People v. Horn
| Decision Date | 03 October 2012 |
| Docket Number | F063350 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ARNOLD WESLEY HORN, JR., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Arnold Wesley Horn, Jr., was sentenced to eight years eight months in prison, after a jury convicted him, in count 1, of transportation of cocaine (Health & Saf. Code,1 § 11352, subd. (a)); in count 2, of possession of cocaine (§ 11350, subd. (a)) as a lesser included offense of the charged possession of cocaine for sale (§ 11351); and, in count 3, of possession of cocaine base (§ 11350, subd. (a)) as a lesser included offense of the charged possession of cocaine base for sale (§ 11351.5); and he admitted having suffered a prior narcotics conviction (§ 11370.2, subd. (a)) and having served a prior prison term (Pen. Code, § 667.5, subd. (b)).2 Defendant now challenges the sufficiency of the evidence as to count 1 and the trial court's imposition of a prison term. We affirm.
At around 8:45 p.m. on September 10, 2010, Lemoore Police Officer John Henderson was on duty, in uniform and a marked patrol vehicle, in the Home Gardens area of Hanford.3 As he approached the intersection of Home Avenue and 4th Place, he observed a vehicle parked in the middle of a residential street. Its brake lights were on and approximately 10 people were gathered near its front doors. Based on his training and experience, Henderson believed it was possible a drug deal was taking place.
Henderson turned onto 4th Place, whereupon people "scattered pretty quickly" and the vehicle left at a "reasonable" speed. Henderson followed, and when the vehicle made two turns without a turn signal being activated, turned on his lights to make a stop for thetraffic violations. The vehicle yielded. Defendant was the driver and Kennedy was the passenger. Both men were cooperative when Henderson contacted them.
Henderson went to his patrol car to run the men's names through dispatch. When he returned, defendant was on a cell phone. As Henderson walked up, he heard defendant tell the person to whom he was speaking that he had to go and would call back later, because the officer was going to take him to jail. When Henderson asked why, defendant said he already knew what was going on, that Henderson had called for a backup unit and was going to search defendant's vehicle. Henderson, who had not intended to search the vehicle, asked if defendant was wanted or there was something in the vehicle. Defendant replied, "You already know."
Henderson returned to his patrol car and radioed for another unit, as he had now decided to search defendant's vehicle. As he observed defendant's vehicle, Henderson saw an object fly out through the passenger window, hit a fence several feet away, and fall to the ground. Although Henderson could not see who threw the object, defendant appeared to be on his cell phone the entire time.
Henderson walked up to the passenger side and asked if the occupants threw anything out the window. Kennedy said he threw out a candy bar. Looking down, Henderson observed an empty candy bar wrapper "directly at" the passenger door. Once backup arrived, Henderson retrieved the item at the fence. It was a clear plastic baggie containing 81.2 grams of cocaine. There were no fingerprints on the baggie. However, Henderson later sat in the vehicle and determined there was a straight line from someone sitting in the passenger seat to where the drugs were found, while someone in the driver's seat could not have thrown them to that location. Although he looked, Henderson did not find any candy.
Around this time, defendant's girlfriend, Romanisha Tunstall, arrived. Defendant obtained Henderson's permission to speak to her. Defendant, who was under arrest and in the backseat of a patrol car, told her she could get the money at the house, and thepolice would be going there to search. At that point, Henderson terminated the conversation.
Defendant's apartment was searched later that night. On a dresser in the bedroom was a pager. In a nightstand drawer was a black baggie that contained a 20-gram chunk of cocaine base. Also found in the apartment were a digital scale, some marijuana in a jar, and a medical marijuana card in defendant's name. While officers were at the apartment, the pager went off a number of times.
Defendant subsequently told Henderson the cocaine in the apartment belonged to defendant, but his girlfriend did not know about it. Defendant denied selling it and said he had it to get high. He said he had the pager so an uncle, of whom he took care, could contact him. Asked why the pager was going off so late at night (a little after 11:00 p.m.), defendant did not respond. When Henderson asked about drugs in the car, defendant replied, "Like I said, the drugs in the apartment are mine."
Henderson checked defendant's cell phone, but it did not contain any text messages. They had been erased. The phone rang repeatedly.
Officer Obarr of the Kings County Narcotics Task Force testified as an expert on the subject of controlled substances. He explained that there are 28.5 grams in an ounce, and cocaine is typically sold on the streets in quarter (.25) grams. The typical single dose is .05 grams. Cocaine base (also called rock or crack) is usually sold on the streets in amounts of .05 to .10 grams. The usual individual dose is .05 grams, which the seller typically chips off a larger rock.
Based on the amount, Obarr opined that the cocaine base in this case was possessed for sale. Twenty grams would produce 400 individual dose units and have a street value of $2,000. In Obarr's training and experience, users possess one to two rocks at a time, not $2,000 worth of crack cocaine. In Obarr's opinion, the cocaine was also possessed for sale. The 81.2 grams had a street value of $6,480. Users typically do not possess that much at one time.
Ernest Tunstall was the father of defendant's girlfriend. He had known defendant about 15 years and defendant's father about 20 years. On the evening defendant was arrested, Tunstall and about 15 of his friends were gathered at their clubhouse, playing dominoes and cards. Defendant had put a music system in his car, and Tunstall telephoned him around 8:00 p.m. and asked him to come by to let Tunstall listen to it. Defendant showed up in his vehicle about 15 to 20 minutes later. Tunstall believed defendant was alone.
Defendant got out of his vehicle, opened the back, and showed Tunstall and a couple of others, including Kennedy, his stereo system. The group listened to music for five to 10 minutes, then defendant said he was going home. He and Kennedy got in defendant's vehicle and left.
Tunstall and his friend Lalo were still standing in the street, talking, when a white car went by, fast, with its lights off. Tunstall telephoned defendant because there had been a lot of gang violence, and he did not know what to make of the car following defendant with its lights off. The car was going too fast for Tunstall to realize it was a police car. Defendant did not answer either time Tunstall called, then Tunstall's daughter contacted Tunstall and said the police had stopped defendant.
Tunstall got in his car and eventually found defendant. Tunstall telephoned him again, but somebody else answered defendant's phone. Tunstall was close enough to see the officer had defendant's phone.
Defendant says the evidence was insufficient to establish he knowingly transported cocaine. We disagree.
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
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