Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura Super. Allan L. Steele, Judge Ct. No. 2004023094
(Retired Judge of the Ventura S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Jonathan Steiner, Richard Lennon, California Appellate Project, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Wilfredo Arias Cervantes appeals a judgment following his conviction for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and possession of an injection/ingestion device (Health & Saf. Code, § 11364). We conclude that the settled statement is an adequate record for this appeal and substantial evidence supports the judgment. We affirm.
FACTS
Deputy Sheriff Michael Rowland saw Cervantes riding a bicycle at night without a lit headlight. He stopped Cervantes, who appeared to be intoxicated, and asked him "for identification." Cervantes took a rolled up newspaper from his pocket and tossed it "into a bush two to three feet from where they were standing." Rowland handcuffed him. He retrieved the newspaper and unrolled it. Inside he found two hypodermic syringes and a spoon wrapped in a paper towel. The spoon "had brownish residue in the bowl and black soot on the bottom." Rowland testified that based on his experience in identifying drug paraphernalia, the spoon was "used to inject heroin." The "soot and residue" on it "came from the heating of the heroin prior to drawing it into a syringe."
Rowland arrested Cervantes and put him in the patrol car. He looked toward the area where he had stopped Cervantes. He found approximately 1.5 grams of tar heroin wrapped in plastic "about 1 foot from where [Cervantes] had been standing." The heroin was "lying on the sidewalk in the direction of the bush where the rolled up newspaper had landed."
Cervantes had three puncture wounds over a vein in his right arm. Rowland testified that he believed these wounds were caused by heroin injections. Rowland said he did not see any heroin until after he had arrested Cervantes.
Rowland was the only prosecution witness. Cervantes did not testify and the defense did not submit any evidence.
After the jury's guilty verdicts, Cervantes appealed and requested the preparation of a reporter's transcript of the trial. The court reporter prepared transcripts of pretrial proceedings, the jury instructions and counsels' closing arguments. But she filed an affidavit stating that the portion of trial involving Rowland's testimony could not be transcribed. She said, "due to technical malfunction no stenographic notes are available for transcription."
In February 2006, Cervantes filed a motion in this court for summary reversal because of the missing portion of the trial transcript. We denied the motion, but remanded the case to the trial court "for a determination of whether a settled statement can be obtained."
More than a year after the trial, the trial court held hearings on the preparation of a settled statement. The prosecutor prepared a proposed eight-page settled statement which summarized the opening statements of counsel and Rowland's trial testimony.
Richard Lennon, of the California Appellate Project, and Michael McMahon, of the public defender's office, appeared on behalf of Cervantes. Lennon and McMahon told the court that Mark Stein, Cervantes' trial counsel, was unavailable and could not participate in preparing a settled statement. McMahon said, "Mr. Stein is not currently with our office. I believe he took a health-related leave of absence on short notice."
Neither Lennon nor McMahon were present at the trial. The trial court had no recollection of Rowland's testimony. But it approved the settled statement prepared by the prosecutor. We vacated the order approving the settled statement and remanded the cause for "further proceedings with instructions that the trial court hold a hearing to determine whether Cervantes' trial attorney is able to assist the court in preparing a settled statement." (People v. Cervantes (2007) 150 Cal.App.4th 1117, 1123.)
On remand the court held four hearings. At the first hearing Stein appeared and said he wanted to "track down any notes that [he] may have floating around in the Public Defender's file" to refresh his recollection. The court continued the hearing.
At the next hearing, four weeks later, Stein told the court he reviewed the file, but his "closing argument notes were not there." He said, "I did pull out police reports on my Romero motion, and I refreshed my memory on the limited notes that I had scribbled in the actual covers of at least the front inside cover of the file as well. My handwritten notes would have been obviously the most significant, especially my notes of, say, the closing argument notes. I didn't have that."
The trial court advised Stein that there was a reporter's transcript of counsels' closing arguments. It suggested that Stein review that transcript to see if it "refreshes his recollection to allow him to meaningfully participate in the creation of a settled statement . . . ." It continued the hearing.
At the third hearing Stein told the court that he had reviewed the transcript. The prosecutor suggested that Stein "go through the People's proposed statement . . . and pen in ink proposed changes for them to me. I'll review them. If I agree, I'll make them. If I don't, then . . . we will likely have . . . an impasse that we won't be able to resolve . . . ."
At the fourth hearing Stein told the court, "I reviewed the settled statement. I am not offended by anything in there. I think it is adequate . . . it adequately states the way the testimony went and the way the trial progressed on that day." The court approved the settled statement.
DISCUSSION
I. The Settled Statement
Cervantes contends the trial court erred by approving a settled statement which is not accurate. We disagree.
To determine whether a settled statement is adequate we consider the ability of the parties to reconstruct the record. (In re Steven B. (1979) 25 Cal.3d 1, 9.) Cervantes notes that in our prior decision we stated the trial judge had no recollection of Rowland's testimony. True, but we remanded the matter to determine whether Stein could assist the court in preparing the settled statement. (People v. Cervantes, supra, 150 Cal.App.4th at p. 1123.) He did. Stein reviewed the statement prepared by the prosecutor and said it was adequate. Because he was Cervantes' trial counsel, he was in the best position to verify what occurred at trial and decide whether anything in the statement would be unfair to his client.
Cervantes claims Stein "could not participate meaningfully in reconstructing the record" because he did not have notes of the trial. But Stein said that he had obtained the file from the public defender's office. He had reviewed police reports and notes he made that were in that file. His closing argument notes were not there, but Stein reviewed the reporter's transcript of his closing argument. He told the court, "I have adequately refreshed my recollection." Cervantes has not shown that Stein was unable to remember the trial testimony. There was no error.
II. Substantial Evidence
Cervantes contends the evidence is insufficient to support his conviction for possession of heroin. We disagree.
In reviewing the sufficiency of the evidence we draw all reasonable inferences in support of the judgment. We do not weigh the evidence or decide the credibility of witnesses. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Poe (1999) 74 Cal.App.4th 826, 830.) "'The essential elements of possession of a controlled substance are "dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character."'" (People v. Morales (2001) 25 Cal.4th 34, 41.)
Cervantes contends there is no evidence that he had dominion and control over the heroin. He claims the evidence shows Rowland found the heroin after he was arrested and it was "lying out in the open on the ground." Cervantes notes that Rowland never testified that he saw heroin in his hand.
But the police do not have to see the defendant holding the contraband to obtain a conviction. (People v. Berti (1960) 178 Cal.App.2d 872, 875.) Dominion and control may be established by circumstantial evidence. (People v. Morales, supra, 25 Cal.4th at p. 41.) "[P]ossession may be imputed when the contraband . . . is immediately and exclusively accessible to the accused . . . ." (People v. Williams (1971) 5 Cal.3d 211, 215.) Defendants who possess drugs often try to dispose of them before an arrest. (People v. Palaschak (1995) 9 Cal.4th 1236, 1241.) "[T]he narcotics possession statutes do not require proof of possession at the very time of arrest." (Id., at p. 1242.) It is sufficient that "the substance was in his possession immediately before he was arrested." (Id., at p. 1241.)
Rowland found the heroin one foot from where Cervantes had been standing. It was on the sidewalk "in the direction of the bush" where Cervantes threw the newspaper containing the syringes and the heroin spoon. Rowland saw Cervantes holding the newspaper and saw "it leave his hand and fly through the air." The syringes, the spoon and the heroin were less than three feet apart. Rowland did not see any heroin before he arrested Cervantes. Cervantes had puncture wounds over a vein in his arm indicating that he had injected heroin. These wounds were recent. They "could have been a day or two old." Rowland testified that the heroin he found was a "useable amount." The jury could reasonably infer that throwing the newspaper into the bushes showed Cervantes' consciousness of guilt. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1297; People v. Tolliver (1960) 179 Cal.App.2d 736, 740 [attempt to dispose of contraband established defendant's "knowledge of its illegal nature"].) The evidence is sufficient. (People v. Morales, supra, 25 Cal.4th at p. 41; People v. Groom (1964) 60 Cal.2d 694, 696-697 [police found marijuana a short distance from where defendant had been standing].)
The judgment is affirmed.
We concur: YEGAN, J. COFFEE, J.