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In Re Levi E., A Person Coming Under the Juvenile Court Law. v. Levi E


September 22, 2011


(Super. Ct. No. JV131669)

The opinion of the court was delivered by: Robie J

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this juvenile delinquency case, Levi E. (the minor) was found to have committed the following offenses: driving under the influence; driving without a license; possession of less than 28.5 grams of marijuana; a curfew violation; and riding a bicycle in the dark without the required bicycle light. The juvenile court declared the minor a ward of the court and committed him to the care and custody of his mother, under the supervision of the probation department.

The minor contends on appeal there is insufficient evidence to support the true finding on possession of marijuana. We affirm.


On May 9, 2010, at around 12:20 a.m., a California Highway Patrol officer stopped the minor for driving a car with expired registration. The minor told the officer his age, which was too young for a driver's license. A strong odor of marijuana emanated from his vehicle, the minor's eyes were bloodshot, his face was flush, his pupils were dilated, and he failed several field sobriety tests.

On June 23, 2010, at around 10:45 p.m., Sacramento Police Officer Ethan Hanson stopped the minor, who was riding a bicycle on the wrong side of the street without a light. Asked if he had any contraband, the minor said he had marijuana in his left pants pocket. The minor consented to a search, and Officer Hanson found a pill bottle in the minor's pocket. Officer Hanson opened the bottle and found "a green vegetable substance" he recognized as marijuana.


The minor asserts there is insufficient evidence that he possessed a useable amount of marijuana to support the true finding on possession of marijuana. We disagree.

"When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule. We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. [Citations.]" (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.) "An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)

In order to establish possession of a controlled substance, the evidence must show dominion and control over the substance in a quantity usable for consumption, with knowledge of its presence and of its controlled substance character. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) These elements can be proven by circumstantial evidence. (Ibid.)

The minor relies on People v. Leal (1966) 64 Cal.2d 504, which held possession of trace elements of a controlled substance not usable for sale or consumption cannot support a possession charge. In Leal, a search of the defendant's residence revealed a wad of cotton, an eyedropper, a hypodermic needle, and a spoon containing 32 milligrams of a crystallized substance containing heroin. (Id. at p. 505.) In reversing the defendant's conviction for possession of the heroin (id. at p. 504), the Supreme Court indicated: "[I]n 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 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." (Id. at p. 512.)

The Supreme Court later clarified its rule. "[T]he 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. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven." (People v. Rubacalba (1993) 6 Cal.4th 62, 66.)

The decision also explained the reason for the useable-quantity rule: "'It is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic. Guilt or innocence on a charge of illegal possession may not be determined solely by the skill of the forensic chemist in isolating a trace of the prohibited narcotic in articles possessed by the defendant. As forensic science, measuring devices and techniques improve, smaller and smaller amounts of residue are required for the chemist to detect the presence of the narcotic. The presence of the narcotic must be reflected in such form as reasonably imputes knowledge to the defendant.' (People v. Aguilar (1963) 223 Cal.App.2d 119, 122-123 [Citation].)" (People v. Rubacalba, supra, 6 Cal.4th at p. 67.)

The minor asserts there are two steps in determining whether the amount of the controlled substance was usable. According to the minor, the prosecution must present evidence the controlled substance was not a useless trace or debris. If the prosecution presents such evidence, "then the question becomes whether there is sufficient evidence of the amount to alert [defendant] that he possessed contraband."

The minor's argument improperly separates the reason for the useable amount rule from the rule itself. Whether the minor knew he possessed marijuana is not the second part of a two-part analysis; it is the reason for the useable-quantity rule. The primary purpose of the rule is to prevent the conviction of a person who unwittingly possesses a trace or otherwise useless amount of a controlled substance. If the minor knew he possessed marijuana, then the reason for the useable amount requirement is satisfied.

"A conviction for possession of a narcotic requires evidence of defendant's awareness of the presence of the narcotic or of facts from which such awareness or knowledge may be inferred. [Citation.]" (People v. Aguilar, supra, 223 Cal.App.2d at p. 123.) Here, the minor admitted possessing marijuana. While the People should have elicited from the officer whether the marijuana was a usable amount, defendant's admission establishes he knew that he possessed marijuana.

The minor's knowing possession of marijuana permitted the juvenile court to infer he possessed a usable amount of the substance rather than blackened residue or a useless trace. That inference is substantial evidence supporting the juvenile court's true finding.


The judgment is affirmed.

We concur: RAYE P. J. MAURO J.


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