much less repeated sales, from within the trailer. For instance, no drug transactions had been observed during surveillance of her property; and, no weapon, phone, pager, police scanner, or cash were found inside the trailer. However, as we have already found, the presence of the pay-owe sheet, scale, baggies, and actual methamphetamine inside the trailer are circumstantial evidence of drug sales. (People v. Blake, supra, 68 Cal.App.4th at p. 512; People v. Harvey, supra, 233 Cal.App.3d at pp. 1222-1224.) Along with her admission, this is substantial evidence to support her conviction on count 3. (People v. Hawkins, supra, 124 Cal.App.4th at p. 683.) Moreover, there is no requirement to show proof of actual drug sales; section 11366's second element only requires a showing of intent. (People v Franco, supra, 180 Cal.App.4th at p. 721; see CALCRIM No. 2440 ["The defendant (opened/ [or] maintained) the place with the intent to . . . sell . . . a (controlled substance/ [or] narcotic drug) . . . ." Italics added].)
Defendant's contention is without merit.
III
DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.