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Filed 9/30/16 P. v. Salas CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

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THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN SALAS,

Defendant and Appellant.

C079324

(Super. Ct. No. 12F03953)

A jury convicted defendant Juan Salas of possessing methamphetamine for sale 

(Health & Saf. Code, § 11378), and the court found true the allegation that he had a prior 

conviction for the same offense (Health & Saf. Code, § 11370.2, subd. (a)). Sentenced to 

a split sentence of six years, including four years in custody and two years in mandatory 

supervision, defendant contends (1) there was insufficient evidence of constructive 

possession and (2) the suspended parole revocation restitution fine imposed under Penal 

Code section 1202.45 must be stricken because defendant’s sentence does not include a 

period of parole. The Attorney General concedes the fine was improper. We shall 

modify the judgment to strike the fine and affirm as modified.
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FACTUAL AND PROCEDURAL BACKGROUND

The Present Offense

Around 8:55 a.m. on June 6, 2012, law enforcement officers went to a duplex on 

Judah Street in Sacramento to conduct a search. The parties stipulated that the search 

was lawful and that the duplex was the home of defendant and codefendant Patricia 

Caviness.

After giving knock-notice at the front door for over two minutes without a 

response, the officers forced entry. They found Caviness standing in the hallway, 

halfway out of the bathroom. In a bedroom, they found a man and a woman asleep, along 

with a backpack and a purse.1 When the officers entered the master bedroom, they found 

defendant standing on the other side of the door.

Inside the bathroom, California Highway Patrol Officer Mario Galvez, the officer 

designated to maintain and document evidence at the scene, found a wet Tupperware 

container that appeared to have just been rinsed out. On the toilet seat rim and “toward 

the floor and bottom of the” toilet, Officer Galvez saw a powder that proved to be 

methamphetamine; it amounted to 0.72 gram. Based on the time it took the officers to 

gain entry, Caviness’s location when found, and the Tupperware container and 

methamphetamine in the bathroom, Galvez believed Caviness had flushed some amount 

of methamphetamine down the toilet.

On a coffee table in the living room, the officers found a Tupperware container 

holding two plastic bags containing a white crystal-like substance that later tested 

positive for methamphetamine; the larger bag weighed 25.3 grams, and the smaller bag 

weighed 2.02 grams. Also on the coffee table was a container holding two pipes for 

smoking methamphetamine. Nearby was a digital scale coated with a white residue. 

 

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 The officers found the man’s and woman’s personal property in the bedroom but did 

not find methamphetamine, pipes, or paraphernalia there.
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A purse found hanging on the living room wall contained credit cards and identification 

in Caviness’s name and $636 in cash. There was a video surveillance monitor in the 

living room and a security camera at the front of the duplex.

In the master bedroom, the officers found a methamphetamine smoking pipe on a 

shelf in a closet. They also found written materials on methamphetamine manufacturing 

in that bedroom and elsewhere in the duplex. They did not find methamphetamine or 

cash in the bedroom.

An expert on the possession of methamphetamine for sale testified that the average 

dose of methamphetamine taken by a typical user is one-tenth to one-quarter of a gram, 

and it would be rare for any user to take as much as one gram a day. Based on the 

quantity of methamphetamine found in the duplex, the presence of a digital scale, the 

presence of a security camera, and the amount of cash found in Caviness’s purse, the 

expert opined that the methamphetamine was possessed for sale.

The only witness called by the defense was Angela Caviness, the codefendant’s 

sister, who testified that the codefendant sometimes worked for Angela’s cleaning service 

and was paid in cash.

The Prior Conviction

Defendant and the prosecutor stipulated that on March 11, 2010, defendant 

pleaded no contest to possession of methamphetamine for sale. A police officer testified 

that on August 4, 2009, he and his partner responded to an address on Nighthawk Way in 

Sacramento, where they found Caviness exiting the garage and defendant inside it. On 

searching the garage, the officers found two bags of methamphetamine containing 

43 grams and 1.8 grams respectively, a surveillance monitor linked to a security camera 

at the front of the residence, a digital scale, and a spoon holding a crystalline substance; 

another scale was found inside the residence.
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The trial court instructed the jury it could consider this evidence in determining 

whether defendant knew the substance in the duplex was methamphetamine and whether 

he acted with the intent to sell.

DISCUSSION

I

Defendant contends there was insufficient evidence of constructive possession, the 

only theory of possession offered by the People. Therefore, according to defendant, his 

conviction must be reversed. We are not persuaded.

To prove possession of methamphetamine for sale, the prosecution had to show 

that defendant possessed a controlled substance, knew of its presence, knew that it was a 

controlled substance, intended to sell it at the time of possession, and possessed a usable 

amount. (Health & Saf. Code, § 11378; CALCRIM No. 2302.)

Possession may be actual or constructive. (People v. Rogers (1971) 5 Cal.3d 129, 

134.) Constructive possession of contraband does not require actual possession but does 

require that a person knowingly maintains control over the contraband or the right to 

control it; such possession may be established by circumstantial evidence, including the 

reasonable inferences to be drawn from such evidence. (People v. Williams (1971) 

5 Cal.3d 211, 215; People v. Barnes (1997) 57 Cal.App.4th 552, 555.) Where the 

contraband is found in a place that is immediately and exclusively accessible to the 

defendant and subject to his dominion and control, or to his joint dominion and control 

with another, possession may be imputed to the defendant. (Williams, at p. 215.) If the 

place is one over which the defendant has general dominion and control, such as his 

residence, the inference of dominion and control over the contraband is easily made. 

(People v. Jenkins (1979) 91 Cal.App.3d 579, 584.)

We review claims of insufficient evidence under the substantial evidence standard, 

construing the evidence, including the reasonable inferences from the evidence, most 

favorably to the judgment. If, applying this standard, we find sufficient substantial 
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evidence—that is, evidence which is reasonable, credible, and of solid value—to support 

the judgment, we may not reverse merely because another finding from the evidence was 

possible. (People v. Johnson (1980) 26 Cal.3d 557, 576-578; People v. Redmond (1969) 

71 Cal.2d 745, 755.)

Here, it was stipulated that the contraband was found in defendant and 

codefendant’s residence, a place where they shared dominion and control. Large 

quantities of methamphetamine—far more than a mere user would have on hand—were 

found in more than one room of the residence, along with other indicia of possession for 

both sale and use. The contraband was or had been stored in closed containers that could 

be presumed to belong to the permanent residents, defendant and codefendant. No 

evidence linked the contraband or the containers to the other persons found on the 

premises, who were not residents. Finally, the jury could consider defendant’s prior 

conviction for possessing methamphetamine for sale: although offered to prove 

knowledge and intent, those elements did not come into play until the jury had already 

determined that defendant possessed the contraband, and the fact that he had possessed 

such contraband for sale before under essentially identical circumstances created a 

powerful inference that he constructively possessed the contraband for sale on this 

occasion. Viewing the totality of the evidence in the light most favorable to the 

judgment, it was sufficient to prove defendant’s constructive possession of the 

contraband.

Defendant breaks down the evidence into two parts: the stipulation as to his 

residence and the remaining evidence. He then asserts that each part of the evidence, 

standing alone, was legally insufficient to prove constructive possession. But the jury 

was required to determine whether the evidence, considered as a whole, was sufficient. 

Therefore, defendant’s argument is misguided.

Defendant relies on several cases that he deems “instructive” or otherwise 

supportive of his argument. (People v. Harrington (1970) 2 Cal.3d 991; Armstrong v. 
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Superior Court (1990) 217 Cal.App.3d 535; People v. Johnson (1984) 158 Cal.App.3d 

850; People v. Glass (1975) 44 Cal.App.3d 772; People v. Stanford (1959) 

176 Cal.App.2d 388; People v. Bagley (1955) 133 Cal.App.2d 481.) So far as defendant 

relies on the facts of these cases, his reliance is unavailing because the sufficiency of the 

evidence in a case necessarily turns on the unique facts of that case. Therefore, we 

decline to go through the exercise of distinguishing defendant’s cases on their facts.

The rest of defendant’s argument consists simply of bald assertions that the 

evidence was lacking on some points he considers essential to proving constructive 

possession. At most, such assertions show that the jury could conceivably have reached a 

different verdict. That possibility does not justify reversing the verdict the jury actually 

reached. (People v. Johnson, supra, 26 Cal.3d at pp. 576-578; People v. Redmond, 

supra, 71 Cal.2d at p. 755.)

II

Defendant contends the $10,000 suspended restitution fine imposed by the trial 

court, to take effect if parole is revoked (Pen. Code, § 1202.45), must be stricken because 

his sentence does not include a period of parole. The Attorney General agrees. We agree 

with the parties.

At sentencing, the trial court imposed a $10,000 restitution fine under Penal Code

section 1202.4, subdivision (b) and a “second $10,000 restitution fine that will be stayed 

during the tenure of [defendant’s] mandatory supervision.” Both the original and the 

corrected abstract of judgment show this fine as a parole revocation fine under Penal 

Code section 1202.45.

Under the Criminal Justice Realignment Act of 2011, the offense of which 

defendant was convicted (Health & Saf. Code, § 11378) was no longer subject to a state 

prison term and therefore did not have a period of parole. (Pen. Code, § 1170, 

subd. (h)(6).) Defendant committed the present offense on June 6, 2012. At that time, 

Penal Code section 1202.45 did not provide for a parole revocation restitution fine for 
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prisoners subject to community supervision on release from custody, and to impose such 

a fine would violate ex post facto principles. (People v. Isaac (2014) 224 Cal.App.4th 

143, 147.) 

Effective January 1, 2013, the Legislature amended Penal Code section 1202.45 to 

provide for a suspended restitution fine in conjunction with a period of mandatory 

supervision. (§ 1202.45, subd. (b); Stats. 2012, ch. 762, § 1 (Sen. Bill 1210).) However, 

this provision is not retroactive. (People v. Isaac, supra, 224 Cal.App.4th at pp. 146-

148.) Therefore, even though the statute now provides for such a fine, it may not be 

imposed on defendant under these circumstances.

We order the “parole revocation” restitution fine stricken. (In re Sheena K. (2007) 

40 Cal.4th 875, 887.)

DISPOSITION

The fine imposed under Penal Code section 1202.45 is stricken. As modified, the 

judgment is affirmed.

 RAYE , P. J.

We concur:

 BLEASE , J.

 HOCH , J.