People v. Gonzales, F053382 (Cal. App. 6/17/2008)

• Decision Date: 17 June 2008
• Docket Number: F053382
• Parties: THE PEOPLE, Plaintiff and Respondent, v. PAUL ANDREW GONZALES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 1

THE PEOPLE, Plaintiff and Respondent, v. PAUL ANDREW GONZALES, Defendant and Appellant.

F053382

Court of Appeals of California, Fifth Appellate District

June 17, 2008

Not to be Published

Appeal from a judgment of the Superior Court of Madera County, No. MCR017164C, Edward P. Moffat, Judge.

Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

HILL, J.

INTRODUCTION

Defendant Paul Andrew Gonzales and two codefendants were convicted of possession for sale of methamphetamine and marijuana, based on large quantities of the drugs and packaging materials found during a search of their shared residence. On appeal, defendant contends there is insufficient evidence he had possession and knowledge of the narcotics found in the residence, the court should have given a unanimity instruction, and several pattern instructions prevented the jury from considering the absence of evidence linking him to the drugs. We will affirm.

FACTS

On the morning of November 25, 2003, Madera County Deputy Probation Officer Staci LaFontaine led a multi-agency narcotics enforcement team as it executed a search warrant at a residence on Raymond Thomas Street in Madera. No one was inside or outside the three-bedroom residence when the officers entered. The residence was owned by David Beattie but had been rented to codefendant Nicholas Castillo since 2000.

Officer LaFontaine entered the kitchen and the first thing she noticed was the strong odor of marijuana. She looked up and saw a plastic bag on top of a cupboard, located above the refrigerator. The bag was not concealed in any way. The bag contained 19.92 grams of marijuana. An operational black digital scale was on top of the refrigerator. The scale contained white residue and a greenish-brown substance, believed to be, respectively, methamphetamine and marijuana. The refrigerator was about six feet high, the scale not concealed, and it was in plain view if a person was tall enough.

Officer LaFontaine testified there was a stack of mail in the kitchen in the name of codefendant Castillo, with one letter dated 2000 and addressed to Castillo at the Raymond Thomas address. There were two cell phones in the kitchen that were inoperable. There were three bedrooms in the house, and the photographic exhibits show that clothes, blankets, boxes, mattresses, and a few pieces of furniture were spread around the rooms in disarray.

On the southeast bedroom floor, there were four documents in two envelopes sent from the County of Fresno, and addressed to defendant at the Raymond Thomas street address. One document was dated November 7, 2003. There was a camouflaged-colored bullet-proof vest hanging in the closet, along with other articles of clothing. There was also a piece of Castillo's mail on the floor, dated 1999. This bedroom also contained a mattress and numerous articles of clothing and blankets on the floor.

In the north bedroom, the officers found two inflated air mattresses, blankets, and men's clothing on the floor. Codefendant Castillo's identification card was on the closet floor, and a photograph of Castillo with two unknown males was pinned to the wall. There were two boxes of "Good Sense" plastic sandwich bags on a closet shelf. The boxes were not concealed in any way. One box contained a plastic bag with 83.73 grams of methamphetamine. The methamphetamine odor was very strong, and the drug was in large whole pieces instead of being broken into small amounts, which meant the methamphetamine was in pure form and had not been cut with an agent.

In the southwest bedroom, the officers found a mattress and blanket, and men's clothing in the room and closet. A black leather wallet was on a closet shelf, and it contained codefendant Ruben Acuna's California identification card. On the same shelf, the officers found a bag with 25.24 grams of marijuana. The bag was on top of the shelf and not concealed. The marijuana was "pure bud," which was the part of the marijuana plant with the highest levels of THC. Under the bag of marijuana, the officers found two letters from the County of Madera sent to Acuna at another address, along with Acuna's payroll earnings record for August 2003. The officers did not find any money or pay/owe sheets in the residence. They did not find any cutting agents or paraphernalia consistent with narcotics usage.

David Beattie, the property owner, testified he collected the rent on the first of every month. Codefendant Castillo had lived there with his girlfriend and children, and the house had been neat and normally furnished, clothes were not scattered around, and it was not trashed when the family lived there. Beattie testified that "there were other people in the residence also," but he was unable to identify either defendant or Acuna as the other residents. Castillo stopped paying the rent around August 2003, and his girlfriend and children moved out at that time. Castillo continued to live at the residence with "other people, older gentlemen," and there were "always people around." Castillo was still living there when Beattie went to the house and tried to collect the rent at the beginning of November and December 2003. Castillo failed to pay the rent and moved out in February 2004.

Nancy Gallegos, Castillo's girlfriend, testified she lived at the Raymond Thomas house with Castillo and the children. Gallegos testified that Acuna and Castillo had been friends for 13 years, and Acuna regularly visited but did not live with them. Defendant was Castillo's cousin. Gallegos testified she moved out with Castillo and the children between August and September 2003, they moved all of their furniture and belongings, and they relocated to a residence on Ridge Way. She testified that Castillo lived with them every day at the Ridge Way house, and Castillo did not continue to live at the Raymond Thomas house as far as she was aware.

Officer LaFontaine testified Gallegos gave a different statement in December 2003, and said that she and the children moved from Raymond Thomas to the Ridge Way house a few months earlier because the prior residence was too small. Gallegos said Castillo moved with them to Ridge Way but he still kept the Raymond Thomas house, and he "stayed at both places, went back and forth in between both residences."

Officer LaFontaine testified to her opinion that the marijuana and methamphetamine recovered from the house were possessed for purposes of sale, based upon the amount and quality of the drugs, the absence of any drug-use paraphernalia, the discovery of plastic bags as packaging materials, and the operational scale with apparent marijuana and methamphetamine residue on it. At the time of the search, the marijuana was worth $500 to $700, and the methamphetamine was worth about $ 1,500 to $2,000.

Officer LaFontaine believed the residence was used as a "stash pad," a name given to residences or businesses which appear normal but are used by drug dealers to store and sell narcotics. It was common for drug dealers to keep drugs and money in separate stash pads to avoid losing both items if they are caught. It was not common for a person who kept a stash pad to let just anyone from the street to stay in that place.

"Q. Okay. [¶] Who is it that they would let come to the stash pad?

"A. Usually only other people that they're involved in their dealings with."

Officer LaFontaine further explained that firearms are frequently involved in narcotics trafficking, she was aware of other narcotics cases where dealers possess bullet-proof vests for protection during sales transactions, and she believed the bullet-proof vest found in the bedroom closet was used for a similar purpose. The vest could have fit all of the defendants. Officer LaFontaine conceded they did not find any pay/owe sheets in the house, but testified that not all drug dealers sell on credit.

Defendant Gonzales and codefendants Castillo and Acuna were charged with count I, possession of methamphetamine for sale (Health & Saf. Code, § 11378), with a special allegation that the amount of methamphetamine was excessive rendering the defendants ineligible for probation (Pen. Code, § 1203.073, subd. (b)(2)); and count II, possession of marijuana for sale (Health & Saf. Code, § 11359). After a joint jury trial, all three defendants were convicted as charged and the special allegation was found true. Defendant was sentenced to the midterm of two years for count I, with a concurrent two-year term for count II.

The instant appeal only involves defendant, who contends there is insufficient evidence he possessed or knew about the narcotics found in the house, the court should have given the unanimity instruction because marijuana was found in different locations, and several instructions prevented the jury from considering the prosecution's failure to produce evidence which connected him to the drugs.

DISCUSSION

I. Substantial Evidence

Defendant contends there is insufficient evidence of his possession and knowledge of the marijuana and methamphetamine found in the house, the prosecution merely relied upon speculation that he knew about and controlled the drugs, and his convictions for possession for sale violate his federal and state due process rights.

"In assessing a claim of insufficiency of evidence, the reviewing court's task is to 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,...