Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J210951, Douglas N. Gericke, Judge.
John L. Dodd, 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, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Minor D.B. appeals the juvenile court’s finding he possessed cocaine base for the purpose of sale. He argues the juvenile court misapplied the law of specific intent and based its finding on insufficient evidence. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A petition filed pursuant to Welfare and Institutions Code section 602, subdivision (a), alleged that on or about June 13, 2007, minor violated Health and Safety Code section 11351.5 by possessing cocaine base for sale. The juvenile court held a dispositional hearing on July 9, 2007.
In a prior petition filed May 25, 2006, minor was charged with violating Vehicle Code sections 10851, subdivision (a), and 20002, subdivision (a). Minor admitted the allegations and was placed on probation.
At the dispositional hearing, the arresting officer testified he was on patrol in a marked patrol car and was dispatched at approximately 10:00 p.m., to respond to a call about “[B]lack male adults or juveniles hanging out behind the 7/11. . . .” When the officer arrived at the scene, he parked the patrol car to the north and proceeded on foot “to surprise the people.” While walking, the officer saw an adult Black male run from the location and hop over a fence into a backyard. He and other officers began a yard-to-yard search.
An open window in one of the backyards caught the officer’s attention; he positioned himself to watch the window while the other officers knocked on the front door. The officer saw minor pop his head out of the window, look around to see if anyone was there, jump out of the window, and close the window behind him. The officer identified himself and told minor to stop, but minor ran. Minor stopped running when he got to a fence and the officer once again told him to stop.
After transporting minor to the police station, the officer conducted a patdown search. The officer found four pieces of a white crystal substance, which he suspected to be cocaine, in minor’s shoe. The pieces were individually wrapped in clear plastic baggies. While the officer was retrieving some paperwork, minor threw another clear plastic baggie behind a box about a foot away. In the bag, the officer found 14 more individually wrapped, clear plastic baggies containing suspected cocaine similar to the baggies found in minor’s shoe. The total weight of the baggies was 3.8 grams. The white, rock-like substance in two of the baggies was tested and determined to be cocaine base.
Expert testimony presented by the prosecution indicated mere users of cocaine are typically found in possession of one to two rocks of cocaine base when arrested, but some users may purchase in bulk and possess a larger quantity for personal use. Here, minor was found in possession of 18 rocks, which is well beyond what the typical user would possess. Because of the amount of cocaine base found on minor’s person, the expert opined it was possessed for sale.
Minor testified in his own defense. When minor was asked why he went into the house, he gave two different answers. First, he said he went into the house “[t]o tell the people to get out the house . . . [‘c]ause they had stuff on him.” Minor then said he went into the house “[t]o call my dad to go home really.” When minor was asked what happened when he went into the house, he said, “[t]he people started telling me to get out the house because they was saying the police was here. . . . [T]hey told me to go out the back window, so I went out the back window. Then a guy named Car Wash Mike told me to take the stuff.” Minor admitted the “stuff” was drugs. Minor also said he did not intend to sell the drugs because he planned to “[g]ive them right back” when the police were gone.
During cross-examination, minor testified that he knew a female named “Star” who lived in the house and that the reason he went inside the house was to call his father. Car Wash Mike (Mike) was also in the house, but did not live there. Minor was telling Mike to get out of the house because he knew Mike had drugs in his possession and the police were there. Minor also admitted that he had seen Mike sell cocaine to others. Mike told minor to take the drugs and go out the back window, so minor put some of it in his shoe and some in his pocket.
Based on the evidence presented at the dispositional hearing, the juvenile court found the allegations true. As a result, the court ordered minor to remain a ward of the court and placed minor on probation, in the custody of his father, subject to certain terms and conditions.
DISCUSSION
Minor concedes the evidence is sufficient to show he possessed cocaine base. His challenge to the trial court’s true finding appears to be in part a question of law and in part an attack on the sufficiency of the evidence to support a finding that he possessed the cocaine base with the specific intent that it be sold.
Minor first argues the trial court applied the law incorrectly by finding him guilty of possession for sale rather than simple possession based solely on his admission he obtained the cocaine base from Mike and his admission he knew Mike was a seller of cocaine base. According to minor, this was erroneous because Health and Safety Code section 11351.5 requires a showing greater than mere possession and knowledge and requires an express finding he possessed the cocaine base with “the specific intent for the cocaine to be sold, not that a third party intended to sell it.” Minor believes this error is apparent because there is no express finding in the juvenile court’s ruling that he “specifically intended to sell the drugs, or specifically intended to assist Mike in selling them.” He believes the juvenile court’s ruling indicates the trial court erroneously believed his specific intent was “irrelevant.” As a result, minor argues he is entitled to a reversal and remand for a new trial. Minor also argues reversal is required because the prosecution failed to meet its burden of proving he specifically possessed cocaine base for purposes of sale.
Questions of law, such as the interpretation of a statute, are subject to de novo review on appeal. (In re Clarissa H. (2003) 105 Cal.App.4th 120, 125.) In considering the sufficiency of the evidence, “[a]n appellate court must review the whole record in the light most favorable to the judgment in order to determine whether it discloses substantial evidence that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.) “We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.” (In re Jose R. (1982) 137 Cal.App.3d 269, 275.) In addition, “we must make all reasonable inferences that support the finding of the juvenile court.” (Ibid.) “The testimony of just one witness is enough to sustain a conviction, so long as that testimony is not inherently incredible.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) “The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. . . . On appeal, we must accept that part of the testimony which supports the judgment.” (Ibid.)
To establish a violation of Health and Safety Code section 11351.5, the prosecution must prove that: “(1) the defendant exercised dominion and control over the controlled substance [i.e., cocaine base], (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it.” (People v. Parra (1999) 70 Cal.App.4th 222, 226.) Our Supreme Court has acknowledged that liability under Health and Safety Code section 11351, and by analogy under section 11351.5, extends “to those who possess controlled substances with the intent that someone else sell them.” (People v. Perez (2005) 35 Cal.4th 1219, 1231-1232.) However, when standing alone, mere knowledge someone else will eventually sell the drugs is insufficient to establish the element of specific intent. (People v. Consuegra (1994) 26 Cal.App.4th 1726, 1731-1732.)
Minor argues the juvenile court in this case essentially made the same legal error at issue in the case entitled In re Christopher B. (1990) 219 Cal.App.3d 455 (Christopher B.). As in this case, Christopher B. involved a challenge to a juvenile court’s true finding on allegations of possession of cocaine for sale. (Id. at p. 458.) Testimony at the jurisdictional hearing established that members of a gang task force were monitoring a large group of males wearing gang colors in a public park. The group began to walk away as the officers approached on foot. The minor was seen taking a clear plastic bag out of his waistband and tossing it to the ground. (Ibid.) As in this case, the minor in Christopher B. was charged with possessing rock cocaine for sale. (Id. at p. 459.) At the jurisdictional hearing, there was expert testimony indicating the amount of rock cocaine in the minor’s possession was too much for personal use and was therefore possessed for sale. (Ibid.) After hearing the People’s evidence, the trial court stated as follows: “ ‘The People have to prove specific intent by the minor to sell . . . . My conclusion is it’s not a specific intent crime. My view of the law is . . . that if one is participating in possession of drugs, knowing that they are going to be sold, that is sufficient. Whether or not that person intends to do the selling themselves, intends to receive any money for it, or in any other manner participates in the actual negotiations. If they are in the stream of commerce, in other words knowing these are, one, drugs, and two, they’re for sale, and eventually for sale, then I think that’s sufficient. [¶] . . . I find that this minor knew there was cocaine. . . . [H]e threw it down when the police arrived . . . and secondly, he knew they were going to be sold. Whether he was going to do the actual selling or just standing there holding them at the time, I don’t know, but I don’t think that’s important. I think the important point is he knew they were going to be sold . . . .’” (Id. at p. 466.)
The trial court’s true finding in Christopher B. was reversed on appeal, and in its opinion, Division One of the Fourth District Court of Appeal stated in pertinent part as follows: “Although this record may circumstantially support a true finding of specific intent, the trial court made the erroneous legal conclusion that possession of cocaine for sale is not a specific intent crime. Thus the court found it unnecessary for the People to prove the element of specific intent or to make a finding of such intent. Instead the court based its finding that [the minor] possessed cocaine for sale on [the minor’s] knowledge the ‘rocks’ were to be sold. Absent a finding [that the minor] had the specific intent to sell, a true finding of possession for sale cannot be made.” (Christopher B., supra, 219 Cal.App.3d at p. 466, italics added.)
We must reject minor’s argument that the same mistake occurred in this case. Here, the juvenile court heard closing arguments immediately following testimony presented by the prosecution. The prosecutor argued the evidence was sufficient to establish that minor possessed cocaine base for sale. The prosecutor’s argument focused on opinion testimony by the expert that the quantity of cocaine base found in minor’s possession was indicative of possession for sale. The prosecutor also emphasized that minor’s flight from the officer, while in possession of the cocaine base, and minor’s testimony that he took possession from Mike while knowing that Mike was a seller of cocaine base. In response, defense counsel conceded there was sufficient evidence to establish simple possession of cocaine base, but argued “we’ve heard no evidence that he possessed the drugs or cocaine base for sale.” Thus, at this point in the proceedings, it was clear specific intent was the only contested issue.
The juvenile court then explained its ruling as follows: “[T]he officer did testify that in his opinion that possession of eighteen individually wrapped rocks of cocaine is an indication of possession for sale. The minor, in his testimony, verified that was in fact possessed for sale. He just said he wasn’t the one that was going to sell it. It was . . . Mike. . . . [¶] In any case, we have the officer’s opinion, we have the possession, we have the minor’s testimony that it was and he knew it was . . . possessed by Mike for sale, and that it was individually wrapped for that purpose. And then he wound up in possession of it. [¶] The Court finds the allegation to be true.”
Unlike the juvenile court in Christopher B., the court in this case did not expressly state or even imply it was unnecessary for the prosecution to prove the element of specific intent. It is true, as minor contends, that the juvenile court did not expressly state it concluded minor possessed the cocaine base with the specific intent that it be sold. However, read in context, we believe the court’s comments as quoted above were entirely directed at the only disputed issue in the case. We read the court’s comments to mean there was sufficient evidence from which it could be inferred minor possessed the cocaine base with the specific intent that it be sold. It is also true the juvenile court’s reasoning does not reveal precisely what theory of liability the court relied on in reaching its true finding under Health and Safety Code section 11351.5 (i.e., whether minor possessed the cocaine base with the specific intent to sell it himself or with the specific intent to return it to Mike so Mike could sell it). However, it was unnecessary for the court to do so because the law recognizes either theory as sufficient. (See, e.g., People v. Perez, supra, 35 Cal.4th at p. 1231; People v. Parra, supra, 70 Cal.App.4th at p. 226; People v. Consuegra, supra, 26 Cal.App.4th at pp. 1731-1732.) We, therefore, conclude there was no legal error by the juvenile court in applying the relevant statute.
Minor argues that People v. Parra, supra, 70 Cal.App.4th at page 226 and People v. Consuegra, supra, 26 Cal.App.4th at pages 1731-1732 are distinguishable from the facts at issue in this case and do not abrogate Christopher B., supra, 219 Cal.App.3d at page 466. However, we find no distinctions in these cases that are relevant to our analysis of the issues raised here. In his reply, minor argues “Parra and Consuegra have been undercut by the reasoning of Perez.” He also argues in his reply we should disregard as “questionable dictum” the Supreme Court’s acknowledgement in People v. Perez, supra, 35 Cal.4th at page 1231, that liability for possession of controlled substances for sale extends “to those who possess controlled substances with the intent that someone else sell them.” (Id. at p. 1232.) Although dicta, the Supreme Court’s pronouncement on this issue is, for our purposes, consistent with both People v. Parra and People v. Consuegra. We, therefore, reject minor’s arguments.
We also reject minor’s challenge to the sufficiency of the evidence to support the element of specific intent. Rather than possession for sale, minor believes the evidence shows only that “[i]n chaotic and excited surroundings, an adult handed him what he knew to be drugs, and ordered him to run away immediately, without time for reflection. He temporarily possessed the drugs, but without any specific intent to do anything with them, except possibly return them to Car Wash Mike.” However, under the relevant standard of review, circumstantial evidence is not insufficient simply because it is “susceptible of two interpretations, one of which suggests guilt and the other innocence.” (People v. Snow (2003) 30 Cal.4th 43, 66.)
In any case, we are unconvinced by minor’s contention that the evidence in any way suggested his innocence of the charge due to an absence of specific intent. Minor testified in his own defense. Minor’s testimony did nothing to suggest he was simply a blameless bystander who was just there to use the telephone, and who was unknowingly and inadvertently caught up in chaotic and unlawful circumstances. Nor did his testimony suggest that he was overcome by an adult and ordered against his own better judgment, and without time for reflection, to flee from police while concealing such a large quantity of illegal drugs.
Rather, minor’s own testimony and the evidence as a whole overwhelmingly support an inference that minor was a willing and eager participant in an attempt to protect a substantial, saleable quantity of cocaine base from being seized by police so that it could be sold. Minor admitted he knew Mike and knew that Mike was involved in sales of cocaine base. Minor was present in the house with Mike and knew that Mike possessed drugs, which could be seized by police if not concealed. Minor hid the drugs and fled from police. The expert testified the amount of drugs suggested possession for sales because it was well in excess of what a typical user would possess for personal use. These circumstances overwhelmingly support an inference that minor shared Mike’s apparent and specific intent to protect the drugs for future sales. We, therefore, conclude the evidence was sufficient to support a violation of Health and Safety Code section 11351.5 rather than simple possession, and that the trial court was wholly justified in finding the allegations of possession for sale true beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., MILLER, J.