Filed 7/24/14 P. v. Hannigan CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
LINA DELILAH HANNIGAN,
Defendant and Appellant. B252004
(Los Angeles County Super. Ct. No. BA403165)

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Affirmed. Allison H. Ting, under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Scott A. Taryle and David A. Wildman, Deputy Attorn eys General, for Plaintiff and Respondent.2 Appellant Lina Delilah Hanni gan was convicted, following a jury trial, of one count of possession for sale of methamphetamine in violation of Hea lth and Safety Code section 11378, one count of sale or trans portation of methamphetamine in violation of section 11379 and one count of conspiracy to commit sale or transportation of methamphetamine in violation of Penal Code section 182, subdivision (a)(1). 1 The jury found true the allegation as to all thr ee counts that the substance containing methamphetamine exceeded four kilograms within the meaning of Health and Safety Code section 11370.4, subdivis ion (b)(2). The trial court sentenced appellant to a total term of seven years in state prison, consisting of the low term of tw o years for the Health and Safety Code section 11379 conviction plus five years fo r the section 11370.4 weight allegation. The court stayed sentence on th e remaining counts pursuant to Penal Code
section 654. Appellant appeals from the judgment of conviction, contending there is insufficient evidence to support her conviction. She further contends the trial court erred in failing to instruct the jury that “trans portation” means “transportation for the purpose of sale.” Appellant also requests that this Court review the sealed transcript of the in camera hearing on her Pitchess 2 motion. We affirm the judgment of conviction.

Facts Around noon on September 28, 2012, Lilah Bazurto drove from her house in Duarte to appellant’s house in Glendora with about ten pounds of methamphetamine.

1 The jury found true the allegation that co-conspirator Juan Ro cha agreed to sell 10 pounds of methamphetamine for $6,800 a pound , an overt act. The jury made no finding on the second specified overt act, which a llegedly occurred when co-conspirators appellant, Rocha, Lilah Bazurto and Juan Lopez “flashed” ten pounds of methamphetamine for a buyer to see at a gas st ation. Appellant appears to understand the jury’s failure to check either the True or Not True option as the equivalent of a not true finding. We do not agree. The verdict form stated that the ju ry found “at least one of the following overt acts to be true[.] ” Since the jury found the fi rst overt act true, the jury may simply have never considered th e second alleged act of flashing.

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.3 Appellant and Bazurto are sist ers. At appellant’s house, Bazurto transferred a white handbag containing the methamphetamine dire ctly from the vehicle she arrived in to appellant’s Nissan Xterra. Appellant drove Bazurto in the Xterra to Tacos Del Chino in South El Monte, about a fifteen to twenty minut e drive. There, they met Jo se Lopez and Juan Rocha. According to Bazurto and Rocha, there was a deal to sell the ten pounds of methamphetamine for $68,000. Rocha had been in structed by Pelon, a drug dealer, to
meet two women in a black Xterra at Taco s Del Chino. The women would pick up Lopez and Rocha. Bazurto wa s supposed to take the money from the sale to a former boyfriend who was involved in the transaction. Bazurto, Rocha and Lopez all pled no contest to one count of transporting metham phetamine, and all testified as prosecution witnesses at appellant’s trial.
Rocha told Bazurto th at the buyer was at a gas stati on. Rocha and Lopez got into the Xterra, and appellant drove to the USA ga s station, which was several blocks away. 3 At the gas station, Rocha and Lopez got ou t of the Xterra and talked to the buyer.
Rocha then returned to the Xte rra and told Bazurto that the buyer wanted to see the drugs. The buyer then came over to th e Xterra, and spoke w ith Bazurto in Spanish. Bazurto did not want to show the buyer th e drugs, which according to he r were zipped up in a white bag under the dashboard. A ccording to Rocha’s trial te stimony, however, Bazurto and Lopez went to the back of the Xterra, ope ned the hatch, took out the white bag and showed the methamphetamine to the buyer. 4 The buyer said he was going to get the

money.

3 Lopez testified that he had never met appellant or Bazurto before September 28, and he merely asked them to give him a ride home. They went fi rst to Karina’s Tacos (next to the gas station) because appellant and Bazurto wanted to eat there.

4 Respondent contends Rocha testified that appellant also went to the rear of the Xterra. Rocha was asked: “And did you see [appellant], Mi ss Bazurto and Mr. Lopez go to the back of the Xterra, s ee Miss Bazurto open the hatch and take out the white bag and shoe the methamphetamine to the buyer?” Roch a replied: “Yes, but it wasn’t her. It was Miss Bazurto, Lopez and Miss Ba zurto opened up the bag lik e this. (Indicating).”4 Appellant moved the Xterra next door to Karina’s Tacos. She and Bazurto went inside to get something to eat. About thir ty minutes later, Rocha and Lopez came to Karina’s and said that the buyer “was acting fu nny.” Bazurto said, “Well, forget it, forget it.” Bazurto asked appellant if they coul d take Lopez and Rocha back to Tacos Del Chino, and appellant agreed. Once the Xterra left the parking lot, it was stopped by law enforcement. According to Los Angeles Co unty Sheriff’s Detective Ro ger Ballesteros, who initiated the stop, appellant was driving, Bazurto wa s in the front passenger seat and Lopez and
Rocha were in the rear seat . Detective Ballesteros sa w a Ziploc bag containing a substance resembling methamphetamine sticking out of a white handbag on the passenger side floorboard. The people in the Xterra al l appeared nervous. Once the occupants had been removed from the Xterra, Detective Ba llesteros looked inside the white handbag and saw ten bags of the substance resemb ling methamphetamine. Subsequent tests confirmed that all the bags contained meth amphetamine, with a combined weight of 4,456 grams. Bazurto falsely told police that she knew nothing about the two men in the Xterra and nothing about the methamphetamine. She sa id the men walked up to the vehicle and asked for a ride. One was carrying a white bag. Appellant told Detective Ballesteros that she and Bazurto had gone to Ka rina’s Tacos to eat and had met Lopez and Rocha there.
She said the two men asked for a ride. Rocha was carrying the bag, a nd originally got in
the front seat but then moved to the b ack, leaving his bag on the front floor. Lopez first told Detective Ballesteros that he met appellant and Bazurto at
Karina’s Tacos. Then he said he had seen them at Tacos Del Chino and approached them
because he found Bazurto attrac tive. Lopez said that when he got into the Xterra, he noticed a white bag and saw that it containe d methamphetamine. According to Lopez,

Detective Ballesteros did testify that Rocha told him that all four occupants of the Xterra went to the rear, including appellant.5 when the Xterra was being pu lled over by police, appellant said, “We’re screwed,” or something similar.
Rocha told Detective Ballesteros that he was the middle man in a deal involving ten pounds of methamphetamine being sold for $68,000. Rocha’s statement to the
detective differed somewhat from his later tria l testimony. Rocha told the detective that he and Lopez were going to ke ep $5,000 and appellant and B azurto would keep the rest. Rocha said they met the buyer at the gas station. All four occupants of the Xterra got out, with Bazurto carrying the white handbag. A ll four of the occupants and the buyer went to the rear of the Xterra to show the buyer the drugs. The buyer wanted to change the location of the deal, but Lopez contacted th e supplier, who said that the deal was not going to happen. Los Angeles County Sheriff’s Detec tive Barry Fitchew was part of the investigation in his case, and qualified as an expert in narcotics usage and sales. He observed the occupants of the Xterra as they le ft the gas station, and saw no sign that they were under the influence of methamphetamine . According to Detective Fitchew, ten pounds of methamphetamine would contain ab out 45,000 doses, and there is no reason other than sales that a person would possess such a large amount of the drug. In the detective’s opinion, during a major narcotic s transaction such as one involving ten pounds of methamphetamine, the people invol ved in the transaction would not let any uninvolved person get close to the drugs. In her defense, appellant presented the testimony of Los Angeles County Sherriff’s Deputy Dian Halthon, Detectiv e’s Ballesteros’s partner. De puty Halthon ap proached the passenger side of the Xterra after the traffi c stop. He did not see a bag on the front
floorboard. He did not see the bag until everyone got out of the vehi cle and Deputy Ballesteros brought the bag out. Appellant’s private investigator, Naum Ware , testified that he had determined that with the white bag zipped shut, no methamphetamine was visible.6 Discussion 1. Sufficiency of the evidence Appellant contends there is insufficient evidence to support her conviction for possession for sale of the methamphetamine because the evidence sh owed that Bazurto
had exclusive dominion and control over th e methamphetamine. She further contends that a conviction unsupported by substantial evidence violates her federal constitutional rights to due process and a jury trial and also her state constitutional right to due process.
There is sufficient evid ence to support appellant’s conviction. “‘In reviewing a challenge to the sufficien cy of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it disclo ses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasona ble doubt.” [Citations.] We presume in support of the judgment the existence of ever y fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of revi ew applies to cases in which the prosecution relies primarily on circumstantial evidence a nd to special circumstance allegations. [Citation.] “[I]f the circumst ances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Cita tion.]’ We do not reweigh evidence or
reevaluate a witness’s cr edibility. [Citations.]” ( People v. Nelson (2011) 51 Cal.4th 198, 210.)
“The essential elements of the offens e of unlawful possession of a controlled substance are actual or constructive possession in an amount sufficient to be used as a controlled substance with knowledge of its presence and its nature as a controlled substance. The elements may be proven by circumstantial eviden ce. [Citations.]” ( People v. Rushing (1989) 209 Cal.App.3d 618, 621-622.) “Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusiv e possession is not necessary.” ( People v. Rushing, supra,7 209 Cal.App.3d at p. 622.) Constructive possession “may be imputed when the contraband is found in a place which is imme diately and exclusively accessible to the accused and subject to his domini on and control, or to the joint dominion and control of the accused and another. [Citation.]” ( People v. Williams (1971) 5 Cal. 3d 211, 215.)
It is well established that construc tive possession may be found when the
contraband is found in the defendant’s car in a location that is read ily accessible to the defendant, even t hough there are multiple passenge rs in the car. (See,. e.g., People v.
Busch (2010) 187 Cal.App.4th 150 , 161-162 [contraband found in car’s central console]; People v. Newman (1971) 5 Cal.3d 48, 53 [contraband found in envelope on the tape
deck below the dash board]; see also People v. Austin (1994) 23 Cal.Ap p.4th 1596, 1609 [defendants who took key from car’s driver and opened the trunk where the contraband was stored was in constructive possession of the contraband because it was immediately accessible to them in a place under their control].) Appellant contends the evidence show s that the methamphetamine remained inside Bazurto’s personal handbag and Bazu rto maintained exclusive dominion and control over that handbag, keeping it on th e passenger floorboard in front of her. Appellant adds that she was carrying her own personal handbag which did not have contraband inside, and that she never acknowledged that she was aware of the methamphetamine in Bazurto’s handbag. There is evidence showing that the han dbag containing the methamphetamine was not Bazurto’s personal handbag. Deputy Halthon testified that there were three handbags in the vehicle when it was stopped. One was appellant’s blac k handbag, one was Bazurto’s personal handbag and one was the purse containing the methamphetamine. Although a separate handbag for the metham phetamine is not a prerequisite to a reasonable inference of joint constructive possession, it certainly supports such an
inference.
There is also evidence sh owing that a plastic bag of the methamphetamine was sticking out of the handbag and its contents were visible. Lopez told police that the methamphetamine was visible when he got into the car, and that it appe ared to be a large8 quantity of methamphetamine. Deputy Ballesteros testifie d that the methamphetamine was visible when he removed the handbag from the car. Thus, it is reasonable to infer that the methamphetamine was visible to appellant. Further, Ro cha told Detective Ballesteros that appellant was present at the rear of the Xterra wh en Bazurto showed the methamphetamine to the buyer, further suppor ting an inference that appellant was aware of the presence of the methamphetamine in he r vehicle, and also supporting an inference that she was a particip ant in the drug deal. More importantly, there is evidence that Bazurto di d not exercise exclusive dominion and control over the handbag contai ning the methamphetamine. According to Bazurto, she twice left the handbag containing the methamphetamine in appellant’s Xterra. When Bazurto first arrived at appella nt’s residence, she left the handbag in the
Xterra while she went inside the house. Late r, at the gas station, Bazurto left the handbag
in the Xterra while she went into Katrina’s Taco s to eat. The Xt erra belonged to appellant and she drove it during the entire cour se of events. Clearly, appellant had the right to exercise dominion and control over the Xt erra and did exercise that control. Both times that Bazurto left the methamphetamine unattended in the Xterra, appellant could
have driven off with the me thamphetamine and without Bazu rto. This circumstance alone creates an inference that appellant had joint possession of the methamphetamine. ( People v. Rushing, supra, 209 Cal.App.3d at p. 622 [possession includes the right to exercise dominion and control over the place where the contraband was found].) Further, according to Lopez, Bazurto left the hand bag containing the methamphetamine on the front passenger seat floor board when she moved to the back seat and Lopez got into the front seat. Appellant remained in the driver’s seat. This circumstance supports the an inference that appellant as well as Bazurto ha d the right to exercise dominion and control over the methamphetamine. In addition, appellant made a number of fa lse statements to po lice, which indicated consciousness of guilt, and wh ich could show not only her knowledge of the presence of the methamphetamine, but her right to control the methamphetamine. (See People v. Traylor (1972) 23 Cal.App.3d 3 23, 334 [defendant’s flight from the seat where9 contraband was concealed wa s “evidence of defendant’s guilt, tending to show both dominion and control and knowledge.”].)
Since we have determined “that a rationa l trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause
of the United States Constitution is satisfied [citation] as is the due process clause of article I, section 15 of the California Constitution.” ( People v. Osband (1996) 13 Cal.4th 622, 690.)

2. Health and Safety Code section 11379 Appellant contends, and respondent agrees, that she is entitled to the benefit of an
amendment to Health and Safe ty Code section 11379 which adds a requirement that the transportation of a controlled substance be for the specific purpos e of sale. This amendment became effective after appellant’s tr ial in this matter, but appellant contends, and respondent agrees, that the amendment must be applied retroactively to cases that are not yet final. We agree that the amendment must be applied retroactively. We find no benefit to appellant from the app lication of the amended statute.

a. Retroactivity Effective January 1, 2014, section 11379 was amended to add subdivision (c), which states, “For purposes of this section, ‘t ransports’ means to transport for sale.” The legislative history of the amendment shows th at the Legislature intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for non-sales purposes such as personal use. (S ee Conc. in Sen. Amend. To Assem. Bill No. 721 (2013 Reg. Sess.) June 27 , 2013, p. 3 [“This bill makes it expressly clear that a person charged with the felony must be in posse ssion of drugs with th e intent to sell. Under AB 721, a person in possession of dr ugs ONLY for personal use would remain eligible for drug possession charges. Howeve r, personal use of drugs would no longer be eligible for a SECOND felony charge for transportation.”].)10 Absent a saving clause, an amended st atute may operate retrospectively to a defendant whose appeal is not yet final. ( People v. Wright (2006) 40 Cal.4th 81, 90; People v. Babylon (1985) 39 Cal.3d 719, 722.) Although there is a strong presumption that statutes a pply prospectively, there are exceptions to that rule. Wher e an amendment to a statute mitigates punishment and there is no saving clause, the amendment will operate retrospectively to lighten the punishment previously imposed. ( In re Estrada (1965) 63 Cal.2d 740, 748 .) Further, an amendment completely repealing criminal sanctions for an act applies retrospectively to criminal convictions which have not yet become final. ( People v. Rossi (1976) 18 Cal.3d 295, 301.) There is no saving clause in the am endment to section 11379. Appellant’s conviction is not yet final. Although this case does not pr esent precisely the situation
before the Court in Estrada or Rossi , the effect of the amendmen t to section 11379 is to remove sanctions for the transportation of dr ugs for personal use, and potentially reduce the punishment for a defendant for such transportation. We agree with respondent that the reasoning and principles of Estrada and Rossi dictate that the amendment to section 11379 should apply to appellant.

b. Application
The amendment to secti on 11379 requires the pros ecution to prove that a defendant transported a controlled substance fo r the purpose of sale, and thus effectively adds an element to the offense. Under gene ral principles of the Sixth and Fourteenth
Amendment of the United Stat es Constitution, a criminal de fendant is entitled to have a
trier of fact determine all elements of a charged offense beyond a reasonable doubt. ( United States v. Gaudin (1995) 515 U.S. 506, 510.) Since appellant’s trial occurred before the effective date of the amendment, no jury has found that appellant transported the methamphetamine for purposes of sale. When a jury does not determ ine all elements of a charge d offense because the jury instructions omitted an element of the charge d offense, the result is assessed under the11 standard set forth in Chapman v. California (1967) 386 U.S. 18. ( People v. Flood (1998) 18 Cal.4th 470, 491.) Under the Chapman test, the reviewing court asks if it is clear “‘beyond a reasonable doubt th at the omitted element was unc ontested and supported by overwhelming evidence.’” ( People v. Mil (2012) 53 Cal.4th 400, 417.) The court may
also consider whether the absence of an el ement in one instruc tion was remedied by another instruction and whether the jury nece ssarily decided the factual question posed by the omitted element adversely to the appellant under other properly given instructions. ( People v. Burgener (1986) 41 Cal.3d 505, 5 39 [other instruction]; People v. Chatman (2006) 38 Cal.4th 344, 392 [necessarily deci ded].) We apply this same standard of review when the jury was not instructed on an element beca use trial occurred before the
effective date of the amendm ent adding the element. (See People v. Wright, supra , 40 Cal.4th at pp. 98-99 [applying instructional erro r analysis to analyze affect of retroactive application of affirmative defense to defendant].) Here, the jury was instruct ed that in order to find ap pellant guilty of the count 1 charge of possession for sale of methampheta mine, the jury was required to find that appellant possessed the methamphetamine for purposes of sale. The jury did find appellant guilty on that count, and thus fo und that she possessed the methamphetamine for purposes of sale. Further, the jury found that the amount of methamphetamine exceeded four kilograms. There was uncontes ted expert testimony th at this amount of methamphetamine amounted to about 45,000 doses and thus so far exceeded an amount appropriate for personal use that it must have been intended for sale. There was no evidence that appellant possessed the methamphe tamine at any time other than the period when she was driving it around in her vehicl e. Thus, logically she must have been transporting it for purposes of sale. Appella nt’s only defense was th at she did not know the methamphetamine was in her vehicle, a de fense that the jury rejected. Thus, we conclude beyond a reasonable doubt that a ppellant would not have received a more a more favorable result if the ju ry in this case had been in structed on the element of transportation for purposes of sale and woul d not receive a favorable outcome if this12 charge were retried and the jury instructed on the amendment to Health and Safety Code
section 11379.

3. Pitchess motion Appellant requests that we independently review the sealed transcript of the in camera hearing on his Pitchess motion for discovery of peace officer personnel records. The trial court granted appellant’s mo tion for discovery of complaints of dishonesty by Deputies Ballester os and Rosado. On February 8, 2013, the court
conducted an in cam era review of the deputies’ records and determined that there were no
discoverable records. When requested to do so by an appellant, we independently review the transcript
of the trial court’s in camera Pitchess hearing to determine whether the trial court disclosed all relevant complaints. ( People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have reviewed the transcript of the in camera hearing and conclude that the trial court did not abuse its discretion in ruling that there were no relevant records to disclose to appellant. (See People v. Hughes (2002) 27 Cal.4th 287, 330 [court’s ruling is reviewed for abuse of discretion].)13 Disposition The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MINK, J. 

We concur:

TURNER, P.J.

KRIEGLER, J.

 Retired judge of the Los Angeles Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.