Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Gary A. Ingle, Judge. Super. Ct. No. SF13671A
Law Offices of Christopher Darden and Christopher A. Darden for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Gravell Dewayne Browden, Sr., appeals from a judgment of conviction of embezzlement, grand theft, receiving stolen property, petty theft with a prior, possession of marijuana for sale, possession of ammunition by a felon, and possession of a firearm by a felon. He argues a search warrant issue and two instructional issues. We affirm the judgment.
PROCEDURAL BACKGROUND
A jury found Browden guilty of one count each of embezzlement (Pen. Code, § 508), grand theft (§ 487, subd. (a)), receiving stolen property (§ 496, subd. (a)), petty theft with a prior (§ 666), possession of marijuana for sale (Health & Saf. Code, § 11359), possession of ammunition by a felon (§ 12316, subd. (b)(1)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). Additionally, the jury found true an allegation of a 1987 battery with infliction of serious bodily injury as a serious-felony prior (§§ 667, subd. (a)(1), 1192.7, subd. (c)) within the scope of the three strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)). After striking the serious-felony prior in the interest of justice, the trial court sentenced him to an aggregate five-year term – the three-year aggravated term on the embezzlement, the three-year aggravated term (stayed) on the grand theft, the three-year aggravated term (stayed) on the petty theft with a prior, a consecutive eight-month term (one-third the two-year middle term) on the possession of marijuana for sale, a consecutive eight-month term (one-third the two-year middle term) on the possession of ammunition by a felon, and a consecutive eight-month term (one-third the two-year middle term) on the possession of a firearm by a felon. The trial court dismissed the receiving-stolen-property count as an “alternative charge” to the embezzlement, grand theft, and petty theft with a prior counts.
Later statutory references are to the Penal Code except where otherwise noted.
ISSUES ON APPEAL
Browden argues (1) error in denying his motion to quash the search warrant, (2) insufficiency of the evidence of possession of ammunition and possession of a firearm, (3) and insufficiency of the evidence of possession of marijuana for sale.
DISCUSSION
1. Motion to Quash Search Warrant
Browden argues error in denying his motion to quash the search warrant. The Attorney General argues the contrary.
On January 5, 2007, a search warrant issued authorizing the search of Browden’s residence for portable digital audio players that a large retailer had reported embezzled or stolen from a distribution center. After the filing of the information, he filed a motion to quash the search warrant. At the hearing on the motion, he argued, inter alia, that the information in the declaration in support of a search warrant was stale and that there was an insufficient nexus between the distribution center and his residence. Rejecting both arguments, the trial court denied the motion.
“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” (People v. Kraft (2000) 23 Cal.4th 978, 1040 (Kraft), citing, inter alia, Illinois v. Gates (1983) 462 U.S. 213, 238-239 (Gates).) The police officer who submitted the declaration in support of a search warrant was a veteran of over 100 investigations into the theft, sales, and recovery of personal property. He chronicled an ongoing investigation by the retailer’s assets protection group involving video surveillance, inventory loss reports, and personal observations involving the loss of some $100,000 in portable digital audio players from January of 2006 through January 5, 2007. The retailer’s investigators documented the theft by Browden and four other employees of four cases of portable digital audio players from December 16, 2006 through December 20, 2006 – only 16 days before the date of the issuance of the search warrant. The retailer’s investigators observed Browden putting portable digital audio players into his jacket, pants pockets, and waistband and followed him to the address for which the search warrant issued, which was the same address as in the retailer’s employment records and on his driver’s license.
“The magistrate’s determination of probable cause is entitled to deferential review.” (Kraft, supra, at p. 1041, citing Gates, supra, at p. 236.) Our analysis of the record by the applicable standard of review shows that probable cause supported the magistrate’s issuance of the warrant.
2. Sufficiency of the Evidence: Possession of Ammunition and Firearm
Browden argues insufficiency of the evidence of possession of ammunition and possession of a firearm. The Attorney General argues the contrary.
Browden argues that the record shows ownership by other people of some of the ammunition and firearms at the residence as well as documents linking other people to occupancy of the residence. He argues, too, that the record fails to show any keys in his possession to the residence or to locked storage areas in or around the residence.
On a claim of insufficient evidence, “we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129 (Guerra), limited on another ground by People v. Rundle (2008) 43 Cal.4th 76, 151.) “Unless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict’ the conviction will not be reversed. ” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162 (Quintero).) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745 (Meza).)
The record shows Browden told the arresting officer he lived at the residence that was the target of the search warrant. Inside the kitchen was a utility bill in his name and a failure-to-appear jury summons in his name. In the living room was a portable digital audio player bearing a serial number among those on the retailer’s inventory loss sheet. Inside a locked storage unit behind the residence were two safes, inside which were ammunition and firearms, as well as motor vehicle registration documents and envelopes bearing his name. Inside the garage were another firearm and a box of ammunition.
The evidence shows a reasonable trier of fact could find Browden guilty beyond a reasonable doubt of both possession of ammunition by a felon and possession of a firearm by a felon. Just as exclusive possession is not an element of either crime, so the jury is entitled to draw reasonable inferences from circumstantial evidence contrary to the ones he argues. (See, e.g., People v. Llamas (1997) 51 Cal.App.4th 1729, 1743; People v. Neese (1969) 272 Cal.App.2d 235, 245-247.) His insufficiency of the evidence argument simply asks us to reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333 (Bolin).)
3. Sufficiency of the Evidence: Possession of Marijuana for Sale
Browden argues insufficiency of the evidence of possession of marijuana for sale. The Attorney General argues the contrary.
Browden argues that the record fails to show his actual or constructive possession or knowledge of the marijuana at the residence. He argues, too, that the record fails to show that the marijuana was not in the possession of someone else at the residence.
On a claim of insufficient evidence, “we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (Guerra, supra, 37 Cal.4th at p. 1129.) “Unless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict’ the conviction will not be reversed.” (Quintero, supra, 135 Cal.App.4th at p. 1162.) We apply the same standard to convictions based largely on circumstantial evidence. (Meza, supra, 38 Cal.App.4th at p. 1745.)
The record shows that Browden had $796 in cash in his pants pocket at the time of his arrest. The residence had two sets of motion flood lights, a dual security door system, a security camera facing away from the residence, and surveillance images from the outside of the residence on a television in the master bedroom. In the garage were a digital scale, a bowl on top of the scale containing small pieces of marijuana, numerous containers holding a total of 1.6 pounds of marijuana, and numerous boxes of plastic bags commonly used to package marijuana next to the marijuana and the scale. A narcotics officer with extensive education and experience in possession of marijuana for sale investigations opined that the presence at the residence of security and surveillance systems to protect against robberies of marijuana or money and to give notice of law enforcement activity, the amount of cash on Browden’s person, the amount of marijuana in the garage, and the digital scale and plastic bags in the garage were all for the purpose of possession of marijuana for sale.
The evidence shows that a reasonable trier of fact could find Browden guilty beyond a reasonable doubt of possession of marijuana for sale. Just as exclusive possession is not an element of the crime, so the jury is entitled to draw reasonable inferences from circumstantial evidence contrary to the ones he argues. (See, e.g., People v. Harris (2000) 83 Cal.App.4th 371, 374-375; People v. Carter (1997) 55 Cal.App.4th 1376, 1378.) His insufficiency of the evidence argument simply asks us to reweigh the facts. That we cannot do. (Bolin, supra, 18 Cal.4th at pp. 331-333.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Ardaiz, P.J., Wiseman, J.