Opinion
E032477.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. JERHAUN HOOKFIN, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Janelle M. Boustany, Deputy Attorney General, for Plaintiff and Respondent.
An amended information charged defendant with (1) possession of cocaine base for sale (Health & Saf. Code, § 11351.5); (2) using threats and violence to prevent a police officer from performing his or her duty (Pen. Code, § 69 ); (3) making criminal threats (§ 422); and (4) trespassing (& sect; 602, subd. (l)). A jury convicted defendant of all charges. Defendant was sentenced to four years and eight months in state prison.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Defendant appeals, arguing that the prosecutions evidence was insufficient to support his conviction on count 1, the possession charge, and the trial court therefore erred in denying his motion to dismiss under section 1118.1. He also contends the trial court erred in several evidentiary rulings.
FACTS
Deputies Alanis and Portillo testified that, on May 29, 2002, at 11:30 p.m. they were on patrol near an apartment complex in Moreno Valley. An alley south of the apartment complex was known for drug sales activity. Deputy Portillo testified that, on his regular patrols, he observed "quite a few people in or about . . . that apartment complex, loitering, and you would see hand-to-hand transactions go down." There was also a trespassing problem in the area.
Several people were loitering in the area on the night in question. Since people would run when the deputies approached, the deputies decided to drop Deputy Portillo at one entrance to the apartments while Deputy Alanis drove into the alley. About three to six people were in the alley when Deputy Alanis arrived. As a result of this action, four people ran into the apartment complex, and two people ran towards Deputy Portillo. He ordered them to stop, but they turned around and ran back towards the alley. Deputy Alanis detained the two people, while Deputy Portillo detained a third person.
Defendant testified that there were 10 to 13 people in the vicinity.
Defendant was one of the persons detained by the deputies. The other person was a juvenile. The deputies found that defendant was carrying $210 in cash and a cell phone. The deputies also found rock cocaine in a trash can in the vicinity. The cocaine was packaged for sale and it was found on the top of a soda box in the trash can.
Deputy Portillo testified that he could not see the trash can from his initial position. However Deputy Alanis first saw the two persons as they rounded a corner near the trash can. Deputy Alanis did not see any other persons near the trash can but Deputy Portillo detained a man standing near the trash can.
Based on his experience, and his questioning of the juvenile who was with defendant, Deputy Portillo concluded that they were working together to sell rock cocaine. Deputy Portillo testified that, in his experience, sellers of rock cocaine will frequently stash cocaine in nearby areas, such as a trash can, and will use juveniles to deliver the rock cocaine to buyers. Dealers also use cell phones and beepers. Defendant was arrested and charged with possession of cocaine base for sale.
The officer did not testify as to what the juvenile told him. We therefore do not know whether the juvenile admitted participating in drug sales or not, and we do not know if he implicated defendant.
Following his arrest, defendant threatened the deputies, leading to the charges under sections 69 and 422.
The jury convicted defendant on all charges.
THE SECTION 1118.1 MOTION
At the close of the prosecutions case, defendant made a motion to dismiss pursuant to section 1118.1. He argued that the possession for sale charge should be dismissed because the prosecutions evidence was insufficient to support a conviction. Specifically, there were several people in the area, no one saw him put anything in the trash can, and "he [was] basically . . . arrested because he was in the area where drugs [were] found." The trial court denied the motion and defendant now argues that the trial court erred.
In denying the motion, the trial court focused on the evidence that threats were made and did not discuss the possession issue.
Section 1118.1 provides that the defendant may file a motion for a judgment of acquittal at the close of the prosecutions case. The motion must be granted if the court finds that the prosecutions evidence is insufficient to sustain a conviction on appeal.
Accordingly, a section 1118.1 motion tests the sufficiency of the prosecutions evidence and "[a] trial court should deny a motion for acquittal under section 1118.1 when there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged. [Citations.]" (People v. Mendoza (2000) 24 Cal.4th 130, 175.)
Count 1 charged defendant with violating Health and Safety Code section 11351.5 by possessing cocaine base for sale. The jury was instructed that, to find defendant guilty of this crime, it had to find each of the following elements were true: (1) defendant exercised a right of control over a controlled substance; (2) defendant knew of its presence, (3) and knew it was a controlled substance; (4) the amount found was sufficient to be used for sale and (5) defendant possessed the controlled substance with the specific intent to sell it. (CALJIC No. 12.01.)
The instruction also defines possession: "There are two kinds of possession: actual possession and constructive possession. [& para;] `Actual possession requires that a person knowingly exercise direct physical control over a thing. [¶] `Constructive possession does not require actual possession but does require that a person knowingly exercise control over or right to control a thing, either directly or through another person or persons."
Our Supreme Court has held that "[t]he accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control. [Citations.] Even if the accused does not have exclusive control of the hiding place, possession may be imputed if he has not abandoned the narcotic and no other person has obtained possession. [Citations.] The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. [Citations.]" (People v. Showers (1968) 68 Cal.2d 639, 643-644.)
Defendant contends there is no evidence that defendant knew there were drugs in the trash can, that he did not have exclusive control over the trash can, and that he did not exercise dominion and control over the trash can.
We agree that evidence of these elements was lacking. The issue is whether the trial court and jury could make reasonable inferences from the other facts and circumstances of the case to reach a conclusion that defendant was the person in constructive possession of the drugs in the trash can.
Respondent cites People v. Redrick (1961) 55 Cal.2d 282. In that case, our Supreme Court states: "The People correctly agree with defendant that to establish unlawful possession of narcotics it must be shown that the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character. [Citations.] They further correctly agree that proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession." (Id. at p. 285.)
The Redrick opinion goes on to state: "As might be expected, no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendants 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." (People v. Redrick, supra , 55 Cal.2d 282, 287.) In the passage cited by respondent, the court went on to state that "where the sufficiency of the evidence might otherwise have been doubtful, it was strengthened by a showing of consciousness of guilt. [Citations.]" (Id. at pp. 287-288.)
Respondent first cites a number of facts and then argues that, although each fact alone is insufficient to convict defendant, they combine to provide substantial evidence to support the conviction. The first such fact is that the neighborhood was known for drug sales and hand-to-hand transactions. While this testimony supports an inference that drug sales were regularly occurring in the alley, it also supports a conclusion that there were a number of buyers and sellers. The inference does not help tie defendant to the rock cocaine found in the trash can.
The second fact is that defendant "was one of only two individuals who were in the alleyway where the rock cocaine was found." This is simply incorrect. Both deputies testified that there were three to six people in the alley and others in the apartment courtyard. Three persons were apprehended and detained by the officers: defendant, a juvenile, and another man. The man was standing next to the trash can where the drugs were found. Three other persons, two females and a male, were also in the area.
The third fact cited by respondent is that the deputy saw defendant walk by the trash can. The deputy did not have a clear view of the trash can, but he did not see anything in defendants hands. We note, however, that the prosecution theory was not that the drugs had been discarded in the trash can, but instead they were stored there as inventory for delivery to customers.
The fourth fact is that defendant ran away when the deputy drove into the alley, as did most of the other persons there. When apprehended, defendant gave conflicting stories. These facts support an inference of consciousness of guilt and, as noted above, consciousness of guilt strengthens respondents argument. (People v. Redrick, supra, 55 Cal.2d 282, 287-288.) However, consciousness of guilt does not substitute for evidence that defendant knew the drugs were in the trash can and exercised dominion and control over the drugs.
Obviously, it can be argued that everyone who ran as the officers approached exhibited a similar consciousness of guilt. Thus, consciousness of guilt does not help us identify which person possessed the rock cocaine in the trash can.
The fifth fact is that defendant had $210 in cash. While this fact could support an inference that defendant was the "money man," i.e., the person collecting for the drugs which were sold, as contended by respondent, it could also indicate defendant was a buyer who had not yet purchased drugs. In any event, the amount of cash was not large, and the persuasive value of any such inference is not strong. In view of the prevalence of cell phones in our society, the fact that defendant had a cell phone is also not supportive of the conclusion that defendant knowingly possessed the drugs found in the trash can.
The sixth fact is that defendant was detained with a juvenile, and the deputies thought that defendant was using the juvenile to deliver the drugs and collect the money from the buyers. There was, however, no evidence that this was so.
The seventh fact is that defendant "had been previously arrested in the same location for selling cocaine." This fact refers to the testimony of an officer that he arrested defendant in 1996 at the same location. At the time, defendant had $144 in currency, a pager and 20 empty small Ziploc baggies. Defendant admitted selling marijuana but none was found.
Defendant subsequently testified that he was never charged with any offenses as a result of the arrest.
Respondent concedes that each of these facts, standing alone, is insufficient to support the conviction, but it argues that their combined effect is sufficient. We cannot agree.
We do agree with the general principles of appellate review as stated by respondent: "In deciding the sufficiency of the evidence, the reviewing court asks whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] . . . The reviewing court must respect the exclusive province of the fact finder to determine the credibility of the witnesses, to resolve evidence conflicts, and to draw reasonable inferences from proven facts. [Citation.] If the circumstances reasonably justify the findings of the trier of fact as to each element of the offense, an opinion of the reviewing court that the circumstances might also lead to a contrary finding does not warrant reversal. [Citation.]"
The omitted sentence states "The reviewing court resolves the issue in light of the whole record. (People v. Johnson (1980) 26 Cal.3d 557, 576.)" But Johnson does not involve a section 1118.1 motion and, as to such motions, the rule is different: "When reviewing the denial of a motion to acquit for insufficient evidence made at the close of the prosecutions case, we consider only the evidence then in the record. [Citations.]" (People v. Smith (1998) 64 Cal.App.4th 1458, 1464.)
But the inferences made by respondent simply cannot be stretched to mean that defendant knew there were drugs in the trash can, and that he had any dominion or control over them. There was simply no evidence on these elements of constructive possession.
Respondent seeks to bridge the gap by citing People v. Foster (1953) 115 Cal.App.2d 866, 868: "To show such knowing possession the conduct of the parties, admissions or contradictory statements and explanations are frequently sufficient. [Citations.]" In Foster, drugs were thrown out of a car window and all three persons in the car were charged and convicted of possession of narcotics. A new trial was granted as to the driver. As to one passenger, Phillips, the prosecution argued that his denial that he threw the drugs out of the window was sufficient to support his conviction. The appellate court rejected the argument, saying "[t]o infer guilty knowledge in Phillips from the fact, standing alone, that he testified that he did not see the package thrown from the car would be to permit a conviction on the wildest sort of surmise and conjecture." (Id. at p. 868.) As to the third person, Foster, the court found that he had given conflicting testimony. At first, he testified that the car window was closed. The next day he changed his testimony and said it was open. The court found that "[f]rom this clumsy attempt to manufacture a defense the jury might reasonably infer the guilty knowledge necessary to find that Foster was the one of the three defendants who had possession of the heroin. [Citation.]" (Id. at p. 869.)
As can be seen from the foregoing summary of the case, the evidence was that defendants possessed the drugs either individually or jointly. The conflicting testimony provided a basis for determining which defendant was culpable. But the case does not hold that contradictory statements are conclusive when there is no evidence of possession by the defendant. Indeed, the appellate court reaffirms the established principle that "[m]ere presence at the scene of the crime standing alone is not sufficient to justify a finding of guilt. [Citation.]" (People v. Foster, supra, 115 Cal.App.2d 866, 868.)
It is interesting to note that respondent distinguishes Foster by saying "Unlike the present case, the defendant was convicted on a negative inference made by the prosecution. The prosecution argued the defendants denial of knowledge was inculpatory. [Citation.] In the present case, [defendant] was convicted on reasonable inference based on direct or circumstantial evidence." Elsewhere, however, respondent seeks to use negative inferences, such as those arising from defendants conflicting statements to police, in the same manner as they were used in Foster.
In People v. Hancock (1957) 156 Cal.App.2d 305, drugs were thrown from a hotel room occupied by defendant and another person. The appellate court held that the fact that defendant Crayton, an addict, was in the room was not enough to show dominion and control, even though defendant Crayton changed his story: "The mere fact that an addict is in a room from which a narcotic is thrown is not sufficient to prove that he had any dominion or control over it." (Id. at p. 310.)
As noted above, our Supreme Court has found, in a subsequent case, that possession of narcotics may be imputed when the contraband is found in a location under defendants control, even if the control is not exclusive. (People v. Showers, supra, 68 Cal.2d 639, 644.) In that case, the defendant had been stopped in a car in front of a home. Nothing was found. Later that evening, defendant was seen searching the ivy in a parkway in front of the home. Defendant then searched the ivy twice the next day. An investigating officer found a balloon of heroin in the ivy and arrested defendant. (Id. at p. 642.) Defendant argued that the evidence was insufficient to show possession but our Supreme Court found that defendants false statements indicated a consciousness of guilt, and that either defendant or his brother was responsible for placing the heroin in the ivy when they were stopped by the police. (Id. at p. 643.) Under the circumstances there, it was unlikely that defendant was the one who placed the heroin in the ivy. Accordingly, constructive possession was lacking and the judgment was reversed.
Showers does not support the conclusion that possession may be imputed when there is no evidence of control at all. While defendant, like all other persons in the vicinity, could have used the trash can to discard or stash drugs, there is simply no evidence that he actually did so. For example, Showers cites People v. Cuellar (1952) 110 Cal.App.2d 273. In that case, defendant buried drugs in a park and admitted to police that he had done so. Possession was found because defendant "having had physical control of the contraband cigarettes had not abandoned it and that no other person had had that possession." (Id. at p. 278.)
Respondent conjectures that specific evidence of possession in this case was supplied by Deputy Portillos testimony that, in his experience, "that normally when people sell rock cocaine, they wont keep it on their person to avoid detection if they are caught. They will use a juvenile normally. . . . [¶] . . . [¶] Normally you have somebody that is on the front line. They are out in the open. I dont want to say flagging people down. But normally people will approach the person thats out front, let them know what they want. Lets say they want rock cocaine. And they are selling rock cocaine. Well, theyll let them know, okay, you need to go see that person. The other person will go ahead and take the money and will either give them the rock cocaine or have somebody else give them the cocaine."
Even assuming that drug sellers typically operate in this fashion, there is simply no evidence tying this defendant to the drugs found in the trash can. The concept of constructive possession requires that defendant control or have the right to control the contraband. (Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 538.) In Armstrong, the appellate court analyzed the meaning of the term "possession" in more depth: "For purposes of drug transactions, the terms `control and `right to control are aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were in actual physical possession of a controlled substance. Implementation of this policy necessarily encompasses a potentially wide variety of conduct in a wide variety of settings, all directed by such factors as the alleged offenders capacity to direct the illicit goods, the manifestation of circumstances wherein it is reasonable to infer such capacity exists and the degree of direction being exercised by the accused over the contraband. [Citations.]" (Id. at p. 539.) In that case, control and constructive possession were not found because, although the defendant had made a controlled buy from undercover officers, he had never received the drugs, and had never exercised control over the drugs. (Id. at p. 537.) "Á defendant agreeing to meet the police, paying for and standing ready to receive the goods, without more, does not constitute the requisite control necessary to establish constructive possession." (Id. at p. 540; People v. Barnes (1997) 57 Cal.App.4th 552.)
As noted above, another element of constructive possession is knowledge of the presence of the contraband. Here there was simply no evidence of this element, i.e., there was no evidence that defendant knew drugs were in the trash can. For this additional reason, the trial court should have granted defendants section 1118.1 motion. In other words, the fact that the alley was a drug market appears undisputed. But the mere fact that defendant was present at the scene of the crime is not enough to prove that he was guilty of possessing rock cocaine for sale. "We think that the evidence was insufficient to prove appellant guilty of possessing heroin. The mere fact that he was present in the motel room would not, standing alone, justify a finding of guilt. [Citations.] Guilty knowledge was not to be presumed, but was for the People to establish by proof. [Citation.] There was no evidence from which such knowledge could properly be inferred." (People v. Tabizon (1958) 166 Cal.App.2d 271, 273.) Accordingly, the trial court erred in denying defendants section 1118.1 motion, and the judgment must be reversed as to count 1, possession of cocaine base for sale.
For this reason, we do not consider defendants alternative contention that the trial court erred in admitting evidence of defendants prior uncharged conduct in 1996.
THE EVIDENTIARY RULINGS
Defendant next contends the trial court abused its discretion under Evidence Code section 352 by admitting evidence of defendants alleged gang affiliation and the name of the gang. When the gang membership issue first arose, the trial court considered its admissibility under Evidence Code section 352 and found that the evidence was relevant to the issue of sustained fear. Sustained fear is an element of the section 422 charge, in which Deputy Alanis was the victim.
More specifically, count 3 charged defendant violated section 422 by threatening Deputy Alanis. Deputy Alanis testified that, while defendant was in the holding cell, he said: "I know you and your partner arent going to be rolling through that alley anymore, because one phone call and youll get ambushed with a couple AK-47s." The deputy also testified that defendant said: "You better keep your gun with you while youre off duty. If I see you on the street, Im going to box you up." The deputy took this as a threat that defendant would try to kill him.
Deputy Alanis took the threats seriously. Knowledge that defendant was allegedly a gang member "made me feel like the threat was ten times more serious because these type gangs, with Crips and everything, they are known to be extremely violent, and they have shot and killed police before."
The evidence that police records showed that defendant was a member of a gang was clearly admissible on count 3. While prejudicial, it was also very probative on the issue of whether Deputy Alanis sustained fear as a result of the threats. The trial court did not abuse its wide discretion under Evidence Code section 352 in admitting the police record into evidence to show defendants gang affiliation for this purpose.
But the evidence was also admitted in support of the count 2 charge. Count 2 charged defendant with violating section 69 by threatening Deputy Portillo. Deputy Portillo testified that, while defendant was secured in a booking cell, he called the deputy by his first name and said "I know where you live. You live in Edgemont." Deputy Portillo took this as a threat. He then decided to check defendant for gang membership. He found a card in the gang records which stated that defendant had admitted to another officer that he was a member of the "Killer Side Quick-to-Blast Crip set." This information increased the deputys fear level and he took defendants threat seriously.
Defendant admitted being angry because he was arrested, but he denied making any threats to either officer during the booking process. He also denied being a gang member.
When a relevance objection was made to a question about the gang membership, the trial court ruled that Deputy Portillos testimony was relevant because it went to the issue of sustained fear, an element of the section 422 charge. When defense counsel pointed out that Deputy Portillo was not the victim in the section 422 charge, the trial court found that the testimony had to do with the section 69 charge, in which Deputy Portillo was a victim.
We agree with defendant that the trial court erred in this ruling because "a violation of section 69 does not require a showing of the state of mind of the recipient of the threat. [Citations.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153.) Instead, section 69 requires a specific intent to interfere with the officers performance of his duties. (Ibid .) Respondent argues that the evidence of gang membership was relevant to show the factual context in which the statements were made, and that the context shows that the threat was made with the requisite intent to deter the deputies from doing their duty. (Ibid.) We disagree. The fact the specific threat was made was sufficient to establish a violation of section 69, and the fact of gang membership did not add anything to the proof of defendants intent. The relevancy objection should have been sustained.
The jury was instructed with CALJIC No. 7.50: "Every person who willfully and unlawfully attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon that officer by law, or who knowingly resists, by the use of force or violence, an executive officer in the performance of his or her duty, is guilty of a violation of Section 69 of the Penal Code, a crime."
Nevertheless, the error was harmless under any standard of prejudice because the evidence was properly admitted on the section 422 charge.
Defendant also argues that the trial court abused its discretion in allowing the deputies to testify to the name of the gang, "Killer Side Quick-to-Kill Crips." The trial court considered the issue under Evidence Code section 352 and said: "Its certainly prejudicial. The question is, is it more prejudicial than probative? And it appears to the Court that in this instance, the name leads to the conclusion that he had reasonable grounds to be in sustained fear. Any time you have a name such as that, its not just a tagger gang. Its not . . . the norm, if there is such a thing in gang parlance. Its, you know, a violent gang or they profess to be violent. And one who professes to be violent cant say that Im not violent even though I profess to be. One can rely upon the fact that I profess to be violent. So it appears its relevant to that issue of sustained fear."
We agree with the trial courts analysis. In this instance, the gangs name certainly implies a level of violence that would cause even an experienced deputy to pause. The probative value was thus significant. Even though the name was also prejudicial, the trial court did not abuse its discretion under Evidence Code section 352 in finding that the probative value outweighed the prejudice. Sanitization of the name by referring to it as a street gang would not convey the impact of the name to the deputy. As the trial court noted, this was not some graffiti tagging gang, but rather was a Crips set which advertised its belief in violence. Such a name meant something to the deputies, and it was admissible to show that Deputy Alanis sustained the fear required for a conviction under section 422.
DISPOSITION
The judgment is affirmed as to counts 2, 3 and 4. The judgment is reversed as to count 1. The case is remanded for resentencing.
We concur: McKINSTER J., RICHLI J.