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December 1, 2010


P.v.Ramos CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant, Jose Guadalupe Ramos, of possessing a controlled substance for sale. (The jury also convicted co-defendant Heriberto Talavera of possessing and transporting a controlled substance, but he is not a party to this appeal.) Defendant then admitted three recidivist allegations. The trial court sentenced him to state prison.

On appeal, defendant contends the trial court prejudicially erred in failing to sustain a hearsay objection to testimony that could connect him with methamphetamine seized at a cabin where he was staying. He also argues there was insufficient evidence that he possessed the methamphetamine. Finally, he includes an argument that the January 2010 amendments to Penal Code section 4019 entitle him to additional conduct credits. We shall affirm the judgment as modified.


Defendant does not contest the sufficiency of the evidence that the methamphetamine was possessed for sale. We limit our account of the evidence accordingly.

A narcotics agent was working with a reliable confidential informant. In May 2009, the informant directed the agent to a cabin connected with three people whom the informant believed were involved in selling methamphetamine. He knew them as "Jose," "Primo," and "George Lopez." The informant later identified the latter as defendant, and "Primo" as co-defendant Talavera. Although the informant spoke on the phone with defendant a few times (who had also come to the home of the informant "maybe" three times), he did not know for sure where defendant lived. He knew only where "Jose" lived.

About a month later, the agent arranged for the informant to conduct a controlled buy at the informant's home from the people associated with the cabin. After the buy, a truck left the informant's residence and the agents stopped it. The passenger was the co-defendant. A search of the truck revealed a flashlight containing five bags of methamphetamine, stuffed between the center console and the passenger seat. The driver gave consent to search the cabin and provided a key, claiming he had been staying there only three days.*fn1 Agents knocked on the door of the cabin and waited an extended period of time. One of them then caught the shirtless defendant in the act of climbing out of a back window. (He had apparently been engaging or about to engage in sexual relations with a woman who was visiting the cabin for that purpose.)

The agents searched the cabin. They found a carpeted car speaker box with a Plexiglas top and two ports. Based on his suspicion that the ports provided a convenient hiding place, one of the agents reached inside and found a sock that felt like it had a crunchy substance inside. The sock had not been visible. It contained a baggie with over 200 grams of methamphetamine.

The speaker housing with the methamphetamine was in a room on the east side of the house, which also had a television and an air mattress in it. The room from which defendant had been emerging (and in which the agents had detained him) was on the west side, and had a couch with sleeping bags and blankets on the floor. There were documents in the name of the co-defendant, Talavera, in the west room. A wallet with identification in defendant's name was in the east room (although the agent was not able to recall its exact placement in the room). Defendant's cell phone was on a refrigerator in the kitchen. Defendant told the agents that he had been staying at the cabin for three days, but did not live there. He also said that there was a garbage bag containing his clothes "in the other room" (i.e., the east room).



We begin with the particular exchange in which the trial court made the evidentiary ruling defendant challenges on appeal. However, we will also include other portions of the record related to our analysis of defendant's argument.

At trial, the prosecutor asked, "[W]hat information did you receive from [the informant] regarding someone he knew as George Lopez?" The agent answered, "He told me he knew a subject who was selling methamphetamine . . . named George Lopez. He told me that he believed that this person . . . was also selling methamphetamine with two other people. And that of the three people, George Lopez --." At this point, defense counsel made an objection on the ground of hearsay. The court overruled the objection on that ground, but ruled sua sponte that the response was "in the narrative." The prosecutor continued to attempt to ask the agent what the informant had said about the other two people involved with "Lopez." The trial court twice sustained the hearsay objections of co-defendant's attorney. When hearsay objections continued to arise, the court finally admonished the jury that it "may only consider what any [sic] statements were made to this witness to explain why he did something, and you may not consider whether the statements were true or not. [They serve only] to explain why this witness took certain action." Later, during his cross-examination of the agent, defense counsel asked what the informant had told the agent. The agent answered, "He advised me of three people that were selling methamphetamine. And he had told me he only knew them by names that he didn't know if they were their true names or not. One person named Jose, one person named Primo, and one person that called himself George Lopez." Defense counsel did not seek to strike this response or ask the court to reiterate its earlier admonishment.


Defendant makes the undisputed point that the informant's statement regarding defendant's involvement in methamphetamine sales, to which the agent testified, was solely extra-judicial in nature. (The informant later testified, but neither party asked him about any of his statements to the agent.) He is also correct that, to the extent the trial court sustained an objection to the narrative form of the answer, this would not have excluded the statement connecting him with the sales. However, defendant's argument fails otherwise.

At the outset, we do not find any merit in defendant's claim of being "severely prejudiced" from the admission of the informant's statements of "George Lopez's" involvement in the methamphetamine sales. After the court's admonishment to the jury, and during defense counsel's cross-examination of the agent, counsel asked what the informant told the agent. The agent's response included the statement that of three people selling methamphetamine, one person called himself "George Lopez." There was no objection to this response. Thus, the information defendant complains of on appeal was cumulative of the exact same information that defense counsel adduced during his cross-examination of the agent. We also do not see any prejudice for other reasons.

The objectionable statement was not offered to prove the truth of the matter stated in it. In an effort to expedite the prosecutor's examination, despite his tendency to frame questions calling for hearsay responses, the trial court specifically admonished the jury that it could not consider any of the agent's testimony regarding the informant's statements for the truth of the matter asserted. As we are not dealing with a confession, we must presume the jury heeded the court's admonition. (People v. Navarrette (2010) 181 Cal.App.4th 828, 834-835.) It may be true, as defendant argues, that the reason the agent was investigating defendant and his cohorts was not strictly relevant to an issue in dispute and therefore might not have been admissible. (People v. Turner (1994) 8 Cal.4th 137, 189.)*fn2 However, defendant does not explain adequately how this irrelevant evidence that was not offered for the truth of the matter, as the jury was so instructed, could prejudice him.

Moreover, as we explain in the next section of the Discussion, there was other circumstantial evidence to support a reasonable inference that defendant possessed the drugs in the speaker box in the room with his wallet and clothes. As a result, the informant's statement that defendant was selling methamphetamine (which we note the informant did not support with any first-hand facts of defendant's involvement) was not "[t]he only evidence adduced at trial [that] connected [him] with methamphetamine in any way at all." We therefore reject the claim of error.


Defendant contends the evidence shows only his presence in a location containing methamphetamine, without sufficient proof of his knowledge that it was present. In this regard, he believes that the presence of his personal possessions in the same room as the methamphetamine indicates presence, nothing more, because there were three men sharing a cabin with two rooms other than the kitchen. He also asserts his attempt at flight did not connect him specifically with the methamphetamine in the speaker box, as it could have been a result of his status as an illegal immigrant or his interrupted rendezvous with the woman.

That the sleeping arrangements in the cabin might have been uncertain does not prevent a rational jury from finding that he possessed the methamphetamine in the sock in the speaker box. "Conviction is not precluded . . . if the defendant's right to exercise dominion and control over the place where the contraband was located is shared with another. [Citations.] . . . [E]xclusive possession or control is not necessary." (People v. Rice (1976) 59 Cal.App.3d 998, 1002-1003.) Rather, if there is circumstantial evidence from which a rational jury could infer his knowledge of the presence of the contraband, we may affirm the conviction. (Id. at p. 1002; People v. Redrick (1961) 55 Cal.2d 282, 285 [opportunity of access to place where contraband found, without more, will not support finding of possession]; People v. Antista (1954) 129 Cal.App.2d 47, 50 [must demonstrate incriminating circumstance other than mere presence of contraband that indicates knowledge of defendant of presence]; People v. Williams (1971) 5 Cal.3d 211, 215 [reasonable inferences from circumstantial evidence sufficient proof].)

While defendant posits other reasons for his flight from law enforcement, this runs afoul of one of the fundamental principles of appellate review: the rule of conflicting inferences. If there is a rational inference among several that will support a judgment, it is the one that we must presume the jury drew. (9 Witkin, Cal. Procedure (5th ed. 2008), Appeal, § 376, p. 434.) Flight from a rented room on the approach of officers in which contraband was under the corner of a rug was among the circumstances properly establishing the defendant's knowledge of its presence. (People v. Magdaleno (1958) 158 Cal.App.2d 48, 50, 52.) In addition, the presence of controlled substances in a room that a defendant occupies raises a rational inference of possession even though the defendant might share the room with another. (People v. Magana (1979) 95 Cal.App.3d 453, 458, 464 [cocaine hidden in bedroom light fixture in room shared with wife]; People v. Elliott (1960) 186 Cal.App.2d 178, 180-181, 184 [heroin and paraphernalia in pocket of robe and dresser drawer in shared room].) In the present case, while the methamphetamine was not in plain view, it was easily retrievable from the port in the speaker box; it is not as though it had been in some secret compartment or other area of restricted access such that a rational jury would need more evidence of defendant's access to it. Consequently, there is sufficient evidence that defendant possessed the methamphetamine in the room that his possessions indicated he used.


The Supreme Court has granted review to resolve a split in authority over whether the January 2010 amendments to former section 4019 (see Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50) are retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010 (S181963) [giving retroactive effect to amendments]; accord, People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010 (S184782); People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010 (S184354); People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010 (S183552); People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010 (S183260); People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010 (S182808); People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010 (S182183); contra, People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010 (S184957); People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010 (S183724); People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010 (S184314); People v. Rodriguez (2010) 182 Cal.App.4th 535, review granted June 9, 2010 (S181808).) Pending a determinative resolution of the issue, we adhere to the conclusion that the amendments apply to all appeals pending at the time of their enactment. (Cf. In re Estrada (1965) 63 Cal.2d 740, 745 [amendments that lessened punishment for crime apply to acts committed before passage, provided judgment is not final]; People v. Doganiere (1978) 86 Cal.App.3d 237; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [both of which apply Estrada to amendments involving custody credits].) By a parity of reasoning, subsequent amendments to Penal Code sections 2933 (section 2933) and 4019, which went into effect on September 28, 2010 (see Stats. 2010, ch. 426, §§ 1, 2, 5), are also applicable to defendant (although we note they do not further increase his entitlement to custody credit).

The probation report does not indicate that defendant has any prior felony convictions for a "serious" or violent felony (§ 667.5, subd. (c); § 1192.7, subd. (c)) or is subject to registration as a sex offender (§ 290 et seq.). His present felony conviction also is not within either of those categories, nor requires him to register as a sex offender. As a result, he is not excepted from accruing additional custody credit. (§ 2933, subdivision (e)(1); former § 4019, subds. (b)(2) & (c)(2); § 2933.1.) With 176 days of actual presentence custody, he is now entitled to 176 days of presentence conduct credits rather than 88. We shall modify the judgment accordingly and direct the trial court to prepare an amended abstract of judgment.


The judgment is modified to reflect an additional 88 days of conduct credits. As modified, it is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.


We concur: BUTZ ,J. HULL , Acting P.J.

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