Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA080873, James B. Pierce, Judge.
Phillip I. Bronson, 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, Susan Sullivan Pithey and Blythe J. Leskay, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Charles Colbert, appeals after a jury convicted him of one count of methamphetamine possession. (Health & Saf. Code, § 11377, subd. (a).) Defendant admitted he had sustained two prior serious felony convictions (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and served two prior prison terms. (§ 667.5, subd. (b).) The trial court struck the prior serious felony conviction and prison term enhancements and sentenced defendant to the high term of three years in state prison. Defendant was ordered to pay a: $200 restitution fine (§ 1202.4, subd. (b)); $200 parole revocation restitution fine (§ 1202.45) (stayed); and $50 laboratory fee. (Health & Saf. Code, § 11372.5, subd. (a).) Defendant was awarded 283 total custody days consisting of 189 days of actual custody plus 94 days of conduct credit days. Defendant contends there was insufficient evidence to support his conviction for methamphetamine possession. We modify the judgment in part but otherwise affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliott (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On January 22, 2009, Officer Mark Gell, was working for the Long Beach Police Department assigned to the South Division Directed Enforcement Team. Officer Gell was working with a partner, Officer Dylan Lobascio. They were checking up on what the department calls an “impact” location. Officer Gell went to 330 Daisy Avenue in the city which is such a location. There was a “storage room[/]garage” that is in the rear of the front house. There are three houses or units on the property, which are connected by a courtyard. The storage area is attached to the middle house on the property. It has a garage door that is sealed up with a piece of plywood. There is a front door to the storage unit.
Officers Gell and Lobascio arrived at the 330 Daisy Avenue residence at around 3 p.m. and knocked at the door on the garage. Roberta Garcia answered the door. Officer Gell knew Ms. Garcia. As Ms. Garcia answered the door, Officer Gell could see defendant sitting inside on some blankets in the only area in the storage room where a person could sit. Officer Gell asked defendant to come out of the storage area. After defendant and Ms. Garcia exited, Officer Lobascio entered. Officer Gell spoke to defendant. Defendant said that he was living there and the items inside there were all his. Defendant said that he was doing construction work around the property. Defendant said on a different occasion he had been given permission to stay in the storage area.
Officer Gell saw there was a large amount of bruising on the inner elbow of defendant’s right arm. In the crack of defendant’s elbow, there were bumps. The markings on his elbow signified that defendant had been using narcotics recently by injecting a needle into his arm.
Officer Lobascio said he had found evidence in a dresser drawer. Officer Lobascio asked Officer Gell to look in a dresser drawer. Officer Lobascio stepped out of the garage. Officer Gell went in and saw numerous used and unused syringes. The syringes were the type a narcotics addict would use to inject herself or himself. There were also two metal spoons and a small zip-lock baggie inside the opened dresser middle drawer. There were also a few syringes on top of the television and the microwave. The microwave was sitting on top of the dresser. There was not a lot of walking around space in the area, which was very small. There were bags, boxes, clothes and all kinds of items piled up high in the room.
When Officer Lobascio entered the storage area, he saw a six-drawer wooden dresser containing two rows, with three drawers each. There was also junk in the area. But the junk area was different from the place where a television, dresser, and sleeping bag were located. It appeared to be a living area. The television was on and there was a microwave oven. The living area was the only area where a person could walk. Officer Lobascio saw what appeared to be hypodermic needles lying around everywhere mostly on the dresser and on top of the television and microwave. There were about 15 or 20 needles strewn around the garage. When Officer Lobascio opened the dresser drawer, he saw the metal spoons and the baggie. There were also syringes in the drawer. Counting the needles in the drawer, he saw about 20 to 25 hypodermic needles.
Officer Lobascio took the items outside the middle dresser drawer. Officer Lobascio showed Officer Gell the two metal spoons and the baggie. Defendant appeared to be upset after Officer Lobascio carried the items out of the area. Defendant clenched his teeth, began to take big breaths, and was perspiring.
Long Beach Police Department criminalist, Gregory Gossage tested a white crystal substance found on one of the metal spoons. There was white residue in the baggie and the other spoon but not enough to test. The substance tested on the second spoon weighed.02 grams and contained methamphetamine. Mr. Gossage testified.02 grams is a usable amount in that it could be manipulated into an apparatus capable of introducing it into a person’s body. A spoon is a common method or utensil used to heat and liquefy the methamphetamine so that it can be introduced into a syringe. The syringe is then used to inject the drug into the body.
Xenia Rennatta Izzo testified on behalf of defendant. Ms. Izzo purchased the 330 Daisy property in August 2008. The property is a fourplex. The garage is attached to unit 330-1/2 Daisy. The previous owner used the garage as a storage room. And other people on the property also used the garage for storage. The area had a little place where one could walk as it was filled to the brim with furniture and tool boxes. Multiple people including the former owner, Lois Lloyd, had left items in the storage area. When Ms. Izzo purchased the fourplex, defendant was living in the front property.
Since she purchased the property, she had been renovating it. She had evicted tenants including defendant. Six or seven people had asked if they could store items in the storage room. Defendant was performing light plumbing, cleaning and removing drywall. Defendant asked if he could stay in the storage room while he worked for Ms. Izzo. Ms. Izzo thought defendant was only going to stay a couple of days. But defendant stayed a little longer than she expected. Five or six people also had access to the garage. There was a lock on the side door of the garage. Before defendant left, Ms. Izzo did not have a key to the garage. People kept coming in and out of the garage. She never saw hypodermic needles in the garage. On January 22, 2009, there were at least four people living in the fourplex.
On cross-examination, Ms. Izzo said she had been in the storage area about three times since she purchased the fourplex. Prior to allowing defendant to live in the storage area, it was filled with furniture, tool boxes, and clothing. She did not believe there was a television in the area. Ms. Izzo did not know whether there was a microwave in the garage. She could not remember if there was a dresser. Ms. Izzo did not go inside the area after she allowed defendant to live there. Ms. Izzo admitted that she had never seen anyone aside from defendant and another man inside the storage area.
Cathleen Calderon also testified for defendant. Ms. Calderon was defendant’s neighbor when she lived in the rear residence of the fourplex. She moved out January 1, 2009. Before she moved out, there were approximately 18 people living in the three houses on the fourplex. Since moving out, Ms. Calderon has frequently gone to the fourplex. She knew the prior owner, Ms. Lloyd. Almost everyone in the complex, including Ms. Lloyd, stored items in the garage. There was a lot of furniture and knickknacks of every sort in the garage. There were dressers, trunks, nightstands, dining room sets, tables, bed sets, and mattresses. Everything in the garage was in disarray. The garage was filled top to bottom and side to side. Ms. Calderon helped move a couple of dressers into the garage that belonged to someone else. In January 2009, Ms. Calderon saw about 18 people coming and going inside the storage area. There was no lock on the door until Ms. Izzo purchased the property.
Ms. Calderon had a four-drawer dresser in the garage that she checked on after moving. She is a crystal methamphetamine user. Ms. Calderon kept her hypodermic needles in the blue plastic three-drawer dresser. The needles were in the top drawer. Ms. Calderon left about six needles in the drawer. Ms. Calderon did not leave the drugs lying around because she usually uses them. She may have left empty baggies in the garage. Ms. Calderon did not know that defendant was living in the garage.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant argues there was insufficient evidence he exercised dominion and control over the methamphetamine. 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. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) 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; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396; 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.) 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.)
Our Supreme Court has 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.]” (People v. Williams (1971) 5 Cal.3d 211, 215; see also People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Newman (1971) 5 Cal.3d 48, 52 overruled on a different point in People v. Daniels (1975) 14 Cal.3d 857, 862.) Furthermore, the elements may be established with circumstantial evidence and all reasonable inferences which may be drawn from the evidence. (People v. Martin (2001) 25 Cal.4th 1180, 1184; People v. Williams, supra, 5 Cal.3d at p. 215.)
Dominion and control may be established with circumstantial evidence and any reasonable inferences which may be drawn from such evidence. (People v. Morales (2001) 25 Cal.4th 34, 41; People v. Groom (1964) 60 Cal.2d 694, 696.) Furthermore, the fact that other persons had equal rights and access to the storage room does not negate the dominion and control element. (People v. Redrick (1961) 55 Cal.2d 282, 285; People v. Haynes (1967) 253 Cal.App.2d 1060, 1064; People v. Valenzuela (1959) 174 Cal.App.2d 759, 762; see also People v. Shoals (1992) 8 Cal.App.4th 475, 495; People v. Kipnis (1970) 5 Cal.App.3d 980, 987.) Rather, joint occupancy of premises where the narcotics is located is a factor which supports an inference of joint and constructive possession. (People v. Haynes, supra, 253 Cal.App.2d at p. 1064; see also People v Kipnis, supra, 5 Cal.App.3d at p. 987.) Our Supreme Court has explained: “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.]” (People v. Williams, supra, 5 Cal.3d at p. 215 citing People v. Francis (1969) 71 Cal.2d 66, 71, 75; People v. White (1958) 50 Cal.2d 428, 431.)
The evidence, viewed most strongly in favor of the judgment shows, defendant was living in the storage room. Defendant was sitting on blankets in the only area in the storage room where a person could sit. Officer Gell noticed a large amount of bruising on defendant’s inner elbow which was indicative of recently injected narcotics. (See People v. Allen (1961) 196 Cal.App.2d 655, 660 [“Evidence that a person uses narcotics and has hypodermic needle marks on his arms may be considered as a circumstance indicating possession of narcotics”]; see also People v. Roberts (1964) 228 Cal.App.2d 722, 728.) The officers found used and new hypodermic syringes thrown about the storage room including on the television, a microwave and dresser. A wood dresser drawer contained more syringes. The syringes in the drawer were found with two spoons and a white baggie all of which contained a white substance. One spoon contained.02 grams of methamphetamine. A jury could reasonably infer that the elements of possession of methamphetamine were satisfied beyond a reasonable doubt taking all the circumstances together.
B. Fees, Assessments, Surcharge and Penalties
We asked the parties to brief the discrepancy between the court’s oral imposition of a $50 Health and Safety Code section 11372.5, subdivision (a) drug laboratory fee and the abstract of judgment and minute order, which do not reflect the fee. We also asked the parties to brief whether related penalties, assessments and a surcharge should have been imposed. Defendant was convicted of violating Health and Safety Code section 11377, subdivision (a); an enumerated offense which requires a mandatory criminal analysis fee of $50. (Health & Saf. Code, §11372.5, subd. (a).) The trial court orally imposed a $50 laboratory fee but neither the minute order nor the abstract of judgment reflect imposition of the fee. The oral pronouncement controls when there a discrepancy with the minute order or abstract of judgment. (People v. Delgado (2008) 43 Cal.4th 1059, 1070; see also §§ 1213, 1213.5; People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The discrepancy is treated as clerical error which may be corrected at any time. (People v. Mitchell, supra, 26 Cal.4th at pp. 185-187; People v. Boyde (1988) 46 Cal.3d 212, 256; see also Cal. Rules of Court, rule 8.155(c)(1).)
In addition, the Health & Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee is a fine. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1522; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.) As such, the fee is subject to additional assessments, a surcharge and penalties as follows: a $50 state penalty assessment under section 1464, subdivision (a)(1); a $35 county penalty assessment pursuant to Government Code section 76000, subdivision (a)(1); a $10 Government Code section 76000.5, subdivision (a)(1) county additional penalty assessment for emergency medical services; a $10 state surcharge under section 1465.7, subdivision (a); a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty (the amount payable in Los Angeles County); a $5 deoxyribonucleic acid penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and a $5 deoxyribonucleic acid state-only penalty under Government Code section 76104.7, subdivision (a). (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530.) The judgment must be modified to include the foregoing. Further, upon remittitur issuance, the trial court is to personally insure the clerk accurately prepares a correct amended abstract of judgment that reflects the modifications to the judgment we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426; People v. High (2004) 119 Cal.App.4th 1192, 1200.)
IV. DISPOSITION
The judgment is modified to include the additional fees, penalties and surcharge set forth in part III(B) of this opinion. Upon remittitur issuance, the superior court clerk shall prepared an amended abstract of judgment and forward it to the Department of Correction and Rehabilitation. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J.