People v. Eckstrom

• Decision Date: 25 November 1986
• Citation: 187 Cal.App.3d 323,231 Cal.Rptr. 664
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kevin John ECKSTROM, Defendant and Appellant. A030621.

Page 664

231 Cal.Rptr. 664

187 Cal.App.3d 323

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kevin John ECKSTROM, Defendant and Appellant.

A030621.

Court of Appeal, First District, Division 3, California.

Nov. 25, 1986.

Rehearing Denied Dec. 16, 1986.

Review Denied Feb. 4, 1987.

Robert Bratberg, San Jose, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Donna B. Chew, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MERRILL, Associate Justice.

Appellant Kevin Eckstrom and codefendant Jack Parke Daily, Jr., were charged by information with a felony violation of HEALTH AND SAFETY CODE SECTION 11358¹, marijuana cultivation, and a felony violation of section 11359, possession of marijuana for the purpose of sale. Appellant moved to set aside the information (Pen.Code, § 995) and to suppress evidence (Pen.Code, § 1538.5), both of which were denied. Thereafter, Eckstrom entered a plea of not guilty, and following a jury trial was found guilty of possession of marijuana for sale.

Eckstrom was sentenced to two years in state prison. His sentence was suspended, however, and he was placed on probation for five years. The terms of this probation included 120 days in the county jail. This appeal followed.

I

On the "date of the Brink's robbery," Lake County Deputy Sheriff Roger Whitchurch was in an airplane looking for get-away vehicles in the robbery case. While on this flight he observed marijuana plants growing on a hillside. Later, using photographs and records from the Lake County Recorder and Assessor's Office, Deputy Whitchurch determined that a Mr. Daily owned the property on which the marijuana had been observed.

On August 7, 1984, Deputy Sheriff Whitchurch, along with Deputy Sheriff John Kaerth of the Lake County Sheriff's Department, conducted an aerial surveillance of the area. During the flyover, Deputies Whitchurch and Kaerth again observed marijuana growing on the parcel. These observations were made with the naked eye. Deputy Kaerth took photographs. That same afternoon Deputies Whitchurch and Kaerth obtained a map of the area from the assessor's office, and upon checking the deed confirmed Daily to be the owner of the parcel. They then prepared the affidavit and search warrant and presented it to the judge who issued the warrant.

On August 13, 1984, Deputy Whitchurch, accompanied by other deputies and members of the CAMP (Campaign Against Marijuana Planting) unit, executed the search warrant. The officers arrived in several marked trucks and proceeded up a dirt road to a closed gate near the Daily property. On arrival Deputy Kaerth announced that the officers were from the sheriff's department. At this time Deputy Kaerth and another of the officers noticed someone standing in the bushes by the gate. As the deputies approached, the man moved farther into the bushes. The man was stopped and arrested. This man, later identified as appellant, was wearing a "camouflaged type" scarf around his head and carrying binoculars.

Daily's land was located in an isolated rural area. The officers found three marijuana gardens on or near the parcel, one east of the property boundaries, a second at the northern boundary of the property, possibly extending into United States Forest Service land, and a third located entirely on the Daily property. These gardens were connected to each other and to the residence by footpaths. The residence was approximately 150 yards from the nearest garden and 500 yards from the furthest one. The marijuana patches were surrounded by trees and terrain and were not visible from the residence.

One hundred seventy-one plants, weighing three hundred pounds were taken from the property. The value was estimated to be a quarter of a million dollars. Deputy Kaerth testified that judging from the appearance of the plants they had been manicured and taken care of on a weekly basis. Pipelines leading to the gardens, and the fullness of the individual plants also led Deputy Kaerth to believe that the marijuana was being cultivated.

Fourteen photographs were taken of the gardens and marijuana plants. Then deputies took ten pounds and five representative samples from the plants. All others were destroyed.

While on the property officers also found a motorcycle concealed in a bush near the southern-most portion of the garden. The tracks made from this motorcycle matched those found on the trails leading from the residence to the gardens. In addition to the plants and the motorcycle, officers also found and seized magazines and books containing information regarding the growing of marijuana, and a notebook containing a schedule for the watering of the plants.

Codefendant Daily's residence was on this parcel. However, at the time of Eckstrom's arrest, Daily was not living in the home. He had been in a motorcycle accident and was hospitalized from July 2, 1984, through August 24, 1984. Appellant Eckstrom's permanent residence at the time of his arrest was in Santa Cruz.

II

Eckstrom's first contention on appeal is that the trial court committed prejudicial error by denying his motion for mistrial. At trial Deputy Sheriff Whitchurch was cross-examined by counsel for codefendant Daily. During questioning Deputy Whitchurch relayed the following information: "Q. Now, this area we're talking about, are there any unique geographic landmarks of any sort other than what you have already told us about? Mountains, lakes, rivers, huge bouldars [sic], anything of that nature?

"A. Well, I don't know how unique you want to get. But there's a wide variety of streambeds and creeks in this area.

"Q. Anything of that nature contained on this parcel number 19?

"A. Not that I used to make any determination other than locating this parcel.

"Q. Were you done?

"A. Well, yes and no. Except that I am familiar with this parcel. I know of this parcel--I knew of this parcel from 1983 as well. Not that I was there, but that I flew over it and observed marijuana on it.

"Mr. Kaplan [counsel for codefendant]: I would like to make a motion out of the presence of the jury.

"The Court: ...

"The Witness: I apologize to the Court."

Counsel for codefendant Daily made a motion for mistrial. Counsel for appellant joined in the motion. The trial court denied the motion, but did strike the testimony and admonished the jury to disregard that portion of the testimony. Appellant claims on appeal that the deputy's responses substantially prejudiced him and deprived him of a fair trial.

It is well settled that a motion for mistrial is addressed to the sound discretion of the trial court. (People v. Childs (1980) 112 Cal.App.3d 374, 386, 169 Cal.Rptr. 183, citing People v. Romero (1977) 68 Cal.App.3d 543, 548, 137 Cal.Rptr. 675.) It is not an abuse of discretion when a trial court denies a motion for mistrial after being satisfied that no injustice has resulted or will result from the occurrences of which complaint is made. (People v. Dominguez (1981) 121 Cal.App.3d 481, 508, 175 Cal.Rptr. 445, citing People v. Romero, supra, 68 Cal.App.3d at p. 548, 137 Cal.Rptr. 675.) Furthermore, a motion for mistrial based on improper admission of evidence " 'presupposes that the effect of the objectionable evidence "is so prejudicial as to be incurable by striking it and admonishing the jury to disregard it." ' " (People v. Wojahn (1984) 150 Cal.App.3d 1024, 1031, 198 Cal.Rptr. 277, citing People v. Guillebeau (1980) 107 Cal.App.3d 531, 547, 166 Cal.Rptr. 45.)

Judged by these standards, the denial of the mistrial motion was proper in the present case. The record shows that appellant's permanent residence was in Santa Cruz. During trial, he never denied that there was in fact marijuana growing on codefendant Daily's property at the time of his arrest in August of 1984. His defense, rather, was that he had no connection to this marijuana. ² Deputy Whitchurch's testimony regarding the presence of marijuana on the plot in 1983 would have no impact on this defense. Therefore, we find no abuse of discretion when the court below refused to grant appellant's mistrial motion.

III

Appellant also contends that the trial court should have granted his motion for acquittal because the prosecution failed to establish all the necessary elements of the crime charged.

Appellant was charged and found guilty of possession of marijuana for sale. "[T]o establish unlawful possession of narcotics, the evidence must show that the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character. [Citations.]" (People v. Hampton (1981) 115 Cal.App.3d 515, 522, 171 Cal.Rptr. 312.) "Where the charge is 'possession for sale of marijuana' an additional element must be established, i.e., that the possession by the accused was for the purpose or intent of selling the marijuana. [Citation.]" (Weber v. Superior Court (1973) 30 Cal.App.3d 810, 815, 106 Cal.Rptr. 593.) This possession need not be exclusive. (People v. Gordon (1970) 10 Cal.App.3d 454, 459, 89 Cal.Rptr. 214.) "[P]ossession 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. [Citation.]" (People v. Newman (1971) 5 Cal.3d 48, 52, 95 Cal.Rptr. 12, 484 P.2d 1356.) All elements of the offense may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (Ibid.)

"The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. [Citations.] Viewing the evidence in a light most favorable to respondent and presuming in support of the judgment the existence of every fact the trier could possibly deduce from the evidence" (People v. Gordon, supra, 10 Cal.App.3d at pp. 458-459, 89 Cal.Rptr. 214, citing People v. Sweeney (1960) 55 Cal.2d 27, 33, 9 Cal.Rptr. 793...