Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct. No. RIF135067 Michele D. Levine, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant guilty of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) (count 1); possession of drug paraphernalia (Health & Saf. Code, § 11364) (count 2); and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) (count 3). In a bifurcated proceeding, the trial court found true that defendant had sustained five prior prison terms (Pen. Code, § 667.5, subd. (b)) and five prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). Defendant was sentenced to a total term of 30 years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain his conviction on count 1, and (2) the trial court abused its discretion in denying his motion to strike his priors. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
On February 16, 2007, Riverside Police Department Officer Sancho Lopez, an experienced drug expert, was on patrol when he was dispatched on a “subjects bothering” call to a parking lot at the corner of University and Chicago, a high drug-traffic area, in Riverside. When Officer Lopez and his partner arrived at the location, they made contact with defendant. Defendant was sitting on a cinder block wall, and Officer Lopez asked defendant to stand up so he could pat him down for weapons. When defendant stood up, Officer Lopez saw a small, black, one-inch-long plastic bindle fall from defendant’s lap. The bindle landed between Officer Lopez and defendant.
Officer Lopez arrested defendant and placed him in the back of the patrol vehicle. Officer Lopez then picked up the bindle and opened it. Inside the bindle, he found several small “off-white colored rocks.” Based on his training, experience, and extensive knowledge of cocaine base, Officer Lopez opined the substance was rock cocaine. A later test revealed the substance was a useable amount of 0.41 grams of cocaine base, also known as rock cocaine. Officer Lopez then conducted a thorough search of defendant and found a “glass, rock cocaine smoking pipe” in defendant’s front pocket. Defendant was later found to be under the influence of a stimulant.
II
DISCUSSION
A. Insufficiency of the Evidence
Defendant contends there was insufficient evidence to support his conviction for possession of cocaine base because the People failed to establish a chain of custody of the substance recovered from the scene, and therefore the narcotic nature of the substance and defendant’s knowledge thereof was not shown.
The additional factual background is as follows: After Officer Lopez retrieved the bindle of rock cocaine, he placed the substance in a small plastic envelope, secured the envelope inside another envelope, and transported it along with defendant to the police station. At the police station, Officer Lopez’s partner, Officer Hicks, tested the substance by using a cocaine test kit, which can detect the presence of cocaine base, and determined the substance contained cocaine. Officer Hicks also weighed the substance on a digital scale; it weighed 0.4 grams.
Upon the completion of the test, the officers packaged the substance in a “K-pack,” a clear plastic bag that was heat sealed, and sent it off to the California Department of Justice (DOJ) for official testing. A sealed evidence envelope containing cocaine base, presumably the K-pack sent to the DOJ, was People’s Exhibit No. 1 at trial. The prosecutor did not show Exhibit No. 1 to Officer Lopez at trial so that he could verify that it was the actual K-pack he or Officer Hicks had sent to the DOJ.
In response to a question by the prosecutor if he tested “a substance that was submitted for the subject Roland T. Mills,” Javed Khan, a criminalist with the DOJ, stated, “I believe that’s why I’m here.” Khan then testified to the procedures involved when a packet is received from law enforcement agencies. Once the evidence is entered as a case number, the evidence is then transferred in a secure locker that is accessible to the analyst of the section for further examination. Khan also testified that he had generated a report in this case after he completed the examination, and that the report included the information that was contained on the envelope he received from the police. The name on the envelope stated “Ronald T. Mills.” Khan tested and weighed the substance and determined it was 0.41 grams of cocaine base without the packaging.
After the People rested, defense counsel moved to dismiss count 1 (possession of cocaine base), among others, for insufficiency of the evidence. Defense counsel argued that the prosecution had not established a chain of custody to prove that the substance that Officer Lopez or Officer Hicks had sent to the DOJ was the same substance that Khan had tested based on there being no testimony about case numbers, Khan saying the name on the envelope was “Ronald T. Mills,” and the fact that the prosecutor had not shown the K-pack sent to the DOJ (Exh. No. 1) to Officer Lopez and Khan while they were testifying.
The trial court, noting that Exhibit No. 1 had not been shown to Officer Lopez or Khan, declined to admit that exhibit into evidence. The trial court then examined Exhibit No. 4, the report from Khan, and noted that the DOJ case number on that exhibit was different from the Riverside Police Department number on Exhibit No. 1. The trial court, however, stated that despite the slight differences in case numbers, the issue goes to the weight of the evidence, pointing out that Officer Lopez had testified to how the substance was packaged and that it was sent to the DOJ, and the DOJ had referenced the subject as Roland T. Mills with an offense date of February 16, 2007. On that basis, the court denied the motion to dismiss count 1 and admitted Exhibit No. 4 into evidence.
Our Supreme Court has repeatedly held: “In a chain of custody claim, ‘“[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” [Citations.]’ [Citations.]” People v. Catlin (2001) 26 Cal.4th 81, 134; see also People v. Lucas (1995) 12 Cal.4th 415, 444.) The California Supreme Court has also held on a number of occasions: “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; see also Catlin, at p. 134; People v. Jones (1998) 17 Cal.4th 279, 304.)
Defendant claims that “because the evidence adduced at trial was insufficient to establish to a reasonable certainty that the tested substance was that seized from [defendant],” his conviction on possession of cocaine base should be reversed. Defendant’s contention is without merit. From the evidence adduced at trial, the trial court could conclude with reasonable certainty that no one had tampered with the envelope or its contents. There was not a scintilla of evidence supporting any possible claim of substitution or tampering. Any chain of custody deficiency was based on the “barest speculation” of tampering. Moreover, the alleged break in the chain of custody was not fatal, as the evidence clearly remained in official custody. “It is proper to presume that an official duty has been regularly performed unless there is some evidence to the contrary. [Citations.]” (People v. Lugo (1962) 203 Cal.App.2d 772, 775.)
Defendant also appears to claim that without the admission of Exhibit No. 1 (the K-pack containing the seized cocaine base) there was insufficient evidence to establish the narcotic character of the substance and defendant’s knowledge thereof.
When reviewing a criminal conviction for sufficiency of the evidence, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We use the same standard when circumstantial evidence is reviewed. (People v. Bean (1988) 46 Cal.3d 919, 932.) “It is the jury, not the appellate court [that] must be convinced of the defendant’s guilt beyond a reasonable doubt.” (Id. at p. 933.) For that reason, an appellate court may not substitute its judgment for that of the jury. If the evidence reasonably justifies the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the evidence might also support a contrary finding. (Ibid.; see also People v. Perez (1992) 2 Cal.4th 1117, 1126.)
“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.) “[T]he nature of a substance, like any other fact in a criminal case, may be proved by circumstantial evidence. [Citations.] It may be proved, for example, by evidence that the substance was a part of a larger quantity which was chemically analyzed [citations], by the expert opinion of the arresting officer [citation], and by the conduct of the defendant indicating consciousness of guilt. [Citation.]” (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369, italics added.)
Clearly, there is sufficient evidence in the record to warrant the jury’s finding here. A chemical test was performed on the substance found in defendant’s possession by Officer Hicks before it was sent to the DOJ. The test revealed the substance contained cocaine base and that it weighed 0.4 grams. Hence, assuming the substance tested by Khan was not the same substance found in defendant’s possession, a failure to perform chemical tests or analysis on the substance by the DOJ is not determinative of the sufficiency of evidence in this case. California courts have consistently held that circumstantial evidence is sufficient proof regarding a substance’s narcotic nature. (People v. Sonleitner, supra, 183 Cal.App.3d at p. 369.) Moreover, the substance was tested prior to being sent to the DOJ, and the arresting officer, who testified as a narcotic expert, opined the substance was cocaine base. The circumstantial evidence in this case, including expert testimony, the testing performed by Officer Hicks, and admissions made by defendant, is sufficient to affirm the judgment of the trial court.
B. Motion to Dismiss Priors
Defendant argues the trial court abused its discretion by refusing to dismiss his five prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree.
The trial court’s decision to dismiss or not to dismiss a prior strike allegation is reviewable on appeal under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-375 (Carmony).) Under this standard, the defendant has the burden of establishing that the trial court’s determination was arbitrary or irrational. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
In Carmony, supra, 33 Cal.4th 367, the California Supreme Court explained that “the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Id. at p. 378.) In light of this presumption, an abuse of discretion in declining to dismiss a strike occurs only in “limited circumstances.” (Ibid.) For example, where the trial court “was not ‘aware of its discretion’ to dismiss”; “where the court considered impermissible factors in declining to dismiss”; where application of the sentencing norms established by the three strikes law produces an “‘“arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case”; or “where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme,” that is, where the relevant factors “manifestly support the striking of a prior conviction and no reasonable minds could differ. . . .” (Ibid.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
“Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)
The touchstone of the analysis must be “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Defendant claims the trial court abused its discretion in denying his motion to strike five of his prior strike convictions because it placed “undue reliance” on his prior offenses and failed to consider properly his drug addiction or the nonviolent nature of the current crimes.
In this case, the trial court denied defendant’s motion, and in light of the above-noted factors, we conclude that the trial court did not abuse its discretion in doing so. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately and methodically applied the factors as outlined in Williams. Contrary to defendant’s contention, the court’s statements clearly show that it considered defendant’s drug addiction as well as the nonviolent nature of his current offenses.
However, as the trial court pointed out, it could not overlook defendant’s significant criminal history. His criminal career began nearly 27 years ago and includes at least six prior felony convictions and numerous misdemeanor cases. Moreover, defendant’s criminal history is replete with robbery and burglary offenses and violations of parole and probation. In fact, defendant has been in and out of prison since 1986. This case is far from extraordinary. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law.
The court here could not ignore the fact defendant continued to commit serious criminal offenses even after repeatedly serving time in prison. His conduct as a whole was a strong indication of unwillingness or inability to comply with the law. Finally, he has shown his continual disregard for the law as evidenced by his continual parole violations and criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense and his underlying drug addiction. All of these factors were relevant to the trial court’s decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or that it failed to properly balance the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (Williams, supra, 17 Cal.4th at p. 161.)
Indeed, defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) Thus, given defendant’s continuous criminal history, his numerous parole and probation violations, the seriousness of the past and present offenses, and his seemingly dim prospects for rehabilitation and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss one or more of defendant’s prior strike convictions. The trial court’s decision not to strike defendant’s priors was neither irrational nor arbitrary.
Defendant does not dispute his criminal history, and this history depicts a “revolving door” career criminal who “cannot be deemed outside the spirit of the Three Strikes law.” (Williams, supra, 17 Cal.4th at 163.) While we recognize that defendant’s recidivist status is not singularly dispositive, it is “undeniably relevant.” (People v. Garcia, supra, 20 Cal.4th at p. 501.)
In short, defendant was within the spirit of the three strikes law (see Williams, supra, 17 Cal.4th at p. 161), the trial court did not rule in an “arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice” (People v. Jordan (1986) 42 Cal.3d 308, 316), and we find no abuse of discretion (see Romero, supra, 13 Cal.4th at p. 504).
III
DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.