Filed 4/11/14 P. v. Nguyen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. DAVID KHOA NGUYEN, Defendant and Appellant. G0 48348 (Super. Ct. No. 11WF2920)

O P I N I O N

Appeal from a judgment of the Superior C ourt of Orange County, James
Edward Rogan, Judge. Affirmed.

Melanie K. Dorian, under appointment by the Court of Appeal, for
Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.2 David Khoa N guyen appeals from a judgment after a ju ry convicted him of possession of met hamphetamine for sale, furnishing methamphetamine , and maintaining a place for selling or using methamphetami ne. Nguyen argues insufficient evidence supports his conviction for f urnishing methamphetamine and the trial c ourt’s sentence
violated Penal C ode section 654. We disagre e and affirm the judgment.
FACTS
Detective s Robert Cortes, Do nald Farmer, and Pat Estes conducted a
multi

- day covert surveillance operation of Nguyen’s home at 13212 Partridge in Garden
Grove situated at the end of a cul

- de

- sac . All were members of the special investigations unit and exper ts in narcotics investigations.

On December 7, 2011 , Estes, the point person, saw six different ve hicles
arrive at the residence. One of the vehicles was a silver Honda Civic, driven by Kosal Kim, a man who had been the subject of previous surveillances and who officers
kne w from his booking photograp hs. Kim went inside the house.

On December 8, 201 1 , Farmer acted a s the point person on this day. At about 12:30 p.m., a gray Toyota Tundra arrived at the house. The occupant of the truck
went inside for about 2 0 minutes and then drove away. About two and one

- half hour s later, a white GMC truck drove into the cul

- de

- sac, turned, and stopped at the end of the
cul

- de

- sac, near where Farmer was located. A female Hispanic, later identified as Patricia Chavez, Nguyen’s girlfriend, exited the house, walked down the s treet, and got
into the truck. The male driver handed Chavez what appeared to be money, and she handed the man a small object. Chavez got out of the truck, walked home, retrieved the
mail from the mai lbox, and went inside. One hour later, a white Toyota C amry arrived at
the residence. A femal e Hispanic got out of the car, went inside for a short time, came

out o f the house, and drove away. About one and one

- half h our s later, a F ord Explorer (the SUV) arrived at the house. Severa l people got out of the SUV and went inside the3

residence. A li ttle later, a male Hispanic left the house, got into the SUV, and drove to a nearby smoke shop. The SUV returned to the residence. One hour later, a silver
Honda C ivic arrived at the residence. Kim got out of the car and entered the residence. About 15 minutes later, Kim exited the residence and walked to a Toyota Camry that had
arrived. Kim and the driver walked into the residence and back to the car where Kim spoke with someone in the car’s backseat. Kim returned to the residence. About
8:3 0 p.m., a dark colored BMW parked on the driveway. A male Hispanic exited the
house and walked t o the driver’s side of the BMW. After they spoke, the man went
inside the resi dence, and the BMW drove away.

On December 9, 2011 , Farmer again was the point person. About 1:50 p.m., Kim arrived in the silver Honda Civic a nd went inside with a package. He left the residence about five minutes later; he was not carrying anything. About 40 minutes later, the same gray Toyota Tu ndra as the day before arrived a t the residence. The driver went inside for a few minutes, came outside, and drove away. Two hours later, the same
SUV from the day before arrived at the residence. Several people again went inside the
residence and left about one hour l ater. While the occupants in the SUV were inside the residence, a silver Ford Mustang arrived at the residence. The driver went inside for a
few minu tes, came out, and drove away. Estes saw a green Chevrolet Impala arrive at the residence, its occupants go inside for a few minutes, leave the house, and drive away. 1

On December 13, 2011, at about 5:45 p.m., it was very dark in the front of
the residence

. Estes saw someone leave the residence and get into a white Toyota Camry. Officers, including Estes, followed the ca r. Estes could not see anyone other than the car’s driver. Officers followed the car to a hardware store where Estes saw Nguyen get out of the back seat

. Nguyen left the store and entered the car’s back seat. Officers followed the car. The lights of t he oncoming vehicles illuminated the Camry as

1 It is unclear from the record whether this occurred on December 9 or December 10.4

officers pursued the car. Estes could only see the driver’s silhoue tte, and he believed Nguyen was c rouched down in the back seat. W hen officers sto pped the car, Nguyen
was crouched down in the back seat. Of ficers found two met hamphetamine pipes in the

car. Cortes told Nguyen they had a search warrant to search his house, and Nguyen said Chavez was h ome and he gave them a key. Officers transported Nguyen to the police station

.

Officers executed the search warrant at Nguyen’s residence. Officers found Chavez and a home with only wood beams and no interior walls

. On a table, officers
found a b lack Colt .45 replica handgun. In an area that appeared to be an office, officers
fou n d a safe with a touch keypad. Chavez gave Estes a combination that did not unlock
the safe. Estes called the police station and obtaine d the combination from Nguyen. Officers found the following in the safe : (1) a Ziploc bag containing $115 in cash; (2 ) two Ziploc bags containing what was la ter determined to be methamphetamine; and
between 30 and 50 one

- inch resealable plastic bags. One of the bags contained 6 grams of methamphetamine and the other bag contained 5.5 grams of methamphetamine.
Officers also found a small Ziploc bag on the floor with what appeared to b e .4 grams of methamphetamine. In an area that appeared to be Nguyen’s room, officers found a small plastic bag containing .4 grams of what a ppeared to be methamphetamine. Officer s also
fo und a scale that appeared to be covered in a white residue. Finally, officers found methamphetamine smoki ng pipes throughout the house.

After advising Nguyen of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Cortes questioned him at th e police station

. We will provide the details of
the interview below.

An information charged Nguyen with possession for sale of a controlled substance, methamphetamine (Health & Saf. Code, § 11378) (count 1), sale or transportation of a controlled subst ance, methamphetamine (Health & Saf. Code,5

§ 11379, subd. (a)) (count 2), maintaining a place for selling or using controlled
sub stances, methamphetamine (Health & Saf. Code, § 11366) (count 3), and street terrorism (Pen. Code, § 186.22, subd. (a)) (count 4 ). The information alleged Nguyen committed these offenses on or about December 13, 2011. The information alleged Nguyen was previously convicted of violating Health and Safety C ode section 11378 (Pen. Code, § 1203.07, subd. (a)(11) ) , as to count 1. The information alleged he committed counts 1, 2, and 3 for the benefit of a criminal street gan g (Pen. Code, § 186.22, subd. (b )(1)). Finally, the information alleged he suffered two prior felony Health and Safety Code convictions (Health & Saf. Code, § 11370.2, subd. (c )), and two prior pris on terms (§ 667.5, subd. (b)).

At trial, the prosecutor offered the following testimony. Farmer testified concerning his background, training, and experience in narcotics investigations

. He had seen methamphetamine hundreds of times, made over 100 metha mphetamine related
arrests, made in excess of 20 methamphetamine for sales related arrests , and participated in over 100 surveillance operations

. He had spoken with methamphetamine sellers about
how the drug is packa ged and priced. He was familiar with the natu re of hand

- to

- hand drug sales. Farmer opined the residence in question was being used for drug sales based
on th e vehicle and foot traffic.

Estes also testified concerning his background, training, and experi ence in
narcotics investigations

. Estes detailed his training, including how narcotics are packaged, concealed, and sold. Estes stated he had participated in over 500 narcotics investigations, interviewed over 350 abusers and sellers, participated in ove r 100 narcotic search warrants, and written over 30 narcotics search warrants. He explained the factors relied on to determine whether a person sells methamphetamine are quantity, packaging, pay/owe sheets, scales, handguns, and high vehicle and foot traf fic. He opined people who use narcotics possess generally one

- half a gram to one gram because narcotics u sers are usually unemployed, buy only what they can afford, and use the drug immediately

.6

He added that if a person had more than one gram he would s uspect the person sold
narcotics and he would look for other fa ctors. He said a usable quantity of narcotics is any amount that you can manipulate with your fingers.

Estes explained there are street dealers, mid

- level dealers, and major drug cartels. Street dealers usually possess one and one

- half grams to 28 grams and on
average possess six or seven grams. Street dealers are not sophisticated and sell drugs
fr om the ir homes and are mobile. They usually use methamphetamine and and will use a portion of their profit to purchase more methamphetamine. They also pool money from
other people to purchase a large quantity and distribute the methamphetamine among the people . Some street level dealers use ru nners to distribute narcotics. Mid

- level dealers sell narcotics that are purer and have a direct con nection with the drug cartels. Mid

- level dealers are more sophisticated; they have lookouts, use runners who move the n arcotics, and have lawyers on retainer. Major drug cartels are involved in the manufacture, smuggling, and distribution of narcoti cs and are very sophisticated.

Estes stated the most common packaging on the street is small, resealable bagg ies one inch sq uare to one

- half inch square. He opined users who are not sellers would not possess mult iple small resealable baggies. Based on his background, training, experience, and surveillance, Estes opined the activity at the residence was co nsistent
with narcoti cs sales. He added the two large Ziploc bags of methamphetamine found in
the safe were “with out a doubt” there to be sold.

On cross

- examination, Estes agreed people trade m oney, sex, and work for drugs. On redirect examination, he said street level sellers will often smoke

m ethamphetamine with the buyer. Estes said it was “very seldom” he encountered a person who used two g rams of methamphetamine a day.7 Cortes testified concerning his interview with Nguyen. 2 Nguyen stated he
lived at the residenc e for three mont hs. Nguyen admitted the safe and its contents were his, and he claimed he used the plastic bags to put his methamphetamine in. Nguyen said he allowed people to come to his home and smoke methamphetamine and this was “possibly” the explana tion for the h eavy vehicle and foot traffic. He also admitted he would “trade” methamphetamine. He “may have” used “runners” to pur chase methamphetamine for him. His employment consisted of doing “odd jobs” for people, such as repair ing their cellular t elephones.

On cross

- examination, Cortes testified that Nguyen repeatedly denied selling methamphetamine. Nguyen claimed he used 3.5 gra ms of methamphetamine per day. Defense counsel explored the topic of Ngu yen “trading” methamphetamine. When
counsel inquired whether Nguyen said he performed work in exchange for methamphetamine, Cortes replied, “ No. That’s not what I meant.” Counsel asked, “[Y]ou are saying that he told you he traded metha mphetamine with other people?” Cortes responded, “Yes.” He a lso admitted he and his friends would combine their money and purchase methamphetamine together. On redirect examination, Cortes stated that based on his training and experience, 3.5 grams of methamphetamine is not for personal use, and he had never encou ntered any one who cla imed to use that much per day.
F orensic scientist Bill Edinger testified for the prosecution

. Pursuant to established crime lab procedures , Edinger testified one of the four b ags was determined
to be 4.859 grams of methamphetamine.

2 The interview was video and audio recorded. Cortes listened to the interview twice before he testified.8 Detective Matthew McLeod testified as a gang expert for the prosecution concerning Tiny Rascals criminal street gang and Nguyen’s active participation in the
gang

. The parties stipulated that in 2008 and 2011, Nguyen was convicted of a felony
that was not a crime of viol ence and was not a gang crime. Nguyen rested on the state of
the evidence.

As relevant here to count 2, the jury instructions and the prosecutor’s argument establish the basis for the offense was that Nguyen furnished methampheta mine. 3

T he jury convicted Nguyen of counts 1, 2 (furnishing a controlled
substance

- methamphetamine) , and 3 but could not reach a verdict on count 4 or the street terrorism enhancements. Pursuant to the prosecutor’s motion, the tr ial court dismissed

count 4, the street terrorism enhancements, and one of th e prior prison enhancements

. Nguyen admitted he suffered the other prior prison term and two prior felony Healt h and Safety Code convictions.

The trial court sentenced Nguyen to seven years in j ail as follows: the upper term of four years on count 2 and a consecutive term of three years for one of the Health and Safety Code prior convictions. The court imposed concurrent upper term sentences of three years on counts 1 and 3. The court struck the sent ences on the

rem aining prior Health and Safety C ode conviction and the prior prison term allegation.
DISCUSSION I. Sufficiency of the Evidence

- Count 2

Nguyen argues insufficient evidence supports his conviction f or count 2
beca use there was no evidence that on or about December 13, 2011, either he or anyone
on his be half was furnishing narcotics. We disagree.

3 In prosecuting count 1, possession of methamphetamine for sale, the district attorney focused on the methamphetamine off icers found in the safe.9 “ ‘ On appeal we 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

— from which a reasonable trier of fact could find the defendant gui lty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circu mstantial evidence. [Citation.]

“ Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, no t the appellate court which must be convinced of the defendant’ s g uilt beyond a reasonable doubt. ‘“ If the circumstances reaso nably justify the trier of fact’ s findings, the opinion of the reviewing court that the circumstances might also reasonably be re conciled with a contrary finding does not

warrant a reversal of the judgment.”’ [Citations.]” [Citation.] ‘“ Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’”’ [C i tation.] ” ( People v. Abi lez (2007) 41 Cal.4th 472, 504 ( Abilez ) .) Health and Safety Code section 11379, subdivision (a), in relevant part provides: “[E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance [as defined] . . . shall be punished by imprisonment . . . for a period of two, three, or four years. ” “Furnish” is defined as “to provide or supply with what is needed, useful, or desirable.” (Webster’s 3d New Internat. Dict. (1981) p. 923.) The prosecutor is not required to prove the offense occurred on the alleged date but rather that the
offense occurred reasonably close to the a lleged date . ( People v. Peyton (2009) 176 Cal.App.4th 642, 660 .)

Nguyen concedes a person may violate Health and Safety Code

s ection 11379 without selling narcotics ( People v. Fritz (1970) 11 Cal.App.3d 523, 526 [ defend ant gave drugs to undercover officer gratis ]), and without directly dealing with10

buyer/user ( People v. Taylor (1959) 52 Cal.2d 91, 94 [ defendant furnished drugs to buyer through a third party ]). He argues, however, there was no evidence that on December 7 through December 13 he furnished anyone with narcotics or that Chavez furnished narcotics on his behalf. He relies on the facts officers never saw him until December 13, and officers did not observe any hand

- to

- hand drug transactions on December 13. He adds that the other evidence demonstrates the methamphetamine officers found was strictly for his personal use. We disagree.

“ The corpus delicti rule requires the prosecution to prove that ‘the charged crime actually happened’ exclusive of the accused’ s extrajudicial statements. [Citation.] Only a ‘slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient.’ [Citations.] Such evidence need not point to defendant as the perpetrator. [Citation.]” ( Pe ople v. Ray (1996) 13 Cal.4th 313, 342.)

Here, Nguyen’s statements, the officers’ observations, and the expert testimony provided evidence from which the jury could reaso nably conclude Nguyen provided and supplied methamphetamine in December 2011

. Nguy en admitted he allowed people to come to his house and use methamphetamine. Over the course of three days, December 7, 8, and 9, officers observed approximately 17 vehicles arrive at Nguyen’s home, most of which stayed for a very short period of time befo re leaving.
Estes testified some street

- level dealer s use runners to distribute narcotics.

On December 8, Farmer saw Chavez walk out of the house and get into a white GMC truck that stopped at the end of the cul

- de

- sac. The male driver handed
Ch avez what looked like money, and Chavez handed the man a small object. Estes stated the most common packaging on the street is small, resealable baggies one inch square to

one

- half inch sqaure . Officers found between 30 and 50 of this type of bag in the safe that Nguyen admitted was his an d to which he knew the combination . Nguyen admitted he used runners, although he claimed it was to purchase drugs not furnish them. Contrary11

to Nguyen’s assertion otherwise, this evidence supports the conclusion Nguyen was inside the home and sending Chavez out to furnish drugs to others.

Additionally, Estes testified street

- level dealers combine money with other people to purchase a large quantity and distribute the methamphetamine to the people

. Nguyen admitted to Cortes he did this. N guyen also admitted he furnished methamphetamine with others. Although it was initially unclear what Cortes meant by traded, he clarified Nguyen told him that he trad ed methamphetamine with others. Based

o n Nguyen’s statements, t he heavy vehicle and foot traffic during the three days, Chavez’s conduct on December 8, and the methamphetamine and drug parap hernalia found in Nguyen’s home, it was certainly reasonable for the jury to conclude Nguyen provided and supplied, i.e. , furnish ed, others with methamphetamine. We decline Nguyen’s invitation to reweigh the evidence and substitute our judgment for the jury’s judgment to conclude he possessed the methamphetamine solely for personal use. ( Abile z, supra, 41 Cal.4th at p. 504.) Ther efore, sufficient evidence supports Nguyen’s
conviction for count 2.
II. Penal Code section 654

- Counts 1 & 2

Relying on Penal C ode section 654, Nguyen contends the trial court erred in imposing a concurrent three

- year term on count 1. Again, we disagree

.

Penal Code section 654 provides, in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished und er more than one provision.” The purpose of the statute is “to prevent multiple punishment for a single act or omission, even though
that act or omission violates more than one statute and thus c onstitutes mor e than one
crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impos e sentence for only one offense

— the

one ca rrying the highest punishment. [Citation.] ” ( People v. Liu (1996) 46 Cal.App.4th12

1119, 1135 , fn. omitted .) The section’ s protection extends to cases in which a defendant engages in a course of conduct t hat violates different statutes and comprises an indivisible course of conduct puni shable under separate statutes. ( People v. Harrison (1989) 48 Cal.3d 321, 335.) “M ultiple p unishment is permissible if appellant entertained multiple criminal objectives which were independent of and not m erely incidental to each
other. [Cit ation.] A de fendant’ s criminal objective is ‘determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any subst antial evidence to support it.’ [Citation.]” ( People v. Braz (199 7) 57 Cal.App.4th 1, 10.)

Here, substantial evidence support s the trial court’ s implicit fin ding Nguyen entertained multiple criminal objectives. As we explain above, there was sufficient evidence Nguyen furn ished methamphetamine to others when Chavez de livered narcotics to the man in the truck and when Nguyen admitted he “traded” m ethamphetamine (count 2). Additionally, there was sufficient evidence Nguyen intended to sell the two large bags of methamphetamine found in the safe because in addition to th e narcotics, officers found 30 to 50 small, resealable bags and cash (count 1).

Where, as here, each sale consumes only part of his inventory, Nguyen may be punished separately for the possession of his unsold narcotics. ( People v. Fusaro (1971) 18 Cal.A pp.3d 877, 894 , disapproved on another ground in People v. Brigham (197 9) 25 Cal .3d 283, 292 ; In re Adams (1975) 14 Cal.3d 629, 633 [“if a person sells only part of the narcotics he possesses, both the offenses of possession and sale may be punished, since possession of the excess unsold narcotics was not necessary to t he sale”]; People v. Goodall (1982) 131 Cal.App. 3d 129, 147.) The trial court therefore was not required to stay Nguyen’ s sentence on count 1.13 DISPOSITION The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

RYLAARSDAM, J.

MOORE, J.