Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06CF0689 Dan McNerney, Judge.
Valerie G. Wass, 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
ARONSON, J.
A jury convicted Frank Acosta, Jr., of possession of methamphetamine for sale (Health & Saf. Code, § 11378; all statutory references are to this code unless noted) and transportation of methamphetamine (§ 11379, subd. (a)). He challenges the sufficiency of the evidence to support his convictions and contends the trial court erred in denying his midtrial request for a continuance. He also argues the court erred in giving several jury instructions.
We agree the evidence is insufficient to support defendant’s conviction for transportation, but reject his remaining contentions. Accordingly, we affirm defendant’s possession for sale conviction, reverse the transportation conviction, and remand for further proceedings.
I
Factual And Procedural Background
Around 5:00 p.m. on a rainy February 27, 2006, Santa Ana Police Officer Gustavo Moroyoqui saw a green Toyota pull up behind a white Acura parked along the curb near 1500 West Surrey. The Acura’s driver, Arias, got out and spoke to Wilkerson, the Toyota’s driver. When Moroyoqui pulled his patrol car up toward the men, Arias walked away from the Acura toward the end of the cul-de-sac. Moroyoqui spoke to Wilkerson and his female passenger, and directed Arias to return. Other officers arrived on the scene to help detain the trio and assist the investigation. Moroyoqui and Officer Pletl approached the Acura. Pletl directed defendant, the Acura’s front seat passenger, to exit the vehicle. Pletl patted him down but did not feel anything suspicious. Defendant did not appear to be under the influence.
Peering through the car window, Moroyoqui spotted a baggie of methamphetamine in the middle of the driver’s side floorboard. He found a large Ziploc sandwich bag with an apple insignia. The bag contained 11 smaller baggies of methamphetamine wedged between the center console and the driver’s seat near the floor. He also found two cell phones, and a glass drug pipe and a black baggie containing a digital scale on the rear floor behind the driver’s seat near the center console. The methamphetamine found in the Acura weighed 17 grams, including packaging. Individual packets ranged from .2 to 1.5 grams and were distinctively marked with symbols that appeared to reflect the quantity contained within the packet. Each bindle constituted a typical dose of methamphetamine and would sell for $20 on the streets. Moroyoqui arrested defendant and transported him to jail.
During the booking process, Moroyoqui learned the booking officer had discovered a bindle of methamphetamine hidden in the liner around the collar of defendant’s hooded jacket. Moroyoqui watched as the officer continued his search of the jacket, finding two more bindles and a sandwich bag containing 16 smaller baggies of methamphetamine, all hidden in the liner around the collar. An apple was printed on the baggie containing the bindles. Moroyoqui’s presumptive tests on two or three samples of the contraband taken from defendant’s jacket indicated the substance was methamphetamine. Officers also found $801 in defendant’s wallet, $50 in his pocket, and a paycheck stub for $249.
Moroyoqui weighed the contraband found in defendant’s jacket and then placed it in the same evidence envelope with the drugs found in the Acura. The contraband removed from defendant’s jacket, including packaging, weighed 45.5 grams, with the largest baggie weighing 29.1 grams. Because Moroyoqui separated the contraband by weight and commingled the items found in the Acura with those found in defendant’s jacket, he could not identify which Ziploc sandwich bag contained the bindles located in the car.
Out of the jury’s presence, the trial court criticized the officer for not exercising more care in gathering the evidence.
Moroyoqui identified two plastic bindles, labeled as exhibits 1 and 2, as part of the contraband found in defendant’s jacket, but could not tell whether he conducted presumptive tests on these items. A forensic scientist with the Orange County Sheriff’s crime lab testified the bindles labeled as exhibits 1 and 2 contained methamphetamine. The net weight of exhibit 1 was 27.9 grams; the net weight of exhibit 2 was 11.06 grams.
In August 2006, the jury convicted defendant of the charged offenses. The court imposed a two-year low term prison sentence on the transportation conviction, but stayed punishment on the possession for sale count.
II
Discussion
A. Sufficiency of the Evidence
1. Possession for Sale
Defendant challenges the sufficiency of the evidence to support his possession for sale conviction. Specifically, he complains Moroyoqui failed to label and separate the contraband found in the car from that found in defendant’s jacket during the booking process and therefore the prosecution could not link the particular baggies tested for methamphetamine to defendant. Defendant also argues the evidence did not show the jacket belonged to him and the prosecution’s failure to call the booking officer to corroborate Moroyoqui further undermined the legal sufficiency of the evidence. We agree with the trial court the investigating officer should have processed the evidence more thoroughly, but conclude sufficient evidence supports defendant’s possession for sale conviction.
In reviewing a challenge to the sufficiency of the evidence, the reviewing court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence, i.e., evidence which is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Elliott (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.)
Here, Moroyoqui identified exhibits 1 and 2 as the bindles removed from defendant’s jacket, and the criminalist testified both items contained methamphetamine. Defendant complains Moroyoqui “had no documentation to support” his testimony concerning where he found the bindles, and the prosecution failed to present evidence corroborating his account. We disagree. The criminalist testified the bindle labeled exhibit 1 weighed 27.9 grams and contained methamphetamine. Because the drugs found in the Acura weighed 17 grams, the jury could reasonably conclude the 27.9 gram bindle labeled exhibit 1 only could have been the bindle removed from defendant’s jacket. Thus, the jury could conclude defendant knowingly possessed a substantial quantity of methamphetamine, regardless of the evidence linking defendant to the drugs found in the Acura.
Other evidence supports the jury’s determination. Moroyoqui testified defendant wore a jacket when he was arrested, and observed the booking officer remove the contraband from defendant’s jacket during the booking search. Moroyoqui’s testimony concerning the quantity and packaging of the methamphetamine and defendant’s possession of a large amount of cash in various denominations supported Moroyoqui’s opinion defendant possessed methamphetamine for sale. The uncorroborated testimony of a single witness is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbably. (People v. Gammage (1992) 2 Cal.4th 693, 700.) The jury found Moroyoqui credible, and there is nothing improbable about his testimony. In sum, ample evidence supports defendant’s possession for sale conviction.
2. Transportation
Defendant challenges the sufficiency of the evidence to support his transportation conviction, arguing the prosecution failed to produce evidence he moved or transported methamphetamine from one location to another. We agree.
“The crux of the crime of transporting is movement of the contraband from one place to another.” (People v. Kilborn (1970) 7 Cal.App.3d 998, 1003 (Kilborn); People v. Cortez (1985) 166 Cal.App.3d 994, 999 [transport means “‘to convey from one place to another’”].) The crime of transportation “is intended to inhibit the trafficking and proliferation of controlled substances by deterring their movement.” (People v. Arndt (1999) 76 Cal.App.4th 387, 398.) But mere possession is not evidence of transportation. The prosecution must show defendant moved the contraband from one place to another. (Kilborn, supra, at pp. 1002-1003; People v. Ormiston (2003) 105 Cal.App.4th 676, 681, 684 [defendant properly convicted of transportation when he walked from his hotel room to the hotel parking lot carrying methamphetamine].)
Here, the evidence showed Moroyoqui first observed defendant sitting in the passenger seat of the Acura, and remained there until contacted by investigating officers. Moroyoqui never saw defendant enter the Acura, which remained stationary throughout the incident. There simply was no evidence when or at what location defendant became a passenger, nor was there evidence whether he wore or carried the jacket when he entered the car.
The Attorney General argues a “logical inference, since it was raining that day, is that [defendant] carried the drugs in his jacket from a third location to the car, and then rode with the driver to the location where they were to meet their purchasers.” ~(rb13)~ We are not persuaded. “[T]o constitute an inference, the conclusion must to some degree reasonably and logically follow from the preliminary facts. If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity of an inference.” (People v. Massie (2006) 142 Cal.App.4th 365, 374.) Thus, “‘“[a] finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.”’” (People v. Raley (1992) 2 Cal.4th 870, 891 (Raley).) The evidence permits the inference the jacket belonged to defendant because he was wearing it when arrested, and his large frame dwarfed that of the Acura’s driver. But no evidence supports the Attorney General’s further supposition defendant carried the drugs with him when he entered the car and then rode with the driver to the location where they encountered Moroyoqui.
Kilborn rejected a nearly identical argument to the one now urged by the Attorney General. There, the defendant reported to sheriff’s deputies he had been robbed of more than $7,000 by two men with whom he had agreed to buy a large quantity of marijuana. Deputies searched the defendant’s unlocked hotel room and found LSD in his suitcase. The appellate court in Kilborn found the evidence legally insufficient to support the prosecution’s argument the defendant had transported the LSD from one location to another. As Kilborn explained, “The vice of the argument the pills found in appellant’s possession must have been transported there in some manner, ergo, appellant transported them, is it substitutes speculation and conjecture for competent proof. Carried to its logical conclusion, the argument would permit conviction for transporting in any case where possession is proved. We do not believe this to be the purpose or intent of the statute forbidding transporting drugs.” (Kilborn, supra, 7 Cal.App.3d at p. 1003.)
Following the reasoning of Kilborn, there is simply no way to know whether defendant carried contraband into the car or traveled with the driver to the scene of his arrest. Concluding defendant transported drugs because officers found the contraband in his jacket would substitute speculation for competent proof. Substantial evidence must be “‘credible and of solid value’” and must reasonably inspire confidence. (Raley, supra, 2 Cal.4th at p. 891.) We conclude the evidence of transportation falls short of this standard and therefore is legally insufficient to support defendant’s conviction.
B. Denial of Defendant’s Midtrial Motion to Continue
After the prosecution rested, defense counsel informed the court she had received defendant’s jail property receipt showing that the jacket containing the contraband had not been booked into evidence. Consequently, counsel requested a one week delay in the trial so she could subpoena the booking officer and learn “whether or not a jacket was booked into evidence.” The court denied the motion, explaining defendant had the opportunity before trial “to track that down and subpoena necessary witnesses in order to establish what relevance, if any, [the jacket] may have in the case.” The court also questioned the relevancy of the inquiry and expressed concern a delay might jeopardize the availability of the jurors and lead to a mistrial.
Defendant contends the trial court abused its discretion in denying the continuance motion, arguing defense counsel reasonably relied on the prosecutor’s witness list, which included the booking officer, and would not have known the prosecutor did not intend to have the officer testify. We disagree.
The standard of review on a midtrial motion to continue is whether the trial court abused its discretion. (People v. Wilson (2005) 36 Cal.4th 309, 352.) “To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. [Citation.]” (People v. Howard (1992) 1 Cal.4th 1132, 1171; Pen. Code, § 1050.)
Trial counsel should have anticipated Moroyoqui’s trial testimony concerning the jacket and the booking officer’s search. Moroyoqui testified at the preliminary hearing Arias told him defendant carried narcotics in his jacket liner, and Moroyoqui testified he watched as the booking officer searched defendant’s jacket and found contraband “in the front of the jacket inside the liner.” Nevertheless, the defense did not subpoena the booking officer for trial. Consequently, defendant failed to establish he exercised due diligence to secure the booking officer’s attendance. He also has not explained what material facts the booking officer would have supplied. Finally, defense counsel did not establish she could present the testimony within a reasonable time. Defendant argues the trial court should have asked the jurors if they could continue to serve as jurors after a one week delay in the trial. But according to the court, based on comments by the jurors, a five-day continuance likely would result in a mistrial. The court therefore acted within its discretion in denying defendant’s request for a continuance.
C. Instructional Error
1. CALCRIM No. 2302
On the possession for sale count, the trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 2302, as follows: “The defendant is charged in Count One with possession for sale of methamphetamine, a controlled substance. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed a controlled substance; [¶] 2. The defendant knew of its presence; [¶] 3. The defendant knew of the substance’s nature or character as a controlled substance; [¶] 4. When the defendant possessed the controlled substance, he intended to sell it; 5. The controlled substance was methamphetamine; and [¶] 6. The controlled substance was in a usable amount. [¶] ‘Selling’ for the purpose of this instruction means exchanging methamphetamine for money, services, or anything of value. [¶] A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user. [¶] Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.” (Italics added.)
Defendant complains the trial court erred when it omitted from the italicized portion the requirement defendant “knowingly” exercise control over the contraband or the right to control it. Defendant correctly asserts mere proximity to the contraband, presence on the property where it is located, or association with the person who controls the contraband is insufficient to support conviction for possession; the prosecution must prove defendant knowingly exercised control or the right to control the contraband. (United States v. Jose Luis L. (9th Cir. 1992) 978 F.2d 543, 545; In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) But here the trial court instructed the jury it could not convict unless it determined whether defendant knew the drugs were present, and possessed them with intent to sell. A person who knows the contraband is present, and has the control over or the right to control the contraband acts with the requisite knowledge. Consequently, the trial court did not err in giving CALCRIM No. 2302.
Defendant raises the same complaint concerning the instruction on transportation. We need not address this issue since we have concluded insufficient evidence supports defendant’s transportation conviction.
In any event, the prosecutor did not rely on a theory of constructive possession, expressly arguing defendant was in actual possession of the methamphetamine. Defendant does not challenge the instructions on actual possession, and ample evidence supports this theory of guilt.
2. CALCRIM Nos. 300 and 355
Defendant contends the trial court committed reversible error by instructing the jury with CALCRIM Nos. 300 and 355 “because these instructions improperly suggested [defendant] had a[n] obligation to testify, present relevant evidence, and argue that the prosecution had failed to prove its case, and as a result the jury was erroneously allowed to consider the fact that [defendant] had not testified or presented any evidence whatsoever.” Defendant’s arguments are without merit.
CALCRIM No. 300 provides that “[n]either side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” CALCRIM No. 355 provides “[a] defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”
The recent decision in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson) is dispositive. There, the appellate court rejected the identical argument defendant now raises, finding it improbable the jury would misconstrue CALCRIM No. 300 as requiring a defendant to produce some evidence. Anderson explained that instructions on the burden of proof and presumption of innocence negated any concern the jury misunderstood the instruction. (Id. at p. 938.) We also agree there is no reasonable likelihood the jury misapplied the instruction.
Defendant contends CALCRIM No. 355 implies defendant has a burden to “argue” the prosecution has not proved its case, complaining he has no burden to prove he is not guilty. As Anderson points out, “A ‘requirement,’ even if there was one, that defendant argue he is not guilty has nothing to do with the production of evidence. A defendant can argue the People have not proven their case without testifying or presenting any evidence.” (Id. at p. 941.) Anderson also correctly observes “the instruction does not imply a defendant must argue he is not guilty. It says the defendant may rely on the evidence and may argue the People have not proven their case. The defendant is under no obligation to argue anything, and the instruction does not imply otherwise.” (Ibid.) The trial court did not err in giving CALCRIM Nos. 300 and 355.
III
Disposition
We affirm defendant’s conviction for possession of methamphetamine for sale, but reverse the transportation count and remand for further proceedings consistent with the views expressed in this opinion.
WE CONCUR: SILLS, P. J., MOORE, J.