Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 04WF2162, Dan McNerney, Judge. Affirmed.
Maureen J. Shanahan, 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, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Police officers arrested defendant Marc Quarles after a quantity of marijuana was found in a safe in his home. He was charged with possessing marijuana for sale. While defendant was out on bail, additional marijuana, cocaine, methamphetamine, and a loaded firearm were found in the trunk of a car associated with him. Defendant was charged, among other things, with possessing the drugs for sale and being a felon in possession of a firearm. The two cases were consolidated for trial.
The jury found defendant guilty of possessing marijuana, cocaine, and methamphetamine for sale, and being a felon in possession of a firearm. It also found true an allegation defendant was personally armed with a firearm during the commission of a narcotics offense. By agreement, a court trial was held on allegations defendant had prior narcotics-related convictions, committed the offenses while out on bail, and had four prior prison term convictions. Based on certified documentation, the court found the prior conviction allegations and on-bail enhancements to be true.
Defendant contends the court erred by consolidating his two cases, denying his motion for a mistrial after a detective testified to information excluded in an Evidence Code section 402 hearing, denying access to identifying juror information without holding a hearing, and denying his request to continue the sentencing hearing to allow him to pursue information for a new trial based on jury misconduct and newly discovered evidence. He also argues there was insufficient evidence he possessed any of the items found in the car. We find no merit to these contentions and affirm the judgment.
FACTS
In July 2004, police officers executed a search warrant at defendant’s residence in Huntington Beach. The warrant authorized them to search defendant, his residence, and vehicles associated with him, including a 1981 white Mercedes, license plate number 2FUB316, and a black Corvette. Both cars were parked in the garage.
The white Mercedes was registered to a Venson L. Quarles, but defendant had the keys in his possession. No drug paraphernalia or narcotics-related evidence was found in the Mercedes. When officers searched the black Corvette, they found $1000 in cash, defendant’s wallet, and a briefcase containing sheets of paper with handwritten names and dollar amounts either added or subtracted. A detective recognized these as pay/owe sheets used by narcotics sellers to track quantities sold and monies owed.
In one bedroom, officers found a digital gram scale of the type narcotics dealers use. In another, identified as the bedroom used by defendant and his wife, officers found a stack of bills totaling $10,000 in denominations frequently associated with the sale of narcotics, a pound scale, a glass marijuana pipe, zig zag cigarette rolling papers, and defendant’s cell phone, which rang frequently while the officers were present. Inside a safe in the closet, they also found marijuana in two plastic sandwich bags in an amount that someone would possess for sale.
After defendant was arrested, he denied selling marijuana and said it was for his personal use. He also said the money in the bedroom belonged to his employer while the money in the Corvette was his.
Five months later, police officers executed a search warrant at a residence in Westminster, which had surveillance cameras outside. Five vehicles were parked in the driveway, including the white Mercedes.
The officers detained a woman standing outside the residence. Inside the house they found two women, Geraldine Roberto and Ana Rodriguez, and three children. A search of Rodriguez revealed baggies containing .9 grams of cocaine and two grams of marijuana, respectively. She was arrested for possession of a controlled substance. Roberto was also arrested, as was her husband, Ronald, who had arrived 10 minutes after the search began.
In the garage, a detective found items consistent with the sales of controlled substances, specifically, two cans of MSM, a cutting agent for crystal methamphetamine, three scales, numerous plastic baggies, and baggies containing methamphetamine. Another officer found a device used to alter credit cards. A detective later testified that narcotics dealers use surveillance cameras to detect law enforcement, digital scales to weigh product, and baggies to package controlled substances, and that people involved in narcotics sales are occasionally involved in other crimes such as credit card fraud.
While being transported to the police station, Rodriguez told Detective Bradley Geyer that defendant used the nickname “Pancho.” According to her, defendant often visited the garage of the Westminster house and slept there overnight “off and on,” using it as a “crash pad.” Rodriguez saw defendant frequently walk to and from the garage to the trunk of the white Mercedes in the driveway and place his belongings in the car. When asked about the baggie of cocaine, Rodriguez said Pancho had sold it to her.
Based on Rodriguez’s information, two other detectives returned to the Westminster location and searched the white Mercedes. The trunk was unlatched and the doors unlocked. The detectives found a black nylon bag containing five plastic baggies with an ounce of crystal methamphetamine in each, a baggie with 26.9 grams of cocaine, a baggie with 4.2 grams of methamphetamine, and a baggie with 42 grams of marijuana in the trunk. Geyer later opined the narcotics found in the trunk were possessed for purposes of sale because of quantity and value, and because of the presence of other items indicative of sales found in the garage.
In a separate bag inside the trunk, the detectives discovered a loaded semi-automatic handgun wrapped in a pair of men’s underwear. A magazine was next to the gun. The gun had been reported stolen from somewhere in Fullerton.
Upon searching the interior of the car, the detectives found a letter addressed “To Whom It May Concern.” It referenced a Marc Quarles, contained his social security number, and related to medical information from Dr. Gregory H. Wolf. They also found a physician’s statement concerning a “Marc E. Quarles.”
At trial, a detective identified two photographs taken near the garage of the Westminster residence prior to the search. One showed defendant and an unidentified female sitting on a sofa inside the garage. The sofa appeared to be the same one the detective saw in the garage and the interior of the garage was the same as it was the day of the search. The other photograph depicted defendant standing in the driveway next to the white Mercedes.
DISCUSSION
1. Sufficiency of the Evidence
Defendant contends his convictions for possessing cocaine and marijuana for sale in counts 2 through 5 and being a felon in possession of a weapon in count 6 should be reversed because there was insufficient evidence that he possessed the contraband found in the search of the white Mercedes at the Westminster address. We disagree.
In assessing an insufficiency of the evidence claim, we “review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the verdict is supported by substantial evidence, we are bound to give deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (Ibid; People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) The standard of review applies even “when the conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Possession of contraband may be either actual or constructive. (See People v. Francis (1969) 71 Cal.2d 66, 73 [narcotics]; People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [firearm].) “Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found 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. Newman (1971) 5 Cal.3d 48, 52, overruled by statute on another ground as set out in People v. Daniels (1975) 14 Cal.3d 857, 862.) Constructive possession may be shown by circumstantial evidence and reasonable inferences that can be drawn from it. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Glass (1975) 44 Cal.App.3d 772, 774.)
In People v. White (1969) 71 Cal.2d 80, officers searched a house rented by the defendant. In one bedroom, they found marijuana and documents bearing the defendant’s name and women’s clothing. The defendant told them he and his girlfriend lived in one bedroom and her brother lived in the other. At trial, the defendant testified he knew nothing about the marijuana; he claimed he had been out of town, returned a few hours before the search, unpacked, and then left again. He returned shortly before the search. A friend testified there was a party at the house the day before the search.
Observing that possession need not be exclusive, the court found sufficient evidence of the defendant’s possession of the drugs. (People v. White, supra, 71 Cal.2d at p. 83.) The marijuana was found in the defendant’s bedroom, in which he admitted he had been a few hours before the search. This raised an inference the marijuana was his, even though his girlfriend shared the room with him. (Ibid.)
In People v. Redrick (1961) 55 Cal.2d 282, the defendant managed a rooming house owned by Henry Smith. Heroin was found in a locked storeroom at the rooming house. Smith kept the key to the storeroom hanging in his shop, which was down the block from the rooming house. The defendant sometimes borrowed the key. On the day the heroin was discovered, an officer searched the defendant’s room for drugs but found nothing. The officer then searched the storeroom. Because the key was missing and the defendant denied having it, the officer forced the lock and discovered 10 bindles of heroin inside.
The court stated that “proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession.” (People v. Redrick, supra, 55 Cal.2d at p. 285.) But it recognized that other factors, added to nonexclusive dominion, will support a finding of knowing possession. (Id. at p. 287.) After his arrest, the defendant admitted to an officer that he had gone “‘back to fooling with narcotics again.’” (Id. at p. 288.) A few days before his arrest, the defendant had told Smith he had the key to the storeroom. Yet on the date of his arrest, the defendant told officers he had not had the key in three weeks; he failed to explain what he had done with it. (Id. at pp. 288-289.) The court held sufficient evidence supported the verdict and affirmed the defendant’s conviction for possession of heroin.
We reach the same conclusion here. During the search of the Huntington Beach residence, defendant had the keys to the same white Mercedes in which the contraband was later found. The car was registered to someone with the same last name as defendant. Detective Geyer testified Rodriguez had told him defendant often visited the house in Westminster and sometimes slept in the garage; she described it as his “crash pad.” Rodriguez also told Geyer she saw defendant frequently walk to and from the garage, where other items indicative of narcotics sales were found, and the white Mercedes in the driveway, where she saw him place his belongings. She identified defendant as the person who had sold her the baggie of cocaine for which she was arrested that night. Moreover, the two photographs submitted into evidence connected defendant with both the garage and the white Mercedes.
Defendant maintains there was insufficient evidence because there was evidence that could have supported a not guilty verdict. In essence, defendant asks us to reweigh and reconsider the evidence on appeal, which we cannot and will not do. (People v. Pace (1994) 27 Cal.App.4th 795, 798.) The evidence is sufficient to sustain the verdict on counts 2 through 6.
2. Consolidation
Defendant argues the court abused its discretion in consolidating his two cases over his objection. The contention lacks merit.
We review the trial court’s ruling with regard to consolidation for an abuse of discretion. (People v. Ochoa (1998) 19 Cal.4th 353, 408.) “A court abuses its discretion when its rulings fall ‘outside the bounds of reason.’ [Citation.]” (Ibid.) “Because consolidation ordinarily promotes efficiency, the law prefers it. ‘Joinder of related charges, whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.’ [Citation.] Thus ‘[a] defendant can prevent consolidation of properly joined charges only with a “clear showing of prejudice”. . . .’ [Citation.]” (Id. at p. 409, fn. omitted.)
Joinder is proper when two or more offenses are “different offenses of the same class of crimes or offenses . . . .” (Pen. Code, § 954; see People v. Koontz (2002) 27 Cal.4th 1041, 1075.) Here, defendant admits the crimes in both cases were of the same class. Joinder was therefore appropriate and preferred unless defendant could make “a clear showing of potential prejudice” due to the consolidation of such properly joined counts. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) Defendant failed to do so.
“‘“The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” [Citation.] [¶] . . . Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]’ [Citations.]” (Bradford, supra, 15 Cal.4th at p. 1315.)
Defendant focuses on the second and third factors, contending the charges in the second case were “unduly inflammatory” and involved weaker facts. This argument, however, ignores the fact the above criteria are not “equally significant.” (Bradford, supra, 15 Cal.4th at p. 1315.) “‘[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible . . . in separate trials on the others. If so, any inference of prejudice is dispelled.’ [Citations.]” (Id. at pp. 1315-1316.)
Defendant points out that certain details were unique to each case. But that does not mean none of the evidence was cross-admissible. The white Mercedes was a key piece of evidence connecting defendant to both crime scenes. Its presence at the Huntington Beach residence and the quantity of marijuana found there would have been admissible in a separate case on the counts relating to the Westminster location on issues of possession and knowledge. And its presence at the Westminster location and the large amounts of narcotics, including marijuana, in the trunk would have been admissible in a separate case involving the Huntington Beach house. As defendant concedes, the presence of cross-admissibility dispels any inference of prejudice.
3. Denial of Motion for Mistrial
Defendant asserts the court abused its discretion in denying his mistrial motion after a detective testified to information excluded in a pretrial hearing. No abuse of discretion occurred.
“A trial court should grant a motion for mistrial ‘only when “‘a party’s chances of receiving a fair trial have been irreparably damaged’”’ [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation]. ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of discretion. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 573.)
During a pretrial Evidence Code section 402 hearing, defense counsel asked the court to preclude testimony that the searches were done pursuant to a search warrant and to direct law enforcement personnel to instead testify simply that they were lawful searches. Counsel was concerned the warrants were based on confidential informants he could not cross-examine and that the mention of a search warrant might lead the jury to wonder how it was obtained. He also requested an order preventing any officer from testifying that one of the bases for his opinion the drugs were possessed for sale was information supplied by confidential informants. The court ruled the officers could only testify they were at the residences to serve search warrants and that if anyone testified to an opinion based on information from a confidential informant, the defense may be allowed to seek the informant’s identity.
On the redirect of Detective Geyer, the prosecutor followed up on defense counsel’s questions as to why Geyer did not ask Rodriguez for additional details about her purchase of cocaine from defendant. He asked what Geyer was thinking when he got the information regarding the Mercedes. Geyer responded he thought he might have missed something. Accordingly, he told another detective he “had obtained information reference our primary subject using that vehicle in the driveway” and asked him to return to the residence to check the car if it was unlocked.
Defense counsel asked for a sidebar conference. He moved for a mistrial based on the use of the words “primary subject” because it put defendant “at the pinnacle of th[e] search” as the result of information from a confidential informant.
The judge acknowledged “a yellow light flashed in [his] mind” when he heard “prime subject.” But he believed the term was subject to several inferences, one being that it referred to defendant and another being that it referred to whoever was using the house to sell drugs. The court agreed to give an admonition to the jury if defense counsel desired but it denied the mistrial motion because Geyer’s testimony did not significantly prejudice the defense and was not a blatant violation of its earlier ruling.
On appeal, defendant asserts this was an abuse of discretion because the testimony violated the court’s prior ruling precluding “information obtained from the confidential informant.” But the information about the white Mercedes was from Rodriguez, not from a confidential informant. The mere reference to a “primary subject” does not, in our view, suggest a confidential informant was involved. Nor does it “clearly inform[] the jury that [defendant] was the focus of the search,” contrary to defendant’s assertion. As the trial court observed, that reference was subject to several inferences including one that did not necessarily involve defendant.
Moreover, the court offered to admonish the jury but defense counsel declined. An admonition would have been sufficient to prevent the jury from speculating about what the term meant. (See People v. Hines (1997) 15 Cal.4th 997, 1038.) Thus, the trial court did not abuse its discretion when it denied defendant’s motion for a mistrial.
4. Denial of Access to Identifying Juror Information
Defendant argues the trial court erroneously denied his posttrial petition to release juror identifying information. We conclude that the petition was properly denied because defendant did not make a prima facie showing of good cause to justify a hearing on whether the release of the requested information was warranted.
Code of Civil Procedure sections 206 and 237 govern access to juror identifying information in criminal cases. Under these statutes, defendants are entitled to the release of juror identifying information if they “‘set[] forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial. . . . [¶] Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror’s right to privacy outweigh the countervailing public interest served by disclosure of the juror information as a matter of right in each case.’ [Citation.]” (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1093-1094.)
In this case, after the jury returned its guilty verdict, defendant petitioned the trial court to release juror information for the purpose of communicating with jurors to develop a motion for a new trial. (Code Civ. Proc., §§ 206, subd. (g), 237, subd. (b).) The petition was supported by the declaration of defendant’s trial counsel, who stated that after the verdict, several members of defendant’s family approached him and said they saw a police officer on the witness list talking to jurors during a break in the trial, though they did not hear what was said. Because counsel did not witness the alleged conversations, he attached unsworn letters and emails from defendant’s wife, sister, brothers, and friend, and a defense witness. None of these potential witnesses heard anything that was said between the officer and the jurors.
Defendant asserts that he met the standard for the disclosure of identifying juror information because the petition was timely and his counsel’s declaration established a reasonable belief that juror misconduct occurred. We need not reach these issues because defendant made no showing that “‘diligent efforts were made to contact the jurors through . . . means’” other than the court’s release of juror identifying information. (Townsel v. Superior Court, supra, 20 Cal.4th at p. 1093.) Merely claiming his counsel “was too late to speak to the jurors after the verdict and had no other means to locate [them]” as defendant has done shows lack of effort, not diligent efforts. The petition could have been properly denied on this ground alone. (See People v. Jones (1998) 17 Cal.4th 279, 317 [affirming denial of request for juror information where counsel merely stated he had “‘no way to contact the individual jurors . . . without the court’s assistance’” because requested information was not disclosed on juror questionnaire or during voir dire].)
Defendant also failed to make a prima facie showing of good cause to justify a hearing. The officer submitted a sworn declaration in opposition to the petition attesting that he never discussed the case with any of the jurors, did not discuss it within earshot of any jurors, and that the entirety of his interaction with any juror consisted of declining an offer of a donut from one and returning a “hello” from another. Since none of defendant’s family members or friends who claimed they observed a conversation actually heard anything, a hearing would have been futile.
5. Denial of Continuance of Sentencing Hearing
Defendant contends that denial of his motion to continue sentencing was an abuse of discretion. We disagree.
Under Penal Code section 1050, subdivision (e), “Continuances shall be granted only upon a showing of good cause.” The trial court has discretion to determine whether to grant or deny a motion for continuance, and its ruling will not be disturbed unless the defendant can establish that it exceeds the bounds of reason, all circumstances being considered. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) Defendant failed to make that showing.
Defendant asserts he presented three valid grounds for a continuance: (1) he needed to request funds from the county for his investigator to try to contact the jurors after the court denied his petition for the release of juror information; (2) his wife was scheduled for a hysterectomy on a date not yet determined and he wanted to be present during the procedure as well as while she recovered; and (3) he wanted to pursue potential new evidence that would impeach prosecution witnesses or exculpate him of the charges in the second case. We find no abuse of discretion in the court’s rejection of these reasons.
Regarding the desire to contact jurors, defendant’s friends and family reported the alleged juror misconduct in May 2006. That same day, sentencing was scheduled for July, thus giving defendant over two months to ask the county for funds for investigative services and explain why the money was needed. Moreover, the hearing on the petition for juror information was held in June, five weeks before the scheduled sentencing hearing. Defendant did not explain why he waited until sentencing to inform the court he needed to submit a funding request for investigative efforts that had not yet begun, particularly since those efforts should have been made as part of defendant’s petition for juror information. To establish good cause for a continuance, the moving party must show it exercised due diligence and expended all reasonable efforts to prepare for the proceedings. (People v. Johnson (1970) 5 Cal.App.3d 851, 859.) Defendant failed to show he did.
As to defendant’s request for a postponement of sentencing until his wife recovered from her yet unscheduled hysterectomy, we note the court had already given defendant two additional weeks to surrender himself to allow him to spend more time with his wife. The court had no obligation to allow defendant to remain out of custody until some unspecified date by delaying sentencing indefinitely and was within its discretion in not granting a continuance on this ground.
Defendant’s final challenge to the denial of the continuance focuses on a potential witness, Ronald Roberto, who claimed another man, Walter Becker, had given Rodriguez the cocaine found on her person during the search of the Westminster address. Roberto further asserted Becker had told him the drugs and gun found in the trunk of the white Mercedes were his.
But defense counsel admittedly knew of Roberto’s existence as early as December 2004. Although he asserted Roberto had refused to speak with the defense investigator until he was recently released from custody, Roberto could have been subpoenaed to testify at trial.
The testimony defendant wanted to elicit from Roberto also would have been hearsay, and efforts to locate Becker had been unsuccessful. In this regard, defense counsel acknowledged he had a police report at trial indicating that police officers had spoken to Becker about the drugs. But he made a tactical decision not to request a continuance of the trial to investigate the information. Counsel regretted the decision and wanted additional time to try to locate Becker, but had no idea where to start, although his investigator was working to find him. A party moving for a continuance “must show that the evidence could be obtained within a reasonable time.” (People v. Beeler, supra, 9 Cal.4th at p. 1003.) That showing was not made here. Under these circumstances, the trial court did not abuse its discretion in denying a continuance.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., FYBEL, J.