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In re D.S.

California Court of Appeals, Second District, Seventh Division
Sep 23, 2008
No. B196747 (Cal. Ct. App. Sep. 23, 2008)

Opinion


In re D. S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D. S., Defendant and Appellant. B196747 California Court of Appeal, Second District, Seventh Division September 23, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from an order of the Superior Court of Los Angeles County No. NJ20795, John Ing, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Lawrence M. Daniels, and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

ZELON, J.

D.S. appeals from the juvenile court’s order continuing wardship and ordering him into a short term camp community placement program. D.S. contends: (1) the court’s finding he had possessed marijuana for sale was not supported by sufficient evidence; (2) the upper term should not have been used to calculate the maximum period of physical confinement in light of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham); the award of predisposition custody credit was miscalculated; and one of the probation conditions imposed was unconstitutionally vague and overbroad. Finding there was sufficient evidence to support the finding, we affirm the order as modified.

FACTUAL AND PROCEDURAL BACKGROUND

In a delinquency petition (Welf. & Inst. Code, § 602) filed in November 2005, it was alleged then 16-year-old D.S. had committed the offenses of discharging a firearm with gross negligence, possession of a firearm by a minor, and cultivating marijuana, as well as two traffic-related misdemeanor offenses.

Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Pursuant to a negotiated disposition, on December 2005, D.S. admitted he had committed the offense of possession of a firearm by a minor. The court declared D.S. to be a ward of the court and the offense to be a felony and ordered D.S. home on probation, with 30 days in the Community Detention Program and 22 days of predisposition custody credit. The court granted D.S. probation, subject to certain terms and conditions, among them that he not “use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where users congregate” (Condition 21). D.S. did not object to this probation condition. The remaining allegations were dismissed by the People as part of the negotiated disposition.

A second delinquency petition filed on August 28, 2006 alleged then 17-year-old D.S. had possessed marijuana for sale on June 28, 2006. Also filed was a petition pursuant to Welfare and Institutions Code section 777 for alleged probation violations.

At a contested jurisdiction hearing, the evidence established on June 28, 2006, Long Beach Police Detective Christopher Zamora conducted a probation search of D.S.’s bedroom and found a substance he believed to be marijuana as well as evidence of marijuana sales. Zamora arrested D.S. for possession of marijuana for sale. No chemical analysis of the recovered substance was performed. The only issue at the jurisdiction hearing was whether Zamora’s expert opinion alone was sufficient circumstantial evidence to prove beyond a reasonable doubt the recovered substance was marijuana.

There was no motion to suppress evidence (§ 700.1); defense counsel offered to stipulate at the jurisdiction hearing that Zamora conducted a probation search of D.S.’s residence.

Detective Zamora testified to his relevant training and experience. He belonged to both the California Narcotics Officers Association and the Gang Officers Association. As a member of these associations, Zamora had attended at least 12 classes on marijuana packaging and sales as well as 40 hours of yearly intense narcotics training over his five-year career. At the Long Beach Police Academy, Zamora received over 50 hours of training on the identification, packaging and sales of narcotics.

Detective Zamora testified to having seen marijuana at least 1000 times; making well over 100 arrests for marijuana possession, and participating in at least 50 investigations resulting in arrests for possession of marijuana for sale.

On the evening of June 28, 2006, D.S.’s mother permitted Detective Zamora to enter the residence and then directed him to her son’s bedroom. Inside the bedroom, Zamora discovered three baggies containing a green leafy substance, two digital scales, and a calculator. Zamora also found over 1000 empty plastic baggies, a medicine bottle containing a green leafy substance, a citation in D.S.’s name, two cellular telephones, a digital camera, and $887 in cash (primarily in $20 bills). He recovered a notebook in which there appeared to be handwritten pay/owe sheets reflecting marijuana sales. Zamora found more green leafy substance and another digital scale inside a bedroom safe.

At the time of the search, the green leafy substance found in the baggies, medicine bottle, and bedroom appeared to Detective Zamora to be marijuana, based upon his training and experience. Zamora testified the substance was similar in both appearance and odor to the marijuana he had seen and smelled at the academy and on the street. Over defense objection, Zamora testified, “I believe, based on my training and experience, that the green leafy substance that was identified and located, I believed that to be marijuana.” Zamora also opined the marijuana was possessed for sale. The court received this testimony, subject to a motion to strike. After extensive argument the defense motion to strike was denied.

The prosecution rested, and the defense motion to dismiss the petition (Welf. & Inst. Code, § 701.1) was argued and denied. D.S. neither testified nor presented other evidence in his defense.

On January 30, 2007, the juvenile court found the prosecution had proved the allegation D.S. had possessed marijuana for sale beyond a reasonable doubt and sustained the petition. At the disposition hearing immediately following, the court ordered D.S. into a three-month camp community placement program, set the maximum physical confinement period as three years eight months, reimposed the previously-ordered conditions of probation with two additional conditions, and dismissed the Welfare and Institutions Code section 777 petition on the prosecution’s motion.

DISCUSSION

1. Substantial Evidence Supports the Finding of Possession of Marijuana for Sale

The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Jose R. (1982) 137 Cal.App.3d 269, 275.) In either type of case we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)

D.S. does not contend Detective Zamora was not a qualified narcotics expert or lacked the necessary training and experience to recognize marijuana. Nor does D.S. dispute the narcotic nature of a substance may be established by either direct or circumstantial evidence or a combination of both. Instead, relying on People v. Sonleitner (1980) 183 Cal.App.3d 364 (Sonleitner), D.S. asserts Zamora’s expert testimony alone was insufficient circumstantial evidence to prove the recovered substance was marijuana, without a corroborating chemical analysis.

While it is true the narcotic nature of a substance is ordinarily shown by a chemical analysis, the absence of such direct evidence is not fatal. In Sonleitner, in negotiating to buy five ounces of cocaine, an undercover officer received what the seller purported was a “sample” of the cocaine available from the seller’s “connection.” When the seller agreed to retrieve the rest of the promised cocaine, he went to a residence, where he was joined within minutes by defendant. Shortly thereafter, the seller left and handed over a plastic baggie to the undercover officer, explaining his connection would only allow him to deliver half the product at a time. The substance in the baggie was subsequently chemically analyzed to contain about two and a half ounces of cocaine. (Sonleitner, supra, 18 Cal.App.3d at pp. 366-367, 369.) Police converged on the residence in marked patrol cars and wearing official raid jackets. Sergeant Wachsmuth saw the defendant run into the bathroom carrying a small plastic bottle labeled “Inositol,” pour the contents of the bottle, “a white crystalline powder resembling cocaine,” into the toilet, and then toss the bottle into the toilet. (Id. at p. 368.) No powder was recovered from the toilet or the bathroom floor, and no residue was found in the bottle. (Ibid.) In his 10 years as a narcotics officer, Wachsmuth had seen cocaine thousands of times. It is white and crystalline. Wachsmuth testified that Inositol, an ingredient commonly used in cutting cocaine, is off-white or dull-white and not crystalline. Wachsmuth maintained that “[a]nyone that has been in the business . . . can tell the difference between a cutting agent and cocaine.” (Id. at p. 368.)

The Sonleitner court rejected the defense contention the evidence was insufficient to show the substance the defendant flushed down the toilet was cocaine. After acknowledging the prosecution was unable to perform a chemical analysis in this case, the court observed “the nature of a substance, like any other fact in a criminal case, may be proved by circumstantial evidence. [Citations.] It may be proved, for example, by evidence that the substance was a part of a larger quantity which was chemically analyzed [citations], by the expert opinion of the arresting officer [citation], and by the conduct of the defendant indicating consciousness of guilt. [Citation.]” (Id. at p. 369.) The court concluded there was sufficient circumstantial evidence to support the finding the substance in the defendant’s possession was cocaine, including Wachsmuth’s testimony the substance resembled cocaine, as well as evidence the defendant ran from the police and disposed of a white powder that was reasonably likely to have been the other half of the cocaine to be delivered to the undercover officer. (Id. at pp. 369-370.)

D.S. argues his case is unlike Sonleitner in that there was no evidence of the recovered substance having the same provenance as a known quantity of marijuana and of any conduct on his part reflecting his guilty knowledge of possessing marijuana. D.S. posits that without these additional types of circumstantial evidence required by Sonleinter, Detective Zamora’s expert opinion was legally insufficient to support the finding the recovered substance was marijuana. However, D.S. reads Sonleitner too narrowly. In holding the narcotic nature of a substance may be proved by circumstantial evidence, the Sonleinter court lists examples of such evidence. By its own terms, the court was clearly not limiting or otherwise dictating the types of circumstantial evidence upon which the prosecution may rely. (Sonleitner, supra, 183 Cal.App.3d at p. 364; accord, see People v. Francis (1969) 71 Cal.2d. 66; People v. Ihm (1966) 247 Cal.App.2d 388; People v. Marinos (1968) 260 Cal.App.2d 735; People v. Patterson (1959) 169 Cal.App.2d 179.) Thus, the prosecution is not limited to the three listed types of circumstantial evidence to prove the narcotic nature of the substance.

Here, there was ample circumstantial evidence introduced by the prosecution to support the juvenile court’s finding. Apart from Detective Zamora’s expert opinion, the quantity (more than three baggies) of the recovered substance, as well as other uncontroverted evidence of marijuana sales (plastic baggies, two cellular telephones, pay/sheets, three digital scales, a calculator, more than $800 in cash) in a bedroom and safe that undisputedly belonged to D.S. constituted substantial evidence the recovered substance was marijuana.

2. The Juvenile Court Was Required to Set the Maximum Period of Physical Confinement Using the Upper Term of Three Years

D.S. argues the juvenile court was limited to setting his maximum confinement time using the middle term of two years based on section 726, subdivision (c), and the Supreme Court’s decision in Cunningham v. California, supra, 549 U.S. 270. In setting the maximum period of confinement, which is an indeterminate term, section 726, subdivision (c) requires the juvenile court to “specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” The court has no discretion to use the middle term and has no need to engage in additional fact-finding for the theoretical maximum period of confinement. Accordingly, Cunningham, as it relates to adult offenders, does not apply in a juvenile delinquency setting even if under similar circumstances an adult convicted of the same offense would not have received the same sentence. (See e.g. In re Christian G. (2007) 153 Cal.App.4th 708; In re Alex U. (2007) 158 Cal.App.4th 259.)

In Cunningham v. California, supra, 549 U.S. 270, the Supreme Court concluded that California’s determinate sentencing law violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated prison term based on a fact, other than a prior conviction, neither found by a jury nor admitted by the defendant.

Section 726, subdivision (c) further provides, “As used in this section . . . ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of the subdivision (a) of Section 1170 of the Penal Code . . . .”

3. D.S. Is Entitled To 22 Days of Predisposition Custody Credit

D.S. contends and the People acknowledge that he is entitled to 22 days predisposition credit.

A minor is entitled to credit against a maximum confinement time for all days of actual predisposition confinement. (In re Eric J. (1979) 25 Cal.3d 522, 533-536; In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) When the juvenile court elects to aggregate the maximum period of confinement based on multiple petitions, the predisposition credits attributable to those petitions must be aggregated as well. (In re Eric J., supra, 25 Cal.3d at pp. 533-536; In re Emilio C., supra, 116 Cal.App.4th at pp. 1067-1068.) We can correct a legally unauthorized sentence or dispositional order whenever the error comes to our attention. (In re Ricky H. (1981) 30 Cal.3d 176, 191; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)

The record shows after D.S. admitted he had committed the offense of possession of a firearm by a minor, he was awarded 22 days of predisposition custody credit at the disposition hearing in December 2005. On January 30, 2007, the juvenile court sustained the instant petition alleging D.S. had possessed marijuana for sale. At the disposition hearing, the court appeared to aggregate the two petitions, but it failed to award D.S. predisposition custody credit. Accordingly, D.S. should have received 22 days of predisposition custody credit.

4. The Challenged Probation Condition Should be Modified to Include a Knowledge Requirement

D.S. contends probation condition 21, that he stay away from places narcotics users congregate, must be modified to include a knowledge requirement. Specifically, D.S. contends the condition must be modified to state that he is ordered to stay away from places where he knows drug users congregate. The People agree. As the appropriate remedy is to modify the condition to include a knowledge requirement (see In re Sheena K. (2007) 40 Cal.4th 875, 891-892), we will do so.

DISPOSITION

The January 30, 2007 minute order is corrected to provide D.S. with 22 days of predisposition custody credit, and probation condition 21 is modified to read: “Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where you know drug users congregate.” As so amended, the order under review is affirmed.

We concur: PERLUSS, P. J., WOODS, J.


Summaries of

In re D.S.

California Court of Appeals, Second District, Seventh Division
Sep 23, 2008
No. B196747 (Cal. Ct. App. Sep. 23, 2008)
Case details for

In re D.S.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. D. S., Defendant and Appellant.

Court:California Court of Appeals, Second District, Seventh Division

Date published: Sep 23, 2008

Citations

No. B196747 (Cal. Ct. App. Sep. 23, 2008)