Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05WF1809 Dan McNerney, Judge. Affirmed as modified.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Hoang Van Vo was convicted of transporting cocaine base. Defendant was driving a car in which Tung Nguyen was a passenger. During a sting operation, Nguyen responded to a telephone call from police officers to sell them rock cocaine. When the police officers announced themselves, defendant fled in the car. Rock cocaine was found in Nguyen’s pocket and wallet. On appeal, defendant challenges the sufficiency of the evidence that he knew of the presence and nature of the cocaine. The evidence of defendant’s consciousness of guilt, stemming from his fleeing the scene, as well as expert testimony that defendant and Nguyen were working cooperatively with defendant carrying the cash and driving while Nguyen carried the drugs, are sufficient to sustain the conviction.
Defendant also argues the trial court incorrectly calculated his presentence custody credits. The Attorney General agrees that defendant is entitled to additional presentence custody credits, but disagrees about how many additional days of credit defendant should receive. We conclude that, under the applicable formula for calculating presentence credits, as set forth in People v. Bravo (1990) 219 Cal.App.3d 729, defendant is entitled to 236 days of presentence credits.
Statement of Facts and Procedural History
On June 27, 2005, an informant provided Detective Timothy Vu with the phone number of a reputed drug dealer from whom one could order crack cocaine. Detective Vu had a conversation with Detective Matthew Eddinger, and the two decided to set up a sting. Sergeant Patrick Upstill, who was also involved in the sting operation, reserved room 107 at the Best Western motel in Westminster. On June 28, Detective Vu called the number provided by the informant and a male voice answered the phone. Detective Vu told the man on the phone he wanted to buy $300 of “white rocks,” meaning crack cocaine. The man responded “he had it” and “he’d be right over.”
About 25 minutes later, a gold Lexus pulled into the motel parking lot and parked near the room where the detectives were waiting. Nguyen exited the front passenger seat of the Lexus, proceeded immediately to the motel room in which the detectives were waiting, knocked on the door, and told the detectives he was there in response to the phone call. The detectives opened the motel room door and Nguyen started to back away when he saw them; the detectives then yelled “police” and pulled Nguyen inside the room.
At the same time, the Lexus sped out of the parking lot, but the police followed and pulled it over within a few blocks. Defendant was identified as the driver of the Lexus. The police found $1,405 in defendant’s wallet. When defendant was booked at the jail, he told the police he was unemployed.
The police also found several pieces of rock cocaine in a pocket of Nguyen’s shorts and in his wallet; the cocaine was rolled up in tinfoil and covered with tissue paper. The cocaine had a total weight of 4.129 grams, and a street value of $300.
Sergeant Upstill testified as an expert witness that in his opinion, Nguyen possessed the cocaine base for the purpose of sale. Sergeant Upstill also testified that, in his opinion, defendant “was involved in the transportation and possession for sales of the cocaine base, that he had acted in conjunction with Mr. Nguyen and, in fact, I also base that opinion on the fact that he had $1405 in miscellaneous denominations on his person and the fact that he accelerated out of the parking lot when the front door of room 107 was open.” Sergeant Upstill’s opinion was also based, in part, on the fact that defendant was apparently unemployed.
In defense, defendant presented the testimony of a paralegal whose law firm had obtained a settlement in favor of defendant stemming from an automobile accident. Under the terms of the settlement, defendant would receive approximately $3,400. The paralegal had not mailed the check to defendant, and she did not know whether defendant had received the check or cashed it.
Defendant was charged with transporting cocaine base for purposes of sale (Health & Saf. Code, § 11352, subd. (a)), with a special allegation that defendant had suffered two prior prison terms for felony convictions (Pen. Code, § 667.5, subd. (b)). A jury convicted defendant. The trial court found the special allegation regarding defendant’s prior prison terms to be true. The trial court denied probation and sentenced defendant to a total of six years – the middle term of four years, plus one year for each of the two prior prison terms.
Discussion
I.
There was substantial evidence to support defendant’s conviction.
Defendant argues there was insufficient evidence he knew of the presence and nature of the cocaine in Nguyen’s pocket and wallet, and that his conviction for transporting cocaine must therefore be reversed. “‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support’” the conviction or the enhancement. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“‘Transportation 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.’ [Citations.] ‘The crux of the crime of transporting is movement of the contraband from one place to another.’ [Citations.]” (People v. Ormiston (2003) 105 Cal.App.4th 676, 682.) A defendant need not have sole physical possession of the drugs to be convicted of transporting them; a defendant may transport drugs even if they are in the exclusive possession of another person. (People v. Rogers (1971) 5 Cal.3d 129, 134.) The purpose of the statute prohibiting transportation of illegal substances is “‘to inhibit the trafficking and proliferation of controlled substances by deterring their movement.’ [Citations.]” (People v. Ormiston, supra, 105 Cal.App.4th at p. 683.)
There was ample evidence in this case of defendant’s knowledge that Nguyen possessed cocaine base. First, when the detective yelled “police,” defendant immediately sped away in the gold Lexus. The jury was properly instructed that fleeing after the commission of a crime may show an awareness of guilt. The jury was entitled to infer that defendant’s departure from the motel parking lot showed a consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Second, the expert witness testified defendant and Nguyen were acting in concert, with defendant holding the money and driving the car, while Nguyen carried the drugs. Finally, defendant had a large sum of money in his wallet, although he had told the police he was unemployed, and there was no evidence he had actually received the proceeds of his insurance settlement.
II.
Defendant is entitled to a modification of his presentence credits.
Defendant also argues he is entitled to additional presentence credits. The Attorney General agrees, though he disputes defendant’s calculation of credits.
Defendant was taken into custody on March 14, 2006, and was sentenced on August 18, 2006. The abstract of judgment shows defendant received 231 days of presentence credit – 155 actual days and 76 good conduct days. The trial court should have awarded defendant 236 days of presentence credit – 158 actual days, and 78 good conduct days.
To determine good conduct credits under Penal Code section 4019, the total days of actual custody credit are divided by 4, and the result is multiplied by 2. (People v. Bravo, supra, 219 Cal.App.3d at p. 735.) Here, as in People v. Bravo, defendant had 158 days of actual credit. When we divide by 4, the resulting amount is 39 with a remainder of 2. We then multiply 39 by 2, entitling defendant to 78 days of conduct credit.
Disposition
The judgment is affirmed as modified. The trial court is directed to enter a new judgment awarding defendant 236 days of presentence custody credits, prepare an amended abstract of judgment, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: SILLS, P. J, ARONSON, J.