Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF114164A Richard J. Oberholzer, Judge.
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted James Patrick Breedlove of offering to sell methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of methamphetamine for the purposes of sale (§ 11378). He argues the convictions were not supported by substantial evidence, and the trial court violated his right to a jury trial by imposing an aggravated term. (Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).)
All further statutory references are to the Health and Safety Code unless otherwise noted.
We conclude the conviction for offering to sell methamphetamine was supported by substantial evidence, but the conviction for possession of methamphetamine for sale was not. Therefore, we will reverse the section 11378 conviction and remand for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
The information charged Breedlove with offering to sell methamphetamine (§ 11379, subd. (a)) and possession of methamphetamine for the purposes of sale (§ 11378). The following testimony was offered to support the charges.
Christina Abshire is a police officer with the Bakersfield Police Department. She is currently assigned to the California Multijurisdictional Methamphetamine Enforcement Team. Abshire often works in undercover operations trying to buy methamphetamine. She generally learns as much as she can about the suspected dealer, then calls and attempts to convince the dealer that they have met in the past or have mutual friends. The claimed mutual friendship paves the way for the purchase.
Using this technique, Abshire called Breedlove in an attempt to purchase some methamphetamine. During their conversation, she told Breedlove she “had about $400” and asked him “if he could do or arrange that.” Abshire was attempting to convey to Breedlove that she wanted to purchase $400 worth of methamphetamine, or half an ounce. Breedlove told her to come to his house. Abshire did not say she wanted to purchase methamphetamine in the conversation because that is not how a user would speak to a dealer because of the concern that someone may be listening to the conversation. When Breedlove said “come over,” Abshire interpreted that to mean that she should come to his house to buy the methamphetamine.
Abshire made a second phone call to Breedlove a short while later. She told him that her vehicle had broken down on the way to his house and she was stuck at a nearby fast food restaurant. Breedlove asked Abshire where had he previously met her, and she said they met about a year ago and she had dealt with him only on a couple occasions. At the end of the conversation, Breedlove stated he would pick up Abshire.
Abshire ordered a marked patrol unit to stop Breedlove when he left his residence. After Breedlove was stopped, Abshire again called the residence. She spoke to a female named Kimmie. Abshire asked if Breedlove was home; Kimmie stated he was not.
At this point, Breedlove objected to statements made by Kimmie as hearsay. After a hearing outside the presence of the jury, the trial court ruled the statements were hearsay and not admissible for the truth of the matter asserted but could be admitted to explain the steps taken by the officers.
When the jury returned, Abshire testified that she asked Kimmie where Breedlove had gone because he was supposed to bring her something. Kimmie responded that Breedlove was being held by the police at the moment. Abshire asked Kimmie if Breedlove was bringing “it” with him. Kimmie responded that Breedlove did not have “it” with him because he had not met the “guy” yet. Kimmie also said she was waiting on a phone call. The phone call was terminated at that point.
Abshire called back later and again spoke with Kimmie. When Abshire stated that Breedlove was supposed to bring her something, Kimmie again stated that Breedlove had not yet met with the “guy.” Kimmie also stated that the “guy” had arrived at the house and that Abshire could come by the residence to pick “it” up. The trial court instructed the jury three times that it could not consider the statements attributed to Kimmie for the truth of their contents but could consider them only to explain the police conduct. Each of the phone calls about which Abshire testified was recorded.
Because of these conversations, Abshire and other officers proceeded to the house and searched the residence and interviewed the occupants. Present at the house were Megan Gardner, Julio Chavez, Kimmie Holliday-Brown, Tanya Goode, and David Garcia. Under questioning, Gardner admitted that she had methamphetamine hidden in her underpants. The drugs were removed by the officers. The parties stipulated the item seized from Gardner’s underpants was 30.9 grams of methamphetamine, a usable amount.
On cross-examination, Breedlove established that during his conversation with Abshire he stated he did not know where Abshire was “coming from.”
Officer Jay Wells testified that he participated in the traffic stop of Breedlove after Breedlove left his residence. A search of Breedlove’s vehicle and person did not locate any contraband.
Deputy Sheriff Robert Stevenson testified that at the time of this incident, one-half ounce of methamphetamine would sell for $400 to $600. He also opined that if a person possessed 30.9 grams of methamphetamine, that person would be holding the methamphetamine for the purposes of sale. He also participated in the stop of Breedlove’s vehicle and the search of Breedlove’s residence.
Kern County Probation Officer David Driskill, Jr., was assigned to conduct surveillance of Breedlove’s residence on the day of the operation. He observed Breedlove leave the residence after receiving a message from Abshire advising that Breedlove would do so. Driskill followed Breedlove until Breedlove was stopped by officers in a marked patrol unit. Driskill then returned to the residence and observed a silver pickup truck had arrived at the residence during his absence.
Kimmie Holliday-Brown was called to testify outside the presence of the jury. She refused to testify, despite the prosecution’s grant of immunity for any testimony related to the charges against Breedlove.
The People rested after playing the tape recordings of the conversations between Abshire and Breedlove. The trial court denied the People’s request to play the tape recordings of the conversations between Abshire and Kimmie. The defense did not present any new evidence.
In closing argument, the prosecutor asked the jury to infer from Gardner’s presence at Breedlove’s house that Breedlove either constructively possessed the methamphetamine in Gardner’s underwear or that he was aiding and abetting Gardner in the sale of methamphetamine.
The jury found Breedlove guilty as charged.
At the sentencing hearing, the prosecutor noted that Breedlove did not have any prior felony convictions and stated that he thought the midterm was the appropriate disposition. The trial court found that Breedlove’s poor performance on misdemeanor probation in the past and the quantity of methamphetamine involved were aggravating circumstances that justified an upper term sentence of four years for offering to sell methamphetamine (§ 11379, subd. (a)) (count 1). The upper term sentence for possession of methamphetamine for the purposes of sale (§ 11378) was stayed pursuant to Penal Code section 654.
DISCUSSION
I. Kimmie’s Hearsay Statements
During her testimony, Abshire relayed the content of her phone conversations with Breedlove and Kimmie. Breedlove objected to Abshire’s testimony concerning what Kimmie stated in the phone conversations. Kimmie, presumably Kimmie Holliday-Brown, refused to testify at trial.
Abshire testified that she spoke with Kimmie two times. During the first conversation, Kimmie informed Abshire that Breedlove, who had left the house to pick up Abshire, did not have “it” with him because Breedlove had not yet met with the “guy.” Kimmie also stated that she was waiting to receive a phone call. In the second phone call, Kimmie repeated that Breedlove had not yet met with the “guy,” but the “guy” had arrived at the house, so Abshire could come by to pick “it” up.
As the trial court recognized, Abshire’s testimony about what Kimmie stated in the phone conversations was inadmissible hearsay. The trial court agreed to admit the contents of the conversations, however, to explain the steps taken by the officers. The trial court instructed the jury on three occasions that it could not consider the statements attributed to Kimmie for their truth, but only for the purpose of explaining Abshire’s “state of mind.” This ruling was incorrect.
In attempting to work around the inadmissible nature of the statements attributed to Kimmie, the trial court ignored the most fundamental evidentiary rule: only relevant evidence is admissible. (Evid. Code, § 351.) Relevant evidence is evidence that has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.)
Kimmie’s statements would have been relevant if they could have been considered for the truth of what was stated. The statements tied Breedlove to the methamphetamine that eventually was found on Gardner when she was searched at Breedlove’s house. The search of the house and the results of that search also were relevant because the prosecution theorized that Breedlove possessed the methamphetamine discovered in Gardner’s possession.
However, the reason Abshire decided to search Breedlove’s house was not relevant to any disputed fact in the trial. Simply stated, it was immaterial why the house was searched. The relevant facts were the search and its results. Abshire should not have been allowed to testify to the statements attributed to Kimmie.
II. Substantial Evidence of Possession for Sale
We began our discussion with the erroneous admission of the statements attributed to Kimmie because these statements were the only evidence that connected Breedlove to the methamphetamine possessed by Gardner when she was searched at Breedlove’s house. Without these statements, there was no connection between Breedlove and Gardner.
In the absence of the statements attributed to Kimmie, the evidence can be summarized as follows. Abshire contacted Breedlove and, talking in code, attempted to arrange the purchase of one-half ounce of methamphetamine. Breedlove told her to come by his house, apparently an acknowledgement of Abshire’s purchase request and an agreement to sell her the methamphetamine requested. A short while later Abshire called Breedlove and told him that her car had broken down by a fast food restaurant and convinced Breedlove to come pick her up. Breedlove left the house and was stopped by officers a short while later. The officers did not find any methamphetamine on Breedlove when they searched his person and automobile.
Officers searched Breedlove’s residence a short while later. A vehicle had arrived at the home before the search, but after Breedlove’s departure. Officers found five individuals at the house, including Kimmie and Gardner. The police found 30.9 grams of methamphetamine on Gardner when they searched her.
Breedlove argues this evidence was insufficient to establish that he constructively possessed the methamphetamine found on Gardner. We agree.
Our review of the sufficiency of the evidence is deferential. We “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, 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.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witness’s credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
“The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonable justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.]’ [Citation.] ‘“Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.”’ [Citations.]” (People v. Stanley (1995)10 Cal.4th 764, 792-793.) Here, the circumstances cited above can not reasonably justify the jury’s findings.
A thorough discussion of constructive possession of narcotics is found in Armstrong v. Superior Court (1990) 217 Cal.App.3d 535 (Armstrong). Armstrong petitioned the appellate court after the trial court denied his motion to dismiss a charge of possessing a controlled substance for sale, in violation of section 11378. There was no dispute about the facts supporting the charge. Armstrong had negotiated with an undercover officer to purchase a large quantity of methamphetamine. The two met at a prearranged time and place. Armstrong tendered payment and the undercover officer pulled the methamphetamine out of his vehicle. Armstrong was arrested, however, before the officer actually handed the methamphetamine to him. Armstrong moved to dismiss the charge, arguing that he never had actual or constructive possession of the methamphetamine.
“Any discussion of the concept of ‘possession’ must be premised by the acknowledgment that it is surely among the vaguest of all vague terms with which those who draft legal principles must work. [Citation.] We focus here on but one aspect of this concept, constructive possession.
“The rule defining constructive possession is easily stated. Constructive possession exists when a defendant ‘maintains control or a right to control the contraband.’ [Citation.] Less clear are the concepts of ‘control’ and ‘right to control.’
“Early cases have held an accused may be deemed to have the same possession as any person actually possessing the narcotic where the accused ‘retains the right to exercise dominion and control over the property.’ [Citations.] Other cases have held that where the contraband is in the actual possession of a third party, the accused may be held to be in constructive possession where the accused has an ‘immediate right to exercise dominion and control over the narcotics.’ [Citations.] More recently, the California Supreme Court, citing its decisions in both People v. Showers [(1968) 68 Cal.2d 639] and People v. Francis [(1969) 71 Cal.2d 66], has held constructive possession may be shown by establishing the accused ‘maintained some control or right to control over contraband in the physical possession of another.’ [Citations.]
“For purposes of drug transactions, the terms ‘control’ and ‘right to control’ are aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance. Implementation of this policy necessarily encompasses a potentially wide variety of conduct in a wide variety of settings, all directed by such factors as the alleged offender’s capacity to direct the illicit goods, the manifestation of circumstances wherein it is reasonable to infer such capacity exists and the degree of direction being exercised by the accused over the contraband. [Citations.]
“Because the totality of circumstances will determine whether a defendant has exercised the requisite control over contraband in the hands of another, we conclude the nature of the sale here (i.e., the controlled setting whereby police agents expressed their intention not to let defendant leave the premises with the goods) is not determinative of whether he has exercised control. Even within a controlled setting or its equivalent, a defendant might so directly verbalize disposition or movement of the drug as to warrant the inference he possesses it. [Citation.]
“Likewise we reject the position that a verbal agreement or contract to purchase drugs will, alone, establish constructive possession. We have found no authority which has established constructive possession based upon a bare agreement to purchase illegal contraband. We thus conclude that in the prosecution of an individual for the offense of possession of narcotics for purposes of sale, the nature and terms of such purchase agreements are more appropriately factors in determining whether the defendant has exercised the requisite control over the illegal goods.” (Armstrong, supra, 217 Cal.App.3d at pp. 538-540.)
The appellate court held that Armstrong did not exercise the necessary control over the contraband to constitute constructive possession of the methamphetamine. (Armstrong, supra, 217 Cal.App.3d at p. 540.) “He did not direct the contraband be moved within a room. Nor did he take any other action which exhibits control over the drugs. A defendant agreeing to meet the police, paying for and standing ready to receive the goods, without more, does not constitute the requisite control necessary to establish constructive possession.” (Ibid.)
The “totality of the circumstances” in this case presents a much weaker case for constructive possession than in Armstrong. Breedlove’s only connection to the methamphetamine found on Gardner was that she was located in a residence that Breedlove was seen leaving before Gardner was arrested. There was no indication that Gardner or Breedlove lived at the residence. Even if Breedlove had lived at the residence, there was no evidence to establish how long Gardner had been at the residence or whether she had ever met Breedlove. For all we know, Gardner may have been at the residence visiting someone else and did not know Breedlove even existed. There are no facts to suggest that Breedlove exercised “such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance.” (Armstrong, supra, 217 Cal.App.3d at p. 539.)
The People assert that the jury could have inferred, because Breedlove apparently had agreed to sell methamphetamine to Abshire and Gardner was found at his house, that Breedlove had constructive possession of the methamphetamine found on Gardner. “A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] … A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.’ [Citations.]” (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.) The inference asserted by the People required speculation and guesswork. Because the inference was not supported by any evidence, the jury should have rejected it, and we must reject it.
The complete lack of evidence that Breedlove exercised any control over Gardner or the methamphetamine found on her person precludes a conviction for possession of methamphetamine for the purposes of sale, in violation of section 11378. The conviction on this count must be reversed.
Breedlove also argues that the trial court erred because it instructed the jury with aiding and abetting instructions. Our reversal of the possession for sale conviction renders the issue moot because the remaining conviction was not based on a theory that Breedlove aided and abetted anyone in the offer to sell methamphetamine.
III. Substantial Evidence of Offer to Sell Methamphetamine
Breedlove also argues his conviction for violation of section 11379, subdivision (a), offering to sell methamphetamine, also must be reversed because the evidence was insufficient to support the conviction. We have stated the applicable standard of review above. We conclude the evidence was sufficient to support the conviction.
Abshire testified that she called Breedlove with the intent to purchase methamphetamine. She explained that she did not specifically state during the conversation that she wanted to buy “methamphetamine” because that is how the consumers of illegal drugs would approach the transaction. She also testified that Breedlove told her to come to his house, apparently signifying an agreement to sell the methamphetamine to Abshire. When Abshire told Breedlove that her vehicle had stopped working a short way from Breedlove’s residence, Breedlove agreed to pick her up, apparently confirming his intent to sell methamphetamine to Abshire. The actual phone conversations were tape recorded, and the tapes were admitted into evidence.
Unlike the inferences related to Breedlove’s constructive possession of the methamphetamine found on Gardner, the inferences that could have been drawn from the recorded conversations were reasonable and supported by the evidence. The jury reasonably could have inferred that when Abshire offered $400 for “it,” Breedlove understood that she hoped to purchase methamphetamine. Abshire testified consistent with this inference. The jury also could have inferred that when Breedlove invited over a person that he could not remember ever meeting, the reason he was doing so was to sell Abshire the methamphetamine referred to in the conversation. The jury also could have inferred that when Breedlove agreed to pick up this stranger and bring her to his house, he did so because he wanted to complete the proposed transaction. These inferences were all amply supported by Abshire’s testimony. Accordingly, we reject Breedlove’s argument that the conviction for offering to sell methamphetamine was not supported by substantial evidence.
IV. Sentencing
The trial court sentenced Breedlove to an aggravated term. The trial court found two circumstances in aggravation -- the large quantity of methamphetamine involved in the transaction and Breedlove’s poor performance on misdemeanor probation in the past. Neither fact was found to be true by the jury. Breedlove contends that under the circumstances, his Sixth Amendment right to a jury trial, as interpreted in Apprendi and its progeny, was violated when the trial court imposed the aggravated term.
The most recent and relevant United States Supreme Court case in the Apprendi line is Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], which held that California’s determinate sentencing law, to the extent that it permitted imposition of an aggravated sentence based on facts that were not found true by the jury, violated a defendant’s Sixth Amendment right to a jury trial. (Id. at p. ___ [127 S.Ct. at p. 860.) The exceptions to this rule are the fact of a prior conviction or facts admitted by a defendant. (Id. at p. ___ [127 S.Ct. at p. 864.)
In response to Cunningham, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). These two cases provide the current framework for analyzing sentencing issues.
As pertinent to this case, Black held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black, supra, 41 Cal.4th at p. 813.) In reaching this conclusion, the Supreme Court rejected the defendant’s contention that all aggravating circumstances must be found true by a jury because the presence of a single aggravating circumstance renders it lawful for the trial court to impose an aggravated term. (Id. at pp. 814-815.)
In Sandoval, the Supreme Court first recognized the two exceptions permitted by United States Supreme Court to the general rule that aggravating factors must be found true by the jury using the beyond-a-reasonable-doubt standard. The first exception is for a prior conviction. The second exception is for facts admitted by the defendant. (Sandoval, supra, 41 Cal.4th at pp. 836-837.) The trial court, however, had imposed an aggravated sentence based on facts it found to be true, but that did not fall within these two exceptions. (Id. at p. 837.) The issue, therefore, was whether the error required reversal of the judgment.
The Supreme Court first stated that such errors are “reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18.” (Sandoval, supra, 41 Cal.4th at p. 838.) According to the Supreme Court, the issue under this standard is “whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid.) Since, as explained in Black, a single aggravating factor found in accordance with the principles set forth in Apprendi, supra, 530 U.S. 466 and its progeny made a defendant eligible for an aggravated term, any error under Cunningham would be harmless if the reviewing court concluded beyond a reasonable doubt the jury would have found at least one aggravating factor was true. (Sandoval, at pp. 838-840.)
The trial court here imposed an aggravated sentence relying on Breedlove’s poor performance on misdemeanor probation and the large quantity of contraband involved in the case. Neither factor was found true by the jury.
Whether performance on probation is a factor that need not be found by the jury is an issue currently pending before the California Supreme Court. (People v. Towne, review granted July 14, 2004, S125677.) Moreover, we were unable to locate any case that holds that prior misdemeanor convictions, by themselves, would make a defendant eligible for an aggravated sentence.
We need not resolve these issues, however, because our reversal of the conviction for possession of methamphetamine for sale removes one of the two factors relied on by the trial court in imposing an aggravated sentence; the “large quantity of contraband” is no longer applicable to Breedlove. We cannot say the remaining factor would justify imposition of an aggravated term. Therefore, we will remand the matter to the trial court for resentencing.
DISPOSITION
The conviction for possession of methamphetamine for the purposes of sale (§ 11378) is reversed. The conviction for offering to sell methamphetamine (§ 11379, subd. (a)) is affirmed. The sentence is vacated and the matter is remanded to the trial court for resentencing.
WE CONCUR: HILL, J., KANE, J.