People v. Salgado
| Decision Date | 30 November 2020 |
| Docket Number | B296122 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE MENDEZ SALGADO, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. GA101299
APPEAL from a judgment of the Superior Court of Los Angeles County, Jared D. Moses, Judge. Conviction affirmed; sentence vacated; remanded.
Daniel Milchiker, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Chung L. Mar and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
____________________ A jury convicted defendant and appellant Enrique Mendez Salgado of possession of methamphetamine for sale, unlawful possession of ammunition, and unlawful access card activity. Salgado admitted four prison priors. The trial court sentenced Salgado to seven years and four months in the state prison. On appeal Salgado contends the court should have instructed the jury on simple possession of methamphetamine as a lesser included offense; the court violated his rights by permitting the jury to convict him on a theory of joint constructive possession with his two brothers; there was insufficient evidence to convict him on the access card activity count; he suffered only three prison priors, not four; and the court erred in imposing a restitution fine. In a supplemental brief Salgado asserts his prison priors must be stricken under Senate Bill No. 136. We accept the Attorney's General's (1) concession that the prison priors must be stricken and (2) suggestion that Salgado raise any ability-to-pay issue on remand. Accordingly, we order the prison priors stricken, vacate Salgado's sentence, remand for further proceedings, and otherwise affirm his conviction.
On April 25, 2017, Los Angeles County Sheriff's Department Sergeant Eddie Retamoza conducted a probation compliance search for Salgado's brother Jimmy Lopez at a residence in Duarte. Four surveillance cameras were mounted on the outside of the house. In Salgado's bedroom, Retamoza saw a box with two bags of methamphetamine in it on top of a set of plastic drawers. On the bed was a small digital scale and a bowl containing six rounds of live .357 caliber ammunition. A box under the bed contained 44 more rounds of live ammunition.
Retamoza also found a box with $2,230 in cash, a digital scale, an embosser and "a numerous amount of blank cards, as well as cards that were embossed with [Salgado's] nameon [them]." The embosser was under a desk. In the drawer of the desk, Retamoza found eight cards "of various banks," each with Salgado's name embossed on it. There also was one card embossed with the name "Daniel Salgado." Daniel is another of Salgado's brothers.
Earlier that evening, sheriff's deputies had stopped Salgado and his brother Jimmy in a car. Salgado was driving and Jimmy was in the passenger seat. Deputy April Nicholson found a .357 Colt revolver under the passenger seat and a purple plastic container of methamphetamine in the center console. The gun was loaded with six rounds.
The People charged Salgado with possession of methamphetamine for sale (count 1), unlawful possession of ammunition by a felon (count 2), and making or possessing access card making equipment or incomplete access cards (count 3). As to counts 1 and 2, the People alleged Salgado committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang.
The case went to trial in January 2019. Criminalist Michael Vanesian testified he weighed the two bags of a white substance found in Salgado's bedroom and tested the contents of one of them. The larger packet contained 11.4 net grams of powder containing methamphetamine. The smaller packet had a gross weight of 3.6 grams.
Retamoza testified that, in his opinion, the approximately 15 grams of methamphetamine found in Salgado's bedroom were not possessed for personal use. Retamoza said a typical user can use "anywhere from a quarter gram to one gram" a day. Retamoza added, "I've spoken to many addicts who use up to a gram a day, which is in my opinion a lot." Retamoza said 3.5 grams of methamphetamine is called "an eight-ball" (becauseit's one-eighth of an ounce), and its street value is about $200. An addict might buy an eight-ball "to last them a couple days."
The prosecutor gave Retamoza a hypothetical tracking the facts of the case. Retamoza opined the methamphetamine in the hypothetical was "possessed for the purpose of sales." Retamoza listed the digital scale, the surveillance cameras, the "large sum of money" in denominations consistent with the quantities methamphetamine dealers typically sell, and the ammunition as factors supporting his opinion.
On cross-examination Retamoza conceded a user could have a digital scale "to make sure they're getting the amount that they paid for." Retamoza also admitted police found no pay/owe sheets in Salgado's bedroom.
Salgado chose not to testify.
At the conclusion of the People's case, the court granted a defense motion under Penal Code section 1118.11 to dismiss the gang allegation because there was no testimony about the gang's primary activities.
The court gave counsel proposed jury instructions. Defense counsel said he had no comments, questions, or issues about the jury instructions. Counsel did not ask the court to instruct on simple possession of methamphetamine as a lesser to possession for sale. On count 1, the court instructed the jury with CALJIC No. 12.01, illegal possession for sale of a controlled substance.
In closing argument, Salgado's counsel did not argue the methamphetamine in the bedroom was for Salgado's personal use. Instead, counsel argued the room in which the sheriffs found methamphetamine and other items was not Salgado's room. Counsel noted there was no DNA evidence or fingerprints "eitheron the dope or the scales," and the officers didn't "do their job correctly." Counsel told the jury Salgado had neither actual nor constructive possession of "the dope and the bullets"; "[t]here is no exercise [of] control over anything." Counsel said, "Daniel's name further lends itself to the acknowledgement that other people in that household had the right to control and/or enter that room." Counsel argued Jimmy and Daniel's "stuff" was "everywhere in that room."
The jury convicted Salgado on all three counts. Salgado admitted he had suffered four prison priors within the meaning of section 667.5, subdivision (b). The court sentenced Salgado to seven years and four months in the state prison. The court selected the midterm of two years on count 1. The court imposed one-third the midterm—eight months each—for counts 2 and 3, to be served consecutively. The court added four years for the four one-year prison priors.
The court imposed a $2,000 restitution fine, and imposed and stayed a $2,000 parole revocation restitution fine. The court then stated, "I find the defendant is indigent, so the $30 facilities assessment and $40, what used to be the security fee, those are waived." The court imposed a $50 crime lab drug analysis fee.
Salgado contends there was substantial evidence that he possessed the methamphetamine for personal use, not for sale, and accordingly the trial court committed reversible error by not instructing on simple possession as a lesser. We disagree.
Even in the absence of a request, a trial court must instruct the jury on all general principles of law relevant to the issuesraised by the evidence, including lesser included offenses. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Whalen (2013) 56 Cal.4th 1, 68-69.) Instruction on a lesser included offense is required when there is evidence the defendant is guilty of the lesser offense but not of the greater. (Whalen, at pp. 68-69.) However, the court is required to give a particular instruction sua sponte only if there is substantial evidence from which a jury composed of reasonable people could find true the facts underlying the instruction. (Breverman, at p. 162.) The existence of any evidence—no matter how weak—will not justify instruction on a lesser included offense. (Ibid.; Whalen, at p. 68.)
The determination whether sufficient evidence supports an instruction must be made without reference to the credibility of that evidence. (People v. Salas (2006) 37 Cal.4th 967, 982.) Doubt as to the sufficiency of the evidence to warrant a particular instruction should be resolved in the defendant's favor. (People v. Tufunga (1999) 21 Cal.4th 935, 944.) However, the court need not give instructions based solely on conjecture and speculation. (People v. Day (1981) 117 Cal.App.3d 932, 936.)
We independently review whether the trial court erred by failing to instruct on a lesser included offense. (People v. Booker (2011) 51 Cal.4th 141, 181.) Error in failing to give a lesser included instruction is reviewed for prejudice under the People v. Watson (1956) 46 Cal.2d 818 standard. (People v. Breverman, supra, 19 Cal.4th at p. 165.)
Simple possession of a controlled substance is a lesser included offense of possession of the same substance for sale. (See People v. Oldham (2000) 81 Cal.App.4th 1, 16; People v. Magana (1990) 218 Cal.App.3d 951, 954.) Accordingly, if there was substantial evidence to show Salgado was guilty of possession...
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