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Filed 8/23/07 P. v. Cuellar CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E040624
v. (Super.Ct.No. FVI023012)
JOSHUA ANTHONY CUELLAR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
William H. Strohmeyer, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown Jr, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch,
Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for
Plaintiff and Respondent.
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INTRODUCTION
Defendant Joshua Anthony Cuellar challenges his two year prison sentence for a
variety of drug-related offenses as an abuse of discretion. We will affirm.
FACTS AND PROCEDURAL HISTORY
About 11:30 p.m. on November 15, 2005, San Bernardino County Sheriff’s
Deputy Winegar noticed a car driven by defendant leaving a construction site in an
unincorporated area near Hesperia. The vehicle “sped away” but the deputy was
eventually able to stop it on a southbound freeway entry ramp. As he was talking to
defendant, Deputy Winegar noticed that he was exhibiting signs of being under the
influence of a stimulant. Defendant’s face and eye muscles were twitching; he couldn’t
keep his hands or head still; he had a white coating around his mouth and on his tongue;
he did not follow instructions and seemed ready to fight. Winegar had had narcotics
training and extensive experience with alcohol and drug users and suspected that
defendant was under the influence of a controlled substance to the extent that his driving
ability was impaired.
In a lawful search of the vehicle the deputy found the following items: a knife
with a “brass knuckle” handle on the passenger seat, a locked box containing several
hundred Ziploc baggies, three or four additional baggies containing a white crystalline
substance that later proved to be methamphetamine, an electronic digital gram scale, a
glass smoking pipe with gray residue, extra batteries for the scale, a set of “walkie-
talkies,” and a second scale. The deputy also found a notebook with defendant’s initials
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on the front cover; the notebook contained several “pay-owe” sheets. Finally, in the
center console of the vehicle, Winegar found a large Ziploc baggie containing a green
leafy substance that appeared to be marijuana.
Defendant, who was on probation for an earlier drug offense, told Winegar that the
brass-knuckle knife and the items in the locked box -- the methamphetamine, scales, pipe,
and baggies -- were all his and all for his personal use. He admitted that he was currently
using drugs and had sold them in the past, but said he had not sold any for approximately
three years. The pay-owe sheets, he said, were to keep track of people who owed him
money for labor he had performed for them. Defendant’s blood test showed a very high
level of methamphetamine -- 348 nanograms -- a level at which driving ability is severely
impaired.
On April 14, 2006, a jury convicted defendant of five offenses: possession of
marijuana, a lesser included offense of possession of marijuana for sale, the sole charge
of which he was acquitted (Health & Saf. Code, § 11359, subd. (b), count 2); possession
of a deadly weapon (Pen. Code, § 12020, subd. (a)(1), count 3); driving under the
influence of drugs (Veh. Code, § 23152, subd. (a), count 4); being under the influence of
a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 5); and
transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a), count
6.)
The jurors were unable to reach a verdict on a sixth charge, possession of
methamphetamine for sale. (Health & Saf. Code, § 11378, count 1.) The foreperson
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reported that the results of several votes on this count were always the same -- 11 for
conviction and 1 against -- and all jurors agreed that further deliberation would not
change the outcome. After the verdicts were in, the People considered whether to re-try
defendant on count 1 but decided there would be no reason to do so since he had been
convicted of the transportation charge and there would be no “sentence benefit” due to a
potential Penal Code section “654 problem.” Thereafter, the court dismissed count 1.
But it reminded defense counsel that the deadly weapon conviction made his client
ineligible for treatment in a Proposition 36 drug court program and that his “best
opportunity to secure some kind of grant of probation is going to be talking to the
probation officer.”
When defendant talked to the probation officer, in a presentence interview on May
9, he denied that the drugs found in the vehicle belonged to him. He said the car was not
his; the marijuana was not his; he did not know there were drugs in the vehicle; his
fiancée used methamphetamine and had drugs in her purse; he was the only person in the
vehicle that didn’t have “anything” on him or near him. The probation officer noted that
defendant was on probation for a drug-related offense at the time the present offenses
were committed and recommended a mid-term sentence of three years in state prison on
the transportation charge with the terms on the other convictions to run concurrently
because the crimes were all committed in a single period of aberrant behavior.
At the sentencing hearing on May 19, defense counsel vigorously disagreed with
the probation officer’s recommendation. He argued that his client should be placed on
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probation and in a drug treatment program rather than sent to prison. Counsel was
particularly unhappy about the transportation charge: “[I]t is a way for the state
legislature to impose a greater penalty than for somebody that possesses it because
frankly, under the law, you cannot possess a drug without transporting, and the
possession charge has less sentencing time than the transportation, and I think the Court
should take that into account.” The prosecutor also disagreed with the probation officer’s
recommendation; she thought that all the terms should be run consecutively for a total
sentence of four years and eight months.
After listening to both sides, the court selected count 6 as the principal count and
sentenced defendant to the low term of two years in state prison plus concurrent
sentences of various lengths on counts 3, 4, and 5, and a suspended sentence on count 2.
The court explained its reasons for refusing to grant probation: defendant essentially lied
to the probation officer about possessing drugs and paraphernalia by completely
contradicting his story to the police; he tried to shift responsibility for his crimes to his
fiancée; he had two prior offenses and was on probation at the time the current crimes
were committed; his past performance on probation had been unsuccessful in that he did
not understand the seriousness of his current crime -- which was transporting drugs while
on probation for an earlier drug charge and not mere possession.
When defendant tried to argue that he had in fact taken responsibility for his
crimes, the court commented, “I think you’re a drug dealer . . . I believe that the fact that
that little book of pay/owe sheets was found was proof beyond a reasonable doubt, as far
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as this jury was concerned, that you were dealing drugs.” The court emphasized that it
was imposing the mitigated term out of consideration for defendant’s youth and the fact
that he had no prior serious felony convictions, but that “I can see you had break after
break, and I’m not . . . giving you probation.”
DISCUSSION
Defendant’s makes two arguments on appeal: (1) that the trial court abused its
discretion by denying him probation and imposing a prison term based on a charge for
which he had been acquitted; and (2) that there was insufficient evidence to support his
conviction for marijuana possession. We disagree with both of defendant’s claims.
Preliminarily, however, we address Respondent’s contention that defendant forfeited his
claim regarding the denial of probation by failing to object to the disposition below on
the specific basis that the court was considering impermissible factors in fashioning his
sentence.
Forfeiture
Respondent is correct that a defendant’s failure to object to an erroneous ruling in
the trial court ordinarily forfeits the right to raise the claim on appeal. (People v. Scott
(1994) 9 Cal.4th 331, 354; In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.).) As has long
been established, the purpose of the rule is to encourage parties to bring errors to the
attention of the trial court so that they may be corrected at the time they are made, rather
than to remain silent in hopes of prevailing on appeal. (Sommer v. Martin (1921) 55
Cal.App. 603, 610; S.B., supra, at p. 1293; see also Cal. Evid. Code, § 353, com.)
6
Defendant argues that he should escape operation of the forfeiture rule because
any objection that the court was using an improper basis for its decision would have been
futile. While we do not agree that the court used an improper basis for its decision to
deny him probation, we recognize that given its strongly expressed position, it is likely
that such an objection would have been overruled. Nonetheless, the issue would have
been properly preserved for our review. As we explain however, even assuming that
defendant had made the appropriate objection, we would have found his claim meritless.
Denial of Probation and Abuse of Discretion
Our review of a trial court’s decision to grant or deny probation is deferential.
“The sentencing court has broad discretion to determine whether an eligible defendant is
suitable for probation and if so, under what conditions.” (People v. Carbajal (1995) 10
Cal.4th 1114, 1120, citing Pen. Code, § 1203.1, subd. (b); Cal. Rules of Court, rule 414;
People v. Warner (1978) 20 Cal.3d 678, 682-683.) A trial court’s decision to deny
probation will be reversed only upon a clear showing that the court acted arbitrarily or
capriciously. (People v. Edwards (1976) 18 Cal.3d 796, 807.)
“Probation is generally reserved for convicted criminals whose conditional release
into society poses minimal risk to public safety and promotes rehabilitation.” (People v.
Carbajal, supra, 10 Cal.4th at p. 1120.) “Criteria affecting the decision to grant or deny
probation include facts relating to the crime . . . [¶] . . . [and f]acts relating to the
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defendant.” (Cal. Rules of Court, rule 4.414.)1 Facts related to the crime include, among
others, whether the defendant was armed, the vulnerability of the victim, and whether the
defendant was an active or passive participant. (Rule 4.414 (a)(2, 3, 6).) Facts related to
the defendant include whether he has a record of criminal conduct, his prior performance
on probation, his willingness and ability to comply with the terms of probation, whether
he is remorseful, and the likelihood that if not imprisoned he will be a danger to others.
(Rule 4.414 (b)(1, 2, 4, 7, 8).)
Defendant is correct that a court may not sentence a defendant for a crime of
which he was acquitted by a jury, but that is not what happened here. After trial, the
court told defendant that his best chance for probation lay in talking to probation; its
ultimate reason for sending him to prison was based on his dishonesty in that interview
and what that dishonesty meant for the likelihood that he would be successful if granted
probation. At the time of his arrest defendant had told Deputy Winegar that he possessed
and was under the influence of methamphetamine and that the other items found in the
vehicle -- the knife, the scales, the walkie-talkies, the pay-owe sheets -- were his. But he
told the probation officer a completely different story: nothing in the vehicle was his and
he didn’t even know there were any drugs there; he was just driving. His fiancée was to
blame: it was her car, her marijuana, her methamphetamine. The court appropriately
concluded that defendant’s dishonesty and denial of responsibility, combined with the
fact that he was on probation at the time of the current offenses, did not bode well for his
1 All further rule references are to the California Rules of Court.
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ability to cooperate with the terms of probation. It is true that at the time of sentencing
the court stated its belief that defendant was a drug dealer -- a view apparently shared by
11 of the 12 jurors -- but at no point did it indicate that it was basing its decision to deny
him probation on that belief or even on the facts supporting it.
The record shows that defendant met many other sentencing criteria that supported
the court’s decision. His denial of responsibility demonstrated a lack of remorse for his
actions as well as the likelihood that he was not willing or able to comply with terms of
probation. (Rule 4.414 (b)(2, 3, 4, 7).) At the time of the crimes, he was in possession of
a weapon, the brass knuckle knife. (Rule 4.414 (a)(2).) He was clearly an active
participant in the crimes. He chose not only to possess, use, and transport
methamphetamine along with paraphernalia and what appeared to be sales equipment --
two sets of scales, a pay-owe sheet, walkie-talkies, and hundreds of Ziploc baggies -- it
was he who drove the car in which the crimes took place. (Rule 4.414 (a)(6).) Contrary
to his statement to the probation officer, defendant was not the only occupant of the
vehicle who did not have anything on him. He had white powder around his mouth and a
very large amount of methamphetamine in his bloodstream. There was also good reason
to believe that if not imprisoned, defendant would have continued to pose a danger to
others. (Rule 4.414 (b)(8).) While under the influence of methamphetamine, defendant
sped away and tried to enter a freeway entry ramp. Had he succeeded in doing so, he
would have posed a significant danger to the driving public of the State of California.
Thus, defendant was not a convicted criminal whose conditional release into society
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would have posed minimal risk to public safety and promoted rehabilitation. (People v.
Carbajal, supra, 10 Cal.4th at p. 1120.)
Defendant repeatedly cites the 1981 case of People v. Takencareof, 119
Cal.App.3d 492, for the proposition that when a trial court relies on impermissible factors
in deciding to deny probation, the denial must be reversed. (Id. at pp. 500, 503.) As we
have explained, we find no evidence that the trial court here relied on impermissible
factors in deciding not to grant him probation. Accordingly, Takencareof is not apt.
Substantial Evidence of Marijuana Possession
Like his first, defendant’s second argument -- that the evidence was insufficient to
support his conviction for marijuana possession -- is unpersuasive.
In assessing a claim of insufficiency of evidence to sustain a criminal conviction,
the reviewing court’s task is to review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence -- that is, evidence that is
reasonable, credible, and of solid value -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. The standard of review is the same in
cases in which the prosecution relies mainly on circumstantial evidence. If the
circumstances reasonably justify the trier of fact’s findings, the reviewing court’s opinion
that the circumstances might also justify a contrary finding does not warrant a reversal of
the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Stanley
(1995) 10 Cal.4th 764, 793.)
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As respondent points out, the jury here was instructed as to what the prosecution
needed to prove to convict defendant of the offense of possession of marijuana: that the
he possessed marijuana, that he knew of its presence, and that he knew of its character as
marijuana. The jury was also told that for possession to be proven, it is enough that a
person have control over the item or the right to control it either personally or through
another person. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Nelson
(1959) 171 Cal.App.2d 356, 361.) Possession need not be exclusive, may be constructive
as well as physical, and may be shown by circumstantial as well as direct evidence.
(People v. Nelson, supra, at p. 361.) “Circumstantial evidence is like a chain which link
by link binds the defendant to a tenable finding of guilt.” (People v. Redrick (1961) 55
Cal.2d 282, 290.)
Here, there is no question that the elements of dominion and control were well
supported by substantial circumstantial evidence. Although defendant did not have legal
title to it, he was in control of the vehicle he was driving so long as he was behind the
wheel; in that sense, and for that period of time, the vehicle was “his.” The jury could
reasonably infer that as the driver, defendant was in control of the center console beside
him and was aware of its contents even though title to the console and its contents
belonged to his fiancée. Link by link, the circumstances reasonably justified the jury’s
findings; even if we thought that the circumstances might also justify a contrary finding,
a reversal of the judgment is unwarranted. (People v. Stanley, supra, 10 Cal.4th at p.
792.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
GAUT
J.
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