Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF115075A. Michael G. Bush, Judge.
John Doyle, 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, David A. Rhodes and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.
Before Harris, Acting P.J., Hill, J. and Kane, J.
OPINION
Appellant was convicted of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). He appeals, contending the evidence was insufficient to support the conviction of possession of cocaine, and his attorney rendered ineffective assistance by failing to request an additional jury instruction concerning possession. We affirm the judgment.
FACTS
While on general patrol, Deputy Chris Banks saw a Hispanic female standing in a driveway at the back of the Starlighter Motel. He recognized her as someone his partner had previously arrested on drug charges involving cocaine and heroin. He parked his vehicle where she could not see it and approached on foot. As he approached, he saw appellant sitting on a plastic bucket next to the building, smoking from a glass smoking pipe with a copper filter. The woman was standing about 15 to 20 feet away from appellant. Believing appellant was smoking crack cocaine, Deputy Banks seized the glass pipe and detained appellant. Appellant spontaneously stated he had been smoking crack cocaine. Deputy Banks searched the area where appellant had been sitting and found, on a small stucco ledge in the wall, about 18 inches off the ground, a small rock of crack cocaine. The rock of cocaine was about 18 to 20 inches from where appellant had been sitting, within arm’s reach. Appellant adamantly denied the rock of crack cocaine belonged to him. The woman also denied the rock of cocaine was hers. Deputy Banks arrested appellant.
DISCUSSION
I. Insufficient Evidence
“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews 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 the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) Appellant contends the evidence was insufficient to support the conviction of possession of crack cocaine because the element of possession was not established.
“‘Unlawful possession of narcotics is established by proof (1) that the accused exercised dominion and control over the contraband, (2) that he had knowledge of its presence, and (3) that the accused had knowledge that the material was a narcotic.’ [Citation.]” (People v. Showers (1968) 68 Cal.2d 639, 642-643.) Possession may be actual or constructive. (Id. at p. 643.) “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.” (People v. Newman (1971) 5 Cal.3d 48, 52, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.)
In Newman, officers stopped the car defendant was driving for speeding. Detecting the odor of burnt marijuana, the officers arrested defendant and the two other occupants of the vehicle. When an officer sat in the driver’s seat of defendant’s vehicle, he saw a sealed envelope on the tape deck below the dashboard. The envelope contained eight plastic bags of methedrine. Defendant was charged with possessing a restricted dangerous drug for the purpose of sale. At trial, defendant denied any knowledge of the envelope or its contents, asserting he had borrowed the car. The court concluded:
“In the instant case, sufficient circumstantial evidence existed from which the jury could infer that defendant possessed the drugs and had knowledge of their presence, for the envelope containing the drugs was located and visible on the tape deck below the dashboard of the car defendant was driving and was therefore immediately accessible to him and subject to his exclusive or joint dominion and control. [Citation.]” (People v. Newman, supra, 5 Cal.3d at p. 53.) “The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citation.]” (Id. at p. 54.)
The court reversed, however, because the jury had not been properly instructed on the element of intent to sell. (People v. Newman, supra, 5 Cal.3d at p. 55.)
In People v. White (1969) 71 Cal.2d 80, pursuant to a warrant, officers searched the two bedroom house rented by defendant. In the bedroom area on the dresser, they found marijuana. In the same room, they found documents bearing defendant’s name and women’s clothing. Defendant told them he and his girlfriend occupied one bedroom, and her brother occupied the other. (Id. at p. 82.) At trial, defendant denied knowledge of the marijuana. He testified he had been out of town, returned a couple of hours before the search, unpacked, and then went out again. He returned shortly before the search. A friend testified there was a party at defendant’s house the day before the search. (Ibid.)
The court observed that possession, for purposes of the offense of possession of narcotics, need not be exclusive. (People v. White, supra, 71 Cal.2d at p. 82.) It found sufficient evidence of defendant’s possession of the drugs. The marijuana was found in defendant’s bedroom, in which he had admittedly been a few hours before the search. This raised an inference the marijuana was his, even though he shared the room with his girlfriend. (Id. at p. 83.) The court affirmed the judgment, except as to sentencing. (Id. at p. 84.)
In People v. Redrick (1961) 55 Cal.2d 282, defendant managed a rooming house owned by Henry Smith. Heroin was found in a locked storeroom at the rooming house. Smith kept the key to the storeroom hanging in his shop, which was in the same block as the rooming house. Defendant sometimes borrowed the key. On the day the heroin was discovered, an officer searched defendant’s room for drugs with defendant’s consent, but found nothing. The officer then obtained Smith’s consent to a search of the storeroom. Because the key was missing and defendant denied having it, the officer forced the lock and discovered 10 bindles of heroin inside.
The court stated that “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, supra, 55 Cal.2d at p. 285.) But it recognized that other factors, added to nonexclusive dominion, will support a finding of knowing possession. (Id. at p. 287.) After his arrest, defendant admitted to an officer that he had gone “‘back to fooling with narcotics again.’” (Id. at p. 288.) A few days before his arrest, defendant had told Smith he had the key to the storeroom. Yet on the date of his arrest, defendant told officers he had not had the key in three weeks; he failed to explain how the key had left his possession. (Id. at pp. 288-289.) The court concluded there was sufficient evidence to support the verdict, and it affirmed defendant’s conviction of possession of heroin.
In People v. Glass (1975) 44 Cal.App.3d 772, defendant was convicted of possession of amphetamines for sale. When officers searched the premises pursuant to a warrant, they found defendant lying in bed in the bedroom. When they arrived, he pulled the covers up over his head. The officers ordered him to sit on the couch in the living room. They found some tablets in and around the bed; they found a large bag of packaged tablets under the couch. The court stated:
“While the presence of the amphetamines found in and around the bed where appellant had been lying and the act of pulling up the bed covers over his entire body, including his head, would be sufficient to support a conviction for simple possession [citations], the quantity and manner of packaging of the tablets found in that area would not support a conviction for possession for sale. [Citation.] Of the amphetamine tablets found, the only ones that were of sufficient quantity or so packaged as to support a conviction of purpose or intent to sell were those found beneath the couch in the living room. [Citation.]” (People v. Glass, supra, 44 Cal.App.3d at pp. 775-776.)
The court found there was insufficient evidence that defendant actually or constructively possessed the amphetamines under the couch.
“Constructive possession occurs when one maintains control or the right to control the contraband; and while possession may be imputed when the contraband is immediately and exclusively accessible to the accused and subject to his dominion and control or the joint dominion and control of the accused and another [citations], there is no substantial evidence to support a finding that appellant resided at or was a joint possessor of the premises … or that the amphetamines beneath the couch were subject to his dominion and control.” (People v. Glass, supra, 44 Cal.App.3d at p. 776.)
Appellant was convicted of possession of cocaine. He appears to argue that there was insufficient evidence of his possession of the rock of cocaine because he adamantly denied it was his and it could have belonged to the woman standing nearby.
The cases discussed above indicate exclusive possession by appellant was not required; joint dominion and control by appellant and another would satisfy the possession requirement. The casesalso indicate that physical proximity to the contraband, along with other circumstances, may raise an inference of dominion and control.
Although the rock of cocaine was not in appellant’s actual physical possession at the time Deputy Banks approached, it was within arm’s reach as appellant sat on a bucket smoking crack cocaine in a glass pipe. Appellant readily admitted he was smoking crack cocaine. There was no evidence to connect the woman to the rock of cocaine on the ledge near appellant. She was standing 15 to 20 feet away and was not engaged in any drug-related activity. If the crack cocaine belonged exclusively to the woman, it was unlikely she would have left it within arm’s reach of appellant as he sat smoking crack cocaine. From these facts, the jury could infer the rock of cocaine was within appellant’s exclusive or joint dominion and control. To paraphrase Newman, the crack cocaine “was located and visible” on the ledge near where appellant was sitting “and was … immediately accessible to him and subject to his exclusive or joint dominion and control. [Citation.]” (People v. Newman, supra, 5 Cal.3d at p. 53.) The evidence was sufficient to support appellant’s conviction of possession of cocaine.
II. Ineffective Assistance of Counsel
A criminal defendant is guaranteed the right to effective assistance of counsel. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Defendant bears the burden of establishing the ineffective assistance of counsel. (Ibid.) To do so, a defendant must show (1) counsel's performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) prejudice flowed from counsel's performance or lack thereof. (Ibid.)
A. Deficient performance
In considering a claim of ineffective assistance of counsel on direct appeal, the court will defer to counsel's reasonable tactical decisions. (People v. Lucas, supra, 12 Cal.4th at p. 436.) “[T]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ [Citation.]” (Id. at p. 437.) Counsel's decisionmaking must be evaluated in the context of the available facts. (People v. Bolin (1998) 18 Cal.4th 297, 333.) The court will reverse a conviction on the ground of ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Lucas, supra, 12 Cal.4th at p. 437.) “To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation ….’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at p. 331.)
Appellant contends his counsel provided ineffective assistance because she failed to request a jury instruction that mere presence on the premises where the cocaine was found was not sufficient to prove possession. “The defendant is entitled to have the jury instructed on the law applicable to the evidence he presents.” (People v. Ratliff (1986) 41 Cal.3d 675, 694.) Appellant contends he was entitled to an instruction on mere presence based on two cases: People v. Redrick, supra, 55 Cal.2d 282 and People v. Jenkins (1979) 91 Cal.App.3d 579.
In Redrick, defendant was convicted of unlawful possession of heroin found in a locked storeroom on premises owned by another. The court stated that “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, supra, 55 Cal.2d at p. 285.) Additional factors, however, supported a finding of knowing possession. (Id. at p. 287.) Besides access to the key to the storeroom, there was evidence defendant told the building owner a few days before the heroin was discovered that he had the key, he failed to explain why he no longer had it on the day the heroin was discovered, and he admitted to police that he had gone “back to fooling with narcotics again.” (Id. at pp. 288-289.)
In Jenkins, police discovered a laboratory apparently used for the manufacture of phencyclidine (PCP). In searching the laboratory, they discovered defendant’s fingerprints on a flask, a vial, and the lid of a plastic bottle. Officers questioned defendant, who was in jail on unrelated charges. Defendant denied being involved in the manufacture of PCP and denied handling any containers in the laboratory. At trial, he again denied any knowledge of the laboratory or how his fingerprints came to be on the containers there.
On the charge of possession of substances with intent to manufacture PCP, the court noted there was no evidence defendant physically possessed the substances in question. (People v. Jenkins, supra, 91 Cal.App.3d at p. 583.) “As far as constructive possession is concerned, it ‘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.’ [Citations.]” (Ibid.) The only evidence of defendant’s possession of the substances was his fingerprints on containers in the laboratory. There was no evidence when the fingerprints were placed there, or whether they were placed there while the containers were in the laboratory. (Id. at p. 584.) “While given all the circumstances it was not unreasonable for the court to infer from the fingerprints that defendant was present in the garage when the piperidine-cyclohexanone compound was also there, more than mere presence must be shown in order to prove constructive possession: the People must also show that defendant had dominion and control over the contraband. [Citations.]” (Ibid.)
“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 [citation], his automobile [citation], or his personal effects [citation]. However, when the contraband is located at premises other than those of the defendant, dominion and control may not be inferred solely from the fact of defendant's presence, even where the evidence shows knowledge of the presence of the drug and of its narcotic character. Thus in People v. Stanford [(1959) 176 Cal.App.2d 388], the evidence showed that codefendant Coleman was visiting Stanford's house and was present in the bathroom during a sale of heroin by Stanford to another man. A bindle of heroin was later found in the bathroom. The court reversed Coleman's conviction of possession of heroin, stating, ‘There is no basis for an inference that Coleman had constructive possession of the narcotics found in the bathroom for he did not have possession or control of the premises.’ [Citations.]” (People v. Jenkins, supra, 91 Cal.App.3d at p. 584.)
Unlike Redrick and Jenkins, this is not a case in which drugs were found on premises belonging to another while defendant was not even present, so that his presence, as well as dominion and control, had to be inferred from other evidence. It is not like Stanford, where defendant was merely present while drugs were transferred between two other persons.
Here, appellant was physically present near the cocaine. Although the crack cocaine was not found in appellant’s residence or automobile or on his person, there was more than mere presence to establish appellant’s dominion and control over it. Appellant was seated outdoors on a bucket within arm’s reach of the ledge where the cocaine was resting. He was smoking a glass pipe and volunteered that he was smoking crack cocaine. The only other person in the vicinity was a woman who was standing on the other side of the driveway, 15 to 20 feet away, next to the adjacent building. She was not engaged in any drug-related activity and she did not go near appellant or the ledge with the cocaine on it while Deputy Banks was observing her. She denied that the cocaine was hers. There were no doors to rooms in the portion of the building where appellant was sitting. There was no one else in the area.
While the record does not expressly disclose why defense counsel did not ask for an instruction on mere presence, it discloses the existence of evidence beyond mere presence from which the jury could infer appellant’s dominion and control of the cocaine. Counsel was not “‘asked for an explanation and failed to provide one,’” and it cannot be said that “‘there simply could be no satisfactory explanation’” for counsel’s failure to request a jury instruction on mere presence. (People v. Bolin, supra, 18 Cal.4th at p. 333.) Consequently, because a rational explanation for counsel’s omission to request the instruction exists, deficient performance by defense counsel has not been established.
B. Prejudice
For the same reasons, prejudice has not been established. Prejudice must be affirmatively proved. (People v. Bolin, supra, 18 Cal.4th at p. 333.) “‘Prejudice is shown when there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citations.]’ [Citation.]” (In re Harris (1993) 5 Cal.4th 813, 833.)
Appellant argues that there is a reasonable probability that, but for counsel’s failure to request an instruction on mere presence, the result of the proceeding would have been different. He asserts that the thrust of the prosecutor’s case was that appellant was sitting next to the cocaine, within arm’s reach of it, while the woman, who had previously been arrested for involvement with heroin and cocaine, was 15 to 20 feet away. He asserts that “an instruction to the jury that mere proximity to the cocaine on the ledge is not sufficient to prove constructive possession would have blunted the force of the prosecution’s case.”
Appellant’s presence within arm’s reach of the cocaine was not the only evidence of appellant’s dominion and control of the cocaine, and joint dominion and control may establish possession. Even if the jury believed the woman exerted dominion and control over the cocaine, it could still find appellant in possession if he exerted dominion and control over it jointly with her. Consequently, it is not reasonably probable that, had the jury been given a mere presence instruction, it would have arrived at a different result. Prejudice has not been established.
DISPOSITION
The judgment is affirmed.