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People v. Peavy

California Court of Appeals, Fourth District, First Division
Mar 21, 2008
No. D050290 (Cal. Ct. App. Mar. 21, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GARY LEON PEAVY, Defendant and Appellant. D050290 California Court of Appeal, Fourth District, First Division March 21, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD195062 Leo Valentine, Jr., Judge.

BENKE, Acting P. J.

A jury convicted Gary Leon Peavy of possessing heroin for sale (Health & Saf. Code, § 11351), possessing heroin (Health & Saf. Code, § 11350, subd. (a)), possessing marijuana (Health & Saf. Code, § 11357, subd. (b)), possessing cocaine (Health & Saf. Code, § 11350, subd. (a)), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and possessing cocaine base for sale (Health & Saf. Code, § 11351.5). Peavy admitted his prior felony convictions, and the court sentenced him to prison for five years and eight months. Peavy appeals, contending the evidence of dominion and control was insufficient to support his conviction for possession of a firearm by a felon and possessing heroin and cocaine base for sale, his due process rights were violated when the court instructed the jury with Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 220, and his constitutional rights were violated by the imposition of consecutive sentences without a factual finding by the jury. We affirm the judgment.

FACTS

The San Diego Police Department received approximately 10 citizen complaints regarding drug trafficking activity at Peavy's residence between June 2002 and November 2005. The police began observing the residence in May 2005 and noticed a high volume of short-term visitors when Peavy's silver Mercedes was parked in front of the house. Occasionally persons leaving the residence were found to possess narcotics.

On November 15, 2005, the police executed a search warrant on Peavy and his residence. Officers stopped and arrested Peavy as he drove toward his home. Officers searched Peavy and found an eyedropper bottle containing liquid heroin and $370 in cash. Peavy was transported to his house and the officers used his keys to enter the residence.

The residence contained three bedrooms. The officers entered bedroom 1 by kicking in the door. In bedroom 1 officers discovered tar heroin, several $20 pieces of cocaine base, liquid heroin in an eyedropper bottle, cocaine powder and a .38 caliber handgun. They also found drug paraphernalia, including syringes, razor blades, grocery bags used for packaging small quantities of drugs into bindles, a burnt spoon and fork, and a scale. Women's clothes, cosmetics, school books and a lawnmower were also in the room. Officers found several pieces of mail on the floor of bedroom 1. Two letters were addressed to Peavy and the remaining mail was addressed to his daughter. Officers tested the lock to bedroom 1 and learned a key from Peavy's key ring opened the door. During the search of the residence, Peavy told an officer his daughter used to live in bedroom 1 but had moved out several months earlier.

The police also searched bedroom 2, which belonged to codefendant Derrick Jones. Officers found Jones's mail in that room, as well as marijuana and a .9 millimeter handgun. Jones told officers he kept to himself in his own bedroom and did not go into the other bedrooms. The jury convicted Jones of possessing marijuana and being a felon in possession of a firearm.

Officers searched bedroom 3 and found men's clothing and shoes as well as two utility bills addressed to Peavy. Officers also discovered marijuana, colored balloons, syringes and a container of a dirty brown watery substance. The investigating officers believed the balloons were used to package drugs for sale. They also found a monitor linked to a security camera focused on the front driveway.

When police searched the kitchen, they found a package of syringes. In the laundry room they found a small digital scale. Officers also found an eyedropper bottle with brown residue in the dining room.

DISCUSSION

A. Sufficiency of Evidence

Peavy contends the evidence was insufficient to prove he had dominion and control over bedroom 1. He argues because the majority of the mail found in that room was addressed to his daughter and the bedroom was filled with women's clothing and cosmetics, the evidence linking him to bedroom 1 is tenuous. Peavy requests the convictions for possession of a firearm by a felon and possessing heroin and cocaine base for sale be reversed.

When a defendant challenges the sufficiency of the evidence on appeal, we "'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 the fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) The critical inquiry is 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 [99 S.Ct. 2781].) The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) The determination of a witness's credibility and truth or falsity of the facts upon which such a determination depends is within the exclusive province of the jury. (People v. Barnes (1986) 42 Cal.3d 284, 303.)

To be criminally liable for possessing a controlled substance for sale, the defendant must have either actual or constructive possession of the substance. (People v. Morante (1999) 20 Cal.4th 403, 417.) The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. White (1969) 71 Cal.2d 80, 83.) When the trier of fact finds the defendant to have either actual or constructive possession of contraband, the defendant must have had the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it was found. (People v. Valerio (1970) 13 Cal.App.3d 912, 921.)

The defendant need not physically possess the contraband if it is immediately accessible in some place under his or her control. (See People v. White (1958) 50 Cal.2d 428, 431.) Rather, the defendant may be deemed in constructive possession. (Ibid.) Further, conviction is not precluded if the defendant's right to exercise dominion and control over the place where the contraband was located is shared with another. (People v. Valerio, supra, 13 Cal.App.3d at p. 921 .) Constructive possession still exists when a defendant maintains some control or right to control contraband that is in the actual possession of another. (People v. Morante, supra, 20 Cal.4th at p. 417.)

Here, Peavy possessed a key which opened the lock to bedroom 1. His mail was found in the room. Further, Peavy told the officers at the scene his daughter no longer lived in the room. The fact that items belonging to another person were found in bedroom 1 does not diminish the fact that he had access and control over the room. Substantial evidence supports the jury's finding Peavy had dominion and control over bedroom 1.

B. CALCRIM No. 220

Peavy contends CALCRIM No. 220 is constitutionally deficient. He claims because it requires reasonable doubt to be based on evidence presented, it prevents the jury from relying on the lack of evidence to find reasonable doubt. We have previously considered and rejected this critique of CALCRIM No. 220 in People v. Westbrooks (2007) 151 Cal.App.4th 1500. Thus, Peavy's claim has no merit.

C. Consecutive Sentences

Peavy asserts his constitutional rights were violated when the court imposed consecutive sentences without a factual finding by the jury. Ordinarily, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348].) This legal reasoning was affirmed when the Supreme Court held that California's determinate sentencing law, which authorized the court, not the jury, to find facts exposing a defendant to an elevated upper term sentence, violated a defendant's right to trial by jury. (Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 871].)

Peavy's contention assumes consecutive sentences are a sentencing enhancement. However, the California Supreme Court held that a trial court's imposition of consecutive sentences does not violate a defendant's Sixth Amendment right to jury trial. (People v. Black (2007) 41 Cal.4th 799, 821.) We are bound to follow the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, Peavy's constitutional rights were not violated by the imposition of consecutive sentences.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HUFFMAN, J., HALLER, J.


Summaries of

People v. Peavy

California Court of Appeals, Fourth District, First Division
Mar 21, 2008
No. D050290 (Cal. Ct. App. Mar. 21, 2008)
Case details for

People v. Peavy

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GARY LEON PEAVY, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 21, 2008

Citations

No. D050290 (Cal. Ct. App. Mar. 21, 2008)