People v. Nix, B200437 (Cal. App. 6/18/2008)

• Decision Date: 18 June 2008
• Docket Number: B200437
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. EUGENE LAMONT NIX, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. EUGENE LAMONT NIX, Defendant and Appellant.

B200437

Court of Appeals of California, Second Appellate District, Division Five

June 18, 2008

Not to be publish

Appeal from a judgment of the Superior Court of Los Angeles County, No. YA065311, Eric Taylor, Judge. Affirmed in part with modifications, reversed in part.

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P. J.

Defendant, Eugene Lamont Nix, appeals from his convictions for: felony transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a )); felony possession of cocaine base for sale (Health & Saf. Code, § 11351.5); and misdemeanor driving with a suspended license. (Veh. Code, § 14601.1, subd. (a).) The trial court also found that defendant was previously convicted of a serious felony and served a prison term. Defendant argues there was insufficient evidence to support his convictions and the parties raise various contentions regarding the fines. The Attorney General argues the Penal Code¹ section 667.5, subdivision (b) enhancement should have either been imposed or stricken rather than stayed. We affirm in part and reverse in part with directions.

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Just after midnight on June 22, 2006, Gardena City Police Sergeant James Heitmeyer was on patrol with Officer Edward Stancavage. Sergeant Heitmeyer was driving a black and white marked police car. As Sergeant Heitmeyer and Officer Stancavage drove through the parking lot of the Patio Hotel, they saw a white Toyota Tercel automobile that did not have a current license "tab" driving out of the parking lot. The car drove out of the parking lot onto 139th Street. The car then turned southbound on Normandie Avenue. Sergeant Heitmeyer and Officer Stancavage stopped the Toyota. Defendant was the only occupant of the car. Defendant was asked for his driver's license, registration, and proof of insurance. Defendant said he did not have the items. Defendant said his driver's license was back in his motel room. Sergeant Heitmeyer asked defendant to get out of the car. When defendant got out, the officers searched him. Sergeant Heitmeyer found a California identification card in defendant's wallet. Thereafter, Officer Stancavage ran a computer check from the police car on defendant's license status. Defendant's license was found to be suspended or revoked. The computer printout indicated that defendant had been notified of the suspension. Defendant said he was living at the Patio Motel in room 222. Defendant admitted that his license was suspended.

Sergeant Heitmeyer used a flashlight to thoroughly search the Toyota that defendant had been driving. Sergeant Heitmeyer found what appeared to be a crumpled fast food wrapper on the front passenger seat of the car. Inside the wrapper, Sergeant Heitmeyer found a clear plastic bag that had been tied shut. Inside the wrapper were several pieces of cocaine base which weighed 2.55 grams. Other papers in the car were flat rather than crumpled. There was no narcotic paraphernalia in the car.

Thereafter, the office manager of the motel allowed Sergeant Heitmeyer and Officer Stancavage to search defendant's room. The officers encountered a woman inside the room. The officers found an operable digital scale in the top drawer of a night stand. The officers noted men's clothing on hangers in the room. There were also men's clothing, personal toileteries, and effects visible in the cabinets and drawers. The woman's clothing appeared to be in bags. No narcotic paraphernalia was found on defendant's person or in his motel room. There was no indication that defendant was under the influence of a controlled substance. Officer Stancavage spoke to the woman in room 222 while Sergeant Heitmeyer searched the room. Based on his observations of the woman, Officer Stancavage believed that she was not under the influence of any narcotic.

Sergeant Heitmeyer had extensive training regarding narcotics use and sales. Based upon his training and experience, Sergeant Heitmeyer believed the cocaine base was sufficient quantity to supply 27 individual pieces, which in turn could produce in excess of 100 individual doses, and was possessed for sale. An individual would need a pipe or other instrument to use the cocaine base. Defendant was not under the influence of nor did he demonstrate any signs of a typical cocaine user. No paraphernalia for smoking the cocaine was found in the car or motel room. Sergeant Heitmeyer believed the cocaine base was possessed for sale. Sergeant Heitmeyer believed that the fact that defendant was leaving his motel room rather than returning was significant. A narcotic user would not normally bring that much cocaine base to use at another place. Moreover, a narcotic user would not use such a large amount of cocaine base at one time. Serious health risks or death could result. Defendant had registered at the Patio Motel for two weeks.

Defendant argues there was insufficient evidence to support his transportation and possession convictions. More specifically, defendant argues there was insufficient evidence he had knowledge of the presence and character of the cocaine base and the transportation was merely incidental to its possession. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Valdez (2004) 32 Cal.4th 73, 104; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

Health and Safety Code section 11351.5 states, "[E]very person who possesses for sale or purchases for purposes of sale cocaine base . . . shall be punished by imprisonment in the state prison . . . ." In People v. Williams (1971) 5 Cal.3d 211, 214-215, the California Supreme Court held: "The elements of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence and narcotic character of the drug. [Citations.] Constructive possession occurs when the accused maintains control or a right to control the contraband; possession 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.]" (See In re Daniel G. (2004) 120 Cal.App.4th 824, 831; People v. Mejia (1999) 72 Cal.App.4th 1269, 1272.) In People v. Tripp (2007) 151 Cal.App.4th 951, 956, our colleagues in the Court of Appeal for the Fifth Appellate District recently held: "`It is well settled, of course that in a prosecution for unlawful possession of narcotics, it is incumbent upon the prosecution to present evidence from which the trier of the facts reasonably may infer and find that the accused had dominion and control over the contraband with knowledge of its presence and narcotic character. Mere proof of opportunity of access to a place where narcotics are found will not support a finding of unlaw[f]ul possession. [Citation.]' [Citation.] It is also well settled, however, that each of these essential elements may be proved by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citations.] For example, knowledge of a substance's narcotic nature may be shown by evidence of the defendant's furtive acts and suspicious conduct indicating a consciousness of guilt, such as an attempt to flee or an attempt to hide or dispose of the contraband [citations] . . . [citations.]" (See also People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Williams, supra, 5 Cal.3d at p. 215-216; People v. Redrick (1961) 55 Cal.2d 282, 287-288; People v. Vasquez (1969) 1 Cal.App.3d 769, 777.) In People v. Harris (2000) 83 Cal.App.4th 371, 374, our colleagues in Division Six of this appellate district held: "`Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.' [Citations.] Intent to sell may be established by circumstantial evidence. [Citation.]" (See People v. Meza (1995) 38 Cal.App.4th...