Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA299853 Carol H. Rehm, Jr., Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Woodard.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant Ward.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellants Carl Jerome Woodard and Robert Donald Ward appeal from judgments entered following a jury trial in which each was convicted of possessing cocaine base for sale in violation of Health and Safety Code section 11351.5. Woodard admitted three prior convictions within the scope of section 11370.2, subdivision (a) and one prior serious or violent felony conviction within the scope of the Three Strikes Law (Pen. Code., §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).). The court granted Woodard’s motion to vacate the strike finding and sentenced him to six years in prison, consisting of the low term of three years plus three years pursuant to section 11370.2, subdivision (a). The court sentenced Ward to three years in prison.
Unless otherwise noted, all subsequent statutory references pertain to the Health and Safety Code.
Woodard contends the evidence was insufficient to support his conviction and that the trial court erred by instructing the jury with CALCRIM No. 372, which pertains to flight. We affirm.
After an examination of the record, counsel appointed by this court to represent Ward filed an opening brief raising no issues and asking this court to independently review the record. We have done so, and affirm.
BACKGROUND
On March 16, 2006, numerous officers of the Los Angeles Police Department executed a search warrant at 919 East 82nd Street. Officer David Holmes testified that an officer in their group knocked on a metal security door, announced that they were the police and had a warrant, waited about 30 seconds, then forced entry through the metal door, which took approximately 10 more seconds. Once inside, Holmes saw Ward and five other people in the living room. Woodard stood in the hallway, near where it joined the living room. Woodard looked directly at the officers, then ran down the hallway toward the bathroom. Holmes and the other officers detained the six people in the living room, which took about 30 seconds. Holmes and other officers then moved into the hallway, which led to two bedrooms and the bathroom. An officer detained a person in the hallway. Woodard emerged from the bathroom, and Officer Spitz detained him at the bathroom doorway. Holmes testified he did not hear the toilet flush and did not see anything in Woodard’s hands, pockets, or waistband as he ran toward the bathroom. The officers detained other people in one of the bedrooms and outside the house. In total, they detained 13 people at the house.
Unless otherwise noted, all dates refer to 2006.
Ward told the police that he lived at the house and that the north bedroom was his. Two baggies containing a total of 7.2 grams of cocaine base were found knotted together under the bed in the north bedroom. A gravity scale, two razor blades, and a six-inch round mirror sat together atop the dresser in that bedroom.
Holmes recovered a baggie containing 29.7 grams of cocaine base from the bowl of the toilet in the bathroom from which Woodard emerged. Holmes then dismantled the toilet to look for additional drugs. He instead found a hair clog in the pipe just beneath the toilet.
Officers found $211 in cash “in miscellaneous denominations” in a pot on a shelf in the kitchen. Woodard was carrying $567 in cash. Holmes testified that he did not think Ward or Woodard appeared to be under the influence of any controlled substance at the time of the search. The police found no paraphernalia for using cocaine base during the search.
Detective Robert D’Orazio assisted in the execution of the warrant and testified as the prosecution’s narcotics expert. He testified that cocaine base can only be consumed by smoking it. Based upon the absence of smoking devices, the quantity of cocaine base recovered, its packaging, and the presence of the cash, razor blades, and mirror, D’Orazio opined that the drugs recovered from the toilet and the bedroom were possessed for the purposes of sale.
Defense expert Dr. Terence McGee, who specialized in addiction medicine, testified that an addict could easily use seven grams of cocaine base over the course of two or three days. McGee opined that the quantity, packaging, and presence of a primitive scale did not indicate possession for sale.
Daniel Sawall testified that Woodard agreed to buy a 1996 Dodge van from him. On March 13, Woodard gave Sawall a $400 money order and $50 in cash as a down payment. Sawall gave the money order to his girlfriend, Elizabeth Escobar, who cashed it. A few days later, Woodard phoned Sawall and said he had the balance of the purchase price. Sawall and Woodard planned to meet, but Sawall had a family emergency and was unable to make it. Sawall never received the money or turned the van over to Woodard. Sawall admitted he had been convicted of “at least” two prior felonies and was, at the time of trial, incarcerated as a consequence of a conviction.
Sergio Moreno testified that his business sold a $400 money order on March 13, and that this money order was ultimately cashed by Elizabeth Escobar.
Woodard testified similarly to Sawall, and added that they were supposed to meet at his friend Ward’s house at 9:00 a.m. on March 16. Sawall did not appear, but Woodard continued to wait, and just happened to be there when the police executed the warrant at around 2:00 p.m. Most of the cash Woodard was carrying was to pay the $550 balance for the van. Woodard was seated in the living room when the police officers arrived. He saw them approaching the house, and Holmes pointed a gun at him from outside the window. Woodard remained seated until he complied with the officers’ order to get down on the floor. He never moved down the hallway to the bathroom as Holmes testified. Woodard admitted he was on parole for a felony conviction.
DISCUSSION
1. Woodard’s appeal
a. Sufficiency of evidence
Woodard contends the evidence was insufficient to support his conviction because it did not establish that he personally possessed any of the cocaine base, either for sale or personal use. To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
The essential elements of the crime 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. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) These elements may be established by circumstantial evidence. (Ibid.)
Possession may be either actual -- where a defendant has direct physical control over an item -- or constructive, which exists where a defendant maintains some control or right to control contraband that is in the actual possession of another. (People v. Morante (1999) 20 Cal.4th 403, 417.) Exclusive possession or control is not necessary. (People v. Rice (1976) 59 Cal.App.3d 998, 1002-1003.)
Woodard looked directly at the police officers who had just entered the house and ran down the hallway toward the bathroom. He was next seen emerging from the bathroom, and Holmes recovered the baggie containing 29.7 grams of cocaine base from the toilet in that same bathroom. This constituted strong circumstantial evidence that Woodard actually possessed the cocaine base found in the toilet. Woodard’s failure to successfully flush the baggie down the toilet raised an unanswered question, but did not negate the reasonable inference that he rushed into the bathroom and put the baggie in the toilet upon seeing the police in the house. Moreover, the hair “clog” Holmes found upon dismantling the toilet provided a plausible explanation for Woodard’s failure to flush the baggie.
The quantity of cocaine base found in the baggie, together with the large amount of cash Woodard carried on him supported a reasonable inference that he possessed the drugs for sale. Woodard’s alternative explanation for the cash did not detract from the sufficiency of the evidence. The jury clearly rejected Woodard’s explanation, as it convicted Woodard of possession for sale, instead of the lesser included offense of simple possession, upon which the court instructed. In summary, Woodard’s conduct, followed by the discovery of the baggie of 29.7 grams of cocaine base in the toilet and $567 in cash on Woodard’s person provided substantial evidence supporting his conviction.
b. Flight instruction
Over Woodard’s objection, the trial court gave the following instruction on flight: “If the defendant Carl Woodard fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
The court also instructed the jury that Woodard’s consciousness of guilt could be inferred from an attempt to hide evidence. (CALCRIM No. 371.)
Woodard contends that the evidence did not support giving this instruction because he made no attempt to leave the house. He argues that the instruction reduced the prosecution’s burden of proof, and thereby violated due process.
A flight instruction is proper and required where the evidence shows that appellant departed the crime scene under circumstances suggesting his movement was motivated by a consciousness of guilt. (Pen. Code, § 1127c; People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Flight requires neither running nor distance. (Bradford, supra, 14 Cal.4th at p. 1055.) It simply requires an apparent purpose to avoid being observed or arrested. (Ibid.)
Based upon Holmes’s testimony, Woodard essentially moved down a hallway in which he was already standing. That hallway had a bedroom on each end, and the bathroom was between the bedrooms. The house had a back door, but it was only accessible from a utility room behind the kitchen, not from the hallway Woodard moved along.
The record supported giving a flight instruction. Although Woodard was unable to escape from the house, he undeniably “fled” down the hallway under circumstances suggesting his movement was motivated by a consciousness of guilt and a desire to avoid arrest and observation. The record does not reveal whether the bathroom or one of the adjacent bedrooms had a window or door leading to the outside or whether Woodard was familiar with the floor plan of the house. Woodard may have believed that he could escape from the house by going down the hallway. At a minimum, he ran away with the intent to discard the drugs out of sight of the police officers, which demonstrates a desire to avoid arrest.
Even if the trial court erred by instructing upon flight, however, the error was harmless. Instructional error that does not impair a federal constitutional right requires reversal only if it is reasonably probable that a properly instructed jury would have returned a verdict more favorable to the appellant. (People v. Rogers (2006) 39 Cal.4th 826, 875; People v. Watson (1956) 46 Cal.2d 818, 836.) The flight instruction did not presuppose the existence of flight; it left it up to the jury to determine whether Woodard’s conduct constituted flight. The court informed the jury that some instructions might not apply, and that jurors should not assume that the inclusion of an instruction suggested anything about the facts. (CALCRIM No. 200.) Therefore, if the jury did not conclude that Woodard fled or tried to flee, it would not apply the instruction. If the jury found flight, the instruction provided some protection to Woodard by informing the jury it could not infer guilt from flight alone. Furthermore, it is quite probable the jury applied CALCRIM No. 371 and inferred consciousness of guilt from Woodard’s apparent attempt to conceal or destroy evidence. In light of the evidence and the applicability of CALCRIM No. 371, it is not reasonably probable that jurors would have acquitted Woodard if the trial court had omitted CALCRIM No. 372.
2. Ward’s appeal
On April 18, 2008, we advised appellant Ward he had 30 days within which to personally submit any contentions or issues he wished us to consider. To date, we have received no response.
We have examined the entire record and are satisfied that Ward’s counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The judgments are affirmed.
We concur: MALLANO, P. J. ROTHSCHILD, J.