Opinion
D057956
10-21-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN DENNIS HENRY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCS232109)
APPEAL from a judgment of the Superior Court of San Diego County, Laura H. Parsky, Judge. Affirmed.
John Henry appeals from a judgment convicting him of possession of a controlled substance (hydrocodone), possession of a firearm by a felon, and other offenses. He contends the judgment must be reversed because (1) of the denial of his motion for disclosure of a confidential informant's identity; (2) the evidence is insufficient to support that he possessed a firearm; and (3) the court erred in denying his request to dismiss his strike prior conviction. We reject these contentions of reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At about 5:00 p.m. on September 3, 2009, the police executed a search warrant at a residence owned by defendant and where defendant resided. The warrant permitted a search of the residence and targeted Cynthia Ramirez, who rented a room in the house from defendant. During the search, the police found indicia of drug sales. Based on the results of the police investigation, various charges were filed against Ramirez and defendant, including a charge against Ramirez of possession of methamphetamine for sale and a charge against defendant of possession of hydrocodone (i.e., Vicodin) for sale. Prior to trial Ramirez pleaded guilty to possession of methamphetamine for sale, and she testified on defendant's behalf at trial. The jury acquitted defendant of possession of hydrocodone for sale, but convicted him of possession of hydrocodone.
When the police arrived at defendant's residence to execute the warrant, defendant was sitting in the living room with another male. There were three bedrooms at the residence, including a master bedroom, a second bedroom at the northwest corner of the home, and a third bedroom. When the police arrived, Ramirez was lying with a sleeping baby in the third bedroom, which she acknowledged at trial was her bedroom.
There were also two people sitting in a car in front of the residence, and two other people who ran outside and were apprehended by the police.
Ramirez explained that when she first moved into the residence, she used the second bedroom, and the third bedroom was used by defendant's son. However, after defendant's son moved out of the residence, Ramirez moved into the third bedroom.
The master bedroom and second bedroom were both very cluttered, and the beds in these rooms were covered with numerous items. In a dresser drawer in the master bedroom, the police found an item of mail addressed to defendant, a state benefits identification card belonging to defendant, and an item of mail addressed to defendant's wife. Inside a master bedroom closet was a .22 caliber rifle that appeared to be operable. Inside a pouch in another master bedroom closet, the police found two baggies containing methamphetamine residue and various items associated with methamphetamine injection.
When searching the items on the bed in the second bedroom, the police found two parole identification cards belonging to defendant. Other items on the bed in the second bedroom included a plastic M&M canister containing nine hydrocodone pills and a baggie containing .15 grams of methamphetamine. On a shelf above the bed, the police found 18 hydrocodone pills in a prescription container bearing the name Ron Lealcalla and 30 hydrocodone pills in another prescription container with no name on it. In an ashtray on the shelf above the bed, the police found an unspent .22 caliber round of ammunition, which could be used in the .22 rifle found in the master bedroom. There were numerous additional items in the second bedroom related to methamphetamine use and/or sales, including syringes, pipes, and weighing scales.
The police found additional items associated with methamphetamine use and/or sales in Ramirez's room, including a pipe, a syringe, a scale coated with white residue, a cell phone with two text messages that related to narcotics sales, and a notebook with narcotics sales pay and owe information. In defendant's pocket, the police found a pipe with what appeared to be methamphetamine residue. The police retrieved a cell phone from the living room that contained a text message related to narcotics sales, and answered a call on this phone during which the caller asked "for a 50," which appeared to be a request for methamphetamine. The police found numerous rounds of ammunition in containers in the kitchen and outside the kitchen door.
The police were unable to determine who owned this cell phone.
The ammunition was for 9 millimeter and .38-, .50-, and .308-caliber weapons. An officer testified that ammunition can be sold for recycling.
Officer Peter Stevens opined the hydrocodone pills found in the second bedroom were possessed for sale. Stevens noted there were three different containers containing the pills, and explained that dealers typically do not keep all the drugs in one container. Dealers tend to have some drugs in a container readily available for sale, and the majority of the drugs stored elsewhere. The M&M canister was a container frequently seen in drug sale operations. Stevens noted none of the containers with the hydrocodone pills had defendant's name on it, and stated a person with a prescription for the medicine would typically keep it in a prescription bottle with his or her name on it.
Stevens testified that after defendant was arrested, he waived his Miranda rights and provided a statement at the police station. Defendant acknowledged he was not supposed to possess a firearm, but stated the rifle found by the police previously belonged to his grandfather; it now belonged to his son; and his wife and son no longer lived at the home. Defendant stated he had moved the ammunition found in the backyard to this location because there were children coming to the house. When Stevens asked defendant about the pills, defendant initially said he did not know who they belonged to, but then said, "I might have had some pills."
Miranda v. Arizona (1966) 384 U.S. 307 (Miranda).
Stevens testified he could not recall if he specifically told defendant the pills he was asking about were the hydrocodone pills.
Defense
Several witnesses testified on defendant's behalf, including Ramirez, Anthony Gauthier (defendant's friend who was living in a motor home outside defendant's residence), and defendant's wife. Mrs. Henry lived at the residence until April 2009. Ramirez and Gauthier were residing on the property at the time of the police search, and had lived there for several months or years.
Mrs. Henry and Gauthier testified that defendant made his living by recycling scrap metal and fixing things for resale. Mrs. Henry and Gauthier stated they had never seen defendant sell hydrocodone, and Ramirez stated she had never seen defendant with hydrocodone. Mrs. Henry testified that about eight years earlier defendant had a prescription for hyrdocodone after he fell from a roof and underwent surgery; she had last picked up pills for him in about December 2008 and then their insurance ran out; and he still had some pills left from the prescription when she moved out of the home. The defense witnesses testified they never saw defendant use methamphetamine. Ramirez testified defendant did not know she was selling methamphetamine, and she hid her drug sales transactions from him. Her buyers sometimes paid for drugs by giving her items instead of money. She put these items in her room, or sometimes she would leave the items "laying around" and put them "wherever."
Ramirez stated buyers would call her on her phone or knock on her bedroom window, and sometimes she would conduct the sales in front of the house. When people came to the house, she told defendant that they were visiting her, and several times defendant asked her to slow down the number of visitors and to stop having visitors late at night. Ramirez testified all of the other people at the residence at the time of the police search were there to see her.
Mrs. Henry stated she and defendant shared the master bedroom until January 2009, after which she slept in the living room and defendant slept in the second bedroom. Ramirez testified defendant slept in "one of the back rooms or sometimes in the living room or sometimes he wasn't there." Gauthier testified both the master bedroom and the second bedroom were defendant's rooms; defendant put his "stuff" in the second bedroom; and he occasionally saw defendant in the second bedroom.
Ramirez and Gauthier testified that before the police search they never saw a rifle or ammunition at defendant's house. Mrs. Henry stated the rifle found in the master bedroom had belonged to defendant's father, and in about 1999 defendant's mother gave it to their son as a keepsake. Because of her son's young age at the time, Mrs. Henry was in charge of the rifle. She wrapped it in a blanket and hid it out of view in a hall closet, and she never showed it to defendant or saw him handle it. When she moved out of the house in April, she retrieved the rifle and planned to take it with her, but realizing she did not have a permit she put it back in the house. She put the rifle in the master bedroom where she was storing her belongings, placing it behind her storage boxes where it could not be seen.
Jury Verdict and Sentence
Defendant was charged with possession of hydrocodone for sale, possession of hydrocodone, possession of a firearm by a felon, possession of ammunition by a person prohibited from possessing a firearm, and possession of controlled substance paraphernalia. The jury found him not guilty of possession of hydrocodone for sale, and guilty of the remaining charges. Based on a strike prior conviction and the current offenses, he was sentenced to two years eight months in prison.
At trial defendant stipulated he had been convicted of a felony, which prohibited his possession of firearms or ammunition.
DISCUSSION
I. Denial of Motion for Disclosure of Identity of Confidential Informant
Defendant argues the judgment must be reversed because of the denial of his motion to discover the identity of a confidential informant.
Background
Prior to trial, defendant filed a motion for disclosure of the identity of the confidential informant who provided the information for the search warrant executed at his residence. To assist the court in its resolution of the disclosure motion, the parties described the informant's role and the events leading up to defendant's arrest.
The information presented to the court was apparently based on the parties' summation of information from the preliminary hearing testimony, police reports, and the search warrant.
The parties told the court that after the police received information that drug sales were occurring at defendant's residence, they arranged for a confidential informant to make a "controlled 'drug buy' " at the residence. In August 2009, the informant went to the residence and purchased methamphetamine from Ramirez in one of the rooms of the residence. Based on this drug transaction, the police obtained a search warrant for the residence, and on September 3, 2009, searched the residence. When the police arrived, defendant was in the living room, and Ramirez was lying on a bed in a bedroom with a baby. The police found drugs (including methamphetamine and hydrocodone) in various rooms. In one bedroom, the police found mail and a state benefits card belonging to defendant, and discovered a rifle and ammunition. In a second bedroom the police found parole identification cards belonging to defendant, and discovered nine hydrocodone pills on the bed and 38 hydrocodone pills on a shelf above the bed. In a third bedroom where Ramirez was lying down, and on Ramirez's person, the police found methamphetamine and other indicia of drug sales.
There were actually 48 hydrocodone pills on the shelf.
In support of his disclosure motion, defendant argued the confidential informant could provide information about which room or rooms were used by Ramirez during the drug transaction. He asserted that if this information showed Ramirez was using rooms other than her own room to conduct drug sales, this could exonerate defendant by establishing he did not know about or possess the hydrocodone found at the residence. Defendant posited that although the confidential informant did not buy hydrocodone from Ramirez, Ramirez could have been selling both methamphetamine and hydrocodone. Further, defendant stated that although Ramirez could also provide information about which rooms she was using, she refused to be interviewed by defense counsel.
Opposing the disclosure motion, the prosecutor stated the informant was not a witness to the charged offenses; the charged offenses were based on the matters discovered during the search of the residence; and the informant could not provide any relevant information concerning the incriminating evidence found during the search.
In response to the court's inquiries, defense counsel stated the hydrocodone pills were found in a room that defendant "apparently had some attachment to," and according to the police defendant admitted this room was his and the pills were his. Defense counsel specified that at the preliminary hearing, a police officer testified that defendant "admitted the [pills] were his." However, defense counsel stated there were issues whether defendant actually made these admissions to the police.
The court concluded there was no showing the confidential informant had relevant information, and denied the disclosure motion. To support its ruling, the court noted that defendant was not charged with the methamphetamine offenses, and cited defendant's admission to the police that the hydrocodone pills were his and in his room.
Analysis
The prosecution must disclose the name of an informant who is a material witness in a case. (People v. Lawley (2002) 27 Cal.4th 102, 159.) To establish that an informant is a material witness, the defendant must present some evidence showing a reasonable possibility the informant could provide evidence that might exonerate the defendant. (Ibid.) If the defendant makes a prima facie showing for disclosure, an in camera hearing may be held to evaluate whether disclosure should be ordered. (Evid. Code, § 1042, subd. (d); Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1277; People v. Oppel (1990) 222 Cal.App.3d 1146, 1152; People v. Ingram (1978) 87 Cal.App.3d 832, 839-842.)
The trial court denied the disclosure motion based on defense counsel's statement to the court that, according to the police, defendant admitted that the pills were his and that the bedroom where the pills were found was his room. Defendant argues the trial court erred in denying his disclosure motion, or alternatively he was provided ineffective representation because his counsel did not accurately describe the preliminary hearing testimony to the court.
The transcript of the preliminary hearing reveals the following. Officer Stevens testified that when he asked defendant about the pills, defendant responded that "he may have had some pills," and defendant provided no further clarification. When Stevens asked defendant to identify to whom the various bedrooms belonged, defendant ended the interview. Stevens testified there was mail addressed to defendant in the first (i.e., master) bedroom, and an old parole identification card for defendant in the second bedroom. The master bedroom was a typical "tweaker" room; there was a bed and "stuff all over the place," including men's clothing. The second bedroom also had a bed and looked very similar to the master bedroom, although it had "a little bit less stuff in it" and did not look like "it was being completely used." In the third bedroom where Ramirez was found, there was female clothing, and indicia of drug sales including scales, baggies, and money. Scales were also found in the second bedroom.
Contrary to defense counsel's statement at the disclosure motion hearing, the preliminary hearing testimony showed that (according to the police) defendant admitted he had some pills, but he did not admit the second bedroom was his room. Thus, defense counsel inaccurately told the court about an admission favorable to the prosecution that was not, in fact, made by defendant. However, defense counsel did alert the court that the defense was not conceding the admissions claimed by the police.
The judge who ruled on the disclosure motion was not the judge who presided at the preliminary hearing.
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Given the relatively low, prima facie standard required to permit at least an in camera hearing concerning disclosure of an informant's identity, arguably defendant made (or could have made with an accurate presentation) a sufficient showing to satisfy his initial burden. That is, defendant was disputing whether he made admissions to the police, and, even considering the claimed admission that he had some pills, this did not establish that he possessed all the pills in the room (relevant to the possession for sale charge) or that he had exclusive control over the second bedroom. If the informant tied Ramirez to the second bedroom during the controlled buy, this could support defense theories that all or some of the pills belonged to her; defendant did not make the admission claimed by the police; and/or to the extent defendant had some pills he did not possess them for sale.
In any event, we need not decide whether the disclosure motion was erroneously denied either because of trial court error or ineffective representation. Even assuming error arising from the denial, the record shows it was not prejudicial.
On appeal from a judgment of conviction following trial, the question is whether the defendant has been deprived of a fair trial by the nondisclosure. (People v. Hambarian (1973) 31 Cal.App.3d 643, 659.) To resolve this question, we consider the trial record as well as the pretrial proceedings. (Ibid.) If the record shows that any error arising from the nondisclosure was harmless, there is no need to remand the case for further proceedings. (People v. Thomas (1975) 45 Cal.App.3d 749, 755; cf. People v. Samuels (2005) 36 Cal.4th 96, 110.) We conclude any error from the nondisclosure in this case was harmless under either the harmless beyond a reasonable doubt standard for federal constitutional error (People v. Thomas, at p. 755; People v. Cook (2006) 39 Cal.4th 566, 616), or the reasonable probability of a different outcome standard for state law error and ineffective representation claims (People v. Gaines (2009) 46 Cal.4th 172, 176, 183-185; People v. Weaver (2001) 26 Cal.4th 876, 925).
Preliminarily, defendant was not convicted of possession of hydrocodone for sale. Thus, to the extent the informant may have provided information suggesting that defendant might not have possessed hydrocodone for sale, there could be no prejudice on this point. As to defendant's conviction of possession of hydrocodone, there was compelling evidence supporting that defendant had dominion and control of the pills found in the second bedroom.
A defendant may be found guilty of possession of drugs based on actual or constructive possession of the drugs and knowledge of the presence of the drugs and their narcotic character. (People v. Williams (1971) 5 Cal.3d 211, 215.) Constructive possession exists when the defendant has control of, or the right to control, the drugs. (Ibid.) Knowledge and possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (Ibid.) Exclusive possession of the premises where the drugs are found is not required, and possession may be imputed when the drugs are found in a place subject to the joint dominion and control of the defendant and another. (People v. Harrington (1970) 2 Cal.3d 991, 998; People v. Kanos (1971) 14 Cal.App.3d 642, 652.) Knowledge may be inferred from the defendant's conduct or statements at or near the time of his arrest. (People v. Eckstrom (1986) 187 Cal.App.3d 323, 332.)
It was undisputed that defendant was the landlord at the residence and that Ramirez was renting a room from him. Ramirez testified she used the third bedroom, and defendant slept in one of the other two bedrooms. Defendant's wife testified that after January 2009, defendant slept in the second bedroom. Defendant's friend who was residing in the motor home testified that both the master bedroom and second bedroom were defendant's rooms and that defendant put his things in the second bedroom.
Thus, defendant's own witnesses indicated that defendant had full access to the second bedroom and that he used the room. Consistent with this, the police found parole identification cards belonging to defendant in the second bedroom. Even if the informant provided information indicating Ramirez went into the second bedroom during the controlled buy, the record clearly showed the second bedroom was not her bedroom, and this room was readily accessible to defendant, subject to his control as the landlord, and used by him. Further, the prosecution presented evidence showing that when defendant was questioned after his arrest, defendant admitted he may have had some pills. Defendant's admission created a strong inference that he knew about the hydrocodone in the second bedroom and possessed the drugs. If defendant had no knowledge that there were hydrocodone pills at the residence, he would not have been expected to make this admission.
Defendant suggests his admission concerning the pills is not entitled to significant evidentiary weight because there was no showing what pills he was referring to, nor to the timeframe when he possessed these pills. Although Officer Stevens could not recall whether he specifically told defendant that he was asking about the hydrocodone pills (see fn. 6, ante), there is nothing in the record to suggest any other pills were at issue. The record shows the pills found during the search that were tied to defendant were the hydrocodone pills. Absent evidence of any other pills associated with defendant, the evidence strongly suggests defendant was referring to the hydrocodone pills found by the police when responding to the officer's questions.
Given the strength of the evidence that defendant had dominion and control over the hydrocodone found at his home, it is clear beyond a reasonable doubt the jury would have found defendant guilty of possession even if the confidential informant had provided evidence showing that Ramirez accessed the second bedroom during the controlled buy. Accordingly, there is no need to reverse and remand the case for further proceedings concerning the confidential informant.
II. Sufficiency of the Evidence for Firearm Possession
Defendant argues there is insufficient evidence to support the jury's finding that he possessed the rifle found in the master bedroom closet. He argues the record does not show that he knew the rifle was there. The contention is unavailing.
In reviewing a challenge to the sufficiency of the evidence, we examine the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.) It is the exclusive province of the jury to determine credibility and to resolve evidentiary conflicts and inconsistencies. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
To establish the firearm possession offense, the defendant must have had knowledge of the gun's presence. (People v. Snyder (1982) 32 Cal.3d 590, 592.) Defendant's knowledge can be proven by circumstantial evidence. (People v. Hunt (1963) 221 Cal.App.2d 224, 227.) Although Mrs. Henry testified that she hid the rifle from defendant, the jury was not required to credit this claim. The rifle was placed in the closet of the master bedroom, a room which defendant had shared with his wife and where defendant had full access. Even assuming the jury credited the claim that the rifle was a keepsake gift to their son from defendant's family, the jury could reasonably infer that defendant knew about the gift and that the rifle was equally possessed by him and his wife. Defendant's statement to the police describing the gift of the rifle from his family showed that defendant knew about the existence of the firearm. Although Mrs. Henry claimed the rifle was hidden behind boxes, the jury could nevertheless infer that defendant knew it was there given that the master bedroom was a room subject to his complete control. Additionally, the jury could consider that the presence of the .22 caliber round of ammunition in the other bedroom used by defendant, which matched the .22 caliber rifle, further supported that defendant knew about the rifle in the master bedroom.
The record supports the jury's finding on the firearm possession count.
III. Refusal to Dismiss Strike Prior Conviction
Defendant was sentenced to a total term of two years eight months in prison. The court selected the 16-month low term for the firearm possession count, which term was doubled to 32 months based on defendant's 1981 strike prior conviction. Sentences on the remaining felony counts were imposed concurrently.
Defendant asserts the trial court abused its discretion in declining his request to dismiss his strike prior conviction because the strike offense was remote, he has shown remorse and has not been violent for 30 years, and he is currently a productive family member.
The purpose of the Three Strikes law is to impose extended punishment on recidivist offenders who have previously committed violent or serious felonies and who again commit a felony, thus showing they continue to pose a threat to society. (Ewing v. California (2003) 538 U.S. 11, 25-26; People v. Strong (2001) 87 Cal.App.4th 328, 337.) A trial court may dismiss a strike prior conviction if, in light of the nature and circumstances of the current and prior felony convictions and the particulars of the defendant's background, character, and prospects, the defendant is deemed outside the spirit of the Three Strikes law in whole or in part. (People v. Carmony (2004) 33 Cal.4th 367, 377.) On appeal, we review the trial court's decision for abuse of discretion. (Id. at p. 376.) The defendant must show the trial court's refusal to dismiss the strike prior is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)
The record reveals the following information about defendant's criminal history. In 1979 and 1980 defendant incurred two juvenile adjudications for vandalism and theft. Also in 1980, when he was 16 years old, he committed the offense which gave rise to his 1981 strike prior conviction. He was charged with two counts of second degree murder and two counts of robbery based on the fatal shootings of two undocumented Mexican nationals. Defendant and two companions went to shoot guns in a canyon, and during this outing they shot at a group of about eight Mexicans who they saw hiking nearby. Defendant's companions later bragged that they had killed "a couple of illegal aliens" and robbed them of about $8.00. Defendant pleaded guilty to one count of second degree murder and was sentenced to 13 years with the California Youth Authority. He was released in January 1987 at the age of 23, and discharged from parole in February 1990.
In 1991 defendant was charged with drug-related offenses but failed to appear. Also in 1991, at age 27, he committed the offenses of possession of marijuana for sale and possession of a dangerous weapon. Concerning the latter offense, the police found two loaded rifles in his bedroom. He received a jail sentence and was placed on probation. In 1994 he was charged with committing another drug-related offense but failed to appear. In 1999 he committed petty theft and received a jail sentence. In June 2002, when defendant was 38, the police responded to a domestic violence call and found defendant in possession of a fixed blade knife inside a sheath hidden under his shirt. He pleaded guilty to carrying a concealed dagger and was sentenced to two years eight months in prison. He was released from prison in 2004, and discharged from parole in 2007. In September 2009, at age 45, he committed the charged drug-related and firearm possession offenses.
When denying defendant's request to dismiss his strike prior, the court considered that the strike offense was a very serious offense, involving a murder committed by shooting strangers. Further, although defendant's subsequent offenses were less serious, defendant continued to reoffend, including offenses that involved possession of rifles. The court found that although the strike offense had been committed many years earlier, defendant had a "continuing problem with weapons, in particular with rifles," and concluded he was not outside the spirit of the Three Strikes law.
The record supports the court's ruling. Defendant committed a murder with a gun in 1980. He was released from custody in 1987 and discharged from parole in 1990. About one year after his discharge from parole (in 1991), he was found in possession of two loaded rifles. Eleven years later (in 2002) he was found in possession of a concealed knife, and for this offense was in prison until 2004 and on parole until 2007. About two years after his discharge from parole (in 2009) he committed the current offense, which included possession of a rifle. The trial court did not err in concluding that defendant's commission of a murder with a gun, followed by his recidivism and repeated possession of weapons, including firearms, reflected that he continued to pose a threat to society as contemplated by the Three Strikes statute.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.