Opinion
F049588
12-14-2006
THE PEOPLE, Plaintiff and Respondent v. WILLIAM HAROLD BLANKENSHIP, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Following a jury trial, appellant and defendant, William Harold Blankenship, was convicted of unlawful possession of heroin (Health & Saf. Code, § 11350), a felony, and of using or being under the influence of heroin (§ 11550) and possession of drug paraphernalia (§ 11364), both misdemeanors. Defendant waived his right to trial by jury on allegations that he had suffered three prior felony convictions for serious or violent offenses within the meaning of the Three Strikes law (Pen. Code, §§ 667, subd. (b)-(i), 1170.12). The trial court found the three prior conviction allegations true. He was sentenced to a term of 25 years to life with concurrent six-month jail terms for the misdemeanor convictions. Defendant appeals contending the jurys verdict is not supported by sufficient evidence and the trial court abused its discretion in denying his motion to dismiss two of the prior strike convictions. We conclude that his contentions lack merit and affirm the judgment.
FACTS
On August 5, at approximately 8:00 p.m., a pizza delivery person delivered a pizza to an address on North Baker Street. When the door to the apartment was opened, she observed a man "shooting up dope" and also saw an unattended two to three-year-old child. She could also see a can and an orange syringe cap sitting on the coffee table. She recognized this as drug paraphernalia because she had been a drug addict herself for 16 years. Another man came from a back room, picked up the child, told the child she was not supposed to be in the front room and took her to the back room. The delivery person left the apartment and contacted the police.
When officers arrived, defendant was standing in front of the lower floor apartment. A deputy knocked on the door at the lower floor apartment and it was answered by Lisa Moreno. She indicated she lived there with defendant and her three-year-old daughter. She was asked whether any narcotics were inside the residence and she pointed to a blue backpack hanging on the back of the bedroom door which she stated had heroin inside. She indicated the heroin was in a coin purse in the backpack with a glass pipe. Heroin was found in the coin purse which was in the smaller front pocket of the backpack and was wrapped in a small piece of white plastic. Also in the backpack were personal items including a brush and Ms. Morenos personal identification. She told the deputy that she and defendant shared the bedroom where the backpack was located. She claimed the glass pipe belonged to her. She stated she used methamphetamine and marijuana but did not use heroin.
An officer interviewed defendant outside and he acknowledged that he lived at the Baker Street address but he denied the heroin was his; however, he asked the deputy if the heroin was wrapped in a piece of plastic.
Defendant and Ms. Moreno were transported to jail. Defendant had extensive tattooing on his chest and arms. The deputy did not see any injection sites although he believed marks would be difficult to observe due to the tattoos. Ms. Moreno provided a urine sample which was analyzed for evidence of narcotics. The analyst concluded that she had traces of PCP, amphetamines and marijuana. There was no indication of heroin use.
Another deputy observed defendants eyes to be extremely open so that his entire iris was visible. His pupils were constricted. His arm felt flaccid and his face looked "droopy." His pulse was rapid and his speech was fast, consistent with being under the influence of stimulants.
Defendant refused to provide a urine sample for a narcotics test stating he would "test dirty." He told officers that the syringes in the dresser had been brought by a friend. He did state that he was a heroin user but that he had last used "a long time ago" and was not sure how much he had last used. An officer who had extensive experience in evaluating persons under the influence of narcotics testified that defendant exhibited symptoms of a person under the influence of heroin.
Lisa Moreno continued to have contact with defendant during the proceedings. She testified for the defense. She and defendant had lived together for four months in the downstairs apartment and were in a romantic relationship. She denied seeing any syringes in the house although she admitted that she had been a drug addict for 20 years who used methamphetamine but did not use heroin. She testified she had never seen defendant use any narcotics. They had only "smoked pot together." She testified the backpack was hers and that she, not defendant, had placed the heroin in the coin purse.
The investigating officer found a container holding a small amount of marijuana and three syringes on a dresser in the front room of the residence. Of the three syringes found in Ms. Morenos apartment, two appeared to have been used and to have a brown residue.
DISCUSSION
Defendant contends on appeal that the evidence was insufficient to sustain the felony conviction of unlawful possession of heroin. In considering this issue of sufficiency of evidence on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains evidence which is credible and of solid value from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Here defendant contends there was insufficient evidence to support the necessary finding that he actually or constructively possessed the subject heroin. Possession may be either actual or constructive. Constructive possession is established by showing the accused maintained some control or right to control over contraband. (People v. Rogers (1971) 5 Cal.3d 129, 133-134.) Possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) Possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control or to the joint dominion and control of the accused and another. (People v. Williams (1971) 5 Cal.3d 211, 215.) Exclusive possession is not required. Joint possession with another may suffice. (People v. Saldana (1984) 157 Cal.App.3d 443, 460.) When determining whether defendant had constructive possession, the court must look at the totality of the circumstances. (Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 538-539.)
The evidence and all reasonable inferences entitled to be drawn from the evidence support the jurys finding that defendant possessed heroin. That evidence included the following: Lisa Morenos coin purse, which concealed the heroin inside her backpack, was in a bedroom occupied jointly by Ms. Moreno and defendant. Defendant appeared to be under the influence of heroin at the time of his arrest. Ms. Moreno had no heroin in her system. Defendant was in possession of syringes. Defendant asked whether the heroin was packaged in plastic which was how the heroin was actually packaged. Defendant admitted to being a user of heroin. Under the totality of the circumstances the evidence was sufficient to sustain the felony conviction of possession of heroin.
Defendant next contends that the trial court abused its discretion when it denied the motion to dismiss two of the three strike offenses.
A trial court has discretion to strike a prior conviction within certain limitations. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531; People v. Williams (1998) 17 Cal.4th 148, 161.) Defendant has the burden to establish the trial court abused its discretion. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.)
Here the trial court found true allegations that defendant had suffered serious or violent felonies for burglary in 1983, assault with a firearm in 1985, and a conviction for involuntary manslaughter with personal use of a deadly weapon in 1998. In addition, defendant had juvenile adjudications from the late 1970s and early 1980s. Following his conviction in 1998 for involuntary manslaughter with personal use of a deadly weapon, he suffered misdemeanor convictions for being under the influence of a controlled substance, possession of paraphernalia, misdemeanor resisting an officer, misdemeanor under the influence in public and driving without a license. After being taken into custody in this case, defendant committed an assault on another inmate and was ordered to serve a three-year prison term for that offense.
Defendant contends the trial court was required to consider the nature and circumstances of the present felony, the prior convictions and the particulars of his background and character. (People v. Williams (1998) 17 Cal.4th 148, 161.) Defendant asserts that the trial court focused solely on defendants criminal record and neglected to consider "the very minor nature of the current offense." However, the court stated on the record at the time of sentencing that it was aware of its authority and the discretion that it had to strike the prior convictions but declined to do so noting that under the circumstances before the court, there was a continuing pattern of committing offenses of sufficient gravity that it was appropriate to leave those strike offenses in place. A reviewing court must presume the trial court considered all of the relevant factors in the absence of an affirming record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Moreover, case law affirms the discretion of a trial court to refuse to dismiss a strike offense of those defendants with a long and continuous criminal career. (People v. Strong (2001) 87 Cal.App.4th 328, 338.)
The courts denial of defendants motion to strike two of his prior felony convictions was not an abuse of discretion.
DISPOSITION
The judgment is affirmed. --------------- Notes: Before Levy, Acting P.J., Hill, J., and Kane, J.