Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CRF044324, CRF057653
CANTIL-SAKAUYE, J.
In separate cases, defendant pled no contest to felony failure to appear and sale of methamphetamine in exchange for which his prison sentences were suspended and he was granted probation. (Pen. Code, § 1320, subd. (b); Health & Saf. Code, § 1379, subd. (a).) After he violated probation, the trial court lifted the suspension of sentence and defendant was sent to prison for a total of four years eight months. Defendant timely filed this appeal.
Defendant contends the evidence does not support the finding that he violated probation. We affirm.
BACKGROUND
In case No. CRF044324, defendant was charged with failing to appear while released on his own recognizance in a felony matter. (Pen. Code, § 1320, subd. (b).) He pled no contest to this charge, in exchange for a promise of no state prison at the outset, and he was placed on probation in September 2004.
In case No. CRF057653, defendant was charged with sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and other narcotics offenses allegedly committed in December 2005. The People also petitioned to revoke defendant’s probation based on these alleged new crimes.
At the preliminary hearing in CRF057653, the People declined to reveal the name of a confidential informant. Defendant was held to answer. The amended information charged four felonies, sale of methamphetamine, maintaining a place to use or sell narcotics, conspiracy, and possession of valium, as well as a misdemeanor, possession of drug paraphernalia. It also alleged defendant had a 1997 conviction for assault with a deadly weapon, and had served a prior prison term.
Defendant moved to disclose the informant’s identity. To avoid disclosing that information, the People offered defendant a favorable bargain. Defendant agreed to plead no contest to sale of methamphetamine and admit violating probation. All other charges would be dismissed, he would be sentenced to prison for a total of four years eight months on both cases, with the sentence suspended so that he could be continued on probation.
The factual basis for the plea was provided by the preliminary hearing transcript, which included testimony by a narcotics officer that he monitored an informant who bought methamphetamine from defendant in December 2005. Thereafter, in December 2005, officers searched defendant’s trailer pursuant to a warrant, and found methamphetamine in bindles, drug packaging material and a digital scale. Later, defendant was read his rights and he told an officer that he gave methamphetamine away and uses it, but denied he was a dealer.
Although the probation report strongly recommended that defendant should be sent to prison, the trial court implemented the plea bargain and granted defendant probation in both cases in April 2006.
In August 2007, the People filed a new petition to revoke defendant’s probation in both cases, alleging defendant had committed new “criminal conduct” as alleged in a third case, case No. CRF074775. In lieu of seeking a conviction on the new case, the People elected to proceed on the petition to revoke probation.
At the hearing, West Sacramento Police Officer Anthony Herrera testified that in August 2007, he received a complaint about defendant’s apartment from the manager of a neighboring apartment complex. Herrera knew defendant was on searchable probation. He knocked on defendant’s door and Patrick White opened the door, said “‘Oh, shit’” and tried to close the door. Herrera stuck his foot in the door, drew his gun and yelled for defendant to come out, because defendant had “disappeared” from sight “and I was in fear... because there were two people who already notified themselves as parolees.” The third man present was Edward Richardson.
On a coffee table, Herrera found two “bags” of a substance, as well as “some loose crystals” all totaling.4 grams. He described this as a “White crystal-like substance. It was later tested as methamphetamine.” He had some training in drug identification and testing, and although he was not treated as an expert, he was allowed to testify that the substance was consistent with methamphetamine. He used a “DOJ screen test kit” which he was trained to use, and the substance tested positive for methamphetamine.
After Herrera read defendant his rights, “he stated that sometimes he lets his buddies come over and do meth, and he does his also.” The trial court sought clarification: “I just want to make sure I understand your testimony, if I heard it correctly: That he [lets] people come and kick it at his apartment and smoke their dope in his apartment but he smokes his there too? [¶] [Officer Herrera]: Yes. [¶] THE COURT: ‘I do drugs, but I don’t sell them’, or something like that? [¶] [Officer Herrera]: Yes.”
The trial court found defendant violated probation by possessing drugs and maintaining a place for using drugs. The trial court denied further probation and lifted the suspension on the previously imposed prison sentence.
DISCUSSION
Defendant contends the evidence does not support the trial court’s finding that he possessed methamphetamine or maintained a place for the use of drugs. We disagree.
An obstacle to defendant’s claim is the low standard of proof applicable at probation revocation proceedings, a point not confronted by his briefing. In a probation revocation proceeding, the trial court applies a preponderance of the evidence standard, the same standard applied in ordinary civil actions. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-447.) Under that standard, the evidence need only show that “‘“the existence of a fact is more probable than its nonexistence[.]”’” (In re Angelia P. (1981) 28 Cal.3d 908, 918; see also, e.g., CACI No. 200 [“more likely to be true than not true”]; CALCRIM No. 852 [“more likely than not”].)
On appeal, we view the evidence and reasonable inferences in favor of the trial court’s ruling revoking probation. (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.)
The evidence supports the trial court’s finding that defendant possessed methamphetamine, at least constructively.
Defendant was found inside his own apartment with two parolees and.4 grams of a substance that appeared to the officer to be, and screen-tested “positive” for, methamphetamine. Defendant told the peace officer that he allowed his friends to use drugs there, and that he also used methamphetamine. Based on the officer’s opinion, the positive screen test, and defendant’s admission, the trial court could rationally find it more likely true than not true that the substance on the coffee table in defendant’s apartment was methamphetamine, and that defendant was in possession of it.
Defendant contends no substantial evidence shows the substance was methamphetamine, because no forensic chemist testified. But Officer Herrera was trained to perform the screening test, and he also testified the substance appeared to be methamphetamine. That made it more likely true than not true that the substance was methamphetamine.
Further, defendant admitted using methamphetamine, which corroborated that the substance was methamphetamine. Defendant contends his admission is meaningless, absent evidence he knew what methamphetamine was. But as the Attorney General points out, defendant was on probation in part because of his plea of no contest to selling methamphetamine. Although we agree with defendant that the trial court did not consider facts from the probation report cited by the Attorney General, the fact defendant was on probation for selling methamphetamine was judicially noticeable, and adds to the circumstantial evidence that he was familiar with methamphetamine.
Defendant relies heavily on In re Waylon M. (1982) 129 Cal.App.3d 950. In that case a minor was found with a substance in his pocket that an officer testified “‘resembled hashish’” and the minor said it was hashish that he had bought that day, “paying $100 for 10 grams. He told the officers he and his friends had already smoked one gram.” (Id. at p. 952.) The officer did not testify about his own knowledge of drugs. (Ibid.) The court found the evidence insufficient to sustain a true finding, stating “The identification of narcotics as such requires the opinion of an expert. [Citation.] Identification by the user is permitted only where there is evidence showing the user knows the nature of the drugs due to his past use and testimony as to the reactions he experiences while under the influence[.]” (Ibid.) This statement was supported by the decision in People v. McLean (1961) 56 Cal.2d 600, which held that a drug user who testifies about a substance must have a foundation similar to an expert’s, and found a minor’s testimony that she smoked what she thought were marijuana cigarettes on several occasions was insufficient. (Id. at pp. 662-663.)
But later cases emphasize that proof of the nature of a substance may be shown by circumstantial evidence. (People v. Palaschak (1995) 9 Cal.4th 1236, 1241-1242.) And there is no strict bar against evidence from users. (People v. Chrisman (1967) 256 Cal.App.2d 425, 433-434 [“Although the teetotaller would not be expected to distinguish between bourbon and scotch, once a person imbibes regularly, his opinion on that subject should be relevant, and, under the general rules, be weighed in the light of his experience”].) Here, the evidence shows it was more likely than not that the substance was methamphetamine.
Defendant contends there was no evidence he possessed a usable amount of methamphetamine. The root of his claim is People v. Leal (1966) 64 Cal.2d 504, which held that the crime of drug possession does not include possession of “useless traces or residue of such substance.” (Id. at p. 512; see People v. Rubacalba (1993) 6 Cal.4th 62, 64-66 [noting all but one case construing Leal limited its holding to “substances useless in form or quantity” and disapproving the other case].)
The evidence shows there were two “bags” and some “loose crystals” all of which amounted to.4 grams. This is more than a mere trace or residue left on paraphernalia. (See People v. Karmelich (1979) 92 Cal.App.3d 452, 456 [“The decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found; it does not extend to a case such as this, comparable to the cases distinguished in Leal, where the presence of heroin itself, not a mere blackened residue on a spoon, was discovered”]; People v. Camp (1980) 104 Cal.App.3d 244, 248-249 [cigarette with PCP weighed.4 grams]; People v. Morales (1968) 259 Cal.App.2d 290, 294-295 [.12 grams of heroin “neither a minute amount nor useless”].)
Defendant argues no substantial evidence shows he maintained a place for using drugs. Our conclusion that the trial court could find defendant possessed drugs is sufficient to uphold the judgment, but we will address defendant’s claim.
The relevant statute provides that “Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance” is guilty of a crime. (Health & Saf. Code, § 11366.) But, as defendant observes, “evidence of a single instance of drug use or sales at the house, without circumstances supporting a reasonable inference that the house was used for the prohibited purposes continuously or repetitively, does not suffice to sustain a conviction of the opening-or-maintaining offense.” (People v. Hawkins (2004) 124 Cal.App.4th 675, 682; see People v. Shoals (1992) 8 Cal.App.4th 475, 490-493.)
Defendant’s statement to the officer was that “sometimes he lets his buddies come over and do meth, and he does his also.” The statement as recast by the trial court was similar, “he [lets] people come and kick it at his apartment and smoke their dope in his apartment but he smokes his there too? [¶] [Officer Herrera]: Yes.” From this testimony the trial court could rationally find it was more likely than not that defendant allowed his friends to use drugs at his apartment more than once, that he does so “sometimes[.]”
Accordingly, the trial court properly revoked defendant’s probation, based on his commission of new criminal offenses.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J., BUTZ, J.