People v. Thomas CA2/6

Filed 4/21/14 P. v. Thomas CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B250558
(Super. Ct. No. SA082183-01)
Plaintiff and Respondent, (Los Angeles County)
v.
JONATHAN THOMAS,
Defendant and Appellant.
Jonathan Thomas appeals a judgment revoking his probation after the trial
court conducted a probation revocation hearing and found that he possessed
methamphetamine for sale. (Health & Saf. Code, § 11378.) We conclude, among other
things, that the trial court's finding is supported by substantial evidence. We affirm.
FACTS
On February 11, 2013, Thomas pled no contest to transporting and selling a
controlled substance. (Health & Saf. Code, § 11352, subd. (a).) The trial court
"suspended" imposition of sentence and placed him on probation for three years. A
probation condition required that he "not use or possess any narcotics, dangerous or
restricted drugs or associated paraphernalia." Four months later Thomas was arrested for
violating this probation condition.
At the probation revocation hearing, Probation Officer Alfred Burruel
testified that on the morning of June 6, 2013, probation officers entered the residence of
probationer Virgil Gulley, Jr. because his "G.P.S. monitoring bracelet" was "pinging."
During a "protective sweep" of the residence, they saw Thomas sleeping on the floor in
the bedroom of the home. Thomas was on probation with "search" conditions. Burruel
said there was a duffle bag in a closet which had a "sliding" door, "five to six feet away
from where Mr. Thomas was laying." The duffle bag "contained numerous plastic
baggies" of "a white crystallized substance resembling methamphetamine." The size of
the bedroom was "10 by 15" feet and it had one closet. A probation officer found a
digital scale in a dresser drawer "five to seven feet away" from Thomas.
Vamari Gulley (Gulley) was also in the bedroom. Gulley testified that he
had lived at the residence since 1993. He shared the bedroom with Thomas who was his
cousin. Thomas had been there for "a day" and he "doesn't usually stay" there. Gulley
testified that he did not own the duffle bag or the digital scale. He said, "[A] lot of people
come and go and stay at [the] house," but they do not "bring stuff to spend the night."
Deputy Sheriff Michael Prottung testified that when he entered the
bedroom, the duffle bag was on top of the dresser, and the dresser was inside the closet.
In addition to the narcotics, the duffle bag also contained "items that were consistent with
someone who is staying somewhere other than home." Prottung said the duffle bag
contained "several pair of underwear, socks, T-shirt, hair care, cream, and a toothbrush."
"[T]here was an outfit that would be basically for one day." Thomas told Prottung that he
did "not live there."
Thomas did not testify at the probation revocation hearing. His trial
counsel argued that Gulley's testimony was "pretty self-serving," and "[Gulley] knows
that he could be in trouble for narcotics and of course he's going to deny . . . that those
drugs are his or he has any knowledge of the drugs or the scale."
The trial court found Thomas had violated his probation conditions. It said
Gulley "was credible" and the duffle bag did not belong to him. It said, "There's every
reason to believe that this bag belongs to the defendant who's sleeping nearby. . . . The
defendant is traveling. There's a bag that's typical of any person who travels near him."
The court revoked probation and sentenced Thomas to three years in county jail.
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DISCUSSION
Substantial Evidence
Thomas contends there is insufficient evidence to support the finding that
he violated a probation condition by possessing methamphetamine. We disagree.
A trial court may revoke probation where it "has reason to believe that the
person has violated any of the conditions of his or her probation." (People v. Urke (2011)
197 Cal. App. 4th 766, 772.) "We review a probation revocation decision pursuant to the
substantial evidence standard of review . . . and great deference is accorded the trial
court's decision . . . ." (Id. at p. 773.) "The role of the appellate court in reviewing the
sufficiency of the evidence is limited." (People v. Ceja (1993) 4 Cal. 4th 1134, 1138.)
We review the record in the light "most favorable to the judgment." (Ibid.) We do not
weigh the evidence or decide the credibility of the witnesses. (People v. Belcher (1961)
189 Cal. App. 2d 404, 407.)
"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.'" (People v. Martin (2001) 25
Cal. 4th 1180, 1184.) "All surrounding facts and circumstances may be considered in
determining knowing possession of narcotics . . . ." (People v. Schumacher (1967) 256
Cal. App. 2d 858, 865.)
"The inference of dominion and control is easily made when the contraband
is discovered in a place over which the defendant has general dominion and control: his
residence . . . , his automobile . . . , or his personal effects . . . ." (People v. Jenkins
(1979) 91 Cal. App. 3d 579, 584, citations omitted.) "Exclusive possession is not
necessary. A defendant does not avoid conviction if his right to exercise dominion and
control over the place where the contraband was located is shared with others." (People
v. Rushing (1989) 209 Cal. App. 3d 618, 622.) "[T]he fact that other persons had access to
the premises in which the narcotic was found does not negative a finding of joint
possession and control." (People v. Roberts (1964) 228 Cal. App. 2d 722, 726.)
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But "proof of opportunity of access to a place where narcotics are found,
without more, will not support a finding of unlawful possession." (People v. Redrick
(1961) 55 Cal. 2d 282, 285.)
Thomas contends the evidence only shows that he had access to a place
where narcotics were found. He claims the trial court could not draw a reasonable
inference to support its finding that he possessed the duffle bag that contained the
narcotics. We disagree.
From Gulley's testimony, the trial court could reasonably infer that there
were only two occupants of the bedroom--Gulley and Thomas, and that the duffle bag did
not belong to Gulley. Gulley testified he did not own a duffle bag. Thomas claimed
Gulley's testimony was self-serving and that Gulley lied about not owning that bag. But
the trial judge expressly found Gulley was credible. The trial court exclusively decides
the credibility of the witnesses. (People v. Belcher, supra, 189 Cal.App.2d at p. 407.)
From Prottung's testimony, the trial court could infer that the duffle bag
contained items for someone who was travelling and did not live there. Those items
included underwear, socks and a toothbrush. Thomas was visiting. He told Prottung that
he did not live there. Gulley said Thomas had been there for "a day." Prottung testified
that the bag contained "an outfit that would be basically for one day." The trial court
accepted the prosecution's claim that "the only one who would need a duffle bag" would
be Thomas. The bag was "five to six feet away from where Mr. Thomas was laying."
Thomas was no stranger to narcotics. His history included a prior recent
conviction for transporting and selling a controlled substance. Burruel testified the duffle
bag contained "small baggies with the meth." There was a digital scale five to seven feet
from Thomas. Prottung testified the scale was small, lightweight, and "would easily fit
inside of that duffle bag." There was a "white residue" on the scale. Gulley testified that
he did not own that digital scale, and the trial court found that testimony credible.
Burruel testified that a probation officer also saw "a black replica handgun" inside a shoe
box "to the left of Mr. Thomas." It was "five to seven feet away" from him.
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Thomas cites to evidence that he claims supports his position. He views the
police investigation to be incomplete. He notes, among other things, that the prosecution
did not present any fingerprint or DNA evidence and that he denied owning the bag. But
at this stage, the issue is not whether some evidence favors the defense, it is only whether
substantial evidence supports the judgment. Thomas cites to the part of Gulley's
testimony where Gulley said other people visited the residence. But the trial court could
reasonably reject any inference that the duffle bag belonged to them because Gulley also
testified that those people did not "bring stuff to spend the night." We have reviewed
Thomas's remaining contentions and we conclude he has not shown error. The evidence
is sufficient.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Mark E. Windham, Judge
Superior Court County of Los Angeles
______________________________
Steven A. Brody, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, Seth McCutchen, Deputy Attorney
General, for Plaintiff and Respondent.
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