Opinion
F074396
09-07-2017
In re DARIO L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DARIO L., Defendant and Appellant.
Courtney M. Selen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MJL018456)
OPINION
THE COURT APPEAL from an order of the Superior Court of Madera County. Thomas L. Bender, Judge. Courtney M. Selen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and Black, J.†
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Appellant Dario L., a minor, appeals following the juvenile court's order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602. After a contested jurisdictional hearing, the juvenile court found true allegations that appellant had possessed cocaine (Health and Saf. Code, § 11350, subd. (a)), and possessed marijuana on school grounds (former § 11357, subd. (e) [amend. by initiative measure Prop. 47, § 12, approved Nov. 4, 2014]). Prior to appellant's dispositional hearing, a second petition was filed alleging additional offenses that are not relevant to this appeal. Subsequently, the court held a combined dispositional hearing regarding both petitions, declared both the section 11350, subdivision (a) offense and the section 11357, subdivision (e) offense, as well as the charge stemming from the new petition, to be misdemeanors, and placed appellant on home probation.
All further references are to the Health and Safety Code unless otherwise indicated.
Section 11357 was amended effective November 9, 2016, pursuant to Proposition 64. That amendment deleted former section 11357, subdivision (e); however, the substance of the offense described in former section 11357, subdivision (e) was reenacted in section 11357, subdivision (d). As former section 11357, subdivision (e) was in effect during all relevant times of the juvenile proceeding, this court will refer to the former statute during our discussion of the offense.
Respondent notes in its brief that the minute order from the September 6, 2016, hearing requires correction. Item No. 3 of the minute order from the dispositional hearing mistakenly notes the court sustained the petition alleging two violations of section 11350, subdivision (a). Item No. 6 of the minute order likewise notes two violations of section 11350, subdivision (a) and designates both offenses as misdemeanors. However, the record reflects the court sustained one violation of section 11350, subdivision (a) and one violation of 11357, subdivision (e). We therefore direct the juvenile court to amend the minute order to reflect the actual findings of the juvenile court. --------
On appeal, appellant challenges the sufficiency of the evidence to support the findings that he possessed cocaine and possessed marijuana on school grounds. Specifically, he argues that the evidence failed to adequately establish the nature of the substances possessed or that he was in possession of the substances. We conclude the evidence was sufficient to support the true findings and affirm the judgment.
FACTS
Karen Rodriguez, a safety officer with the Madera Unified School District, testified she contacted appellant on April 6, 2016, regarding some graffiti on school property. Rodriguez directed other security officers to escort appellant and his girlfriend, E.V., from their classrooms to the school office. When E.V. arrived at the office, Rodriguez noted she appeared nervous and was pacing back and forth, which was out of character. E.V. was wearing a backpack at the time, and placed her back to a window in the office. Rodriguez observed E.V. reach behind her back, retrieve something from a small zippered pocket of her backpack, and place it in her waistband. After observing this movement, Rodriguez asked E.V. if she had anything she was not supposed to have. E.V said she did not. Rodriguez explained why E.V. had been brought to the office and retrieved an orange prescription bottle from her waistband. The bottle contained a small baggie of cocaine and small nugget of marijuana.
Rodriguez subsequently spoke to appellant regarding the item she retrieved from E.V. Appellant stated that because he had previously been in trouble at the school and had been issued multiple gang notices, he knew he was likely to be contacted by security, so he "just gave it to her because [he] didn't want to get in trouble if security brought [him] in." When asked if he knew what was inside the prescription bottle, appellant stated that he knew the bottle contained cocaine and marijuana.
Madera Police Officer David Herspring testified he had been employed as a peace officer for almost 22 years. He received training in both the police academy and in a specialized course regarding the detection and identification of controlled substances. In addition, he had experience contacting multiple people in possession of or under the influence of controlled substances during his employment as a peace officer. Although he does not specifically track cases where he has identified a controlled substance, he noted that he does receive notifications from the district attorney's office if a case is rejected, and he could not recall ever having a case rejected for misidentifying a controlled substance.
Herspring responded to appellant's school and contacted Rodriguez who provided him with the prescription bottle. Rodriguez told Herspring that appellant stated he gave the bottle to E.V. on the way to school. The bottle contained a white powdery substance and a green leafy substance. Herspring opined the white powdery substance was a useable amount of cocaine. Initially, Herspring was not sure whether the substance was methamphetamine or cocaine; however, appellant confirmed the substance was cocaine. Herspring also identified the green leafy substance as a useable amount of marijuana. Appellant also confirmed the green leafy substance was marijuana.
At the close of evidence, appellant's counsel moved for an acquittal, arguing that the evidence was insufficient to demonstrate the controlled nature of the substances or of appellant's possession of them. The court allowed the parties to brief the matter. After reviewing the briefing, the court denied the motion for acquittal. The court concluded that the circumstances of the seizure, including the attempt to hide the substance from the officers, the packaging of the substance, Herspring's opinion, and the minor's admission that the substance was cocaine, was sufficient to establish beyond a reasonable doubt that the substance was cocaine.
DISCUSSION
I. The Evidence Was Sufficient to Support the Allegations
Appellant argues the evidence was insufficient to establish the nature of the recovered substances and was likewise insufficient to establish that he had possession of either substance. We conclude the evidence was sufficient to support the court's true finding.
When reviewing a challenge to the sufficiency of the "evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) Further, we review "the evidence in the light most favorable to the prosecution, [asking whether] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
The offense of possession of cocaine requires proof of actual or constructive possession of a useable amount of the drug with knowledge of the drug's presence and narcotic character. (§ 11350, subd. (a); see People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) The offense of possession of marijuana on school grounds requires that a person under the age of 18 possess marijuana on school grounds, during school hours, in addition to the above elements. (Former § 11357, subd. (e) [amend. by initiative measure Prop. 47, § 12, approved Nov. 4, 2014]; § 11357, subd. (d).) Appellant's argument regarding sufficiency of the evidence of the allegations is limited to the proof of the nature of the substances and appellant's possession of the substances; therefore, we will limit our discussion as to those elements.
A. The evidence is sufficient to establish the nature of the substances.
Appellant argues Herspring's opinion alone was insufficient to support a finding that the seized substances contained cocaine and marijuana. We disagree.
In People v. Galfund (1968) 267 Cal.App.2d 317 (Galfund), the court addressed the contention that a controlled substance may only be proven through the use of a chemical analysis. The court noted that while the character of a controlled substance is ordinarily proved through a chemical analysis, the lack of such evidence is not always fatal to the People's case as the substance may be established through circumstantial evidence or inference. (Id. at p. 320.) There, an officer who was an expert regarding narcotics, observed packaging consistent with heroin, paraphernalia, actions specific to the use of heroin, and overheard a conversation where terms commonly used by heroin users were used. (Id. at pp. 319-321.) The court concluded such evidence was sufficient to support the finding that the substance was heroin. (Id. at p. 321.)
Likewise, in People v. Chrisman (1967) 256 Cal.App.2d 425 (Chrisman), the court found sufficient evidence to support a conviction for possession of heroin where there was testimony from the defendant's acquaintance, who was a heroin addict, that the defendant had bought heroin, used it with her, and instructed her to swallow any heroin in her possession if they were contacted by the police. (Id. at pp. 430-431.) In addition, she testified as to the paraphernalia that they used, the manner in which the drugs were packaged, and described how they were used. Furthermore, testimony established that she was addicted to heroin, that the defendant was addicted to heroin, and that traces of heroin were found on the paraphernalia possessed by the defendant. (Id. at p. 431.) The court found such evidence sufficient to establish the nature of the substance. (Id. at p. 434.)
Appellant acknowledges these cases, but argues the evidence presented to the juvenile court here was less substantial than that in Galfund and Chrisman. Rather, he relies on In re Waylon M. (1982) 129 Cal.App.3d 950 (Waylon M.) and People v. Wesley (1990) 224 Cal.App.3d 1130 (Wesley), to argue that something more than the evidence presented in this case is required to support the determination that the substances were cocaine and marijuana. We find Waylon M. and Wesley distinguishable.
In Waylon M., an officer testified that he saw the defendant in possession of a substance that "resembled hashish" and that the defendant stated that he had bought hashish earlier that day, and had smoked some of it with his friends. (Id. at p. 952.) In finding the evidence insufficient to support the finding that the substance was hashish, the court noted that the identification of narcotics "requires the opinion of an expert" and the user's identification of the substances is only permitted "where there is evidence showing the user knows the nature of the drugs due to his past use and testimony as to the reactions he experiences while under the influence." (Ibid.) The court specifically noted that the officer who testified that the substance resembled hashish had not been qualified as an expert in identifying narcotics, nor did he testify regarding his background and knowledge of drugs. (Ibid.)
The court in Wesley considered whether an officer's expert testimony at a preliminary hearing that a substance was rock cocaine without a corresponding chemical analysis was sufficient to support an information charging the defendant with possession of cocaine. In determining the evidence was sufficient to support the charge, and therefore reversing the trial court's order setting aside the information, the court explained that the officer, testifying as an expert, opined that the substance was cocaine. (Id. at pp. 1146-1147.) The court relied in part upon the fact that the officer was not equivocal about his opinion of the substance.
Relying on these cases, appellant contends that an expert is required to be certain of his opinion when there is no testimony regarding a chemical analysis of the substance. He further argues that in order to rely on appellant's admission regarding the nature of the substance, the testimony must establish appellant's experience with the substance. We disagree.
The evidence presented here was more substantial than that presented in Waylon M. Herspring, unlike the officer in Waylon M., provided an expert opinion as to the nature of the substances. Herspring testified regarding his training and identification of controlled substances, which included taking courses regarding the identification of controlled substances, "multiple" contacts with people in possession and under the influence of controlled substances, and speaking with other officers about controlled substances. Furthermore, Herspring had occasion to previously identify controlled substances, have those identifications confirmed by laboratory analysis, and could not recall any occasion of ever having a case rejected by the district attorney's office for the misidentification of a controlled substance. Moreover, Herspring testified, without objection, that in his opinion, which was based on his training and experience, the recovered substances were marijuana and cocaine. This stands in stark contrast to the evidence in Waylon M. where there was no evidence regarding the officer's training and experience in the identification of substances.
The evidence here is also dissimilar to Wesley, where the only evidence supporting the nature of the substance was the officer's opinion. Appellant argues that in Wesley, the officer was positive of his identification of the substance and the court relied upon that fact to support the finding that the evidence was sufficient to establish the charge. While Herspring testified that he initially "wasn't 100 percent sure whether or not [the white powdery substance] was meth, cocaine," we note he also testified that in his opinion he believed the substance was a controlled substance based on his training and experience. Furthermore, unlike Wesley, where the officer's opinion was the only evidence establishing the nature of the substance, Herspring's expert opinion, based on over two decades of experience as a police officer, was not the only evidence regarding the nature of the substance. The undisputed testimony established that appellant admitted the substances were cocaine and marijuana, the substances were packaged in a manner consistent with controlled substances, E.V. acted nervously and out of character and attempted to secrete the items from the school security officer, and appellant admitted he gave the items to E.V. because he did not want to "get in trouble if security brought [him] in."
We likewise reject appellant's contention that additional evidence of appellant's experiences regarding the drugs was required to substantiate his statement regarding the nature of the drug. While the court in Waylon M. seemed to intimate that more than an admission of the nature of the drug from a user is required to support a finding regarding the nature of the drug, we note that in that case the only evidence supporting the character of the drug was the user's admission. Here, as we have previously explained, additional circumstantial evidence, in addition to the officer's expert opinion, supported the finding that the substances were cocaine and marijuana. Therefore, we find the evidence was sufficient to support the court's finding that the substances contained marijuana and cocaine.
B. The evidence was sufficient to establish appellant's possession of the substances.
Appellant contends the evidence was insufficient to establish that he possessed the cocaine and marijuana recovered from E.V., and therefore, the judgment cannot stand. Specifically, he argues that the offense of possession of marijuana on school grounds requires proof of the actual possession of the drug on school grounds and further claims the evidence was insufficient to demonstrate constructive possession of either substance. We disagree.
Initially we address the applicability of the principle of constructive possession to former section 11357, subdivision (e). It has been long held that possession of a controlled substance may be satisfied through proof of constructive possession (People v. White (1958) 50 Cal.2d 428, 431.) Despite the widespread application of this principle to offenses involving the possession of drugs, appellant claims the plain language of former section 11357, subdivision (e) requires proof of actual physical possession. We find appellant's contention unavailing.
"Familiar canons of statutory construction require that, in construing a statute, a court ascertain the intent of the Legislature so as to effectuate the purpose of the law." (People v. Jenkins (1995) 10 Cal.4th 234, 246.) We first examine the words of the statute, and if there is no ambiguity, the plain language governs. (Lennane v. Franchise Tax Board (1994) 9 Cal.4th 263, 268.) In considering the language of the statute, we are mindful that courts "should not presume the Legislature in the enactment of statutes intends to overthrow long-established principles of law unless that intention is made clearly to appear either by express declaration or by necessary implication." (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 779.)
The text of former section 11357, subdivision (e) provided that "every person under the age of 18 who possesses not more than 28.5 grams of marijuana, ... upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor...." (Former § 11357, subd. (e) [amend. by initiative measure Prop. 47, § 12, approved Nov. 4, 2014]; § 11357, subd. (d).) Nothing in the plain language of the statute suggests a requirement of actual physical possession. Rather, the plain language merely requires that the drugs be possessed on school grounds. As nothing in the plain language of the statute indicates that the long-standing principle of constructive possession does not apply to the possession of marijuana on school grounds, we reject appellant's argument. (See People v. Mejia (1999) 72 Cal.App.4th 1269, 1272-1273 [rejecting an argument that possession of a firearm in a school zone requires actual possession.].)
Therefore, we will consider whether the evidence was sufficient to establish that appellant had constructive possession of the marijuana and cocaine. Constructive possession can be established by evidence that the defendant exercised control or had a right to exercise control over the contraband even though it was not in his actual possession. (People v. Francis (1969) 71 Cal.2d 66, 71.) The evidence is sufficient when it shows the contraband was "in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." (People v. Williams (1971) 5 Cal.3d 211, 215.)
Appellant claims that the evidence is insufficient to support a finding that he had dominion and control over the substances because there was no evidence that he intended E.V. to return the container to him after the end of the school day. We disagree. The undisputed evidence was that appellant stated he gave the container to E.V. because he knew it was likely he would be contacted by security. He stated he "gave it to her because [he] didn't want to get in trouble if security brought [him] in." The clear implication from this statement was that he intended to recover the drugs from E.V. after the school day. Appellant's statement relayed he was concerned that security may contact him so he did not want to have the drugs in his actual possession. It was reasonable for the juvenile court to conclude from this statement that although appellant gave the drugs to E.V. on the way to school, that he retained the right to control them, and would later seek their return when he was no longer in danger of being contacted by security. This is sufficient to establish appellant constructively possessed the substances.
Nor can there be any argument that the possession of the marijuana did not occur on school grounds during school hours as Rodriguez testified appellant and E.V. were escorted from their classrooms to the office to discuss the graffiti. Further, appellant stated that he had given the bottle to E.V. on the way to school, thus the substances were possessed on school grounds during the school day. Therefore, the evidence was sufficient to conclude appellant possessed the cocaine and he likewise possessed the marijuana on school grounds.
DISPOSITION
The matter is remanded to the juvenile court with directions to correct the September 6, 2016 minute order in accordance with this opinion. The juvenile court is directed to forward certified copies of the amended order to the appropriate entities. In all other respects, the judgment is affirmed.
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.