People v. Fogelman CA1/3 ( 2014 )

Filed 6/16/14 P. v. Fogelman CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v. A136610
YVONNE FOGLEMAN,
(San Mateo County
Defendant and Appellant. Super. Ct. No. SC074562A)
This is an appeal from judgment following appellant Yvonne Fogleman’s
conviction for possession of methamphetamine for sale. Appellant challenges this
judgment on the sole ground that the evidence was insufficient to establish the
methamphetamine found in her residence belonged to her. We reject this evidentiary
challenge and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 10, 2011, an information was filed charging appellant with one
count of possession of methamphetamine for sale in violation of Health and Safety Code
section 11378. Appellant waived her right to a jury trial, and a bench trial began May 21,
2012. The following evidence was presented at this trial.
A. The Prosecution’s Case.
On September 15, 2011, about one month before the crime charged in this case
was committed, several members of the San Mateo County Narcotics Task Force,
including Special Agents Luis Leyva and Lance Sandri and Sergeant Daniel Guiney of
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the San Mateo County Sheriff’s Office, began surveillance of the residence at 55 San
Benito Road in Brisbane (hereinafter, the residence). Acting on a tip, these officers were
on the lookout for a white Subaru owned by identified narcotics dealer Enrique Quintero,
who had told an undercover officer his supplier lived in Brisbane.
At about 2:30 p.m. the same day, the white Subaru arrived at the residence, and
the driver, later identified as Quintero, exited the vehicle holding a white plastic bag with
something inside. A woman, later identified as appellant and recognized by Sergeant
Guiney from prior drug investigations, came out of the residence to greet him. After
opening and closing the trunk, Quintero went inside the residence with appellant.
Between the time appellant and Quintero first entered the residence and the time
Quintero left in the Subaru with the same white plastic bag in the early evening, six
separate visitors came to the residence. First, at about 3:29 p.m., a white Ford pickup
parked in front of the residence. Appellant exited the house, approached the truck, and
spoke briefly to the occupants. About a minute later, the truck left and appellant went
back inside. Then, at about 3:49 p.m., a woman approached the residence on foot.
Appellant opened the door and appeared to engage in a hand-to-hand transaction with this
woman before she left a few minutes later. Next, at about 4:55 p.m., a black Volvo
arrived. Appellant came out of the residence, briefly approached the Volvo and made
contact with the occupant(s) before the Volvo drove off a few minutes later. Less than
five minutes later, at 4:58 p.m., another white Ford pickup arrived, this one with San
Francisco County tags. Appellant left the house and entered the pickup, which then
drove off only to return a few minutes later. At this point, appellant returned to the
residence and the pickup left. And, finally, at about 5:02 p.m., a blue Aerostar van
arrived. Appellant again came outside and briefly made contact with the occupant(s)
before the van drove away a few minutes later. Quintero then left at about 5:45 p.m.1
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Because the investigation was ongoing, the visitors were not detained. Quintero,
however, was trailed by Sergeant Guiney and Special Agent Leyva from the residence to
Gilroy, when they were instructed to end the surveillance.
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One month later, on October 14, 2011, Sergeant Guiney, California Highway
Patrol Officer Mark Schaukowitch, and other officers executed a search warrant at the
residence. When the officers first knocked on the front door, the owner of the residence,
Frank Christopher, responded. Within two minutes, the officers had handcuffed
Christopher and proceeded to the downstairs in-law unit, which Christopher stated was
rented by appellant and accessible only through a door in the backyard.
When no one answered the door at the in-law unit after 15 seconds, the officers
forced entry and found a naked man seated on the toilet. The officers ordered the man to
the ground. The man was identified as Steve Garcia, appellant’s boyfriend who
sometimes stayed at the residence. He requested permission to wipe himself before
leaving the toilet. The officers gave him permission, at which time they confirmed from
the toilet paper that Garcia had taken a bowel movement. Officers then searched the unit,
confirming no one but Garcia was present.2
Sergeant Guiney searched a closet in the in-law unit tightly packed with women’s
clothing. It also contained boxes and bags with additional clothing and other personal
items. In a woman’s rain jacket in the back left side of this closet, Officer Guiney found
in the left pocket 23 grams of methamphetamine in a clear plastic bag inside a makeup
bag, and in the right pocket 42 grams of methamphetamine in another clear plastic bag.
Also in the right pocket he found a digital scale and a glass pipe for smoking
methamphetamines that appeared to have been used.
On top of a dresser, officers found small amounts of methamphetamines (between
a half gram and one gram) in clear plastic bags. They also found a straw cut at an angle to
facilitate drug ingestion. Finally, they found evidence of appellant’s residence in the unit,
including a DMV document and Fastrack bill with her name.
Both Special Agent Sandri and Sergeant Guiney also offered expert testimony at
trial. Special Agent Sandri testified that, in his opinion, appellant was engaging in hand-
to-hand narcotics sales with the visitors to the residence on September 15, 2011. In
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Appellant had left for work early that morning.
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particular, he noted that, in his experience, drug dealers will enter into vehicles and drive
off for short periods of time to conduct narcotics sales.
Sergeant Guiney added that, in his opinion, the presence in the in-law unit of a
large quantity of methamphetamines and a digital scale indicated possession of narcotics
for sale on October 14, 2011. He also acknowledged that the presence of the straw,
smaller amounts of methamphetamines on the dresser, and the glass pipe were consistent
with some portion of these narcotics being possessed for personal use. Finally, Sergeant
Guiney agreed with Special Agent Sandri that appellant was engaged in hand-to-hand
narcotics sales on September 15, 2011, with narcotics supplied by Quintera. He testified
without any defense objection that appellant’s interactions with the six visitors to the
residence on September 15 “corroborates or enhances my opinion [that the
methamphetamine seized from her rain jacket on October 14 was intended for sale]
because we had a report of a narcotics dealer arrive [at] 55 San Benito which we
observed, then observed what appeared to be at least six hand-to-hand narcotics
transactions . . . .”
Finally, Christopher, the owner of the residence, testified that he was a friend of
appellant, and had allowed her to move into his in-law unit about a year and a half to two
years ago when she needed a place to live. He explained she was in the process of
moving out, and would be completely moved out within a few days. Christopher
acknowledged a prior drug possession conviction, but denied having any drugs at his
residence. Christopher had seen appellant wearing the rain jacket in which the narcotics
had been found.
B. The Defense Case.
Michael Johnson, appellant’s longtime friend and the owner of the white Ford
pickup with San Francisco County tags that came to the residence on September 15,
2011, testified on her behalf. He was employed by the City and County of San Francisco
as an electrical lineman. He explained that, on September 15, 2011, he picked up
appellant and drove her to a nearby store for cigarettes. He added that it was not unusual
in a small town like Brisbane for people to pull over to chat with acquaintances.
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Similarly, Christopher described appellant on cross-examination as a “social
butterfly” who often chatted with acquaintances. She had lived in Brisbane a long time
and knew many people. However, he acknowledged that it was abnormal even for
appellant to have six people show up separately at her residence within hours of each
other on the same afternoon.
Finally, defense counsel offered the preliminary hearing testimony of Special
Agent Koti Fakava, who described hearing Garcia moving around in the in-law unit while
officers were still upstairs with Christopher. Special Agent Fakava also testified that two
to three minutes elapsed from when the officers arrived at Christopher’s front door to
when they entered the in-law unit.
C. The Trial Court’s Judgment.
Upon completion of trial, the trial court found appellant guilty as charged. On
September 17, 2012, the trial court suspended imposition of a sentence and placed
appellant on probation for three years with the condition that she serve 120 days in jail.
This timely appeal followed.
DISCUSSION
Appellant’s sole challenge is to the sufficiency of the evidence to support her
conviction for possession of methamphetamines for sale. “In order to sustain a
conviction of possession of narcotics or a dangerous drug for sale, the prosecution must
show that the accused had control over the contraband with knowledge of its character,
and that such possession was for the purpose of sale. [Citations.] On review, the sole
question is whether there is substantial evidence to sustain the implied finding that each
of the foregoing elements has been established. [Citations.] It is established that
possession for the purpose of sale may be established by circumstantial evidence, and that
the quality and value of the contraband held, particularly when viewed in the light of
expert testimony, are factors which may indicate that the contraband was held for the
purpose of sale rather than individual use. [Citations.]” (People v. Shipstead (1971) 19
Cal.App.3d 58, 77.)
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“Substantial evidence is defined as evidence that is reasonable, credible, and of
solid value. (People v. Elliot (2005) 37 Cal.4th 453, 466 [35 Cal.Rptr.3d 759, 122 P.3d
968].) A reviewing court must accept logical inferences the jury might have drawn from
the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396 [133
Cal.Rptr.2d 561, 68 P.3d 1].) ‘ “A reasonable inference, however, “may not be based on
suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or
guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather
than . . . a mere speculation as to probabilities without evidence.’ ” [Citations.]’
[Citation].)” (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417. See also
People v. White (1969) 71 Cal.2d 80, 83 [“elements may be established by circumstantial
evidence and any reasonable inferences drawn from such evidence”].)
Here, appellant challenges the sufficiency of the evidence supporting the trial
court’s finding that she constructively possessed, either individually or jointly, the
methamphetamines found in the rain jacket in the in-law unit closet. “Possession may be
either actual or constructive; the latter is established by showing that defendant
maintained some control or right to control over contraband in the physical possession of
another.” (People v. Rogers (1971) 5 Cal.3d 129, 134.) Accordingly, “[t]o establish
constructive possession, the prosecution must prove a defendant knowingly exercised a
right to control the prohibited item, either directly or through another person. ([Citation];
People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [85 Cal.Rptr.2d 690] [defendant need
not physically have the weapon on his person; constructive possession established where
a person knowingly exercised dominion and control over an item].) Possession may be
shared with others. [Citation.] But mere proximity to the weapon, standing alone, is not
sufficient evidence of possession.” (People v. Sifuentes, supra, 195 Cal.App.4th at p.
1417.)
We conclude the evidence in this case is sufficient to establish appellant had
constructive possession, either individually or jointly, of the narcotics seized from the in-
law unit at 55 San Benito Road in Brisbane on October 14, 2011. Among other relevant
evidence, the record reflects a total of 65 grams of methamphetamines was found in a
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closet full of appellant’s possessions in a rental unit in which she had been living for at
least a year and a half to two years. The record further reflects these narcotics were
found in the left and right pockets of a rain jacket that, according to appellant’s longtime
friend, Christopher, belonged to her. In addition, elsewhere in the in-law unit were other
indicia of appellant’s ongoing control of the residence, including a DMV document and
Fastrack bill containing her identity.
To dispute this evidence of her constructive possession of the seized narcotics,
appellant argues that her boyfriend, Garcia, was the only person present at the in-law unit
during the police search and had the opportunity to hide the drugs in the rain jacket in the
closet before the officers arrived. However, the record also reflects that the officers
found Garcia naked on the toilet when they forcibly entered the unit, which undermines
appellant’s theory that he could have hidden the drugs in the time period after the officers
knocked on the front door of the residence, but before they forced entry into the
downstairs in-law unit. The officers consistently testified that only two to three minutes
elapsed from the time they knocked on the front door until the time they entered the in-
law unit. The officers also confirmed Garcia had been in the process of having a bowel
movement when they entered.3 Further, Officer Guiney testified that the closet where the
narcotics were found did not appear rifled prior to their search, despite being tightly
packed with women’s clothes and other possessions. Thus, while it is entirely possible
Garcia jointly possessed the narcotics, the record nonetheless permits the inference that
appellant was not just aware of, but in control of, the narcotics hidden in her rain jacket in
the back of the closet in her rental unit when she left for work earlier that day. (People v.
Williams (1971) 5 Cal.3d 211, 215 [“Constructive possession occurs when the accused
maintains control or a right to control the contraband; possession may be imputed when
the contraband is found in a place which is immediately and exclusively accessible to the
accused and subject to his dominion and control, or to the joint dominion and control of
3
As stated above, Garcia asked permission from the officers to wipe himself before
complying with their demand to get on the ground. Garcia’s request was granted and, at
that time, an officer observed fecal matter on the toilet paper.
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the accused and another”]; see also People v. Magana (1979) 95 Cal.App.3d 453, 464
[“the narcotic, cocaine, was found concealed in a light fixture of the master bedroom of
the premises of defendant and his wife, Elodia. The cocaine, the cutting substance and a
substantial sum of money — all located in one hidden place in Alfonso’s master bedroom
— constitute circumstantial evidence sufficient to support the trial judge’s finding that
defendant Alfonso was a joint possessor of these items along with his wife, Elodia”].)
Finally, we acknowledge appellant’s argument that the evidence from Sergeant
Guiney and Special Agent Sandi regarding her September 15, 2011 interactions with
various visitors to the residence does not establish that she possessed the
methamphetamines found a month later in the rain jacket. Perhaps not. However, the
identified evidence is nonetheless relevant to the more general issue of whether she
possessed the narcotics seized on October 14, 2011 for the purpose of sale rather than for
personal use. As these law enforcement experts opined, the fact that appellant engaged in
conduct consistent with hand-to-hand narcotics sales on September 15, 2011 is one
circumstance to be considered, in addition to the large quantity of narcotics and the
presence of a digital scale in her rain jacket, in determining that she intended to sell the
narcotics seized on October 14, 2011.
DISPOSITION
The judgment is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
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