People v. Tripp

• Decision Date: 01 June 2007
• Docket Number: No. F049845.,F049845.
• Citation: 151 Cal.App.4th 951,60 Cal.Rptr.3d 534
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lindell Duane TRIPP, Defendant and Appellant.

60 Cal.Rptr.3d 534

151 Cal.App.4th 951

The PEOPLE, Plaintiff and Respondent, v. Lindell Duane TRIPP, Defendant and Appellant.

No. F049845.

Court of Appeal, Fifth District.

June 1, 2007.

Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Raymond L. Brosterhous II and Judy Kaida, Deputy Attorneys General for Plaintiff and Respondent.

OPINION

KANE, J.

We hold that, under the facts of this case, law enforcement's discovery of a small amount of methamphetamine found on a nightstand in a bedroom defendant, Lindell Duane Tripp, shared with his girlfriend, while sufficient to prove his constructive possession of the methamphetamine, is insufficient to prove that defendant knew of its nature as a controlled substance.

Following the denial of his motion to suppress evidence, defendant was convicted by jury trial of possession of methamphetamine. On appeal, he contends (1) the trial court erred by denying the motion to suppress evidence, (2) the trial court erred by admitting statements defendant made in violation of Miranda,¹ (3) the trial court failed to instruct on an element of the offense, (4) insufficient evidence supported the conviction, and (5) defendant's waiver of custody credits was invalid. We conclude there was insufficient evidence to support the element that defendant had knowledge of the narcotic nature of the methamphetamine and therefore we reverse the judgment.

PROCEDURAL SUMMARY

On December 16, 2005, the Kern County District Attorney charged defendant with possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a); count 1) and removing the identification from a tear gas weapon (Pen.Code, § 12422; count 2). Defendant unsuccessfully moved to suppress evidence seized during the search of his residence and a statement he made to the police before he was read his Miranda rights. (Pen.Code, § 1538.5.) During the jury trial, the court granted defendant's motion for judgment of acquittal on count 2. (Pen.Code, § 1118.1.) The jury found defendant guilty on count 1, and the court sentenced him to probation for three years.

FACTS

On November 17, 2005, at about 11:40 p.m., police officers conducted a traffic stop in Bakersfield. The officers arrested the driver, John Reed, and discovered he was on probation for narcotics and was subject to search for narcotics. The car he was driving was registered to defendant. Reed first said he was from Chicago, then said his address was 3937 Balboa Drive in Bakersfield.

Four officers responded to 3937 Balboa Drive. There were two security cameras outside the front of the house. Defendant came to the door and spoke to the officers through his security door. The officers told him they were there to conduct a probation search because Reed had stated the house was his residence. Defendant appeared nervous and asked if they had a search warrant. An officer told him they did not need a warrant because of Reed's probation status. The officer told defendant he needed to open the door so they could conduct the search. Defendant again asked if they had a warrant.

Defendant unlocked the security door and let the officers in. They drew their guns and ordered him to lie down on the floor while they conducted a protective sweep of the house. In the first bedroom, the officers found defendant's girlfriend, Monique Blacklock, and her son asleep in bed. The officers ordered them into the living room. The next bedroom appeared to be used for storage. In the third bedroom, an officer noticed some white crystal powder on a nightstand next to the bed. He said, "Looks like there is some meth over there." The powder was loose, "spilled out, like salt" near the edge of the nightstand. The white powder appeared to be about the size of the head of a pen. There was clothing—jeans, T-shirts and men's underwear—scattered about. The room contained two television monitors for the security cameras. An officer asked defendant whose bedroom that was and he responded, "That's mine." After the officers finished the protective sweep, they confiscated the white powder. The officers did not perform a field sobriety test on defendant and he was not charged with being under the influence. The white powder was later determined to be 0.12 grams of methamphetamine, a small but usable amount.

Blacklock, who had lived with defendant for about a year and one-half, usually slept in defendant's room. But sometimes she fell asleep in the first bedroom when she put her son to sleep. She kept her clothes in both bedrooms. She denied using methamphetamine or leaving methamphetamine on the nightstand next to the bed.

DISCUSSION

To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553, 127 Cal.Rptr.2d 802, 58 P.3d 931; People v Jennings (1991) 53 Cal.3d 334, 364, 279 Cal.Rptr. 780, 807 P.2d 1009.) We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" {People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640, 20 Cal.Rptr.2d 788, 854 P.2d 80.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331, 75 Cal.Rptr.2d 412, 956 P.2d 374.)

This standard of review also applies to circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 82 Cal.Rptr.2d 413, 971 P.2d 618.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bradford (1997) 15 Cal.4th 1229, 1329, 65 Cal. Rptr.2d 145, 939 P.2d 259; People v. Panah (2005) 35 Cal.4th 395, 488, 25 Cal. Rptr.3d 672, 107 P.3d 790.) However, "[e]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citations.]" (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.) "Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction." (People v. Redrick (1961) 55 Cal.2d 282, 290, 10 Cal.Rptr. 823, 359 P.2d 255.)

The crime of possession of methamphetamine consists of four elements: (1) defendant exercised control over or the right to control an amount of methamphetamine; (2) defendant knew of its presence; (3) defendant knew of its nature as a controlled substance; and (4) the substance was in an amount usable for consumption. (Health & Saf.Code, § 11377, subd. (a); People v. Palaschak (1995) 9 Cal.4th 1236, 1242, 40 Cal.Rptr.2d 722, 893 P.2d 717; CALJIC No. 12.00.) "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.]" (People v. Vasquez (1969) 1 Cal. App.3d 769, 777, 82 Cal.Rptr. 131) 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. (People v. Palaschak, supra, at p. 1242, 40 Cal.Rptr.2d 722, 893 P.2d 717; People v. Williams (1971) 5 Cal.3d 211, 215, 95 Cal. Rptr. 530, 485 P.2d 1146.) 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 (see People v. Williams, supra, at pp. 215-216, 95 Cal. Rptr. 530, 485 P.2d 1146; People v. Redrick, supra, 55 Cal.2d at pp. 287-288, 10 Cal.Rptr. 823, 359 P.2d 255 [and cases cited therein]; People v. Eckstrom (1986) 187 Cal.App.3d 323, 331-332, 231 Cal.Rptr. 664; People v. Maese (1980) 105 Cal. App.3d 710, 717, 164 Cal.Rptr. 485; People v. Simmons (1971) 19 Cal.App.3d 960, 965, 97 Cal.Rptr. 283), or by evidence showing a familiarity with the substance, such as needle marks or other physical manifestations of drug use or instances of prior drug use (see People v. Simmons, supra, at p. 965, 97 Cal.Rptr. 283; People v. Thornton (2000) 85 Cal.App.4th 44, 49-50, 101 Cal. Rptr.2d 825; People v. Maese, supra, at p. 717, 164 Cal.Rptr. 485). When the contraband is found in a place to which a defendant and others have access and over which none has exclusive control "no sharp line can be drawn to distinguish the congeries of...