Opinion
G054509
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID CLAUDI ABBOTT, JR., Defendant and Appellant.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tammy Hennick and Paige B. Hazard, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF0757) OPINION Appeal from a judgment of the Superior Court of Orange County, John R. Zitny, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tammy Hennick and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted David Claudi Abbott, Jr., of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2), and possession of counterfeit money with intent to defraud (Pen. Code, § 476; count 3). The court found true sentence enhancement allegations (former Health & Saf. Code, § 11370.2, subd. (c)) that Abbott had prior felony convictions for possession for sale and transportation of methamphetamine (Health & Saf. Code, §§ 11378, 11379, subd. (a)).
The court sentenced Abbott to an aggregate term of five years, consisting of the two-year midterm on count 2, a consecutive three-year term for the former Health and Safety Code section 11370.2, subdivision (c) sentence enhancements, and concurrent two-year terms on each of counts 1 and 3.
Abbott claims (1) the court erroneously denied his motion for a judgment of acquittal for insufficient evidence on counts 2 and 3 at the conclusion of the prosecution's case-in-chief (Pen. Code, § 1118.1 (section 1118.1)); and (2) the evidence is insufficient to support the jury's guilty verdicts on counts 2 and 3. We are not persuaded.
However, as of January 1, 2018, Statutes 2017, chapter 677, section 1 (Sen. Bill No. 180 (2017-2018 Reg. Sess.); SB 180), abolished section 11370.2, subdivision (c) sentence enhancements, except under certain limited circumstances not present in this case. Consequently, the section 11370.2, subdivision (c) enhancements must be stricken.
So, we will reverse the judgment, affirm the convictions, strike the section 11370.2, subdivision (c) sentence enhancements, and remand the matter for resentencing.
FACTS
1. Prosecution Evidence
On March 14, 2015, 73-year-old Gonzalo Moyron contacted an officer of the Blythe Police Department to report that a new acquaintance of his named, Brittany, had stolen his gray, 2003 Cadillac Seville. Moyron had licensed the Cadillac in Arizona, and the car had "Moyron" as a personalized license plate.
Six days later, Anaheim Police Officer Randy Sany saw Moyron's Cadillac pull out of an Extended Stay America motel parking lot in Anaheim. The general area, and the motel in particular, are known as high-crime areas. Sany decided to run a records check on the out-of-state license plate, and he quickly learned the Cadillac had been reported stolen. Sany gave pursuit, located the car, and called for backup.
As it turns out, the Cadillac stalled at a traffic light. Sany, and the driver of the Cadillac, Abbott, got out of their cars at the same time. Sany ordered Abbott to the ground. Abbott complied, and then said, "The car's stolen, isn't it?" Abbott's passenger, Stephen Yurek, was also ordered out of the car. Abbot and Yurek were arrested without incident.
In the Cadillac, police officers found a black and yellow duffle bag on the floorboard of the front passenger seat, two cell phones, and a number of tools, including a crowbar, a wrench, and two screwdrivers.
Inside the duffle bag, were several pages of uncut, counterfeit United States currency, and some individual bills. The bills were in denominations of $100, $50, $20, and $2, and the $100 bills all had the same serial number. The officers also found blank resume paper, paint brushes, a glass bottle containing an unidentified liquid, a packet of razors, blank checks, and a paper cutter in the bag.
The duffle bag also contained a used methamphetamine pipe, a digital scale, and two bindles of methamphetamine with a combined weight of 5.6 grams.
Sany asked Abbott where he got the Cadillac. Abbott told him a woman he met in Blythe named, Brittany, had given him the keys to the Cadillac and he had been driving it for almost a week. Brittany told Abbott the car was not stolen. However, while Abbott was still in Blythe, an old man approached him and claimed the car was his. The man disappeared when Abbott went inside a gas station, and Abbott thought no more about it until his arrest.
Abbot also told Sany he had recently met Yurek, and they had been staying together for the last few days. Abbott said the duffle bag belonged to Yurek. Abbott knew Yurek had counterfeit bills in the duffle bag, but he denied knowing anything about the methamphetamine. Abbott said the tools in the car belonged to him, and he was using them to get the Cadillac running.
At trial, Sany testified as the prosecution's drug and counterfeit currency expert. Sany said street-level drug sales are often conducted from cars, and multiple people will often work together to sell drugs. A usable quantity of methamphetamine is about .02 grams. Drug dealers carry much larger quantities, and they frequently carry a scale to weigh the drugs.
When presented with a hypothetical based on the facts of the case, Sany opined the methamphetamine was possessed for the purpose of sales. He based his opinion on the quantity of methamphetamine, and the presence of items commonly used in drug sales, including a scale, razors and fake currency.
In Sany's opinion, Abbott and Yurek were involved in an unsophisticated, street-level drug operation based on the location of his contact with them, the circumstances of their arrest, and the fact both men had prior convictions for possession of methamphetamine for sale.
Sany's opinion the currency found in the bag was counterfeit had been based on the quality of the paper used, the presence of 14 completed bills, which had been printed on an assortment of different colored papers, the fact all of the $100 bills had the same serial number, and because the United States Treasury does not permit people to carry around sheets of bills.
The parties stipulated Abbott had prior felony convictions for possession of methamphetamine with intent to sell and transportation of methamphetamine, and Yurek had prior felony convictions for possession of methamphetamine with intent to sell, possession of counterfeiting equipment, possession of fraudulent instruments, and possession of fraudulent personal documents.
2. Defense Evidence
Abbott moved for a section 1118.1 judgment of acquittal for insufficient evidence at the close of the prosecution's case-in-chief, which the court denied. Following the denial of his section 1118.1 motion, Abbot called Yurek to testify.
Yurek said he met Abbott four or five days before their arrest. Yurek had rented a room at the Extended Stay America motel in Anaheim, and Abbott and a host of other people were "in and out" of that motel room throughout the two days he rented it.
After two days, Yurek and Abbott moved to a motel in Garden Grove. They came back to the Extended Stay America motel on the day of their arrest to move the failing Cadillac in an effort to prevent it from being towed.
Yurek testified he ingested methamphetamine during the few days they were together, but Abbott had not, at least, "not to [Yurek's] knowledge." He also remembered meeting a friend of Abbott's, Ana Bottini, and spending a couple of hours with her at the Garden Grove motel.
Yurek said Abbott had a green Suburban, which they used when the Cadillac broke down. Yurek also thought the tools in the Cadillac might belong to him. Yurek uses a pry bar, razor, knife, and screwdrivers to remove asbestos.
When defense counsel asked Yurek if he remembered there being a bag in the car, Yurek asserted his Fifth Amendment privilege. Under continued questioning, Yurek said he remembered giving a statement to a defense investigator after his arrest, and receiving a telephone call from a second defense investigator prior to trial. Defense counsel asked Yurek if he remembered telling the police officers he did not know about the bag in the Cadillac. Yurek replied, "I wish to reserve my Fifth Amendment."
The court declared a recess and appointed counsel for Yurek. Outside the presence of the jury, the district attorney explained that Yurek had been charged with possession for sale and possession of counterfeit currency, but the charges were dismissed before the preliminary examination. The district attorney declined to offer Yurek immunity, and the court allowed defense counsel's direct examination to continue outside the presence of the jury.
Outside the presence of the jury, Yurek asserted his Fifth Amendment privilege when asked about the bag found at his feet, if he had ever told a police officer he had been "completely oblivious to anything" in the car, or that he had no idea what was in the bag. He also asserted his Fifth Amendment privileged when asked about his conversations with defense investigators.
The court ruled Yurek properly asserted his Fifth Amendment privilege when questioned about the bag, the contents of the bag, his statements to police officers and defense investigators about the bag and its contents. Yurek's statement he might own the tools was admissible because he first answered that question without asserting the privilege.
The trial resumed in front of the jury, and the prosecutor cross-examined Yurek. Yurek admitted he had been convicted of felony possession of narcotics for sale, and possession of fraudulent instruments. Yurek also admitted "shooting up methamphetamines" in his motel rooms.
Yurek acknowledged telling a police investigator Abbott drove a green Suburban, and that Abbott had been the only driver of both the Suburban and the Cadillac. Yurek said he suspected the Cadillac was stolen, but Abbott repeatedly denied it when asked.
Abbott also called Bottini. She had been in Yurek's motel rooms, but did not see Abbott, or Yurek, sell drugs, and they did not show her the fake money. She once rifled through the duffle bag thinking it was Abbott's. She saw the fake money and asked whose bag it was. Yurek said it was his.
Defense investigator Ralph Rocha testified John Depko, another defense investigator, interviewed Yurek shortly after his arrest. In pertinent part, Yurek admitted to Depko that he brought the duffle bag with him, and that he lied when he told police he knew nothing about it. Yurek told Depko, "everything in the bag was mine and . . . I don't want [Abbott] taking the blame for what belonged to me." In addition, Yurek admitted he knew the bag contained $1,030 in counterfeit cash, which was the correct amount, and he told Rocha how he made counterfeit bills.
3. Instructions and Argument
The prosecutor argued Abbott drove Moyron's Cadillac without permission, and in light of how Abbott obtained possession of the Cadillac, a reasonable inference would be that Abbot knew the car was stolen.
With respect to the methamphetamine and counterfeit currency, the prosecutor asserted Abbott aided and abetted Yurek in the drug and counterfeit currency trades. The prosecutor told the jury, "Yurek was the perpetrator" of "having the intent to sell drugs" and "[possession] of fake money. . . . It's obvious."
In addition, the prosecutor noted Abbott had admitted he knew the duffle bag contained counterfeit currency. The prosecutor rejected the notion Abbott, a known methamphetamine user and dealer, spent four or five days with Yurek, another known methamphetamine user and dealer, had no idea Yurek carried methamphetamine in the duffle bag in addition to the counterfeit currency. Finally, the prosecutor argued Yurek and Bottini were not credible witnesses.
For count 1, defense counsel argued Abbott reasonably believed Brittany had authority to loan him Moyron's Cadillac because she had the keys: "Abbott, had the mistaken belief he could possess this car for a period of time, that he was in possession of it and that he attempted to try to even fix this vehicle. I believe there is a lack of intent to permanently deprive."
For counts 2 and 3, defense counsel argued there was no evidence Abbott knew Yurek possessed methamphetamine for sale, and counterfeit currency to defraud. Specifically, he asserted no evidence showed Abbott had aided and abetted Yurek in the commission of those crimes.
Defense counsel focused on Yurek's admissions, and asserted, "the drugs, the currency, the scale, and the razors, those specific items belonged to [Yurek] in the bag. Yes, . . . Yurek, has sales of meth and he has prior convictions for counterfeit money and the tools involved with counterfeit money . . . ." Moreover, the duffle bag had been at Yurek's feet.
Defense counsel conceded, "The notion of joint possession is a very powerful instruction," but he also emphasized there had been no contraband of any kind found on Abbott's person, or the driver's side of the car. He asserted, "None of [the] evidence points to . . . Abbott."
Defense counsel summed up the situation by stating, "We're not dealing with making cell phone calls and setting up sales or setting up - we're not dealing with an issue of narcotics users complaining of getting change back with fake money. . . . What we have here is [Abbott] operating this car and having the car break down," "[n]ot evidence of a plan, not evidence of a scheme, not evidence of a direction by . . . Abbott to help . . . Yurek . . . ."
The court gave general jury instructions on how to weigh evidence and assess the credibility of witnesses. The court also instructed the jury not to speculate about whether another person has been, or will be, prosecuted for the same crimes (CALCRIM No. 373). The court further instructed on how to consider Abbott's prior drug convictions as evidence of identity, intent, and common plan, (CALCRIM No. 375), aiding and abetting (CALCRIM Nos. 400, 401), unlawful taking or driving of a vehicle (CALCRIM No. 1820), making, passing, etc., fictitious check or bill (CALCRIM No. 1935), and possession for sale of a controlled substance (CALCRIM No. 2302).
DISCUSSION
1. Sufficiency of the Evidence
a. Abbott's Arguments
Abbott contends the court erroneously denied his section 1118.1 motion for a judgment of acquittal for insufficient evidence on counts 2 and 3 at the close of the prosecution's case-in-chief, and the totality of the evidence is insufficient to sustain the jury's verdict on counts 2 and 3, in violation of the due process clauses of the Fourteenth Amendment and article I, section 15, of the California Constitution. We find sufficient evidence supports the court's section 1118.1 ruling, and the jury's verdict.
b. Relevant Legal Principles
A trial court's ruling under section 1118.1 that the evidence is sufficient to support a conviction is subject to our independent review. (People v. Cole (2004) 33 Cal.4th 1158, 1213 (Cole).) "The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction." (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) The question "is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination." (People v. Ainsworth (1988) 45 Cal.3d 984, 1024, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.)
"In reviewing a challenge to the sufficiency of the evidence under the due process clause of the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I, section 15 of the California Constitution, we review the entire 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 have found the defendant guilty beyond a reasonable doubt." (Cole, supra, 33 Cal.4th at p. 1212.)
The testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to establish a fact and support a conviction. (People v. Allen (1985) 165 Cal.App.3d 616, 623; Evid. Code, § 411.) "'We resolve neither credibility issues nor evidentiary conflicts . . . .' A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Even in circumstantial evidence cases, we do not reverse the judgment simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Brown (2014) 59 Cal.4th 86, 106.)
c. Motion for Judgment of Acquittal
The elements of possession of a controlled substance for sale are (1) the presence of a specified controlled substance; (2) possession, either physical or constructive, exclusive or joint; (3) knowledge of the drug's presence and its illegal nature; and (4) a specific intent to sell the substance. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175-1176 (Montero); CALCRIM No. 2302.)
The court also instructed the jury on simple possession of methamphetamine as a lesser included offense of possession of methamphetamine for sale. (CALCRIM No. 2304.) --------
The elements of possessing, making, passing, using or attempting to pass or use a counterfeit bill are (1) the defendant possessed, made, passed, used or attempted to pass or use a false bill; (2) the defendant knew the document was false; and (3) the defendant possessed, made, passed, used or attempt to pass or use the document with the intent to defraud. (Pen. Code, § 476; CALCRIM No. 1935.)
Abbott challenges only the "possession" element of both offenses. He asserts the prosecution did not introduce sufficient evidence to prove he had joint possession of the duffle bag and its contents. In the alternative, Abbot alleges the evidence is insufficient to find Abbott criminally liable as an aider and abettor in Yurek's controlled substance and counterfeit currency offenses. We disagree with both points.
Possession may be physical or constructive. (Montero, supra, 155 Cal.App.4th at pp. 1176-1177. "'Constructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another.'" (People v. Thomas (2012) 53 Cal.4th 1276, 1284.) Two or more persons may have joint control over a single item, and both may be convicted for possession of it. (People v. Bigelow (1951) 104 Cal.App.2d 380, 385.) Circumstantial evidence and any reasonable inferences drawn from it may establish possession. (People v. Martin (2001) 25 Cal.4th 1180, 1184.)
At the conclusion of the prosecution's case-in-chief, the court knew Abbot had been driving the stolen Cadillac for a few days, and Abbott and his passenger drove out of a motel parking lot in a high crime area. Abbot admitted he and Yurek had been together for four or five days, and he knew the duffle bag was in the car and contained counterfeit currency. Abbott denied knowing about the 5.6 grams of methamphetamine, but with prior convictions for possession for sale and transportation of methamphetamine, the court could reasonably infer he knew about the large amount of methamphetamine and the scale in the same bag with the counterfeit currency.
Sany testified street-level drug sales are often conducted from cars, and frequently committed by two or more individuals working together. With a usable quantity of methamphetamine being about .02 grams, two bindles containing a total of 5.6 grams and a scale suggest an intent to sell.
Sany's expert testimony provided a reasonable explanation for the circumstances, i.e., two men with prior convictions for methamphetamine sales joined forces to sell methamphetamine, and manufacture counterfeit currency with the intent to defraud. Thus, the facts before the court at the time of Abbot's section 1118.1 motion for a judgment of acquittal, together with reasonable inferences to be made from those facts, constitute substantial evidence Abbott and Yurek jointly possessed the duffle bag.
Abbot's reliance on People v. Tabizon (1958) 166 Cal.2d 271 is misplaced. In that case, the defendant was visiting a motel room. The police arrested the tenant of the room and searched the room for drugs. (Id. at p. 273.) In reversing the defendant's conviction for possessing drugs found in the motel room, the court held, "The mere fact [the defendant] was present in the motel room would not, standing alone, justify a finding of guilt." (Ibid.) The defendant "denied knowledge of the heroin. He was not a tenant of the motel room but was at most a transient visitor; none of his belongings was in the room. He made no admissions and performed no suspicious act from which the court could draw inferences adverse to him. There were no incriminating circumstances tending to implicated him." (Id. at pp. 273-274.) As noted above, more than Abbott's mere presence in a motel room with Yurek implicate him in possession of methamphetamine for sale, and possession of counterfeit currency with intent to defraud.
Further, the evidence was also sufficient to prove Abbott aided and abetted Yurek. The court instructed the jury with CALCRIM No. 401, which told the jury Abbott may be guilty of the crimes even if Yurek perpetrated the crimes. The elements of aiding and abetting are the perpetration of a crime, the defendant's knowledge of the perpetrator's intent, the defendant intended to aid and abet the perpetrator to commit the crimes, and the defendant actually aided and abetted the perpetrator.
Abbot admitted knowing about the counterfeit currency, and it is reasonable to infer he also knew about the methamphetamine. He and Yurek had been together several days, and Yurek admitted ingesting methamphetamine during this time period. Both men had prior convictions for possession of methamphetamine for sale, and Sany testified counterfeit currency is sometimes used in drug transactions.
Abbott had been the driver of and had exclusive control over both cars used by Abbott and Yurek. The duffle bag was found on Yurek's side of the passenger compartment, which would make it easily accessible to both driver and passenger.
In sum, based on these facts and the reasonable inferences to be drawn from these facts, there was sufficient evidence Abbott aided and abetted Yurek to deny Abbott's section 1118.1 motion for a judgment of acquittal and continue with the trial.
d. Jury Verdicts
Abbott's challenge to the sufficiency of the evidence to support the jury's verdict on counts 2 and 3 focuses on Yurek's testimony and claimed ownership of the duffle bag, Bottini's testimony Yurek said the duffle bag belonged to him, and the absence of facts found in other cases of possession for sale of methamphetamine.
However, we do not review defense evidence in a vacuum. The prosecution also presented compelling evidence, and expert testimony. The jury apparently agreed with Sany's expert opinion Abbott and Yurek were in joint possession of the duffle bag, and were partners in the drug sales and counterfeit currency trades.
Reviewing the entire record in the light most favorable to the judgment, as we must, we conclude there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable jury could have found Abbott guilty of counts 2 and 3 beyond a reasonable doubt. 2. Health and Safety Code section 11370.2, subdivision (c) Enhancements
As noted, effective January 1, 2018, SB 180 abolished the former section 11370.2, subdivision (c) sentence enhancements imposed in this case, except under certain limited circumstances not present here. At oral argument the parties agreed this amendment, which reduces the punishment for a criminal offense, applies retroactively to defendants like Abbott, whose judgments are not yet final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) So, the three-year section 11370.2, subdivision (c) sentence enhancements must be stricken. Moreover, because the court exercised its discretion in the original sentencing, the matter must be remanded for the court to reconsider its sentencing choices in light of the changed circumstances. (People v. Calderon (1993) 20 Cal.App.4th 82, 88.)
DISPOSITION
The judgment is reversed, the convictions are affirmed, and the three-year enhancement imposed pursuant to Health and Safety Code section 11370.2, subdivision (c) is stricken. The matter is remanded to the trial court with instructions to resentence Abbott in accordance with the applicable statutes and rules, bearing in mind the new sentence cannot exceed the original sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250.)
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.