Opinion
F076328
03-20-2020
THE PEOPLE, Plaintiff and Respondent, v. SHARON LEANORA ROSS, Defendant and Appellant.
Daniel G. Koryn, 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, Carlos A. Martinez and Marcia A. Fay, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF165503A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Daniel G. Koryn, 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, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
Before Smith, Acting P.J., Snauffer, J. and De Santos, J.
-ooOoo-
Defendant Sharon Leanora Ross argues that her conviction of maintaining a place for sale of methamphetamine was not supported by sufficient evidence. We agree. This case falls into a class of cases in which there is ample evidence of drugs being stored and packaged for sale in a location, but none that the same location is where the drugs are being sold. A conviction of possessing methamphetamine for sale is sufficiently supported, but a conviction of maintaining a place for sale of methamphetamine is not.
BACKGROUND
After a search of her home, Ross was found guilty by a jury of (1) possession of methamphetamine for sale (Health & Saf. Code, § 11378, subd. (a) ); (2) maintaining a place for sale of methamphetamine (§ 11366); and (3) misdemeanor possession of drug paraphernalia (§ 11364). The trial court suspended imposition of sentence on counts 1 and 2 and granted probation for three years, conditioned on concurrent one-year jail terms for each count. On count 3, the court imposed a jail term of 180 days, concurrent with the other terms.
All further statutory references are to the Health and Safety Code unless otherwise indicated. --------
The evidence pertinent to Ross's argument is detailed in the discussion below.
DISCUSSION
When considering a challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible, and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
The elements of the maintaining-a-place offense are that the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance. (People v. Hawkins (2004) 124 Cal.App.4th 675, 680; People v. Horn (1960) 187 Cal.App.2d 68, 73; People v. Holland (1958) 158 Cal.App.2d 583, 588-589.) Evidence of a single instance of drug use or sales at the place, without circumstances supporting a reasonable inference that the place was used for the prohibited purposes continuously or repetitively, does not suffice to sustain a conviction. (People v. Hawkins, supra, 124 Cal.App.4th at p. 682; People v. Shoals (1992) 8 Cal.App.4th 475, 491-492 (Shoals); People v. Horn, supra, 187 Cal.App.2d at pp. 73-74; People v. Holland, supra, 158 Cal.App.2d at pp. 588-589.)
Most importantly for purposes of this case, neither quantities of drugs large enough to suggest intended sales and stored in a place, nor evidence that the drugs have been packaged for sale in the place, show that the place is being maintained for the purpose of selling or using drugs, as opposed to storing and packaging them to be sold or used elsewhere. In Shoals, police searched a motel room rented by Shoals under a false name. They found evidence that he, a woman and children had been living in the room for about three weeks. They also found $533.32 under the mattress, as well as a pager and 21 bindles of crack cocaine. The motel switchboard handled heavy traffic for the room day and night. But there was no evidence of people visiting the room in unusual numbers or at unusual times, no evidence of people under the influence there, no evidence of people using drugs there, such as paraphernalia or burnt residue, and no evidence of lookouts, passwords or codes used to control access by customers. (Shoals, supra, 8 Cal.App.4th at pp. 481-482, 492.) The large number of bindles indicated possession for sale, but the bindles were very portable and could easily be taken to be sold elsewhere. Nothing supported findings that the sales were taking place in the room instead of other locations, that anyone other than Shoals and the woman living there was using drugs in the room, or that anyone else even came there. (Id. at p. 492.) The Court of Appeal concluded the evidence was insufficient to support a conviction for opening or maintaining a place for the purpose of selling or using drugs. (Id. at p. 493.)
In this case, according to a police witness, Ross said she used methamphetamine and had been selling it for 10 years to supplement her income. She said she was supplied by two men who fronted her the drugs, about an ounce at a time. She told officers they would find a pipe and about half an ounce of methamphetamine in her bedroom. They searched her house and in her bedroom found a false CD case with a hidden compartment containing 12.75 grams of methamphetamine, a plastic container with another 0.2 grams of methamphetamine, a plastic bag containing 0.8 more grams of methamphetamine, a fanny pack containing plastic baggies and a plastic bag with pieces torn off, a digital scale with some white residue on it, a glass smoking pipe, and $395 cash. There was a monitor in the living room, and another in the bedroom, both displaying live images from three video cameras mounted on the outside of the house. In the living room a police scanner was turned on, tuned to the Bakersfield Police Department dispatch. A police officer testified as an expert and opined that Ross possessed the drugs for sale and maintained the house as a place to sell them. He relied on the quantity, which amounted to almost 140 doses at 0.1 grams per dose, and on the video camera feed, the scanner, and the baggies beside the scale with white residue. The officer also testified that he surveilled the property for an hour or two before executing the search warrant, and saw no one enter or leave. A search of Ross's car and person turned up nothing of significance.
Ross's husband testified that Ross used methamphetamine but did not sell it, and the drugs found in the house were her personal supply. He said the cameras were for security and the scanner was a hobby of his. The cash had been earned by their son and they were hiding it from him so he would not waste it. The husband said he used the scale for weighing coins from his coin collection and gunpowder for a black powder pistol. Ross also used it to weigh methamphetamine for her personal use, he said. Ross herself similarly testified that she used methamphetamine but did not sell it, and did not use her house as a place to give it away or for people other than herself to use it. She denied telling the police she was a seller.
We think this case is on all fours with Shoals. The evidence was sufficient to prove Ross used methamphetamine herself and conducted a business that involved buying methamphetamine wholesale from suppliers on credit, dividing it into smaller quantities, packaging these, and selling them or causing them to be sold to retail customers. But it was not sufficient to support a finding, beyond a reasonable doubt, of where they were sold. The radio scanner and the cameras were consistent with an intention to protect the business from police, thieves, rivals, and dissatisfied counterparties, but did not show the house was maintained for the purpose of being a place for customers to buy or use. There was no evidence that any customers ever went to the house to buy or use, let alone that this happened continuously or repeatedly. The conviction on the maintaining-a-place count must be reversed.
Ross makes an alternative argument that the sentence for that count should have been stayed pursuant to Penal Code section 654. Our holding renders this argument moot.
DISPOSITION
The conviction on count 2 is reversed and the convictions on counts 1 and 3 are affirmed. The sentence is vacated and the case is remanded to the trial court for resentencing.