THE PEOPLE, Plaintiff and Respondent, v. GLORIA RAMOS, Defendant and Appellant.
No. G050315
Fourth Dist., Div. Three.
Jan. 22, 2016.
244 Cal. App. 4th 99
Correen Ferrentino, 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, Melissa Mandel, Alana Cohen Butler and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THOMPSON, J.—A jury found defendant Gloria Ramos guilty of several crimes, including transportation of heroin (
Defendant contends her transportation of heroin conviction must be reversed, and may not be retried, in light of a recent amendment to
Defendant also contends her possession of methamphetamine for sale conviction must be reversed because there is insufficient evidence to prove she harbored any intent to personally sell the methamphetamine. The People disagree and argue there is sufficient evidence defendant possessed the methamphetamine with the intent to sell it.
We conclude the transportation of heroin conviction must be reversed and remanded for further proceedings, but there is substantial evidence defendant possessed the methamphetamine with the requisite intent to sell it, so we affirm that conviction.
FACTS
On April 4, 2013, Costa Mesa police detectives George Maridakis and Jacob Slechta, and Patrol Officer Sean Leffingwell were watching a Nissan Versa as part of a narcotics investigation. The Nissan belonged to Roger Hernandez, defendant‘s husband and a well-known drug dealer. At one point the police observed Hernandez take a duffel bag from someone he encountered on the street and put it in the trunk of the Nissan. About 20 minutes later, Leffingwell stopped the Nissan at Maridakis‘s direction. Hernandez was the driver and defendant was the front seat passenger.
Maridakis asked Hernandez if there was anything illegal in the car. Hernandez responded, “What‘s going on,” while he manipulated something under his seat and then reached for a large black purse sitting between defendant‘s legs on the floor. Maridakis told Hernandez to get out of his car and tried to grab Hernandez‘s wrist. Hernandez resisted and started to yell.
At that point, Slechta told defendant to get out of the car. She appeared nervous and made furtive glances at the black purse. She also repeatedly asked, “Why?” Slechta grabbed defendant to pull her out of the car, and she screamed “hysterically.”
Defendant agreed to be interviewed and voluntarily waived her Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) She acknowledged the black purse was hers, and admitted it had been within her control when she was in the car. However, defendant denied knowing anything about the drugs and gun found inside her purse. And, though she “had heard people say that [her husband] was possibly involved in drug sales,” she did not believe these rumors.
At trial, Maridakis opined defendant and Hernandez possessed the methamphetamine for sale. He based this opinion on the amount of the drugs possessed, the scale, cash, and baggies, and the fact some of the methamphetamine had been packaged into smaller plastic baggies. As for the heroin, Maridakis testified defendant and Hernandez possessed a usable quantity, but did not opine they possessed it for sale.
DISCUSSION
1. Transportation of Heroin—Section 11352
When defendant was convicted,
After defendant was convicted,
Defendant contends, the People concede, and we agree, the amendment is retroactive and it applies to defendant. (People v. Brown (2012) 54 Cal.4th 314, 319-320 [142 Cal.Rptr.3d 824, 278 P.3d 1182]; People v. Wright (2006) 40 Cal.4th 81, 90 [51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Collins (1978) 21 Cal.3d 208, 213 [145 Cal.Rptr. 686, 577 P.2d 1026]; People v. Rossi (1976) 18 Cal.3d 295, 301 [134 Cal.Rptr. 64, 555 P.2d 1313]; In re Estrada (1965) 63 Cal.2d 740, 744-748 [48 Cal.Rptr. 172, 408 P.2d 948]; Sekt v. Justice‘s Court (1945) 26 Cal.2d 297, 304-306 [159 P.2d 17].)
However, the parties do not agree what the application of the amendment means here. Defendant contends, and we agree, her transportation of heroin conviction must be reversed, because the jury did not determine whether the heroin she transported was for sale rather than personal use. Further, defendant argues she cannot be retried because the amendment decriminalized her transportation of the heroin in this case. This argument must fail, because it presumes the heroin she transported was for personal use.
Defendant also suggests remand is inappropriate because Maridakis did not opine the heroin was possessed for sale, and the evidence supports a theory of personal use and simple possession. Defendant is not correct. “Where, as here, evidence is not introduced at trial because the law at that time would have rendered it irrelevant, the remand to prove that element is proper and the reviewing court does not treat the issue as one of sufficiency of the evidence.” (People v. Figueroa (1993) 20 Cal.App.4th 65, 72 [24 Cal.Rptr.2d 368].)
The People, citing People v. Wright, supra, 40 Cal.4th at pages 98-99, contend the transportation of heroin conviction need not be reversed, because the omission of the sale or personal use element was harmless beyond a reasonable doubt under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]. To this end, the People argue the same evidence which supported defendant‘s possession of methamphetamine for sale conviction also supports the conclusion the heroin she transported was not for personal use.
We are not persuaded it is proper to assess the problem under the harmless error rubric. In Wright, the retroactive application of a newly
Finally, the People contend, defendant does not dispute, and we conclude, remand and retrial on the transportation of heroin charge is not barred by the double jeopardy clause. (People v. Figueroa, supra, 20 Cal.App.4th at p. 72, fn. 2.)
2. Possession of Methamphetamine for Sale—Section 11378
Defendant contends her possession of methamphetamine for sale conviction must be reversed because there is insufficient evidence to prove she personally harbored any intent to sell the methamphetamine. We reject this claim.
Our role when reviewing the sufficiency of the evidence is to evaluate the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 99 S.Ct. 2781]; People v. Story (2009) 45 Cal.4th 1282, 1296 [91 Cal.Rptr.3d 709, 204 P.3d 306]; People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) Moreover, we must accept any logical inferences the jury could have drawn from any circumstantial evidence, because “‘it is the jury, not the appellate court that must be convinced of the defendant‘s guilt beyond a reasonable doubt.‘” (People v. Zamudio (2008) 43 Cal.4th 327, 357-358 [75 Cal.Rptr.3d 289, 181 P.3d 105].)
Defendant admitted ownership and control over her purse, and large quantities of heroin and methamphetamine, a digital scale, and packaging materials were found in it. Consequently, there is ample circumstantial evidence from which the jury could reasonably infer she possessed the methamphetamine “with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]” (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746 [45 Cal.Rptr.2d 844].)
DISPOSITION
The transportation of heroin conviction is conditionally reversed. On remand, defendant is entitled to either admit the “transport for sale” element of the current version of
Rylaarsdam, Acting P. J., and Ikola, J., concurred.