Opinion
H036454
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. MONET FLORES DIEGO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. C1069933)
On September 14, 2010, the Santa Clara County District Attorney filed an amended information in which appellant was charged with one count of possession for sale of a controlled substance (heroin) (Health & Saf. Code, § 11351, count one), one count of transportation of a controlled substance (heroin) (Health & Saf. Code, § 11352, subd. (a), count two) and one count of resisting, delaying or obstructing a police officer (Pen. Code, § 148, subd. (a)(1), count three). All three crimes were alleged to have occurred on December 7, 2007. In addition, appellant was charged with one count of possession of a controlled substance (heroin) (Health & Saf. Code, § 11350, subd. (a), count four), one count of using or being under the influence of a controlled substance (heroin) (Health & Saf. Code, § 11550, subd. (a), count five), one count of possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140, count six) and one count of resisting, delaying or obstructing a police officer (Pen. Code, § 148, subd. (a)(1), count seven). Counts four through seven were alleged to have occurred on February 18, 2010.
A jury found appellant guilty on all counts except count one where the jury found him guilty of the lesser included offense of simple possession. Subsequently, the court sentenced appellant to seven years four months in prison. Among other things, the court ordered appellant to pay a drug program fee of $450 pursuant to Health and Safety Code section 11372.7, plus penalty assessments. The addition of the penalty assessments brings the $450 fine to a total of $1710.
Appellant filed a timely notice of appeal.
On appeal, appellant challenges the sufficiency of the evidence to support count four (possession of heroin). Specifically, he contends that there was insufficient evidence that he possessed a usable quantity of heroin. Further, he contends that there was insufficient evidence of his ability to pay the drug program fee that the court imposed. For reasons that follow, we affirm the judgment.
Facts
Since appellant is challenging the sufficiency of the evidence on count four, we set forth the evidence adduced at trial in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) However, we limit our recitation of the facts to those underlying count four.
On February 8, 2010, at approximately 11:40 p.m. Officer Geoff Graves stopped a white Saturn at the intersection of Blossom Hill Road and Winfield Avenue in San Jose; the car had no light on the license plate. There were two people in the car, a female driver and a male passenger. Officer Graves identified appellant as the male passenger.
Immediately after Officer Graves asked the occupants of the Saturn for identification, appellant got out of the car and ran. Officer Graves pursued appellant. Eventually, an off duty officer was able to subdue appellant. After appellant was arrested, Officer Graves returned to the Saturn and searched it. A red bag with five syringes was located where appellant had been sitting, that is between the passenger seat and the passenger side door. Four of the five syringes were filled with a "brownish, yellowish substance," the fifth syringe was empty.
Officer Graves conducted tests to determine if appellant was under the influence of a controlled substance; the result of the tests led him to believe that he was. Appellant's skin had scabs and abscesses on it and he was sweating. A blood sample taken from appellant two hours after he was arrested tested positive for heroin and cocaine.
Appellant's blood contained metabolites of both heroin and cocaine.
A criminalist from the Santa Clara County crime laboratory determined that the four syringes contained in total 4 milliliters of liquid—a milliliter in each of the four syringes that were full. The criminalist conducted a chemical analysis on one of the syringes and determined that it contained an unspecified quantity of heroin as one of its "many components." When asked by the prosecutor if he knew what the equivalent of a milliliter of heroin was in grams, the criminalist said it would vary from sample to sample because of the density; however, he knew that one milliliter of water was equal to one gram. The syringes containing the heroin were admitted into evidence.
Officer Bret Moiseff testified as an expert in the area of possession for sale of heroin. He testified that most buyers of heroin purchase a quarter of a gram to get high. He stated that the most common manner in which the heroin is used is an injection with a syringe into the blood stream. After heating the solid piece of heroin, it is combined with water and filtered.
Primarily, Officer Moiseff's testimony concerned count one, the possession for sale charge where appellant was found in possession of "a black . . . goopy ball" that contained 15.9 grams heroin.
Discussion
Sufficiency of the Evidence of Usable Quantity of Heroin
Appellant contends that because he was charged with possession of a controlled substance (heroin) in violation of Health and Safely Code section 11350 with regard to count four, the prosecutor was required to prove that he possessed a usable quantity.
Appellant is correct. "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. Each of these elements may be established circumstantially.' [Citations.]" (People v. Palaschak (1995) 9 Cal.4th 1236, 1242, italics added.)
We begin with the well-settled standard for assessing the sufficiency of the evidence to sustain a criminal conviction. In reviewing a claim of insufficiency of the evidence, "we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt. [Citations.] We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether ' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' [Citation.] We must draw all reasonable inferences in support of the judgment. [Citation.] It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. [Citation.]" (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
Appellant argues that as to the syringes, there was no direct testimony that they contained a usable quantity, nor was there any "testimony concerning metric conversion that could have assisted the jury in using its American-trained sense of measurement to judge the correct amount."
In order to establish that there was a usable amount of a controlled substance, "[t]he chemical analysis of the material possessed need only establish the existence of a controlled substance. A quantitative analysis establishing the purity of the controlled substance is not required." (People v. Rubacalba (1993) 6 Cal.4th 62, 65.) The prosecution need prove only that "the substance is in a form and quantity that can be used" and need not prove any particular narcotic effect of the substance. (Id. at p. 66.)
Moreover, the "usable-quantity" doctrine prohibits convictions only when the substance possessed cannot be used. That is where it is a blackened residue or a useless trace. (People v. Rubacalba, supra, 6 Cal.4th at pp. 65-67; People v. Karmelich (1979) 92 Cal.App.3d 452, 456.) " 'It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic.' " (People v. Rubacalba, supra, at p. 67.) " 'The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.' [Citations.]" (Id. at p. 67.)
It is true that according to the criminalist's testimony the possibility exists that only traces of heroin were present in the mixture. Certainly, our Supreme Court has noted that as forensic science measuring devices and techniques improve, smaller and smaller amounts of residue are required for a chemist to detect the presence of narcotics. (People v. Rubacalba, supra, at p. 67.) Nevertheless, Health and Safety Code, section 11350, under which appellant was convicted, does not specify any net amount of heroin that an accused person must be proved to have possessed in order to establish guilt.
Expert testimony established that when heroin is to be injected into the blood stream by syringe a solid piece of heroin is heated then combined with water and then filtered into the syringe. Accordingly, the heroin found in the syringe was in a form that could be used by an intravenous drug user and, without doubt, the heroin in the syringe was not a blackened residue. A usable amount of a controlled substance is a quantity sufficient to be consumed in any manner customarily employed by users of the substance, as opposed to debris or useless traces. (People v. Piper (1971) 19 Cal.App.3d 248, 250.)
Although no witness testified that the heroin in the syringes was a usable amount, the syringes containing the drug were introduced into evidence and thus would have been viewed by the jury. The jury was instructed that "[u]seless traces are not usable amounts." Although generally it would be preferable to have testimony on the issue of usable amount, we are satisfied that the jurors in this case were capable of telling whether the milliliter of liquid was a usable amount without specific testimony on this point. The distinction between an actual amount of narcotics that can be consumed, and a residual or trace amount that is useless, is something that can be understood by the average person.
A trace amount is defined as "an amount of a chemical constituent not always quantitatively determinable because of minuteness." (Merriam-Webster's Collegiate Dict. (10th ed. 2001) p. 1245, col.1.) A residue is defined as "something that remains after a part is taken, separated, or designated." (Id. at p. 993, col.2.) These are concepts within common knowledge.
Moreover, at the time of his arrest, appellant was observed to be under the influence of a controlled substance, which was confirmed by a blood test taken two hours after his arrest to be both heroin and cocaine. Contrary to appellant's assertion, a reasonable inference that the jury could have drawn from this evidence is that appellant had used the fifth syringe that was empty to inject heroin. The fact that he exhibited discernible symptoms of being under the influence of a controlled substance rules out any question that what was in the syringes was a usable quantity. More importantly, the fact that appellant tried to evade being found in possession of the heroin by running from the white Saturn supports an inference that there was quantitatively and qualitatively sufficient heroin to make it usable for consumption. There would have been no reason for appellant to run if the heroin contained in the syringes was not a usable quantity.
Thus, we conclude that there was sufficient evidence from which the jury could infer the heroin in the syringes was more than a useless trace. The presence of "actual narcotics, even though in minute quantities" (as opposed to a residue) is sufficient to show possession of a usable amount. (People v. Karmelich, supra, 92 Cal.App.3d at p. 456.)
Accordingly, we reject appellant's argument that there was insufficient evidence that the syringes contained a usable quantity of heroin.
Sufficiency of the Evidence of Ability to Pay the Drug Program Fee
A person who is convicted of Health and Safety Code offenses involving controlled substances shall be ordered to pay a drug program fee of up to $150 for each separate offense if the trial court determines the person has the "ability to pay" the fee. (Health & Saf. Code, § 11372.7.)
Appellant argues that the drug program fee imposed pursuant to the aforementioned statute should be vacated. Specifically, he asserts that the record contains insufficient evidence that he had the ability to pay the fee.
Respondent replies that appellant has forfeited this issue because he failed to object to the fee below. Alternatively, there was sufficient evidence in the record demonstrating that appellant had the ability to pay the fee.
Appellant counters that "the law is clear that he did not forfeit appellate review of the sufficiency of the evidence to impose the fee."
Appellant's argument finds support in People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco). In Pacheco, the defendant contended the trial court could not impose "the $259.50 criminal justice administration fee under Government Code sections 29550, subdivision (c) or 29550.2, the $64 per month probation fee under [Penal Code] section 1203.1b, and the $100 attorneys fee order under Penal Code section 987.8 without determining his ability to pay these fees and that there is insufficient evidence to support any such determination. All three statutes authorize the fines or fees expressly subject to a defendant's ability to pay them." (Id. at p. 1397.)
A panel of this court rejected the People's claim that the defendant had forfeited his argument by not raising an objection to any of these fees in the trial court; we concluded that claims based on the insufficiency of the evidence "do not require assertion in the court below to be preserved on appeal." (Pacheco, supra, 187 Cal.App.4th at p. 1397, citing People v. Viray (2005) 134 Cal.App.4th 1186, 1217.)
Nevertheless, many cases have held that evidentiary challenges to fines and fees may not be raised on appeal in the absence of an objection in the trial court. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention fine under Pen. Code, § 1202.5, subd. (a) ]; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [jail booking fee under Gov. Code, § 29550.2]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1467 (Gibson ) [restitution fine under Gov. Code, former § 13967, subd .(a)].)
There is a conflict between Pacheco and the cases just cited. Earlier this year the California Supreme Court agreed to resolve the conflict. (See People v. McCullough (2011) 193 Cal.App.4th 864, review granted on June 29, 2011, S192513.)
Nevertheless, in Pacheco, the defendant failed to object to certain probation conditions below. Among other issues, as noted, he challenged on appeal a $259.50 criminal justice administration fee (Gov. Code, § 29550, subd. (c) [if the arresting agency was the county] or Gov. Code, § 29550.2 [if the arresting agency was other specified arresting agencies]), $64 per month probation fee (Pen. Code, § 1203.1b), and $100 attorney fee (Pen. Code, § 987.8). "His challenge to all three fines or fees [was] based on the court having failed to determine his ability to pay them." (Pacheco, supra, 187 Cal.App.4th at p. 1396.)
In this context, we relied on two attorney fees cases (People v. Viray (2005) 134 Cal.App.4th 1186; People v. Lopez (2005) 129 Cal.App.4th 1508) and held that "claims . . . based on the insufficiency of the evidence . . . do not require assertion in the court below to be preserved on appeal." (Pacheco, supra, 187 Cal.App.4th at p. 1397.)
We pointed out, however, that (1) the criminal justice administrative fee was to cover "actual administrative costs" (Pacheco, supra, 187 Cal.App.4th at p. 1400), (2) the probation fee was to cover "reasonable cost" of services and supervision after referral of the defendant to the probation officer for inquiry into ability to pay and notice of right to counsel and court hearing on ability to pay (defendant must waive right to a court determination) (id. at pp. 1400-1401); and (3) the attorney fees were to cover " 'all or a portion of the cost' " (id. at p. 1398) after notice and hearing. We held that as to the criminal justice administration fee, no evidence supported what were the "actual administrative costs" (id. at p. 1400); as to the probation fee no evidence supported that the "statutory procedure" for determining or waiving ability to pay was followed and the costs "cannot be made a condition of probation" (id. at p. 1401); and as to the attorney fees, no evidence supported that the "statutory directive" (id. at p. 1398) was met and "an order directing payment of attorney fees" may not be made a condition of probation. (Id. at p. 1399). Thus, Pacheco is readily distinguishable.
Nonetheless, assuming without deciding that appellant has not forfeited his claim, it fails on the merits.
A trial court's finding of an ability to pay may be implied, and will be upheld on appeal if it is supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 70-71; People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920-921.)
The " 'ability to pay' a drug program fee does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 783.)
Absent evidence to the contrary, this court presumes that the trial court followed the law and performed its duty under Evidence Code section 664, and that the requisite determination of defendant's ability to pay is implicit in the trial court's order. (See Staley, supra, 10 Cal.App.4th at p. 785.)
Here, the trial court did not make an express finding of appellant's ability to pay the drug program fee. Thus, the issue is whether substantial evidence supported the trial court's implicit finding of an ability to pay the fee. We hold that it does.
Appellant was 29 years old at the time of sentencing on December 17, 2010. Appellant told the probation officer that he would "like to go back to work, get [his] GED or CET to get some type of training." According to the probation report, appellant had been employed as a busboy/server at the University Club in Palo Alto earning $9 an hour plus tips. Appellant denied that he has any psychological issues and his only reported physical health problem is chronic pain in his left shoulder from an injury sustained during his arrest in this case. The trial court had an opportunity to observe appellant, and we must presume the court discerned that appellant was not physically impeded in any way by the pain. If there was an indiscernible impediment, appellant would be in the best position to know of and develop that information. Since he failed to object to imposition of the drug program fee or to request a hearing on his ability to pay, we assume that his pain does not prevent him from working. Further, although appellant has only an eighth grade education, he has made a commitment to going back to work and obtaining his GED or CET and getting some training. Thus, the trial court was entitled to conclude that appellant has the ability to satisfy his debt to society by fulfilling his goal of obtaining employment once he completes his sentence. (See, Staley, supra, 10 Cal.App.4th at p. 786.) In other words, we find substantial evidence in the record that supports an implied determination of ability to pay.
According to the probation officer's report appellant attended San Jose Academy, but left in the ninth grade after only four months.
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Disposition
The judgment is affirmed.
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ELIA, J.
WE CONCUR:
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RUSHING, P. J.
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PREMO, J.