P. v. Oliphant CA1/2 ( 2013 )

Filed 7/18/13 P. v. Oliphant CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A136107
v.
JOHN JOSEPH OLIPHANT, (Contra Costa County
Super. Ct. No. 50716829)
Defendant and Appellant.
I. INTRODUCTION
After a several-day jury trial, appellant was convicted on 10 drug-related counts,
including possession for sale and transportation of heroin, oxycodone, methadone and
morphine, possession of methamphetamine, and one count of being under the influence
of methamphetamine. He appeals, claiming there was a lack of substantial evidence to
support his conviction on three of those 10 counts. We reject that argument and affirm
appellant’s convictions.
II. FACTUAL AND PROCEDURAL BACKGROUND
Shortly before noon on January 18, 2006, Officer Josh Vincelet, a narcotics
detective with the Antioch Police Department, saw appellant, then 26 years old, driving a
Cadillac into a gas station in a “high crime” area of Antioch. Also in the car was Kelly
Walden-Downs, who the officer recognized as appellant’s girlfriend. He then saw a
group of transients “milling around” that gas station. As appellant pulled his car into the
station’s car wash, they moved toward it. One of them, who Officer Vincelet recognized
as a known narcotics user, Michael Onate, came to the car door and handed appellant
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cash; appellant then handed Onate “an object.” According to the officer, this interaction
was “indicative of a hand-to-hand drug deal.”
Later that same afternoon, Officer Vincelet obtained a search warrant authorizing
the search of appellant, his apartment, his mother Judy Donnell, and his Cadillac. When
Vincelet and at least five other Antioch officers arrived at appellant’s apartment at about
4:30 p.m. the same afternoon, both appellant and Walden-Downs were present, but not
appellant’s mother, Ms. Donnell. The officers duly conducted a search of the apartment
and found several used hypodermic needles of the kind usually used to administer heroin.
Appellant told the officers that the needles belonged to his mother. The officers also
found a “pay-owe” ledger on a dresser in a bedroom. Such records are, per Officer
Vincelet’s testimony, often used by drug dealers to record who has paid for drugs and to
whom they still owe money. This ledger contained a list of names, numbers and various
commonly-used terms for narcotics.
As the officers searched the apartment, a cell phone lying on a bed—later
identified as possibly belonging to appellant’s mother—rang. Officer Vincelet answered
it and recognized the voice of Onate as the caller. Onate used appellant’s name, i.e.,
“John,” and asked if he could get a “20” of “tar.” Several other calls of the same nature
were received on the same cell phone, all using the name “John” and also asking for
various quantities of the same drug; none of the callers asked to speak with appellant’s
mother. One of the callers was a woman who identified herself as “Tina” and inquired
about obtaining Xanax. Vincelet, pretending to be appellant, asked Tina where the
mother, Ms. Donnell, might be located; Tina provided him with the name of a hotel, the
El Dorado Hotel in Pittsburg, and the mother’s room number.
On the way out of the apartment, Officer Vincelet searched appellant’s car and
found a second cell phone; at trial he opined that drug dealers often have several cell
phones and provide different numbers to different customers to avoid police detection.
Officer Vincelet conducted a probation search of Ms. Donnell’s room at the El
Dorado Hotel later that same day; in it, he discovered hypodermic needles, cotton balls,
packaging material, spoons, a digital scale, a glass pipe, and letters addressed to Ms.
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Donnell. During this search, someone entered the room, asked for Ms. Donnell, and
stated that he needed “a 20.”
The following day, i.e., January 19, 2006, at approximately 2:00 p.m., Officer
Vincelet saw appellant driving a different car, a Toyota Corolla, with Ms. Walden-Downs
in the passenger seat. Vincelet drove to appellant’s apartment building and, when
appellant arrived in the Corolla, the two met and talked briefly about the search warrant.
During that conversation, Vincelet noted that appellant appeared to be under the
influence of drugs in that, among other things, he was perspiring, his lips appeared to be
cracked, and he was talking very hurriedly. The officer took appellant into custody,
searched him, and then searched the Corolla via the keys to it he had found in appellant’s
pocket. In the Corolla, Vincelet found a plastic grocery bag containing many drugs, i.e.,
methadone tablets, black tar heroin, Oxycodone tablets, morphine pills, and
methamphetamine. Also in the same grocery bag was another notebook containing
“more pay-owe type information” including specific letters and numbers next to them.
Near the bag was a copy of the search warrant served the preceding day and a letter
addressed to appellant.
All in all, Vincelet later opined, the value of the drugs in the bag in the Corolla
was between $9,000 and $10,000, and the various drugs in the car were intended for later
sale by appellant.
After his arrest on January 19, appellant’s blood was drawn, and tested positive for
methamphetamine, but negative for other drugs.
On October 24, 2007, the Contra Costa District Attorney’s office filed a 10-count
indictment against appellant charging him with four counts of possessing illegal drugs
(namely, heroin, Oxycodone, methadone, and morphine) for sale in violation of Health
and Safety Code section 11351 (hereafter section 11351), and four counts of selling and
transporting the same four drugs in violation of Health and Safety Code section 11352,
subdivision (a). The ninth count of the indictment charged possession of
methamphetamine in violation of Health and Safety Code section 11377, subdivision (a),
and the tenth count with being under the influence of that drug in violation of Health and
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Safety Code section 11550, subdivision (a). The indictment also contained an allegation
that appellant was ineligible for probation because of his possession of 14.25 grams or
more of heroin for sale under Penal Code section 1203.07, subdivision (a)(1).
A jury trial commenced on June 29, 2009; Officer Vincelet testified for the
prosecution regarding the events of January 18 and 19, 2006. Also testifying for the
prosecution were three forensic services specialists employed by the Contra Costa
County Sheriff’s Department.
On July 6, 2009, the trial court granted appellant’s motion for acquittal (pursuant
to Penal Code section 1118.1) of the “selling” component of the four counts of the
indictment (Nos. 2, 4, 6 and 8) alleging “sale and transportation,” although it kept before
the jury the transportation component of those four counts.
Appellant testified in his own defense on July 6. His testimony was, essentially,
that his mother, Ms. Donnell, was the real drug trafficker, and that he was only
secondarily involved in the drug transactions. More specifically, he testified that, on
January 18, 2006, she, being a heroin addict as he admittedly was also, came to his
apartment to “shoot [him] up”, because he was too “scared to be able to do it” himself.
He conceded, however, that he had sold heroin to Onate at the gas station that day, but
had done so at the request of his mother.
As far as the search of the apartment later that day, i.e., the search that uncovered
the “pay-owe” ledger, appellant testified that this belonged to his mother, Ms. Donnell, as
did the cell phone the police had found in the bedroom—although he conceded that he
had occasionally used that phone. He denied that his mother’s customers ever used him
to supply drugs and that he did not do so for her.
He conceded that, after the search performed of his apartment by Officer Vincelet
and the other officers, he had gone to a hotel and taken methamphetamine. He had gotten
the same from a friend on his hockey team but, at trial, could not remember the friend’s
name. That same evening and also the next morning, per his testimony, his mother came
to that room to “shoot [him] up” with heroin.
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Per appellant’s testimony, the following day, January 19, Ms. Donnell placed the
grocery bag later found in the Corolla he was driving into the trunk of that car. He
claimed that the drugs found in that bag were for his use and not intended for sale, except
for the Oxycodone pills which belonged to him, but were available to be purchased from
his mother.
No other evidence was presented by appellant.
On July 8, 2009, after less than a day of deliberation, the jury convicted appellant
on all 10 counts and found true the allegation that he has possessed 14.25 grams or more
of heroin for sale. Appellant was not present when the jury returned its verdict; he had
apparently fled to Nevada. He was, however, later extradited and placed in jail on May
23, 2012.
On June 29, 2012, the court denied appellant probation and imposed a midterm
sentence of three years in prison on the first count of the indictment. It imposed
concurrent midterm sentences in the same amount, i.e., three years, on counts 2 through 8
and a concurrent midterm of two years on count 9 and a concurrent one year on count 10.
It awarded appellant a total of 200 days of credit for time already served.
Appellant filed a timely notice of appeal on July 17, 2012.
III. DISCUSSION
Appellant’s only argument is that there was not substantial evidence to support his
conviction on three of the 10 counts on which the jury found him guilty, i.e., counts 1, 5,
and 7, the counts alleging the possession for purposes of sale of, respectively, heroin,
methadone, and morphine. He does not contend that his convictions on the other seven
counts should be reversed, but does ask that, if we agree that his convictions on these
three counts should be reversed because of the lack of substantial supporting evidence,
the case should be remanded to the trial court with the direction that it grant him
probation.
We must and will, therefore, start with the issue of the applicable standard of
review, i.e., whether there was substantial evidence supporting appellant’s convictions on
counts 1, 5, and 7. Our Supreme Court has made that standard very clear in several
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decisions. Thus, in People v. Caitlin (2001) 26 Cal.4th 81, 139, it stated: “A reviewing
court faced with such a claim determines ‘whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ [Citations.] We examine the record
to determine ‘whether it shows evidence that is reasonable, credible and of solid value
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]
This standard applies whether direct or circumstantial evidence is involved. ‘Although it
is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible
of two reasonable interpretations, one of which suggests guilt and the other innocence, it
is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond
a reasonable doubt. [Citation.] “ ‘If the circumstances reasonably justify the trier of
fact’s findings, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal of the
judgment.’ ” ’ [Citation.]”
A bit later that same year, the court summarized the relevant standard a bit more
briefly: “To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128; see also People v. Prince (2007)
40 Cal.4th 1179, 1251; People v. Bolden (2002) 29 Cal.4th 515, 553; 6 Witkin & Epstein,
Cal. Criminal Law (4th ed., 2012) Criminal Appeal, § 169, and authority cited therein.)
In People v. Parra (1999) 70 Cal.App.4th 222 (Parra), our colleagues in the
Fourth District addressed the issue of whether, for a conviction to be affirmed under
section 11351, it is necessary for the prosecution to establish that it was the possessing-
defendant’s intent to sell the drugs personally as distinguished from having someone else
sell it for them. It held that either was sufficient, stating: “[W]e conclude that in order to
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be convicted of a violation of . . . section 11351 the defendant needs to either (1) possess
the specific intent to sell the controlled substance personally, or (2) possess the specific
intent that someone else will sell the controlled substance.” (Parra at p. 227; see also
People v. Consuegra (1994) 26 Cal.App.4th 1726, 1731-1732 and fn. 4.) Further,
“[i]intent to sell may be established by circumstantial evidence.” (People v. Harris
(2000) 83 Cal.App.4th 371, 374 (Harris).)
Finally with regard to our standard of review, the law is also clear that an officer
as experienced as Officer Vincelet may state his opinions regarding the intent of the
possessor or possessors of the drugs in question. (See Parra, supra, 70 Cal.App.4th at p.
227.) Indeed, in an opinion quoted by the Parra court, our Supreme Court made this
point abundantly clear. (See People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on
other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862; see also People v. Peck
(1996) 52 Cal.App.4th 351, 357, and Harris, supra, 83 Cal.App.4th at pp. 374-375.) The
testimony, including the opinions stated, of Officer Vincelet clearly meets the required
substantial evidence standard of review as to appellant’s possession for the purpose of
sale of the three drugs which were the subjects of counts 1, 5 and 7.
Appellant’s core position as to why we should reverse his convictions on those
three counts is that the jury’s verdict had to be based on “suspicion” and “circumstantial
evidence,” and that such did not amount to the required substantial evidence. He
summarizes this contention thusly: “Suspicion merely raises a possibility of guilt and is
not a sufficient basis for a conviction. . . . Moreover, there was no direct evidence that
Mr. Oliphant possessed any of these substances [i.e., heroin, methadone, and morphine]
with the specific intent to sell them.” Thus, he contends, the jury’s conclusion that he
possessed these three drugs for sale was “unreasonable.”
With regard to appellant’s conviction on count 1 (possession of heroin for sale),
appellant concedes that he used that drug, but contends that the evidence admitted
“supports only his possession of the drugs for personal use.” Regarding his convictions
regarding possession of methadone and morphine for purposes of sale, appellant contends
that the only evidence supporting his conviction on these two counts was the opinion
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evidence offered by Officer Vincelet, and that, therefore, there was “no hypothesis under
which the Court can find that there was substantial evidence to support” those two
convictions.
We strongly disagree. As noted above, our Supreme Court has made it abundantly
clear that a conviction may be—and indeed must be—affirmed if there is substantial
evidence to support it. Further, and as appellant points out in his opening brief to us, the
jury was specifically instructed (via CALCRIM No. 224) that “[B]efore you may rely on
circumstantial evidence to find the defendant guilty, you must be convinced that the only
reasonable conclusion supported by the circumstantial evidence is that the defendant was
guilty.” As our Supreme Court has also made clear, “[j]urors are presumed able to
understand and correlate instructions and are further presumed to have followed the
court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Thus, because it
convicted appellant on the three counts at issue on this appeal, the jury must have found
either that (1) such was the only reasonable conclusion to be drawn from the
circumstantial evidence before it or (2) there was more than just circumstantial evidence
supporting appellant’s conviction.
And, indeed, there was more, much more, than “suspicion” or “circumstantial
evidence” supporting the jury’s verdict on the three counts from which appellant appeals.
First, the day before his arrest, Officer Vincelet personally witnessed what he
described as a “hand-to-hand drug deal” at a car wash in Antioch, a deal in which
appellant specifically received money from Michael Onate. Indeed, when he was on the
witness stand, appellant specifically conceded that he had provided heroin to Onate as
witnessed by Officer Vincelet.
Second, the same afternoon, when multiple officers were searching appellant’s
apartment, a cell phone found in the bedroom of that apartment rang several times.
Officer Vincelet answered it, the callers (one being Onate) all assumed they were
speaking with “John,” and made specific requests for drugs. Appellant argues that the
cell phone in the apartment belonged to appellant’s mother, Ms. Donnell, but the reality
is that all of the callers assumed the answering male was “John” and attempted to arrange
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a drug transaction directly with him; none of them ever asked to speak with “Judy.” Nor
was the discovery of another cell phone in the Cadillac appellant had been driving
pertinent because, as Officer Vincelet testified, a “lot of times dealers carry more than
one phone . . . so they can avoid detection from law enforcement . . . .”
Third, the following day, appellant drove to his apartment in another car, a Toyota
Corolla, the keys to which Officer Vincelet later found in appellant’s pocket. Using those
keys, the officer opened the trunk of the Corolla and found a plastic grocery bag
containing the large amount of multiple drugs described above, including over 19 grams
of black tar heroin. Vincelet testified that, in his estimation, the value of the drugs found
in the trunk of the Corolla was “around the ballpark of” $9,000 to $10,000. Regarding
whether the 19.61 grams of heroin might have been for appellant’s personal use, Vincelet
testified that the “typical dosage” of heroin was “a tenth of a gram.” Thus, the heroin
found in the car appellant was driving on the day he was arrested equaled almost 200
“typical” dosages. This evidence hardly supports appellant’s personal use theory of
defense.
Fourth, Officer Vincelet testified that, in his opinion, the methadone found in the
bag in the Corolla “was possessed for sale”, as was the heroin, and the morphine. No
objections to these opinions were lodged by trial defense counsel, and Officer Vincelet
did not retract these opinions even slightly in the course of cross-examination by that
counsel When asked by the prosecutor what led him to his opinions that “all those items
were possessed for sell [sic: sale],” he responded:
“I base my opinion on first the amounts such as the oxy as well as the heroin. And
then to factor in the packaging, the pay-owe sheets and then the behavior that I saw
leading up to the search warrant. [¶] All of those factor into even the smaller amounts that
may be just possessing one pill. Those morphine pills that you talked about were in a
smaller amount in and around the one to two pills. [¶] As I said before, they were rare so
only having one to two pills isn’t uncommon so that would further lead me to believe that
those were possessed for sell.”
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Later, on redirect examination, Officer Vincelet summarized his opinion thusly:
“[I]f you are buying in bulk your intent is to turn a profit off of that. You are not going to
buy in bulk for personal use.” As noted above—and not contested either at trial or in
appellant’s briefs to us—Officer Vincelet was fully qualified to offer these opinions.
Fifth and finally, when the grocery bag full of all the drugs was found in the
Corolla appellant was driving the day he was arrested, the police also found, next to the
plastic bag containing the drugs, both an envelope addressed to appellant and the search
warrant that had been served on him the preceding day. Contrary to appellant’s argument
in his reply brief, that evidence did, indeed, “contradict [appellant’s] testimony that the
drugs belonged to his mother and were dumped in the trunk of [the Corolla] a short time
prior to the search.” Additionally, inside that bag was another pay-owe sheet of the kind,
per Officer Vincelet again, used by drug dealers.
In his briefs to us, appellant essentially reargues the evidence before the jury, more
specifically the version of events testified to by the only witness produced at trial for the
defense: appellant himself. His testimony was that his mother was the real dealer of
drugs, and that she had placed the large plastic bag full of the various drugs in the trunk
of the Corolla he was driving on January 19, 2006. But they were, according to his
testimony in the trial court, for his use, and provided to him in such bulk because that
quantity was “all she could get” from her suppliers. Thus, per appellant’s argument to us,
his mother simply “dumped [the drugs] into the trunk of the car he was driving while she
was trying to ‘get out of town.’ ”
However, as noted above, there was absolutely no corroboration of appellant’s
version of events, a version that was full of inconsistencies. By way of example,
appellant first testified that his mother was “holding on to” the heroin she injected him
with, but then admitted that he would “snort it if she wasn’t there.” Similarly, and as
pointed out to the jury in the prosecutor’s closing argument, the buyers who called on the
cell phone in his apartment were persons who were allegedly his mother’s customers, but
all of them clearly knew his name and that they could rely on him to obtain the drugs they
requested; none of them asked to speak to his mother.
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There was far more than the requisite substantial evidence to sustain the jury’s
finding that appellant was guilty of the crimes charged in counts 1, 5, and 7 of the
indictment.
IV. DISPOSITION
The judgment is affirmed.
_________________________
Haerle, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
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