Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-051105-5
Lambden, J.
A jury found Joseph Vincent Romeo guilty of 14 counts of drug and weapon charges and special allegations, and the court sentenced him to a prison term of 10 years. Romeo appeals, claiming insufficient evidence for his convictions on two of the counts, possession of a billy (count 12; Pen. Code, § 12020, subd. (a)(1)) and possession of methamphetamine for sale (count 14; Health & Saf. Code, § 11378). We affirm.
All unstated section references are to the Health and Safety Code.
BACKGROUND
The billy possession count arose from drugs and weapons found in Romeo’s possession on January 30, 2005 (all further dates are in 2005), and the methamphetamine possession-for-sale count flows from an incident on March 11.
January 30. Shortly before 10:00 a.m., two patrol officers found Romeo slumped over the steering wheel of a white pickup truck, asleep, in front of a Concord residence. After checking with Romeo’s girlfriend Pamela Morgan, who was inside the residence, officers awakened Romeo and asked if he had any weapons. They searched him and the truck, and during the search of him, Romeo disclosed that he had guns, first one and then another. He had fully loaded .22 and .38 caliber handguns in his jacket pockets. Officers arrested him and, in a cursory search of the truck prior to towing, found under the seat—“directly underneath him”—“a small, wooden bat that appeared to have been weighted down in the inside.” A small knife in a cardboard sheath was in the truck bed.
In a more thorough search of the truck at the towing yard, officers found, rolled in a blanket wedged in the crack between the bottom and back of the bench seat, at the right hand side of the driver, a small tin box containing two small bindles of a dark substance (heroin) and white powder (methamphetamine). A camera case inside a tool box in the truck bed held a wrapped syringe, a straw, a bent spoon with brown liquid residue (apparent heroin), and a scale with a black substance on the surface consistent with heroin. A radio scanner was in the truck bed, and a loose round of .22 caliber ammunition was in the cab.
At booking, Romeo had over $1,800 on him, including ten $100 bills and forty $20 bills, yet Romeo said he was unemployed. During a later search at the jail, Romeo did not appear to be under the influence of methamphetamine or heroin, but scarring on his arms indicated prior intravenous drug use.
March 11. The March 11 incident began at 9:00 a.m., when narcotics officers searched room 234 of a Heritage Inn in Concord, after one officer had seen Romeo and Morgan by that room the day before, in Romeo’s pickup truck. Morgan was in the room, under the influence of heroin and with fresh track marks on her neck. Romeo was detained 50 yards away and informed of the ongoing search.
In the one-bed room, the officers found suspected methamphetamine and heroin, paraphernalia, and other indicia of use and possession for sale. A black duffle bag on the bed held cut-away beer cans that had been heated on the bottom, with burnt residue inside and, in one, a large piece of dark stained cotton often used to filter out impurities prior to injecting heroin. Also on the bed was a book with a secret compartment fashioned by cutting pages; it held 70 unused small plastic baggies of varied color and size (one to two inches square). There were glass pipes used for methamphetamine and, in a glasses case found under couch cushions, a spoon and new and used syringes. Two syringes had a brown liquid ready to inject. Methamphetamine (crank) can also be injected. On a nightstand by the bed was a box with a “gram scale” having a white crystal-like residue, evident methamphetamine, and more of the substance was “scattered about on top” of the nightstand.
On the floor at the right side of the bed was an Altoids-brand tin containing two plastic bags of white crystal-like substance, each bag holding an “eight ball” (one-eighth of an ounce) of apparent methamphetamine, and one baggie of a harder dark substance that looked and smelled like heroin. Under the tin was a third baggie of methamphetamine.
A search of Romeo revealed a syringe in a pants pocket and a wallet with $1,911 in cash, including twelve $100 bills, three $50 bills, and twenty-eight $20 bills. Romeo admitted to police that the syringe contained heroin, that the tin, or at least its contents, had been “on his person.” He admitted being a heroin addict and told police he injected it twice a day and smoked methamphetamine daily. He told them the tin contained heroin and “two eight balls of crank.” He said he was unemployed, was in the process of selling a home, and was staying at the hotel until he had a motor home he was planning to buy with the sale proceeds.
The defense did not contest drug or firearm possession but urged, focused on the drug-possession-for-sale counts, that Romeo had the drugs for personal use only. Romeo did not himself testify, but he presented Morgan and other witnesses to lay an evidentiary foundation which, while ultimately rejected by the jury, allowed defense counsel to argue that Romeo was ingesting drugs at an extraordinarily high rate and had no motive to sell them since he had money available during those months from an inherited but red-tagged house in Martinez that he was in the process of selling. As will be seen, the issues on appeal do not require any detailed discussion of that evidence.
DISCUSSION
Romeo contends that each of the challenged convictions lacks sufficient evidence and thus violates his right to due process under the Fourteenth Amendment of the federal Constitution.
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.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
I. Count 12—Possession of a Billy
Penal Code section 12020, subdivision (a)(1), prohibits possession of “any instrument or weapon of the kind commonly known as a . . .billy,” and the “weighted bat” found under the truck seat on January 30 was alleged and found by the jury to satisfy that definition of a deadly weapon. The evidence on this count was an officer’s testimony that the bat was discovered “directly underneath” the driver’s seat, where Romeo was, and was “a small, wooden bat that appeared to have been weighted down in the inside.” Romeo contends that this was insufficient because the bat only “appeared” to have been weighted down—i.e., altered for weapon use—and that the full circumstances did not rule out possession for innocent use, thus violating the construction established for a “billy” in People v. Grubb (1965) 63 Cal.2d 614 (Grubb). We find the conviction to be supported.
Grubb reversed, for evidentiary error, a conviction for possessing a billy—a small bat with a broken-off, taped handle—but held that the statute was not unconstitutionally vague for encompassing objects with commonly innocent uses, and that it would include the bat in that case. (Grubb, supra, 63 Cal.2d at pp. 615-616.) Grubb explained: “The concomitant circumstances may well proclaim the danger of even the innocent-appearing utensil. The Legislature thus decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger. Accordingly the statute would encompass the possession of a table leg . . . when it is detached from the table and carried at night in a ‘tough’ neighborhood to the scene of a riot. On the other hand the section would not penalize the Little Leaguer at bat in a baseball game.” (Id. at p. 621.) The court held: “[P]ossession of the altered baseball bat, taped at the smaller end, heavier at the unbroken end, carried about in the car, obviously usable as a ‘billy,’ clearly not transported for the purpose of playing baseball, violates the statute. [¶] We recognize that the presence of suspicious circumstances attendant to possession of the proscribed objects does not forge an ironclad case against defendant. He may be able to demonstrate an innocent usage of the object but the burden falls upon him to do so.” (Ibid., fn. omitted.) Grubb adopted a definition like that for dangerous or deadly weapons: “[F]irst, instruments dangerous in their ordinary use and, second, in some circumstances, instruments not dangerous in their ordinary use,” saying, “Possibly the instant baseball bat has been so altered from its ordinary condition that it falls into the first category . . . [Citations.]” (Id. at p. 621, fn. 8.) It clarified: “The prosecution need not show the intent of the possessor to use an instrument in a violent manner. [Citation.] A defendant, on the other hand, may justify his possession of an instrument found under suspicious circumstances by proof of his intent to use it in accordance with its ordinary legitimate design. . . .” (Id. at p. 621, fn. 9.)
This conclusion was reached without considering evidence, held admitted in error, that the defendant had admitted during post-arrest police interrogation having the bat for about two years, carrying it for self-defense, and striking people with it on at least two occasions. (In re Grubb, supra, 63 Cal.2d at p. 617.)
The pertinent jury instructions given here are not challenged as inconsistent with Grubb. They were: “Every person who possesses any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag is guilty of a violation of Penal Code section [12020, subdivision (a)(1)]. [¶] . . . [¶] ‘Billy club’ is defined as follows: Any clubbing or bludgeoning instrument or weapon. This definition encompasses: [¶] 1. Instruments dangerous in their ordinary use; and [¶] 2. Instruments not dangerous in their ordinary use but possessed under circumstances where it could be used as a weapon.”
Grubb was recently summarized this way: “Intent to use a weapon is not an element of the crime of weapon possession. ‘Proof of possession alone is sufficient.’ [Citation.] However, if the object is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution must prove that the object was possessed as a weapon. The only way to meet that burden is by evidence ‘indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose.’ [Citation.] The evidence may be circumstantial, and my be rebutted by the defendant with evidence of ‘innocent usage.’ [Citation.]” (People v. Fannin (2001) 91 Cal.App.4th 1399, 1404 (Fannin).) In Fannin, possession of a “slungshot” in the form of a bicycle chain with a heavy padlock on it (id. at p. 1401) was held supported by the defendant’s own admission to an officer that he carried the instrument for self-defense (id. at pp. 1405-1406).
We may assume, without deciding, that testimony about the bat appearing to be weighted in this case was not enough for the jury to find it had been altered for use as a weapon because, in any event, substantial evidence supports a finding that the bat, even if not altered, was possessed as a weapon. The bat was found to have been directly under Romeo, within ready reach. Romeo had large amounts of cash and drugs on him, found to have been possessed for sale, thus furnishing obvious need for protection. He had two fully loaded handguns also within reach. And finally, there was no evidence whatsoever of an innocent use or purpose for having the bat. Jurors could rationally infer, beyond a reasonable doubt, that the bat was possessed for use as a weapon.
II. Count 14—Possession of Methamphetamine for Sale
Romeo’s challenge to the count of methamphetamine possession for sale on March 11 (count 14; Health & Saf. Code, § 11378) concedes sufficient evidence to show the elements of knowing possession and specific intent to sell. He insists, however, that because only one of four exhibits comprising the alleged drug was actually tested, there is insufficient foundation for expert opinion, relied upon by the jury, that it was possessed in sufficient quantity for sale. Specifically, he claims lack of support for what the jury instructions called element 4 of the offense: “The substance was in an amount sufficient to be used for sale or consumption as a controlled substance.”
The complete elements, as read from CALJIC No. 12.01, were: “1. A person exercised control over or the right to control an amount of methamphetamine, a controlled substance; [¶] 2. That person knew of its presence; [¶] 3. That person knew of its nature as a controlled substance; [¶] 4. The substance was in an amount sufficient to be used for sale or consumption as a controlled substance; and [¶] 5. That person possessed [the] controlled substance with the specific intent to sell the same.”
The basis of the claim is this: The methamphetamine, all seized from the hotel room, came into evidence as People’s exhibit 13 and consisted of exhibits 13A through 13D. By weight and source, these constituted: 0.68 grams, from the baggie under the tin (exhibit 13A); 3.50 grams, one of the “eight balls” inside the tin (exhibit 13B); 3.42 grams, the other “eight ball” (exhibit 13C); and 0.02 grams, the residue from the top surface of the nightstand (exhibit 13D). Denise Allen, a forensic toxicologist, testified that she chemically tested exhibit 13B, using three presumptive color tests and two confirming microcrystalline tests, and concluded that the 3.50 grams was methamphetamine. She then visually compared the remaining three samples. She found them similar in appearance, knew they had been found in the same hotel room as the one she tested and, having no reason to believe that they were not in fact methamphetamine, proceeded under laboratory policy not to test the remaining three chemically. Each of the samples, however, even the 0.02 grams, was a usable amount. Detective George Driscoll, as an expert in drug sales, then opined from Allen’s work and other facts surrounding March 11, that Romeo possessed the methamphetamine for purpose of sale. His opinion was evidently based initially on the two eight balls, exhibits 13B and 13C, but later all four exhibits.
The Attorney General assumes that Driscoll relied, for his opinion, on Romeo possessing 5.81 grams of methamphetamine, but this was the aggregate weight for the January 30 incident (unchallenged count 13), not March 11 (the challenged count 14).
Romeo contends that, since the toxicologist chemically tested only one of the four exhibits (3.50 grams out of the 7.62 gram total weight) and called the others “similar in appearance” but without directly stating that they were in fact methamphetamine, this left an insufficient basis for Driscoll’s expert opinion that the drugs were possessed for sale. Thus, he argues, element 4 of the offense lacks substantial evidence. The People argue that the evidence is sufficient and correctly note, albeit without pertinent case authority of their own, that Romeo cites no authority on point.
We reject Romeo’s challenge for four independent reasons. First, he complains of failure to prove an instructional element of “an amount sufficient to be used for sale or consumption” (fn. 4, ante) but then ignores the disjunctive “or” that makes “an amount sufficient for . . . consumption” enough. There was undisputed evidence, from Allen, that each of the four exhibits (including the tested one) was a usable amount. Because Romeo relies purely on the instruction for his claim, he fails to show error.
Second, while neither side cites any case authority on point, our own research reveals none requiring “an amount sufficient to be used for sale” or even “consumption,” on the facts of this case. That language appears to be drafted for a holding in People v. Leal (1966) 64 Cal.2d 504 (Leal)—“that evidence of drug ingestion, such as nonusable residue or traces of narcotics, is insufficient to sustain an unlawful possession charge. [Citations.]” (People v. Palaschak (1995) 9 Cal.4th 1236, 1239.) Leal has since been limited. “[T]he Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven.” (People v. Rubacalba (1993) 6 Cal.4th 62, 66.) Here, where even the undisputed 3.50 grams of exhibit 13B alone was more than a residue or useless trace, and far more than the amount “between a fifth and maybe a tenth of a gram” that Driscoll testified was a typical user amount, there is simply no basis for applying Leal. Also, the fact that the charge here was not simple possession, but possession for sale, cannot assist Romeo, for “Proof of the intentional sale of a dangerous drug is proof the quantity sold was ‘usable for sale.’ . . . [T]o support a conviction of selling a dangerous drug it is not necessary to prove the quantity of the drugs sold, when consumed, would have the effect it ordinarily is expected to produce [or] a ‘narcotic effect.’ ” (People v. Diamond (1970) 10 Cal.App.3d 798, 801 [LSD]; People v. Hardin (1983) 149 Cal.App.3d 994, 997-999 [methamphetamine].) The principle seems to have been more broadly extended to possession for sale, as well as actual sales. (People v. Mata (1986) 180 Cal.App.3d 955, 956-960 [PCP].)
Third, even if the Leal usable-amount rule applied in a case like this, both sides overlook expert testimony directly on point as to the untested exhibits. Yes, only one of the four was chemically tested, and Driscoll did render his finding of possession for sale, in part, on those lab results. But neither party seems aware that Driscoll, who was initially qualified as an expert in drug sales, was later voir dired and further qualified as an expert in “the recognition of methamphetamine.” In this capacity, he was given all four exhibits on the stand and asked to identify and compare them. He identified 13A, 13B and 13C as methamphetamine based on color, appearance, crystalline shape and structure, and tactile examination through the plastic bags. He could not so identify exhibit 4D (0.02 grams) “purely” from its appearance and packaging, he explained, due to the small “trace” and “dust amounts” that prevented tactile examination. However, then asked to consider the total circumstances, including glass smoking pipes, discovery of the four amounts together, the positive laboratory testing of one “eight ball” exhibit, Romeo having admitted at the scene that he had two “eight balls” of methamphetamine (an “eight ball” weighing between 3 and 4 grams), and that exhibit 4D had been taken from the nightstand, near the scale where more crystalline residue was seen, Driscoll readily opined that exhibit 4D, too, was methamphetamine. Thus, even if Romeo’s claim had legal merit, substantial evidence supports the full quantity of drugs being “an amount sufficient to be used for sale.”
Fourth, the parties overlook testimony by Driscoll that his opinion of possession for sale would stand even if limited to the one eight-ball amount of 3.42 grams in exhibit 13C. Thus, beyond doubt, his opinion would have been the same as to the slightly larger eight ball in exhibit 13B (3.50 grams), which was laboratory tested. This completely undermines Romeo’s assumption that failure to test the other three mattered to the expert.
Disposition
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.
Other counts and allegations include two counts of heroin possession for sale, one of them with firearm allegations (counts 1 & 13; § 11351; Pen. Code, § 12022, subd. (c)), methamphetamine possession for sale, with the same allegations (count 2; § 11378; Pen. Code, § 12022, subd. (c)), four counts of heroin or methamphetamine possession while armed (counts 3-6; § 11370.1, subd. (a)), two counts of firearm possession by a felon (counts 7-8; Pen. Code, § 12021, subd. (a)(1)), possession of ammunition by a felon (count 9; Pen. Code, § 12316, subd. (b)(1)), and two counts of carrying a loaded firearm (counts 10-11; Pen. Code, § 12031, subd. (a)(1)).