Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-063305A
BUTZ, J.A jury convicted defendant Shane Aaron Held of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)--count two) and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)--count three). A count of felony possession of methamphetamine for sale (Health & Saf. Code, § 11378) was dismissed following a jury deadlock. The trial court found that defendant had a May 2001 Nevada County conviction of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and a September 2001 Placer County conviction of first degree burglary (§§ 459, 460, subd. (a)), constituting a strike. The court also found that defendant had served a prior prison term.
Defendant was not held to answer on counts of driving with a suspended license, a misdemeanor (Veh. Code, § 14601.1, subd. (a)) and failure to provide evidence of insurance, an infraction (Veh. Code, § 16028, subd. (a)). Before jury trial commenced, the trial court dismissed a count of maintaining a place for selling or using methamphetamine, a felony (Health & Saf. Code, § 11366).
Undesignated statutory references are to the Penal Code.
Defendant was sentenced to state prison for four years (double the middle term) and to county jail for six months concurrent. The prior prison term enhancement was stricken.
On appeal, defendant contends there was insufficient evidence that he possessed the methamphetamine and the smoking device. We shall affirm, but modify the judgment on different grounds.
FACTUAL BACKGROUND
Prosecution’s case-in-chief
On August 31, 2006, Auburn Police Officer Jason Tucker stopped a car because of a broken brake light. The car was registered to Brandee Knego. Defendant, the driver, appeared to be under the influence of alcohol. While investigating the suspected driving offense, Tucker learned that defendant was on parole.
Because no evidence regarding the traffic stop was presented at trial, the facts surrounding defendant’s detention are taken from the transcript of the suppression hearing.
Knego was a codefendant at trial. She is not a party to this appeal.
Defendant told Officer Tucker that he lived with Knego, who was his girlfriend. Specifically, he had resided with her for four months and had been dating her since midsummer. Defendant’s brother, Josh Held, also occasionally stayed at Knego’s house.
Officer Tucker detained defendant in his patrol car and drove him to Knego’s residence. When Tucker arrived, Knego and three men were present. Tucker searched the two-bedroom duplex. One room was a children’s room with two twin beds; Knego has two young children.
The men present were Jonathan Friedlander, Josh Held and Tyson Johnson.
The door to the master bedroom was open and was equipped with a deadbolt lock. A key was in the lock and a keychain hung from the key. In the master bedroom, Officer Tucker found a glass methamphetamine smoking pipe in a jewelry box on a night stand and a bag of methamphetamine behind the box. In the closet was an open safe with a baggie containing 7.7 grams of methamphetamine. In a makeup bag behind a pillow on the bed, Tucker found a baggie of methamphetamine, a spoon with methamphetamine, a scale, and four baggies of marijuana. In total, 22 grams of methamphetamine were recovered from the master bedroom. No drugs were found in any other place in the duplex.
On the floor of the master bedroom were women’s clothes and undergarments; men’s clothes, undergarments, shoes and socks; and mail belonging to defendant and Knego. A black-and-white television monitor in the master bedroom was connected to a pinhole camera in a hallway just inside the front door of the residence, providing a live video feed of the entry.
After searching the residence, Officer Tucker arrested defendant and Knego. He placed them in his patrol car where their conversation was recorded. It included these exchanges:
“[Knego]: They said I’m going to jail for possession of meth, methamphetamines.
“[Defendant]: What?
“[Knego]: I just fucking got home. What meth, how?
[Omitted conversation regarding Knego fastening her seatbelt]
“[Defendant]: I got it. Oh. Baby, I’m so sorry. I’m so sorry, baby. You don’t even (inaudible). But why? I just wanted.
“[Knego]: Shane, I ain’t going nowhere. Okay?
“[Defendant]: You promise? I love you so much, baby. I
[Omitted conversation regarding feminine hygiene]
“[Knego]: What’s going to happen to me?
“[Defendant]: I don’t know.
“[Knego]: ‘Cause I pointed out (inaudible).
“[Defendant]: I don’t care. I love you.
“[Knego]: I love you too.
“[Defendant]: You promise? I love you so much, baby. I’m sorry for not showing up there. I’m so sorry. . . . I’m not going to be able to fuckin’ handle this. [¶] . . . [¶]
“[Knego]: Shane, just tell them I had it, you had no idea.
“[Defendant]: You promise?
“[Knego]: I love you with all my heart. [¶] . . . [¶]
“[Defendant]: I’m going to miss you, baby, so much.
“[Knego]: Are you really going away (inaudible)?
“[Defendant]: Yeah. I will, baby.
“[Knego]: How long, Shane?
“[Defendant]: I don’t know.
“[Knego]: I’m going to (inaudible). I’m going to say (inaudible)
“[Defendant]: What?
“[Knego]: . . . to let you go.
“[Defendant]: Tell them, I don’t know. I, baby, I’ll, I’ll do whatever it takes.”
Defense
Knego testified that she is addicted to methamphetamine. She has used it “[o]n and off” for eight years and was using it daily at the time of the incident. At that time, she and defendant were a couple but they were not getting along. Defendant slept on a couch in the living room and never in her bedroom. When the police arrived, she was in the master bedroom with Josh Held, Tyson Johnson, and Jonathan Friedlander. They had pooled their money to buy the methamphetamine in the makeup bag, for their personal use. Knego denied leaving the pipe and methamphetamine in the safe and behind the jewelry box.
In his opening brief, defendant writes that he and Knego “were romantically involved at the time of their arrest. Both Ms. Knego and [defendant] freely admitted this both to the officer and during trial.” (Italics added.) To the extent defendant admitted it during trial, it was not by way of testimony.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends there was insufficient evidence that he possessed the methamphetamine and the smoking device. Specifically, he claims there was insufficient evidence that he exercised dominion and control over the items with knowledge of their presence. We are not persuaded.
Because possession is an element of both charged offenses (Health & Saf. Code, §§ 11377, subd. (a), 11364), our discussion applies equally to both of defendant’s convictions.
“‘To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.’” (People v. Carpenter (1997) 15 Cal.4th 312, 387 (Carpenter), quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)
“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.’” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)
“It is well established that one may become criminally liable for possession . . . of a controlled substance, based upon either actual or constructive possession of the substance. [Citation.] Constructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another.” (People v. Morante (1999) 20 Cal.4th 403, 417 [considering analogous crimes of possession for sale and transportation of a controlled substance].)
“[T]he totality of circumstances will determine whether a defendant has exercised the requisite control over contraband in the hands of another.” (Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 539.) We thus review the evidence in its entirety, rather than consider isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.)
The prosecutor theorized that defendant possessed the methamphetamine found in the bedroom because he and Knego were romantically involved and he had access to her bedroom where male clothing, male shoes, and a piece of mail addressed to defendant were found. The prosecutor theorized from the recorded conversation in the patrol car that defendant knew about the drugs and convinced Knego to tell the police that they belonged to her. On appeal, defendant argues that several items of evidence are individually insufficient, but he does not show that the evidence in its entirety is insufficient to support the convictions.
Defendant relies on federal and state cases holding that mere presence with knowledge of the presence of contraband is insufficient to establish constructive possession. (See, e.g., People v. Allen (1985) 165 Cal.App.3d 616, 625 [mere presence at the scene of a crime, with knowledge, does not amount to aiding and abetting]; United States v. Vasquez-Chan (9th Cir. 1992) 978 F.2d 546, 553 [presence near and observation of drugs insufficient for aiding and abetting liability]; United States v. Sanchez-Mata (9th Cir. 1991) 925 F.2d 1166, 1169 [mere status as passenger in car insufficient evidence of dominion and control]; United States v. Ramirez (9th Cir. 1989) 880 F.2d 236, 238-239 [reversed convictions for possession with intent to distribute where cocaine user was present in house with cocaine, but no evidence of his involvement in sales]; United States v. Soto (9th Cir. 1986) 779 F.2d 558, 560-561 [proximity to firearms insufficient to prove possession of firearms]; United States v. Weaver (9th Cir. 1979) 594 F.2d 1272, 1273-1275 [proximity near drugs does not, by itself, constitute dominion and control].) But here, the evidence showed much more than the mere presence of contraband.
Defendant concedes that, unlike the other males in the household, he was romantically involved with Knego at the time of their arrest. He had been living in the house for approximately four months. Although Knego insisted that defendant slept in the living room, she admitted that he spent time in her bedroom and acknowledged, before backpedaling, that they had been intimate there. When asked whether she kept her bedroom door open or locked when she and defendant were at home together, Knego answered, “[b]oth,” thus refuting defendant’s contention that “there was no evidence . . . the door was routinely left open or that [he] . . . readily had access to the room.”
Although Knego insisted that defendant kept his clothes in a dresser in the living room, there was no evidence that Knego had been romantically involved with any of the other males in the household and no basis to speculate that the male clothing found in the bedroom belonged to any of them.
When defendant was arrested, he was driving a car registered to Knego, further suggesting that they had a close relationship. Thus, even if the evidence is inadequate to prove that defendant slept in the bedroom, reasonable jurors could conclude that he and Knego shared it for intimate purposes and that he shared control or the right to control the drugs and smoking device found in that room.
Defendant concedes that he cannot avoid conviction simply because his right to exercise dominion and control over the place where the contraband was located is shared by others. (Citing People v. Rushing (1989) 209 Cal.App.3d 618, 622 (Rushing).) As the Attorney General notes, the analysis in Rushing is instructive. There, a court document with the defendant’s name and signature was found on top of a dresser in the room where he was sleeping. (Id. at p. 620.) This was “evidence Rushing had the right to exercise dominion and control over the apartment where the cocaine was found. He had access to the bedrooms of the apartment and to areas within these rooms generally considered to be the domain of persons with possessory rights.” (Id. at p. 622.)
Similarly here, mail addressed to defendant--a Placer County court document--was found with male clothing in the room where the methamphetamine was found. This was further evidence that defendant shared “possessory rights” to the items in the bedroom. (Rushing, supra, 209 Cal.App.3d at p. 622.) Defendant protests that it is “equally as likely [that he] or Ms. Knego inadvertently left the document in the room.” We disagree. Although inadvertence may seem equally likely when the court document is viewed in isolation, it becomes far less likely when the totality of circumstances is considered. (Armstrong v. Superior Court, supra, 217 Cal.App.3d at p. 539.)
Defendant next contends his recorded conversation was insufficient to prove that he possessed the contraband. This claim, too, mistakenly views a single item of evidence in isolation. In context, the conversation supports an inference that defendant possessed the drugs and smoking device.
Near the outset of the conversation, Knego stated: “They said I’m going to jail for possession of meth, methamphetamines.” Defendant responded, “What?” and Knego elaborated, “I just fucking got home. What meth, how?” Although Knego was an admitted methamphetamine user, her inquiry supports an inference that she lacked knowledge of at least some of the methamphetamine in the house and believed that defendant’s knowledge was greater than her own.
Following some discussion regarding Knego fastening her seatbelt, defendant said, “I got it. Oh. Baby, I’m so sorry. I’m so sorry, baby. You don’t even (inaudible). But why? I just wanted.” Although the phrase “I got it” is ambiguous, in that it could refer to the fastening of the seatbelt, it could also be defendant’s answer to Knego’s question, “What meth, how?” Viewed most favorably to the judgment (Carpenter, supra,15 Cal.4th at p. 387), the phrase constitutes defendant’s admission that he had “got[ten]” the methamphetamine and was “so sorry” that Knego would be going to jail for what he had done.
Even if the phrase is not an admission, the ensuing dialogue implies defendant’s culpability. As the prosecutor argued in summation, had the duo just been arrested because of Knego’s drugs rather than defendant’s drugs, one would expect to hear Knego apologizing to defendant rather than defendant apologizing to Knego.
Later, when defendant said, “I’m not going to be able to fuckin’ handle this,” Knego responded, “Shane, just tell them I had it, you had no idea.” Defendant, perhaps unsure of his sudden good fortune, asked, “You promise?” and Knego assured him, “I love you with all my heart.” Reasonable jurors could deduce that Knego succumbed to defendant’s professed inability to “handle this” by offering to take the blame for the methamphetamine. Because the dialogue had begun with Knego asking, “What meth, how,” jurors reasonably could deduce that her subsequent assertion, “I had it, you had no idea,” was false.
Later, when defendant told Knego he would be “going away” but did not know for “how long,” Knego indicated that she would “say,” evidently to law enforcement, “to let [defendant] go.” Reasonable jurors could deduce that Knego planned to give law enforcement false information; based on that intent, the jurors could reject her testimony at trial. Defendant’s convictions are supported by substantial evidence.
II. Errors at Sentencing
Our review discloses two errors at sentencing. The first amended complaint, deemed an information, alleged a single prior prison term pursuant to section 667.5, subdivision (b). At a court trial on defendant’s prior convictions, the court found that defendant had served “one prior prison term.” However at sentencing, the court mistakenly stated that defendant had “admitted that he suffered two prior prison terms as described in Penal Code section 667.5[, subdivision] (b).” The court then said it would “impose a one-year sanction for each of those two prior prison terms but stay the sanction. The Court will strike the sanction for the prior prison term so the total state prison commitment is four years.” The prosecutor responded that defendant had “only admitted one” prior prison term, not two. The court replied, “[w]hether it’s one or two the sanction is stricken.”
The May 16, 2007 sentencing minutes and abstract of judgment erroneously reflect the imposition of two prison term enhancements. We will direct the trial court to correct its minutes to reflect that one prior prison term allegation was found true at the court trial (not admitted by defendant) and that the enhancement for that term was stricken at sentencing. The court shall correct the abstract of judgment at item 1 to show a four-year term (not a two-year term) for the offense and to omit any reference in item 3 to a section 667.5, subdivision (b) enhancement.
The trial court orally awarded defendant 259 days of custody credit and 122 days of conduct credit for a total of 381 days of presentence credit. However, defendant’s days of custody credit entitle him to 128 days of conduct credit. (E.g., People v. Smith (1989) 211 Cal.App.3d 523, 527.) We shall modify the judgment accordingly.
Defendant’s appellate counsel called both errors to the attention of the trial court by letter dated February 25, 2008. This court has not received any response from the trial court.
DISPOSITION
The judgment is modified to award defendant 128 days of conduct credit for a total of 387 days of presentence credit. As so modified, the judgment is affirmed. The trial court is directed to correct its minutes to reflect a true finding on, and the striking of, the prior prison term enhancement. The court shall prepare an amended abstract of judgment, showing a four-year term for the offense (count two) and omitting any section 667.5, subdivision (b) enhancement, and shall forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., BLEASE, J.