People v. Reyes CA6 ( 2013 )

Filed 12/18/13 P. v. Reyes CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039471
(Monterey County
Plaintiff and Respondent, Super. Ct. Nos. SS120415, SS120427)
v.
GABRIEL PHILLIP REYES,
Defendant and Appellant.
Defendant Gabriel Phillip Reyes appeals from an order reinstating him on
probation. He contends that there was insufficient evidence that he had violated the
terms of his probation. We affirm.
I. Statement of the Case
In April 2012, defendant pleaded no contest to possession of a controlled
substance for sale (Health & Saf. Code, § 11351) in case No. SS120415A. On the same
day, in case No. SS120427A, he pleaded no contest to carrying a concealed firearm (Pen.
Code, § 25400, subd. (a)(2)) and active participation in a criminal street gang (Pen. Code,
§ 186.22, subd. (a)). He also admitted the allegation that he was not the registered owner
of the firearm. In May 2012, the trial court placed defendant on probation for three years
in each case.
In January 2013, a notice of violation of probation was filed in both cases. It
alleged that defendant associated with an individual on probation and possessed a
controlled substance.
In February 2013, the trial court held a probation revocation hearing and found
that defendant violated the terms of his probation by possessing a controlled substance.
In March 2013, the trial court reinstated probation in each case.
II. Statement of Facts1
At approximately 11:30 p.m. on January 27, 2013, Salinas Police Officer Ruben
Sanchez was patrolling the area of South Sanborn and John Street in Salinas when he
observed a gray Eclipse pull into the EconoLodge parking lot. According to Sanchez,
this is an area which is known for prostitution, narcotic sales, and gang activity. Jiovany
Ramirez was the driver and defendant was the passenger. Sanchez knew that defendant
was on felony probation and subject to search and seizure terms. After conducting a
records check, Sanchez learned that Ramirez was also on felony probation with the same
terms. Defendant told Sanchez that they were there to meet someone.
Sanchez searched the vehicle and found a small, clear zip-lock baggie on the
floorboard under the driver’s seat. The baggie contained a white powdery substance,
which Sanchez recognized as cocaine. Defendant was searched and a small, clear zip-
lock baggie, which was the same kind of baggie as that found in the vehicle, was found
on his person. This baggie also contained a white powdery substance similar to that
found in the baggie in the vehicle.
A presumptive test of the white powder in the baggie found in the vehicle was
positive for cocaine. The substance in the baggie found on defendant was not tested.
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The statement of facts is taken from the hearing on the violation of probation.
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Following argument, the trial court found that defendant was in “an area known
for drugs and gangs” and that he had violated the terms of his probation by possessing a
controlled substance.
III. Discussion
Defendant contends that there was insufficient evidence to support the trial court’s
finding that defendant violated the terms of his probation. He argues that there was no
evidence that the residue in the baggie was of a quantity capable of being used as a
controlled substance.
The standard of proof required for finding a probation violation is preponderance
of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) The Legislature has
provided “trial courts very broad discretion in determining whether a probationer has
violated probation. [Citations.]” (Id. at p. 443.) Thus, an appellate court reviews an
order finding a probation violation under the abuse of discretion standard. (Ibid.)
“The essential elements of unlawful possession of a controlled substance are
‘dominion and control of the substance in a quantity usable for consumption or sale, with
knowledge of its presence and of its restricted dangerous drug character. Each of these
elements may be established circumstantially.’ [Citations.]” (People v. Martin (2001) 25
Cal.4th 1180, 1184.) “A usable amount is a quantity that is enough to be used by
someone as a controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in either amount or
strength, to affect the user.” (CALCRIM No. 2304.)
Here, Ramirez and defendant drove to an area known for narcotic sales to meet
someone at approximately 11:30 p.m. In conducting a search of the vehicle, Sanchez
found a small, clear zip-lock baggie containing a white powdery substance, which tested
presumptive positive for cocaine, under Ramirez’s seat. Though the baggie found on
defendant was not tested, it was the same type of baggie and contained a similar white
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powder as that found under the driver’s seat. Based on the time of night, his location in
an area known for narcotics sales, and the similarity of the baggies and their contents, the
trial court could reasonably conclude that the prosecutor had proved by a preponderance
of the evidence that defendant possessed a usable amount of cocaine. Thus, the trial
court did not abuse its discretion in finding that defendant violated the terms of his
probation.
IV.Disposition
The order is affirmed.
_______________________________
Mihara, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
______________________________
Grover, J.
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