Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 149826
Marchiano, P.J.
Defendant Craig Griffin appeals from a judgment imposed after revocation of probation. In October 2005, defendant pleaded no contest to transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)), and admitted three-year (Health & Saf. Code, § 11370.2, subd. (a) [prior drug conviction]) and one-year (Pen. Code, § 667.5, subd. (b) [prior prison term]) enhancement allegations. In November 2005, imposition of sentence was suspended and defendant was placed on probation for five years, subject to conditions that included submitting to warrantless searches, and staying at least 100 yards away from the 10100 block of Walnut Street in east Oakland. In September 2006, the court found that defendant had violated probation by committing drug and weapon possession offenses, and sentenced him to nine years in state prison, representing the upper term of five years for the Health and Safety Code section 11352 offense, plus four years for the enhancements.
The issue in this appeal is whether the probation violation finding was supported by substantial evidence. We hold that the finding was adequately supported and affirm the judgment.
I.
Defendant was found to have violated probation based on property discovered in the search of a residence on 8th Street in west Oakland on May 9, 2006. The residence was occupied by Myeisha Rucker, her sister, and her aunt. Rucker and Oakland Police Officer Bernard Ortiz were the witnesses at the probation violation hearing.
Ortiz started watching defendant after undercover officers Worchester and Holton, who knew defendant from work in east Oakland, noticed defendant driving Rucker’s blue Chevrolet Yukon in west Oakland, and followed defendant to the 8th Street address. Worchester told Ortiz that he saw defendant enter the residence with a key. Before that observation, Ortiz was not aware of defendant’s connection with the 8th street residence. Defendant had told the probation department that he was living with his mother, at an address around 66th Avenue. Ortiz had been to the mother’s residence while investigating defendant’s brother, and had never seen defendant there.
After Ortiz learned of the 8th street address, he saw defendant “quite often”—once a week, or once every other week—in the general area of 100th Avenue and Walnut, a short block away from the one defendant was required to avoid as a condition of his probation. A house on the corner of 100th and Walnut was being taken over by drug dealers, and Ortiz had stopped defendant near the house a couple of months before the May 9 search and reminded him of the stay away order.
Undercover officers had purchased illegal drugs from defendant and arrested him near 100th and Walnut on February 28, 2006. Testimony concerning the sale was admitted at the probation violation hearing solely on the issue of the legality of the May 9 search.
Ortiz began watching the 8th Street property to determine if defendant resided there. “This wasn’t like a narcotics type of surveillance where we, actually, spent long hours in time on this,” Ortiz testified, “This was maybe a couple hours here, a couple hours there.” Ortiz would go to the house at night during his shift to see if defendant was there; another officer went to the house in the early morning. Ortiz said that he saw defendant enter and leave the 8th Street residence three or four times; he saw him enter the residence by himself on more than one occasion, and leave by himself twice. He did not see defendant use a key to the residence; defendant just opened the door and went inside without knocking. Defendant went to and from the residence at different times of day. Ortiz conducted surveillance on the residence almost every day for a two-week period ending on May 4, 2006, and saw defendant there four times.
Rucker drove a Chevrolet Yukon; defendant had a Buick Riviera. Ortiz and other officers observed the Riviera at the 8th Street residence; Ortiz saw it parked in the garage, and saw it early in the morning and late at night when people were normally asleep. Ortiz observed defendant driving a Yukon at different times of the day, and in the area of 100th and Walnut. Ortiz said that, when defendant left that area in the Yukon, “We’d race to the [8th Street] location and beat him there to see if he would, actually, go to that location.”
By May 9, 2006, based on the surveillance, Ortiz believed that defendant lived at the 8th Street residence even though Ortiz had no documents to prove it. When Ortiz was cross-examined about his preliminary hearing testimony that defendant “occasionally” stayed at the 8th street address, he explained that “I can’t say he was there every night. [I] didn’t do surveillance every night on that area.” Ortiz said he understood the probation condition permitting searches of a defendant’s “residence” to refer to the “[p]lace where he’s, actually, staying. For me personally, it’s the majority of his time is at that residence when he’s not out doing what he’s doing.”
The district attorney filed new charges stemming from the May 9 search, but later elected to dismiss that case and treat the fruits of the search as a probation violation.
Ortiz and other officers contacted defendant on the afternoon of May 9, 2006, intending to do a probation search. Defendant was standing on a corner at 100th and Walnut, in violation of the stay away order, with his Riviera parked nearby. The officers searched him and his car, and Ortiz advised him that they were going to search his residence. Ortiz testified, “At first I think [h]e thought we were going to his mother’s house, but when we told him the [8th Street] address, he didn’t say anything to me after that.”
Rucker answered the door of the 8th Street residence when Ortiz and other officers knocked. Ortiz testified that Rucker said “Yes” when he asked her whether she knew defendant and whether he was living there. Ortiz had testified at the preliminary hearing that he wanted to find out if Rucker “was going to admit that [defendant] was in there, because I was waiting, maybe I should cut a quick search warrant on this if I had to.” He explained at the probation violation hearing that, pursuant to police department policy, if Rucker “was going to put up a big, huge argument, [we] weren’t going to fight her over it. It would be easier for us to do the search warrant . . . than to argue the point, . . . to rip the door open and chase everyone around the house. We didn’t want to do that . . . .” According to Ortiz, Rucker was “very nice” and “helpful” after he told her they were there to do a probation search of the residence.
Rucker’s sister and aunt were at home at the time, along with her brother, Terryl Rucker. Rucker told Ortiz that Terryl and defendant were good friends, and that Terryl had introduced her to defendant. She said she had known defendant for eight years and was still seeing him. When Ortiz asked her to identify where defendant slept and the rooms to which he had access without a key, she told him that defendant slept in her upstairs bedroom and had access to all of the rooms downstairs. She took Ortiz and another officer to her bedroom and pointed out defendant’s property inside, which consisted of clothing in a plastic storage container and DVD’s on top of a TV. On a dresser there was a photo of defendant sitting on the bed in the bedroom. The officers went downstairs to continue the search, and were informed by another officer that Ecstasy had been found on Terryl.
The door to the master bedroom downstairs was open and unlocked. Rucker told Ortiz that her grandmother had previously occupied the room, but had not lived in the house since September 2005, when she had a stroke. Rucker told Ortiz that they had made the room into an “open” guest bedroom that “anybody could use.”
In the drawer of a dresser in the guest bedroom the officers found a loaded nine-millimeter Glock gun that had a laser pointer and had been modified for use with a silencer. Another drawer of the dresser contained two shoe boxes. One box had items in Terryl’s name, counterfeit $10 bills, and ziplock baggies; the other had a small silver scale, $76, and plastic bags of cocaine base. Under the dresser, the officers found a CD case containing 493 Ecstasy pills, and a peanut can holding five Ecstasy pills, $56, and a black ski mask.
Apart from the clothes and DVD’s in Rucker’s bedroom, no other personal effects of defendant’s were found in the 8th Street residence. This fact did not change Ortiz’s opinion that defendant lived there. He said that probationers understand that the addresses they report are searched at random times, and they keep their personal effects away from their stash pads and where they actually stay. “Their mail is sent to mom’s, an aunt, a relative,” he explained, “They’ll have personal stuff there.”
Ortiz obtained a written statement from Rucker at the time of the search, but the statement was lost and never delivered to the district attorney’s office. Rucker’s testimony at the probation violation hearing contradicted that of Oritiz on numerous points.
Rucker admitted driving a Yukon, and telling Ortiz that she had known defendant for seven or eight years. She denied telling Ortiz that defendant lived with her and that he “mostly sleeps here,” as stated in the police report in evidence for the May 9 search. She said that defendant spent the night only three times in 2006; they had not been intimate for years and were just good friends. She told defendant that he could only use her room and the bathroom, and he went “directly upstairs to [her] room” whenever he came over. She never left him in the house when she went out. She had his clothes in her room because he had given them to her to take to the cleaners; she took the clothes out of her car and brought them to her room because she had the car cleaned. He never drove her car unless she was with him.
Rucker said that defendant did not have a key to the house or to the downstairs bedroom. She said that Terryl had a key to the house, but not to the downstairs bedroom. Terryl did not live at the house, but came by occasionally to help out with things such as letting in cable TV workers while Rucker was at work. The downstairs bedroom still contained her grandmother’s checkbooks and credit cards, and was ordinarily kept locked. Rucker sometimes left the door to that bedroom open so that she could use the master bathroom when she was downstairs, but she only left it open when she was in the house. The door to that bedroom was open when the officers searched the house because Rucker had gone inside to check for messages on the grandmother’s answering machine. They were keeping the bedroom for the grandmother in case she could leave the rest home where she had lived since her stroke.
The court found that: Rucker’s testimony was not credible; defendant frequently stayed at the 8th Street residence and used it as his stash pad; the downstairs bedroom was normally left unlocked, as the police found it during the search; defendant and Terryl both had access to that room; defendant and Terryl both constructively possessed the drugs found there; and defendant had violated the conditions of his probation by possessing illegal drugs for sale, and possessing illegal drugs while in possession of the firearm.
II.
Defendant contends that revocation of his probation was an abuse of discretion because there was no substantial evidence that he possessed the items recovered in the May 9 search. (See People v. Angus (1980) 114 Cal.App.3d 973, 987 [revocation of probation rests in discretion of trial court].) The issue is whether any reasonable court could have found by a preponderance of the evidence that possession had been shown. (See People v. Johnson (1980) 26 Cal.3d 557, 578 [substantial evidence test]; People v. Rodriguez (1990) 51 Cal.3d 437, 441, 447 [facts supporting revocation of probation need only be proved by a preponderance of the evidence].) We must determine “whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In that regard, we give great deference to the trial court and resolve all inferences and . . . conflicting evidence . . . in favor of the decision.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)
“It is well settled that in a prosecution for unlawful possession of narcotics the People must prove (1) that the accused exercised dominion and control over the drug, (2) that he had knowledge of its presence, and (3) that he had knowledge of its narcotic character.” (People v. Estrada (1965) 234 Cal.App.2d 136, 155 (Estrada).) All of the elements of the offense may be established by circumstantial evidence (People v. Martin (2001) 25 Cal.4th 1180, 1184) “and any reasonable inferences drawn from such evidence” (People v. Williams (1971) 5 Cal.3d 211, 215). “[T]he choice among several permissible inferences from circumstantial evidence [is] for the trier of fact.” (People v. Jenkins (1979) 91 Cal.App.3d 579, 584 (Jenkins).) “The trier of fact is responsible for weighing the evidence presented, resolving conflicts in the testimony and drawing reasonable inferences from the facts before it.” (People v. Rushing (1989) 209 Cal.App.3d 618, 621 (Rushing).)
Defendant contests the sufficiency of the evidence to support the finding as to the element of “dominion and control,” which refers to actual or constructive possession of the contraband. (See People v. Francis (1969) 71 Cal.2d 66, 73.) “Constructive possession exists when a defendant ‘maintains control or a right to control the contraband.’ ” (Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 538.) “ ‘The narcotics need not be found on the person of the defendant; it is sufficient if they are deposited in a place under the possession and control of the accused. Exclusive possession of the premises is not necessary nor is physical possession of the drug of the essence.’ ” (People v. Jackson (1961) 198 Cal.App.2d 698, 704-705 (Jackson).) However, “proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession.” (People v. Redrick (1961) 55 Cal.2d 282, 285 (Redrick).)
Defendant submits that the evidence shows, at most, that he may have had access to the place where the contraband was found. We disagree, for a number of reasons.
First, the court had evidence from which to find that he was using the 8th Street property as his primary residence when the contraband was discovered. “The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence . . . .” (Jenkins, supra, 91 Cal.App.3d at p. 584.) The court in this regard could credit Rucker’s statements to the police at the time of the search that defendant generally slept at the home and had access to all of the downstairs rooms, rather than her testimony at the probation revocation hearing that he rarely stayed there and that the downstairs bedroom was kept locked. (People v. Bass (1952) 110 Cal.App.2d 281, 283 [“triers of fact are the exclusive judges of the credibility of witnesses”].)
Second, the court could find that defendant displayed consciousness of guilt by failing to advise the probation department that he was living at the 8th Street property. (Redrick, supra, 55 Cal.2d at pp. 287-288 [showing of consciousness of guilt can establish substantial evidence of possession in otherwise doubtful cases].)
Third, there was evidence, apart from the February 2006 drug sale bust, from which the court could reasonably infer that defendant was engaged in ongoing drug trafficking and using the 8th Street property in those activities. (Estrada, supra, 234 Cal.App.2d at p. 156 [strong inference of possession of contraband supported inter alia by evidence of defendant’s “connection with narcotics” and consciousness of guilt]; see also Jackson, supra, 198 Cal.App.2d at pp. 706-707 [finding of possession supported by prior narcotics conviction].) Defendant frequented the 100th and Walnut area despite the stay away order, near a house that was being used by drug dealers, and was observed driving between that area and the 8th Street residence.
Defendant argues that there was more evidence tying Terryl than him to the contraband because Terryl was found in possession of Ecstasy during the search, and property in Terryl’s name was found in one of the shoe boxes in the dresser where the contraband was located. However, the evidence defendant cites did not as a matter of law establish that Terryl was in exclusive possession of the contraband, and it is immaterial that such a finding could potentially have been made. “If the findings are reasonable and supported by the evidence, reversal is not warranted because a contrary finding might also be reasonable.” (Rushing, supra, 209 Cal.App.3d at p. 621.) “[N]o sharp line can be drawn to distinguish the congeries of facts which will and . . . will not constitute sufficient evidence of a defendant’s knowledge of the presence of a narcotic in a place to which he had access, but not exclusive access, and over which he had some control, but not exclusive control.” (Redrick, supra, 55 Cal.2d at p. 287.) Given the evidence of defendant’s use of the 8th Street property as his residence, his consciousness of guilt, and his ongoing drug trafficking, the court could reasonably infer that he, as well as his good friend Terryl, possessed the contraband.
Defendant relies on People v. Stanford (1959) 176 Cal.App.2d 388 (Stanford), and People v. Hancock (1957) 156 Cal.App.2d 305 (Hancock), but those cases are distinguishable. The defendant in Stanford “neither made any statement nor performed any act from which the court could draw inferences adverse to him.” (Stanford, supra, 176 Cal.App.2d at p. 391.) As we have explained, that is not the case here. The defendant in Hancock was in a hotel room with his codefendant when a police officer knocked on the door. When the officer identified himself, a package containing bindles of heroin was thrown out of the room’s window. The room was registered to the codefendant, the codefendant threw the package out of the window, and the defendant was approaching the door to open it when the package was thrown. (Hancock, supra, 156 Cal.App.2d at pp. 307, 310, 312.) Aside from the defendant’s presence in the room, the only evidence that might have supported a finding that he jointly possessed the heroin was that he was an addict, and had changed his story about seeing something thrown out of the window. (Id. at pp. 309-310.) That evidence was insufficient to support the defendant’s conviction. “It may be,” the court concluded, “that [the defendant] went to the [codefendant’s] room to purchase heroin, but to hold that he had any dominion or control over the package which the evidence indicates [the codefendant] threw out the window could only be based upon surmise and conjecture.” (Id. at p. 310.)
The facts of Hancock are not analogous to those here. Here, the contraband was in defendant’s residence; in Hancock, the drugs were in someone else’s hotel room. Here, defendant exhibited consciousness of guilt; in Hancock, the defendant did not. Although the defendant there changed his story, he did so to protect the codefendant, not himself. (Hancock, supra, 156 Cal.App.2d at p. 310.) While weeks of surveillance suggested that defendant was trafficking in drugs he stored at the 8th Street property, Hancock involved a single, brief, ambiguous encounter between the police and the defendant. In Hancock, moreover, possession had to be proven beyond a reasonable doubt rather than, as here, by a mere preponderance of the evidence.
III.
Defendant’s related petition for writ of habeas corpus (A118868) has been denied by separate order filed this date.
We concur: Swager, J., Margulies, J.