Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF118446A, Clarence Westra, Jr., Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
A jury convicted appellant Irma Rosas of felony possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and possession of narcotics paraphernalia (Health & Saf. Code, § 11364), a misdemeanor. The court suspended imposition of sentence and placed appellant on three years’ probation pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Pen. Code, § 1210 et seq.).
On appeal, appellant’s sole contention is that the evidence was insufficient to support her conviction of possession of heroin. We will reverse appellant’s conviction of that offense and remand for resentencing.
FACTS
Prosecution Case
California Department of Corrections Parole Agent Monica Diaz testified to the following. At approximately 2:45 p.m. on March 20, 2007 (March 20), she went to appellant’s residence, entered and awakened appellant, who was asleep on the sofa. Agent Diaz “explained who [she] was and why [she] was there.” At that point, the agent “observed [a] … glass [smoking] pipe, syringe, and a substance which appeared to be tar heroin,” all located underneath the sofa cushion on which appellant had been sleeping. Appellant refused to provide a urine sample for testing. Agent Diaz subsequently contacted her supervisor and the Kern County Sheriff’s Department.
Kern County Deputy Sheriff Ryan Williams testified to the following. He had been employed by the Kern County Sheriff’s Department for more than seven years and had received training in the recognition of controlled substances and drug paraphernalia. On March 20 at approximately 2:45 p.m., he went to appellant’s residence where he made contact with Agent Diaz. The agent “handed [Deputy Williams] two glass smoking pipes, one hypodermic syringe, and a black tar like substance wrapped in a black plastic baggie.” Based on his training and experience, the deputy suspected that the substance in the baggie was tar heroin.
Deputy Williams further testified to the following. He placed appellant under arrest and advised her of her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Thereafter, he asked appellant if the items Agent Diaz had handed him belonged to appellant. Appellant responded that “no one else at the home uses drugs, no one else at the house put them there, so they must belong to her.” Appellant also stated that if she provided a urine sample, a test of that sample would not show “the presence of narcotics in her system.”
The parties stipulated that the item that prosecution witnesses described as suspected heroin had been analyzed by the Kern County Crime Lab and that the substance was, in fact, heroin.
Defense Case
Appellant testified she provided a urine sample to Agent Diaz and that she did not recall acknowledging that the substance suspected to be heroin belonged to her or was, in fact, heroin.
DISCUSSION
Appellant contends the evidence was insufficient to establish that she possessed a “usable amount” of heroin, and therefore her conviction of possession of heroin must be reversed.
In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine “‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, “[the appellate court] must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“By definition, ‘substantial evidence’ requires evidence and not mere speculation. In any given case, one ‘may speculate about any number of scenarios that may have occurred .… A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] … A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.”’” (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, quoting People v. Morris (1988) 46 Cal.3d 1, 21.)
The offense of simple possession of a controlled substance has four elements: (1) the defendant had dominion and control of a controlled substance; (2) the substance was in an amount “‘usable for consumption or sale’”; (3) the defendant knew the substance was present; and (4) the defendant knew of the nature of the substance. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) Each element may be proven circumstantially. (Ibid.)
As indicated above, it is the usable-amount element that concerns us here. A usable amount of a controlled substance is an amount sufficient to be used in any manner customarily employed by users of the substance, as opposed to “useless traces or debris ….” (People v. Piper (1971) 19 Cal.App.3d 248, 250.) In People v. Leal (1966) 64 Cal.2d 504, 512, our Supreme Court held that “in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such a substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption … does not constitute sufficient evidence in itself to sustain a conviction.” In People v. Rubacalba (1993) 6 Cal.4th 62, 66, the Supreme Court clarified that “the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace.… No particular purity or narcotic effect need be proven.”
In People v. Valerio (1970) 13 Cal.App.3d 912, the court applied the Leal usable-quantity rule. There the prosecution adduced evidence linking appellant to “two bags of marijuana,” a “small quantity of marijuana fragments,” and a one-and-one-half inch partially smoked marijuana cigarette. (Id. at pp. 917-918.) The court stated: “There was testimony that the fragments, the partially smoked cigarette and the bags of marijuana together constituted a usable amount, but there was no testimony as to whether the fragments themselves or the partially smoked cigarette itself constituted a usable quantity of marijuana. In the absence of such testimony, it may not be inferred that the fragments constituted a usable quantity [citations], but, inasmuch as the marijuana cigarette was only partially smoked and the remaining portion was approximately 11/2 inches long, it may be inferred that it constituted a usable quantity [citations].” (Id. at p. 918.)
The record here arguably provides even less evidence of the quantity of contraband found than the evidence of “fragments” of marijuana in Valerio, in that the word “fragment” suggests a quantity smaller than the whole of which it was a part, whereas there is virtually no indication of how much heroin appellant possessed. The usable-amount showing here consists only of the testimony of Agent Diaz and Deputy Williams that suspected heroin was found in appellant’s residence, and the stipulation that the substance was, in fact, heroin. From this evidence, it is reasonably inferable only that the heroin was visible to the naked eye, as either trace amounts or a larger quantity could be. As in Valerio, there was no testimony that there was a usable quantity, nor was there any evidence of the weight of the substance, its appearance or any other factor from which we reasonably can infer that the baggie contained a usable amount of heroin.
The People liken the instant case to People v. Camp (1980) 104 Cal.App.3d 244. There, the court upheld the defendant’s conviction of possession of phencyclidine (PCP) where there was evidence that the defendant possessed a cigarette weighing .4 gram, “made up of mint leaves ‘laced with PCP,’” and that “such a cigarette was sufficient to produce a narcotic effect on a person who takes as little as two puffs.” (Id. at p. 248, fn. omitted.) Here, by contrast, as indicated above there was no evidence of the weight of contraband or any other indication of amount.
The People also argue that “the fact that the substance was contained in a package, in close proximity to tools used to ingest tar heroin, and that all the items were concealed, supports the inference that the quantity was a usable amount.” We disagree. These factors strongly suggest that appellant had used heroin at some point, but it is not reasonably inferable from that fact, if it be a fact, that the amount in the baggie was more than a trace amount. The claim that the baggie contained a usable amount of heroin is, on this record, nothing more than speculation. Therefore, the People did not meet their burden of establishing the usable-amount element of the offense.
DISPOSITION
Appellant’s conviction of possession of heroin is reversed. The matter is remanded for resentencing.