Opinion
E032898.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL SOTO CASTRO, Defendant and Appellant.
Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steven T. Oetting, Supervising Deputy Attorney General, and Lise Jacobson, Deputy Attorney General, for Plaintiff and Respondent.
Defendant appeals from his convictions for possession of methamphetamine for sale (Health & Safety Code, § 11378),[] possession of marijuana for sale (§ 11359), and possession of methamphetamine while armed with a firearm (§ 11370.1). We affirm, finding (1) there was sufficient evidence that defendant possessed the marijuana and intended to sell the methamphetamine based on defendants flight from the trailer where the drugs were found and subsequent confession that he was assisting in selling drugs from that trailer; (2) an officer was qualified to identify marijuana based on his extensive experience with marijuana and the knowledge gained therefrom; and (3) there was sufficient circumstantial evidence that the firearms were operable because they were found fully loaded in a trailer where drugs were admittedly being sold.
STATEMENT OF FACTS
Sheriffs deputies learned from a confidential informant that drugs were being sold from trailers 271 and 272 in a trailer park. After obtaining a search warrant for trailers 271 and 272, deputies conducted a multi-agency raid involving approximately 20 law enforcement officers, including a Highway Patrol helicopter.
When the raid was initiated, an officer in the helicopter saw someone peer through a window in trailer 271 and begin scurrying about inside the trailer. Then one man jumped out a window of the trailer and another came out the sliding glass door. One of the men was defendant, the other man was named Roman. Both ran to a third trailer nearby, where Roman pulled something out of his shirt and tried to hide it near the trailer. Defendant ran a little farther beyond the third trailer, then began to walk, in an effort to look inconspicuous. The officer in the helicopter directed ground units to the area, and defendant and Roman were quickly apprehended. Officers also detained a third man, named Garcia, who was found standing outside trailer 271.
Nobody appeared to be living in trailer 271: there was no food, no clothing, very little furniture, no pictures, and no items of personal hygiene typically associated with a residence. However, officers found several small electronic scales, money, a large bag containing a white substance, pay/owe sheets, two loaded revolvers, and a loaded sawed-off rifle. Furthermore, there were dozens of small plastic bindles containing a white substance on a fold-out table and a trail of the bindles ran from the table to the kitchen window. Over a hundred similar bindles were found near the third trailer where Roman was seen trying to hide something, and defendant had five similar bindles and over $1,500 on him. Tests revealed that the white substance in the bindles was methamphetamine.
Officers also found a large bag containing a green, leafy substance in a kitchen drawer in trailer 271. An officer testified that the substance was marijuana based on its odor. The officer claimed that he had come in contact with marijuana approximately a thousand times before and it has a unique smell.
Inside trailer 272, the officers found an Uzi machine gun, two handguns, and $24,000. Trailer 272 also contained paperwork indicating that it was Romans residence.
Roman subsequently confessed that they were all selling narcotics from trailer 271 and that he lived in trailer 272. Defendant also confessed that he and Garcia assisted Roman in selling narcotics from trailer 271. Garcia further confessed that he was supposed to be the lookout for trailer 271.
At defendants trial, Garcia was called as a witness for the defense. By then, Garcia had already pleaded guilty to several drug charges and been sentenced. Garcia testified that he lived alone in trailer 271, while Roman lived in trailer 272. Garcia claimed that he owned the drugs, guns, and money found in both trailers. Garcia indicated that defendant never helped sell drugs, he just spent the night on occasion. Garcia testified that he and defendant had spent the previous night drinking and using Garcias methamphetamine and marijuana.
DISCUSSION
Defendant challenges the sufficiency of the evidence supporting his convictions. "In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must 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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
a. Possession of Marijuana for Sale
Regarding the marijuana conviction, defendant argues that there was no substantial evidence that he possessed the marijuana. Access to a place where narcotics are found does not, standing alone, prove possession. (People v. Redrick (1961) 55 Cal.2d 282, 285.) Instead, possession requires "physical or constructive possession thereof coupled with knowledge of the presence and narcotic character of the drug." (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 861.) Constructive possession occurs when the accused lacks actual physical custody, but "maintains control or a right to control the contraband." (Ibid.)
Defendant argues that there was no substantial evidence that he knew the marijuana was in the trailer or that he had any control over the marijuana, citing Garcias testimony at trial that defendant was not involved with the drugs. We disagree, concluding that Garcias trial testimony was outweighed by the evidence of defendants flight from trailer 271 and the confessions from everyone involved, including defendant, that they were all jointly engaged in selling drugs from trailer 271. Furthermore, Garcia testified that he and defendant had smoked some of the marijuana the night before, thereby undermining defendants argument that he was unaware of the marijuana.
Defendant also notes that the jury was instructed that it had to find that there were 28.5 grams of marijuana and argues that there was no substantial evidence to support such a finding. But a violation of section 11359 does not require that there be a specific amount of marijuana; thus, the evidence, or lack thereof, regarding amount is irrelevant.
Lastly, defendant argues that the officer who identified the green, leafy substance as marijuana was not properly qualified to give such an opinion. We disagree. "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a), italics added.) The requisite special skill or experience is sufficient so long as it is likely to assist the jury. (People v. Mayfield (1997) 14 Cal.4th 668, 766.) The trial courts resolution of this issue is reviewed under a deferential abuse of discretion standard: it is only reversible when the expert "`"clearly lacks"" the necessary qualifications. (Ibid.; People v. Chavez (1985) 39 Cal.3d 823, 828.) These standards are easily satisfied in this case, where the officer testified that he had come into contact with marijuana a thousand times before and could recognize its distinctive odor. Such a considerable amount of experience, and the knowledge gained therefrom, was clearly likely to assist the jury.
Defendants comparison of the expert in this case to the expert in People v. Wesley (1990) 224 Cal.App.3d 1130 is not persuasive. Wesley did not establish a baseline level of expertise necessary to identify controlled substances; it merely held that the qualifications of the expert in that case were sufficient. (Id. at pp. 1146-1147.) The expert in our case may not have the education or training of the expert in Wesley, but, as noted above, his knowledge and experience are sufficient.
b. Possession of Methamphetamine for Sale
Regarding the methamphetamine conviction, defendant argues that there was no substantial evidence that the five bindles of methamphetamine he had on his person were for sale rather than just personal use. We disagree. As noted above, defendants conduct and the confessions provide substantial evidence that defendant was selling the methamphetamine.
c. Possession of Methamphetamine While Armed With a Firearm
Regarding the conviction for possession while armed with a firearm, defendant argues that there was no substantial evidence that any of the guns in trailer 271 were operable, as required by section 11370.1. More specifically, defendant complains that the police never checked the weapons to make sure they worked. However, defendants insistence on direct evidence of operability is misguided; "[c]ircumstantial evidence may constitute substantial evidence of guilt." (People v. Catlin (2001) 26 Cal.4th 81, 142.) And in People v. Smith (1974) 38 Cal.App.3d 401, 410, the court specifically rejected the need for direct evidence of operability, concluding: "The circumstantial evidence that the weapon was operable was more than sufficient: Defendant was armed with a shotgun during a robbery. When he was arrested, a loaded shotgun and additional shotgun shells were found in the vehicle in which he was riding. A jury could easily infer that defendant would not have carried a loaded shotgun with additional shells, if the weapon were inoperable." As in Smith, a jury could easily infer in our case that three fully loaded firearms would not be kept in a trailer that was being used to sell drugs unless at least one was operable.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J. Richli, J. --------------- Notes: All further statutory references will be to the Health and Safety Code unless otherwise indicated.