IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Tehama
January 21, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
HERIBERTO TALAVERA, DEFENDANT AND APPELLANT.
Super. Ct. No. NCR77432
The opinion of the court was delivered by: Robie,j.
P. v. Talavera CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Heriberto Talavera guilty of possessing methamphetamine for sale and transporting it. The trial court sentenced him to prison on the transportation count, staying execution of sentence on the count of possession for sale (Pen. Code,*fn1 § 654) because it assumed the jury based its verdict on the same methamphetamine as in the transportation count. It awarded 88 days of conduct credit for 176 days of actual custody.
On appeal, defendant contends the evidence is insufficient that he had knowledge of the presence and illicit character of the contraband. Our miscellaneous order No. 2010-002 (filed March 16, 2010) also deems him to have raised the issue of his entitlement to additional conduct credits pursuant to the January 2010 amendments to former section 4019 (Stats. 2009, 3d Ex. Sess., ch. 28, § 50 [former section 4019]).*fn2 We affirm the judgment as modified.
A Corning police officer was a member of a narcotics task force. A confidential informant contacted him with information that defendant (known to him as "Primo"), co-defendant Jose Ramos (known to him as "George Lopez")*fn3 and Manuel Gutierrez (known to him as "Jose")*fn4 were selling methamphetamine. The informant had been associating with "Jose" for about a month (in whose company he had met defendant and co-defendant Ramos), and all three had been to the informant's house multiple times. The informant had also spoken with both defendant and co-defendant Ramos by phone. The informant drove with the police officer in May 2009 to a cabin on State Route 99 that the informant identified as the place where he knew "Jose" was staying (although he was not sure where the other two men were living).
In late June, the Corning officer instructed the informant to arrange for the purchase of methamphetamine from "Jose" at the informant's home. The informant contacted "Jose" and set up the transaction for the following day. "Jose" arrived with two bags of methamphetamine. The informant did not know if anyone was accompanying "Jose." When the informant said he did not have money -- but a person with money would be arriving soon --"Jose" put the two bags in his back pocket and said he would return.
Members of the task force had observed "Jose" arrive at the informant's home in a pickup truck; defendant was a passenger. "Jose" went into the house by himself, then came back out. He got into the truck and drove off. The Corning officer followed; he attempted to initiate a traffic stop after the truck entered the interstate, but the truck disregarded the overhead lights, air horn, and siren. The Corning officer could observe "Jose" making "furtive" movements toward defendant with his upper body. The truck eventually pulled over near a highway rest area.
The Corning officer searched the truck with "Jose's" consent. He found five bags of methamphetamine inside a flashlight stuffed between the passenger seat and the center console. A member of the task force believed that it would have been difficult, but not impossible, for the driver to reach this spot. A search of both "Jose" and defendant did not find anything illicit. Four of the bags in the flashlight had measureable amounts of methamphetamine (1.1, 1.8, 1.9, and 3.9 grams); the fifth had an observable amount that did not register a weight. Defendant denied awareness of any contraband in the truck.
A cell phone on "Jose" showed a recent brief phone call to the informant. A cell phone on defendant had both an incoming and an outgoing phone call to the informant's phone several days earlier.
"Jose" said that he had been living in the State Route 99 cabin for three days. The officer obtained "Jose's" consent to search the cabin, along with its key. As the officer knocked on the cabin's front door and announced his presence, another officer intercepted co-defendant Ramos in the process of leaving the west bedroom. Defendant's personal indicia were present in the west bedroom. In the east bedroom, the task force found personal indicia for co-defendant Ramos with his clothes, as well as over 200 grams of methamphetamine inside a bag stuffed into a sock hidden in a disconnected car speaker. Co-defendant Ramos claimed that he had not been living at the cabin, but had been staying there for the last three days. The record is not entirely clear, but apparently defendant claimed not to have been living at the cabin because the police report listed him as a transient.
Defendant argues the evidence of possession is insufficient both as to the methamphetamine in the truck and in the cabin. However, if we find substantial evidence he possessed the methamphetamine in the truck, we will presume (as did the trial court) that it is the basis for the verdicts, and the question of his possession of the methamphetamine found in the cabin becomes irrelevant. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 [absent affirmative indication to contrary, a court will assume that jury based verdict on factual theory that has substantial evidence in support].)
Both possession of methamphetamine for sale and transportation of methamphetamine require proof of the knowledge of its presence and character, which circumstantial evidence can establish. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.)
Defendant contends there is an absence of any evidence that he knew of the presence of the methamphetamine in the truck (as opposed to merely having access to it) or aided "Jose" in committing the crimes of possessing it for sale or transporting it. He cites the facts of two other cases in which evidence of possession was insufficient. However, there is little if any value in comparing the facts of the present case with facts in other cases in reviewing the sufficiency of the evidence. (People v. Rundle (2008) 43 Cal.4th 76, 137-138 [reviewing sufficiency of evidence "necessarily calls for analysis of the unique facts and inferences present in each case" and thus "comparisons between cases are of little value"].) We consequently do not need to distinguish his authority.
In the present case, it could be inferred that "Jose" removed the bags of methamphetamine last seen in his rear pocket when he left the house, secreted them in the flashlight, and stuffed the flashlight between the console and passenger seat without any assistance from defendant. However, it could also be reasonably inferred that defendant assisted in the process of stowing the baggies from "Jose's" pocket (as it would have been difficult for "Jose" to maintain control of the truck during the contortions involved), which is sufficient to establish defendant's knowledge of the presence and illicit nature of the baggies (which would not have needed to be hidden in this fashion had they not been contraband of some sort). We therefore reject his claim of insufficient evidence.
The Supreme Court has granted review to resolve a split in authority over whether the January 2010 amendments to former section 4019 are retroactive. (People v. Brown, review granted June 9, 2010, S181963 [giving retroactive effect].)
Pending a determinative resolution of the issue, we adhere to the conclusion that the January 2010 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 or conduct credits].)
Neither the amended information nor the probation report shows that defendant has any prior felony convictions for a "serious" or violent felony (§§ 667.5, subd. (c); 1192.7, subd. (c)), nor does his present felony conviction come within those categories. It also does not appear that defendant is subject to registration as a sex offender. (§ 290 et seq.) As a result, defendant is not in the class of felons excepted from accruing additional custody credit. (Former § 4019, subds. (b) & (c); § 2933.1.) Appellate counsel filed an application in the trial court for these additional conduct credits. The trial court, however, denied the application. Defendant had 176 days of actual presentence custody credit at the time of sentencing. He is now entitled to 176 days of conduct credits for this period of presentence custody. (Former § 4019, subds. (b), (c) & (f).) We modify the judgment accordingly.
The judgment is affirmed as modified. We direct the trial court to prepare an amended abstract of judgment reflecting 176 days of conduct credit and forward a certified copy to the Department of Corrections and Rehabilitation.