Filed 3/17/16 P. v. Williams CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067924
Plaintiff and Respondent,
v. (Super. Ct. No. SCN328432-2)
BERNICE WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Blaine K.
Bowman, Judge. Affirmed as modified and remanded with directions.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette
Cavalier and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Bernice Williams of transportation of cocaine base and
possession of cocaine base for sale. Williams appeals, contending: (1) there was insufficient evidence to establish that she transported and possessed the cocaine base; (2)
the trial court failed to sua sponte instruct the jury on the lesser included offense of
simple possession; and (3) the trial court erred by staying rather than striking four prison
prior enhancements. Lastly, Williams asks us to independently review a sealed transcript
to determine whether the trial court properly declined to reveal the identity of a
confidential informant. The Attorney General concedes and we agree that the trial court
erred in failing to strike the prison prior enhancements. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2013, Detective Joe Kempton of the San Diego County Sheriff's
Department Narcotics Task Force began a drug-trafficking investigation into Williams.
As part of that investigation, Detective Kempton placed a GPS tracking device on
Williams's car. The GPS tracking revealed that Williams traveled from the north
San Diego area to Compton regularly, sometimes multiple times a week. During those
trips, Williams would stop in Compton for 10 to 15 minutes and then come right back to
San Diego.
Detective Kempton and other officers also conducted physical surveillance of
Williams's movements. On one occasion, Detective Kempton observed conduct that in
his opinion was consistent with drug sales. In particular, Williams pulled over on a side
street, picked up a Black male, drove about two blocks, and then pulled over again to let
the male out of the car. After two months of conducting GPS and physical surveillance
on Williams, Detective Kempton concluded she was involved in selling crack cocaine
that she obtained in Compton.
2 On a day in February 2014, electronic surveillance showed that Williams's vehicle
made a trip from Fallbrook to Compton and then quickly turned around and returned.
Detective Kempton believed that Williams had gone to Compton that day to replenish her
supply of crack cocaine. Thus, he asked Oceanside police officers to make contact with
Williams's vehicle.
Upon their arrival, officers observed Williams's vehicle parked in a carport with
the engine still running. The front passenger door was propped open halfway by the
passenger's leg. Williams was sitting in the driver's seat with her purse on her lap. Valisa
Joy was in the front passenger seat. Both women were looking down at Joy's purse,
which was sitting open on the center console. Williams and Joy each had one hand on
Joy's purse. When Joy noticed the officers, she grabbed her purse from the center
console and tried to hide it under her seat.
The officers spoke with Williams and Joy. The officers determined that Joy lived
in the apartment complex where Williams had parked her car. Williams stayed at the
apartment sometimes and had a key to it. While talking to the officers, Williams
appeared anxious and was shaking.
An officer searched Williams's car and the purses found in it. The officer found
three cell phones in Williams's purse and five $100 bills in a glass cup in the center
console of the vehicle. Inside Joy's purse, the officer found a black plastic bag, which
was tied in a loose knot and contained three hard circular objects. Those objects were
disks of crack cocaine, weighing 625.2 grams and worth $62,500.
3 Detective Kempton later searched Williams's three cell phones, but did not find
any evidence related to drug trafficking. He believed Williams had deleted any
incriminating messages. According to Detective Kempton, it is common for drug
traffickers to have multiple cell phones to conduct their business.
Detective Kempton explained that Compton is a hub for cocaine trafficking.
Dealers often went to Compton to purchase cocaine and then brought it down to
San Diego. The cocaine from Compton was good quality, could be purchased at a
cheaper price than in San Diego, and resold for more money. For example, one ounce of
crack cocaine could be purchased in Compton for $650 versus $900 in San Diego.
Although it can vary, the typical amount of cocaine purchased by a street level user was
approximately one gram, which costs $100 in San Diego. Detective Kempton opined that
Williams possessed the crack cocaine officers found in this case for sale. He based that
opinion on the amount of cocaine found, the bulk form of the cocaine, Williams's
frequent trips to Compton, and Williams's multiple cell phones.
Joy pleaded guilty to possession of cocaine base for sale. The trial court admitted
her guilty plea into evidence. Based in part on that guilty plea, the defense argued the
cocaine in Joy's purse belonged only to Joy. Further, the defense argued that Williams
did not possess the cocaine found in Joy's purse because there was no evidence that it
came from Compton. Rather, the defense claimed that the only reasonable inference
from the evidence was that just before officers arrived at the carport, Joy had entered
Williams's vehicle with the cocaine already inside of her purse.
4 DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
In assessing the sufficiency of the evidence, we examine the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We must presume
in support of the judgment the existence of every fact the trier of fact could reasonably
deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless it is
clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to
support the verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423,
429.)
"The standard of review is the same in cases in which the People rely mainly on
circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is the jury, not the appellate
court which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If
the circumstances reasonably justify the trier of fact's findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.' " [Citations.]' [Citation.] '
"Circumstantial evidence may be sufficient to connect a defendant with the crime and to
5 prove his guilt beyond a reasonable doubt." ' " (People v. Stanley (1995) 10 Cal.4th 764,
792-793.)
B. Transportation
Williams argues insufficient evidence supported her conviction for transportation
of a controlled substance. We disagree.
"Transportation of a controlled substance is established by carrying or conveying a
usable quantity of a controlled substance with knowledge of its presence and illegal
character. [Citations.] The crime[] can be established by circumstantial evidence and
any reasonable inferences drawn from that evidence. " (People v. Meza (1995) 38
Cal.App.4th 1741, 1746 (Meza).) "Circumstantial evidence is like a chain which link by
link binds the defendant to a tenable finding of guilt. The strength of the links is for the
trier of fact, but if there has been a conviction notwithstanding a missing link it is the
duty of the reviewing court to reverse the conviction." (People v. Redrick (1961) 55
Cal.2d 282, 290 (Redrick).)
Here, the parties stipulated that Williams "knew of the nature or character of
cocaine base as a controlled substance." She challenges only the sufficiency of the
evidence to support the "carrying or conveying" element of the offense, arguing there was
no evidence that the cocaine was inside her vehicle when she traveled from Compton to
Viewing the evidence in the light most favorable to the judgment, as we must, the
circumstantial evidence and reasonable inferences therefrom were sufficient to support
Williams's conviction for transportation of a controlled substance. Detective Kempton
6 testified that "Compton is a hub of cocaine trafficking." He further testified that
Williams's pattern of driving from San Diego to Compton, stopping only briefly, and
returning was consistent with drug trafficking. He explained that when drug traffickers
travel to a location to replenish or "re-up" their drug supply, the meeting is brief to avoid
law enforcement detection.
Williams's conduct on the day of her arrest was consistent with the "re-upping"
behavior described by Detective Kempton. Just before Williams was arrested in this
case, she had traveled from San Diego to Compton and had quickly turned around and
returned. The engine of her car was still running when officers contacted her. Further,
Williams had her hand on Joy's purse and was looking into it. Although there was no
direct evidence that Williams picked up cocaine in Compton before returning to
San Diego, the circumstantial evidence supported this conclusion.
Williams asserts that Detective Kempton's belief that Williams had crack cocaine
in her vehicle when she traveled from Compton to San Diego is "mere speculation" and
cannot support a finding of fact. It is, of course, settled that a conviction cannot be based
on mere speculation and conjecture. (People v. Marshall (1997) 15 Cal.4th 1, 35 ["mere
speculation cannot support a conviction"]; People v. Harvey (1984) 163 Cal.App.3d 90,
105, fn. 7 ["Substantial evidence means more than simply one of several plausible
explanations for an ambiguous event."].) However, as we explained, on the totality of the
evidence here, a reasonable trier of fact could draw nonspeculative inferences that
Williams transported the cocaine from Compton to San Diego just before she was
arrested.
7 Lastly, Williams argues that because the drugs were in Joy's purse and the car was
parked at Joy's apartment complex, the record suggests Joy brought the drugs into the car
with her. "The existence of possible exculpatory explanations, whether they are simply
suggestions not excluded by the evidence or even where they could be reasonably
deduced from the evidence, could not justify this court's rejecting the determination of
the trier of fact that defendant is guilty unless on appeal it 'be made clearly to appear that
upon no hypothesis whatever is there sufficient substantial evidence to support the
conclusion reached in the court below.' " (Redrick, supra, 55 Cal.2d at p. 290.) While
the evidence may be reconciled with a finding that Joy had the drugs in her purse when
she entered Williams's vehicle, the circumstances also reasonably justify the jury's
findings. Where, as here, we find no missing link in the chain of circumstantial evidence,
we will not interfere with the jury's findings simply because there is a possible
exculpatory explanation. (Ibid.)
C. Possession
Williams argues insufficient evidence supported her conviction for possessing a
controlled substance for sale because it was pure speculation that she possessed the crack
cocaine found in Joy's purse. We disagree.
"Unlawful possession of a controlled substance for sale requires proof the
defendant possessed the contraband with the intent of selling it and with knowledge of
both its presence and illegal character." (Meza, supra, 38 Cal.App.4th at pp. 1745-1746.)
"Possession may be either actual or constructive; the latter is established by showing that
defendant maintained some control or right to control over contraband in the physical
8 possession of another." (People v. Rogers (1971) 5 Cal.3d 129, 134.) "[P]ossession 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. Williams (1971) 5 Cal.3d
211, 215.) However, defendant's mere presence in the place where the contraband is
found is not sufficient on its own to support a finding of unlawful possession. (People v.
Johnson (1984) 158 Cal.App.3d 850, 854.)
Here, the record contains substantial evidence of possession. The evidence
established that Williams owned the vehicle in which the officers found Joy's purse
containing cocaine base. When officers approached William's vehicle, Williams and Joy
were both looking down at Joy's purse, which was sitting open on the center console
between them. Williams and Joy each had one hand on the purse. This evidence
established that Williams had access to the purse containing the cocaine base and it was
subject to her dominion and control. The fact that Joy also had dominion and control
over the purse does not defeat Williams's possession. "[P]ossession need not be
exclusive to support a conviction of possession of a narcotic." (People v. White (1970)
11 Cal.App.3d 390, 396.)
Williams offers a "variety of innocent explanations" for why her hand was on
Joy's purse. For example, she claims she could have been looking for another item,
steadying the purse on the center console, or attempting to purchase a small amount of
drugs from Joy. However, "[t]he credence and ultimate weight to be given the evidence
of the various particular circumstances are of course for the trier of fact, and '[i]t is the
9 trier of fact, not the appellate court, that must be convinced of a defendant's guilt beyond
a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the
opinion of the reviewing court that the circumstances might also be reasonably reconciled
with a contrary finding does not warrant a reversal of the judgment.' " (Redrick, supra,
55 Cal.2d at p. 289.) Based on the record before us, there was substantial evidence to
support the jury's finding of possession.
II. Lesser Included Offense Instruction
Williams argues the trial court erred by failing to sua sponte instruct the jury on
the lesser included offense of simple possession. We reject this argument.
Simple possession is a lesser included offense of possession of a controlled
substance for sale. (People v. Oldham (2000) 81 Cal.App.4th 1, 16.) The trial court has
a sua sponte duty to instruct the jury on lesser included offenses when the evidence raises
a question as to whether all of the elements of the charged offense were present, "but not
when there is no evidence the offense was less than that charged." (People v. Saldana
(1984) 157 Cal.App.3d 443, 453-454; People v. Birks (1998) 19 Cal.4th 108, 118.) "In
deciding whether there is substantial evidence of a lesser offense, courts should not
evaluate the credibility of witnesses, a task for the jury." (People v. Breverman (1998) 19
Cal.4th 142, 162 (Breverman).) Instructions on lesser included offenses are required only
if the evidence would justify a conviction of the lesser included offense. (People v.
Lopez (1998) 19 Cal.4th 282, 287-288; People v. Leach (1985) 41 Cal.3d 92, 106.) " 'On
appeal, we review independently the question whether the trial court failed to instruct on
a lesser included offense.' " (People v. Avila (2009) 46 Cal.4th 680, 705.)
10 Here, the evidence did not support a conviction on the lesser offense of simple
possession. Officers found three disks of crack cocaine, weighing 625.2 grams and worth
$62,500. They also found three cell phones in Williams's purse and five $100 bills in the
center console of her vehicle. According to Detective Kempton, the typical amount of
cocaine purchased by a street level user was approximately one gram, which costs $100
in San Diego. Further, he testified that drug dealers often use multiple cell phones to
conduct their business. This evidence suggests Williams was guilty of possession for
sale, and we find no substantial evidence to support simple possession. Moreover,
Williams's defense was that she did not have possession of the cocaine base at all;
instead, she claimed it belonged to Joy who had it in her purse when she entered the
vehicle. (People v. Anderson (1979) 97 Cal.App.3d 419, 425 ["Where the giving of the
instruction is in direct conflict with the defense theory, the court does not have the sua
sponte duty of giving that instruction."].) Therefore, we conclude the trial court did not
err when it failed to sua sponte instruct the jury on the lesser included offense of simple
possession.
Even if we were to find error, the error would be harmless. In Breverman, the
California Supreme Court held that "in a noncapital case, error in failing sua sponte to
instruct, or to instruct fully, on all lesser included offenses and theories thereof which are
supported by the evidence must be reviewed for prejudice exclusively under [People v.]
Watson [(1956) 46 Cal.2d 818]." (Breverman, supra, 19 Cal.4th at p. 178.) Under this
test, we must examine the entire record to determine whether it was reasonably probable
the error affected the outcome. (Ibid.) Under the facts of this case, we find it is not
11 reasonably probable that the alleged error affected the outcome. As discussed above, the
crucial evidence uniformly pointed to Williams's guilt of the greater offense of
possession for sale. Therefore, it is not reasonably probable that an instruction on the
lesser offense would have produced a different result.
III. Prison Prior Enhancements
In pronouncing Williams's sentence, the trial court noted that it could impose a
sentence of 21 years, but did not feel it was warranted in this case. Instead, the trial court
sentenced Williams to a total term of 17 years, split between a custody term of 13 years
and a mandatory supervision term of four years. The trial court stayed the imposition of
sentence for Williams's four prison priors.
Williams argues and the People concede that the trial court erred by staying rather
than striking the prison priors. We agree with the parties. A trial court is required to
either impose the prison prior enhancement or strike it. (People v. Garcia (2008) 167
Cal.App.4th 1560, 1561.) Where, as here, it is clear from the record that the trial court
intended to strike the enhancements, we have jurisdiction to correct the sentence.
(People v. Jack (1989) 213 Cal.App.3d 913, 916.) Williams's sentence is modified to
strike the four prison prior enhancements under Penal Code section 667.5, subdivision
(b).
IV. Identity of Confidential Informant
A public entity can refuse to disclose the identity of a confidential informant
where such disclosure is "against the public interest because the necessity for preserving
the confidentiality of his or her identity outweighs the necessity for disclosure in the
12 interest of justice." (Evid. Code, § 1041, subd. (a)(2).) If a criminal defendant requests
disclosure on the ground the informant is a material witness on the issue of his guilt, the
court must conduct a hearing outside the presence of the jury; if the privilege is asserted
in that hearing, the prosecuting attorney may request that the court conduct an in camera
hearing outside the presence of the defendant and his counsel. At the in camera hearing,
the prosecution may present evidence to aid the court in its determination of whether the
identity of the informant must be disclosed. (Evid. Code, § 1042, subd. (d).) The court
cannot order disclosure unless, based upon the evidence presented at the hearings, it
concludes that there is a reasonable possibility that nondisclosure might deprive the
defendant of a fair trial. (Ibid.)
Prior to trial, Williams moved for disclosure of the identity of a confidential
informant based on a police report indicating that Detective Kempton learned from an
informant that Williams was selling crack cocaine in the north San Diego County area.
Williams argued there was a reasonable probability that the informant could provide
evidence that would exonerate her. The prosecution opposed the motion, asserting the
privilege against disclosure set out in Evidence Code section 1041, and requested an in
camera hearing. The trial court conducted an in camera hearing in which it heard
testimony from Detective Kempton. The court thereafter ruled that the informant could
not offer exculpatory or impeachment evidence benefiting Williams and the need for the
privilege outweighed any need to disclose the information.
13 Williams asked this court to independently review the sealed transcript of the in
camera hearing so as to assess the correctness of the trial court's ruling, and the People
express no objection. Having done so, we conclude the trial court did not err in denying
defense counsel's request to disclose the identity of the confidential informant because
the informant did not provide information that was exculpatory or material to Williams's
guilt or innocence with respect to the offenses charged in this case. (Evid. Code, § 1040,
subd. (d).)
DISPOSITION
The judgment is modified to strike the four prison prior enhancements; as so
modified, the judgment is affirmed. The matter is remanded to the trial court to amend
the abstract of judgment reflecting this modification and forward a copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.
PRAGER, J.*
WE CONCUR:
McCONNELL, P. J.
NARES, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 14