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People v. Hodge

California Court of Appeals, Third District, Butte
Apr 14, 2009
No. C058077 (Cal. Ct. App. Apr. 14, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. THURMAN HODGE, JR., Defendant and Appellant. C058077 California Court of Appeal, Third District, Butte April 14, 2009

NOT TO BE PUBLISHED

Super. Ct. No. CM024608

DAVIS, J.

Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

On retrial after a hung jury and mistrial, a jury convicted defendant Thurman Hodge, Jr., of possession of cocaine base for sale (count 1; Health & Saf. Code, § 11351.5) and possession of cocaine for sale (count 2; Health & Saf. Code, § 11351), and found as to both counts that defendant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)). The trial court imposed 36 months’ probation, including 180 days in jail.

Defendant contends that there was insufficient evidence to support the verdict on count 2 and the arming enhancement. We shall affirm.

Facts and Procedural History

Around 6:40 p.m. on March 2, 2006, eight to 10 narcotics agents executed a search warrant at defendant’s residence in south Oroville.

The affidavit in support of the warrant named two residences, including defendant’s, and two persons, not including defendant. The named persons, Emanuel Reed and Kathleen Williams (who are defendant’s cousins), were alleged to have sold rock cocaine and methamphetamine to an undercover officer at both addresses.

When the officers arrived, they found defendant in the side yard, talking on a cell phone. After detaining him, they found a baggie containing over seven grams of cocaine base under a bush near where he had been standing.

Other officers broke down the front door after knocking and giving notice. No one was inside. On the kitchen counter, they found a baggie containing over eight grams of cocaine salt, a digital gram scale and baggies. Also in the kitchen were an apparent pay/owe sheet and a current utility bill in defendant’s name.

In a bedroom other than defendant’s, the officers found a child support notice addressed to Reed, but it was a year old.

Defendant was wearing a lanyard around his neck that held keys. One of the keys opened a locked floor safe in the closet of defendant’s bedroom, which contained over $9,000 in cash and two unloaded.45-caliber handguns. A jacket hanging in the closet had live.45-caliber ammunition in one of the pockets.

An officer testifying as an expert on possession of cocaine and cocaine base for sale opined, based on the amount of drugs found, the digital gram scale, the pay-owe sheet, the cash (including the manner in which it was bundled), and the guns and ammunition, that both the cocaine base and the cocaine salt were possessed for purposes of sale.

Testifying on his own behalf, defendant claimed that he did not possess the drugs, nor did he know that they were there before the police found them. He was out of town on March 2, 2006; returning after 6:00 p.m., he spent just a moment in the house before going out to feed his racing pigeons in the side yard and talk on his cell phone. Emanuel Reed, who had stayed at defendant’s house overnight after getting out of jail, was still there when defendant came in, but ran out a door and jumped the back fence just after defendant went outside. Immediately afterward, the police arrived.

According to defendant, the cash in his safe came from his barbecue business, fundraisers held by a nonprofit community organization he ran, and the sale of his car. The guns and ammunition were not his: after a killing in the community, people had turned them over to him for safekeeping. The purported pay-owe sheet was not in his handwriting.

On cross-examination, defendant admitted that the barbecue business’s bank account for the months prior to March 2006 showed balances of a few hundred dollars at most, with a negative balance at the end of February 2006. From the end of September 2005 through the end of that year, he spent almost $7,000 on rental cars.

Defendant also put on corroborating witnesses. Sherman Tobias testified about his trip to Fairfield with defendant on March 2, 2006. William Barnes, a founding member of defendant’s community organization, described its activities and fundraising methods. (Barnes admitted, however, that he had never seen financial records for the group and that defendant handled all the funds.)

Discussion

I

Defendant contends that there was insufficient evidence he had dominion and control over the drugs found in the house (count 2). (Cf. People v. Hunt (1971) 4 Cal.3d 231, 236 [dominion and control over contraband may establish possession].) We disagree.

We review insufficient evidence contentions under the substantial evidence standard, viewing the evidence most favorably to the judgment and drawing all reasonable inferences in its support. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) After acknowledging this standard, however, defendant proceeds to discuss the evidence in the light most favorable to himself. He argues, in effect, that we must accept his trial theory that Emanuel Reed possessed the drugs found in the house, even though (1) the house was defendant’s residence; (2) defendant was found there by the police; (3) Reed was not; (4) a current utility bill in defendant’s name was found in close proximity to the drugs, the gram scale, and the pay-owe sheet, whereas the only evidence of Reed’s occupancy was a year old; (5) a large amount of cash and two firearms were found in a safe in defendant’s bedroom to which he held the key; and (6) drugs were also found outside, near where he was standing when the police arrived, giving rise to a separate count as to which he does not challenge his conviction. Viewing this evidence and the reasonable inferences from it most favorably to the verdict, it overwhelmingly proves defendant’s dominion and control over the drugs in the house. Defendant tried to explain it away, but the jury obviously did not credit his explanations. We will not second-guess the jury’s findings.

The fact that Reed was alleged to have sold drugs out of defendant’s residence shortly before the police raid showed at most that Reed might have had joint dominion and control of drugs on the premises. Even if so, that would not have exonerated defendant. (See, e.g., People v. Johnson (1984) 158 Cal.App.3d 850, 853; People v. Jenkins (1979) 91 Cal.App.3d 579, 584; People v. Rice (1976) 59 Cal.App.3d 998, 1002-1003.)

II

Defendant contends that insufficient evidence supports the jury’s finding that he was personally armed with a firearm in the commission of the offenses. Again, we disagree.

We apply the substantial evidence standard of review to claims of insufficient evidence on enhancements. (People v. Wilson (2008) 44 Cal.4th 758, 806.) As on the first issue, the evidence more than meets that standard.

Under section 12022, subdivision (c), to be personally armed with a firearm in the commission of the offenses charged here “does not require that a defendant utilize a firearm or even carry one on the body. A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. [Citations.]” (People v. Bland (1995) 10 Cal.4th 991, 997 (Bland), italics omitted.) If the defendant stores firearms near his stash of drugs, this is sufficient; the defendant need not be continuously present during the period in which he possesses the drugs. (People v. Pitto (2008) 43 Cal.4th 228, 238.)

Defendant had drugs in his kitchen. He also had two firearms in a safe in his bedroom closet, opened by a key he was carrying on his person. The ammunition for the firearms was in the pocket of a jacket hanging in the same closet. According to the investigating officers, it took three seconds to unlock the safe and two more seconds to retrieve the guns; the jacket holding the ammunition was within arm’s reach. This evidence sufficed to show by reasonable inference “(1) that the defendant knew of the firearm[s’] presence, (2) that [their] presence together with the drugs [i.e., in close proximity to them] was not accidental or coincidental, and (3) that, at some point during the period of illegal drug possession, the defendant was present with both the drugs and the firearm[s] and thus that the firearm[s] [were] available for the defendant to put to immediate use to aid in the drug possession.” (Bland, supra, 10 Cal.4th at p. 1003, see Id. at p. 1002.)

Defendant relies on People v. Balbuena (1992) 11 Cal.App.4th 1136 (Balbuena), which he calls “[n]early identical” to this case. His reliance is misplaced.

In Balbuena, the appellate court reversed an arming enhancement under section 12022, subdivision (c). (Balbuena, supra, 11 Cal.App.4th at pp. 1138, 1140.) The court held that although there was a pistol in a suitcase in the defendant’s residence, it was not within his reach at the time the police executed a search warrant, it had not been placed in a position of ready access, it was not loaded or ready for use, and it was not connected to the commission of the drug offenses charged; it was merely kept with his other belongings. (Balbuena, supra, 11 Cal.App.4th at pp. 1138-1139.)

What defendant overlooks, however, is that our Supreme Court expressly disapproved Balbuena on this point in Bland. (Bland, supra, 10 Cal.4th at p. 1001, fn. 4, 1003.) The correct question, according to the Supreme Court, is not whether the defendant could have reached the gun when the police entered the residence but whether the gun was related to the drugs at any time during which the defendant possessed them. (Id. at pp. 1002-1003.) As we have explained, the jury here could reasonably have drawn the inference that the guns and the drugs in this case were so related.

Disposition

The judgment is affirmed.

We concur: NICHOLSON, Acting P. J., CANTIL-SAKAUYE, J.

The undercover officer testified at trial that before the search warrant was executed, he had twice tried to buy drugs from defendant at his residence, the second time accompanied by Williams, but failed. Defendant said he did not know the officer and did not have anything.


Summaries of

People v. Hodge

California Court of Appeals, Third District, Butte
Apr 14, 2009
No. C058077 (Cal. Ct. App. Apr. 14, 2009)
Case details for

People v. Hodge

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THURMAN HODGE, JR., Defendant and…

Court:California Court of Appeals, Third District, Butte

Date published: Apr 14, 2009

Citations

No. C058077 (Cal. Ct. App. Apr. 14, 2009)