Filed 11/9/15 P. v. Carter CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. JANEL MARIE CARTER, Defendant and Appellant. F068479 (Super. Ct. No s

. VCF271588A/VCF287052)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Holly Jackson , under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

- ooOoo

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* Before Gomes, Acting P.J., Kane, J. and Peña, J.2

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Appellant Janel Marie Carter pled no contest in case No. VCF 271588A to second degree robbery (count 1/Pen. Code, § 211) , 1 transportation of methamphetamine (count 6/Health & Saf. Code, § 1137 9 , subd. (a)), and possession for sale of a controlled substance (count 7/Health & Saf. Code, § 11378), and she admitted an allegation in count
1 tha t a principal was armed during the commission of the offe nse charged in that count ( § 12022, subd. (a)(1)). In case No. VCF287052 , Carter pled no contest to transportation of methamphetamine (count 1) , and driving with a suspended license with a prior conviction (count 2/Veh. Code, § 14601.1, subd. (a)) , and she admitted a prior conviction enhancement in count 1 (Health & Sa f . Code, § 11370.2, subd. (c)) and allegations that she had a prior convic tion within the meaning of the t h re e s trikes law ( § 667, subds. (b)

- (i)). On appeal, Carter contends the court abused its discretion when it found that she violated her probation in case No. VCF27 1 588A and sentenced her to prison. We affirm.
FACTS On August 7, 2012, Carter drove Joshua Ashmun and Barry Dantzler to a liqu or store in Visalia, California and waited outside while the men entered the store and used a rifle to rob the clerk. Shortly after the robbery, officers conducted a traffic stop on a car driven by Carter with Ashmun an d Dantzler as passengers. A record check disclosed that Carter was unlicensed. Officers searched Carter’s purse and found a scale and three baggies containing methamphetamine (case No. VCF27 1 588A). On August 9, 2012, the district attorney f iled an info rmation in case
No. VCF27 1 588A charging Carter with the three counts and enhancement she pled to in
that case. On August 29, 2012, Carter entered her plea in case No. VCF271588A in exchange for an indicated sentence of felony probation with a suspended s even

- year

1 All statutory references are to the Penal Code unless otherwise noted.3

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prison term, conditioned on Carter serving a year in local custody. The court also released her from custody. On October 3, 2012, the court sentenced Carter to the aggravated term of five years on her robbery conviction, a one

- year arming enha ncement in that count , a consecutive one

- year on her transportation conviction, and no time on her possession for sale conviction. The court then suspended execution of sentence, placed Carter on probation for five years, and ordered her to serve a year i n local custody on her transportation of methamphetamine conviction. On August 5, 2013, the probation department filed a certifi cate and affidavit alleging Carte r violated her probation by failing to report to the probation officer, report to probation a ccounting services, report a change of address, abstain from the use of drugs and narcotics, and register as a narcotics offender. On Augu st 6, 2013, the court issued a warrant for Carter’s arrest. On August 13, 2013, a police officer arrested Carter du ring a traffic stop in w hich a scale and several packages containing a total of 2.7 grams of methamphetamine were found in the car she was driving (case No. VCF287052). Around September 9, 2013, the district attorney filed an i nformation in case
No. VCF2 8705 2 charging Carter with the counts and the other allegations she pled to in
that case and a second prior conviction enhancement in count 1

. At a hearing o n October 25, 2013, the court allowed the prosecutor , over a defense objection , to proceed on a violation of probation based on Carter’s failure to obey all laws. Visalia Police Officer Michael Lombardo then testified that on August 13, 2013, at approximately 2:45 p.m. , a s he observed Carter driving a car with a passenger in the front seat, Carter r eached over, grab bed her seatbelt, and put it on. Officer Lombardo got behind Carter and pulled her over. As Officer Lombardo contacted Carter, her passenger got out of the car and walked into a house.4

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After checking w ith dispatch and determining that Carter’s license had been suspended and that she had outstanding warrants totaling $75,000 , Officer Lombardo handcuffed Carter and put her in the back of his patrol car. He then searched her car and “on the floorboard of the center console” he found a pla stic baggie and a digital scale. The two items were within arm’s reach of Carter and in plain view of someone sitting in the driver’s seat. Officer Lombardo picked the items up . As he walked toward his patrol

car, Carter beg an screaming that the items w ere not hers. Upon opening the plastic baggie, Officer Lombardo saw three individual packages containing a white crystalline substance that was subsequently determined to be methamphetamine.
Officer Lombar do went to the house where the male passenger en t er ed and
knocked on the door. A man who answered the door told the officer that he did not know
the man who entered the house and that the man had exited out the back door. After the prosecution rested, the defense attempted to call Alan Atchison, but he was not present. The parties then agreed that the court could consider Atchison’s preliminary hearing testimony. According to his testimony, Atchison was the passenger
in the car when Carter was pulled over by Officer Lombardo and he had methamphetami ne in the car with him. However, he did not tell Carter that he brought
the methamphetamine i nto the car. When the car was pulled over, Atchison got out of the car, entered a nearby residence, and dis appeared out the back door. In finding that Carter v iolated her probation in case No. VCF271588A by failing to obey all laws, the court stated: “...The Court does not find [Atchison’s] testimony credible. [¶] Because if he brought the methamphetamine with him in the car and if he decided to abscond from the police knowing that he had brought the methamphetamine with him, [it] stands to reason that he would have reached, grabbed it, and taken it with him if he intended to run and he intended to not be there when the police made contact w ith Ms. Carter. [¶] So I do not find his testimony to be credible or reliable. I believe that he5

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came in to testify to, in a sense, throw himself on the sword in an effort to protect Ms. Carter.” Carter then entered her plea in case No. VCF287052 in exchange for the court’ s agreement to strike her strike conviction and impose a sentence that would run concurrent
to the seven

- year term the court imposed in case No. VCF271588A. On November 22, 2013, the court sentenced Carter to an aggregate seven

- ye ar term in case No. VCF2 71588A, and to a concurrent, aggr egate six

- year term in case
No. VCF287052 after striking her st rike conviction in that case.
DISCUSSION Carter contends that although the court believed that if Atchison owned the methamphetamine found in her car , he would have taken it with him when he fled, it was “more credible and reasonable” that he left without taking the incriminating evidence. Thus, according to Carter, because Atchison’s testimony provided ample evidence that
she was unaware of the presen ce of the methamphetamine in her car, the court’s finding that Carter violated her probation must be reversed because it was arbitrary, capricious
and exceed ed the bounds of reason. We reject these contentions.

“A court may revoke probation ‘if the inter ests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation

... .’ ( § 1203.2, subd. (a).) ‘As the languag e of section 1203.2 would suggest, the determination whether to ... revoke probation is largely discretionary.’ [Citation.] ‘[T]he facts supporting revocation of probation may be proven by a preponderanc e of the evidence.’ ” ( People v. Galvan (2007) 155 Cal.App.4th 978, 981

- 982 .)
We uphold the trial court’ s conclusion if it was supported by any

s ubstantial evidence. ( People v. Johnson (1980) 26 Cal.3d 557, 576

- 578.) The record supports the court’s finding that Carter violated her probation by her
failu re to obey all laws , because it was undisputed that Carter was driving while her
dr iving privilege was suspended when O fficer Lom bardo pulled her over. The record6

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also supports a finding that she failed to obey all laws by possessing and transporting
meth amphetamine.

“‘The essential elements of the offense 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 con trolled substance.... [¶] 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.] Exclusive possession is not necess ary. ’ ” ( People v. Busch (2010) 187 Cal.App.4th 150, 161.)

“

... The possession may be joint. [Citations.] Such joint possession does not require that the narcotic be on the person of any of the joint possessors. Thus it may have been found in a vehicle in which the joint possessors have been riding, and need not hav e been in that part of the vehicle in which one of them is seated. ” ( People v. Cirilli (1968) 265 Cal.App. 2d 607, 612.)
In People v. Williams (1971) 5 Cal. 3d 211 ( Williams ), a police officer contacted the defendant who was seated alone in a car on the pa ssenger’s side of the front seat with
a ben zadrene tablet on the floor by his feet. The Supreme Court found that , “sufficient
circumstantial evidence existed from which the court could infer that defendant had dominion and control over, and knowledge of t he presence of, the single tablet found in plain sight on the floor in front of the seat where he was sitting.” ( Id . at p. 21 5 .) The court, however, found the evidence insufficient to sustain the defendant’s conviction for possession of a controlled subs tance because there was insufficient evidence from which
it could be inferred that the defendant was aware of the narcotic character of the pill. ( Ibid .) Here, Carter was the driver of the car in which the methamphetamine was found in plain view , within a rm’s length of Carter. The court could reasonably find from these circumstances that Carter was in actual or constructive possession of the

m ethamphetamine because she exercised dominion and control over the methamphetamine and the car. Further, the cour t could infer from the discovery of the7

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scale with the methamphetamine, Carter’s prior conviction for transporting methamphetamine, and her reaction to Officer Lombardo removing the

m ethamphetamine and scale from her car , that Carter was aware the substance in the three packages was methamphetamine. Thus, the record supports the court’s implicit conclusion that Carter possessed the methamphetamine found in the car. Moreover, when Carter was arrested in case N o. VCF287052, “[t]ransportation of a controlled substance [in violation of Health and Safety Code section 11379] [was] established by [simply] carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. ” 2 ( P eople v. Meza (1995)
38 Cal.App.4th 1741, 1746.) T he court could also conclude from the circumstances
discussed above , that Carter transported the methamphetamine. Atchison’s testimony did not establish that Carter was unaware of the presence of
the metha mphetamine in her car because he testified only that he took methamphetamine into the car, that he did not tell Carter that he did , and that he fled when the car was stopped. Atchison did not describe the amount or packaging of the methamphetamine.
Nor d id he testify that he to ok it off his person and left it in the car or to any facts from which it can be inferred that the methamphetamine found in the car was the same methamphetamine he allegedly had in his possession. In her reply brief, Carter appears to contend that the methamphetamine was not in plain view because Officer Lombardo testified that he found it in a console, which, according to Carter, is “a small storage cabinet in between bucket seats in an automobile.” However, it does not follow from the discovery of the methamphetamine

2 Effective January 1, 2014, an amendment to Health and Safety Code s ection 11379, added an additional requirement that the transportation be for the purpose of sale. (Stats. 2013, ch. 504 , § 2 , p. 415 1 .) Although not discussed by the parties, we find that the court could reasonably have found that Carter transported the methamphetamine for the purpose of sale based on the scale and the number of packages of methamphetamine found in the car she was driving.8

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inside the console that it was not in plain view because even if the console came equipped with a cover, it may have been open or missing when the officer looked inside the car. Therefore, since substantial evidence s upports the court’s finding that Carter violated the condition of probation requiring her to obey all laws, the court did not abuse i ts discretion
when it revoked her probation and sentenced her to prison. Carter’s Abstract of Judgment Respondent contends the minute order in case No. VCF287052 for Carter’s November 22, 2013 sentencing hearing (under the heading, “COURT FINDS OFFENSE TO BE:”) and her abstract of judgment erroneously reference a second prior conviction
enhanceme nt in case No. VCF287052 becau se she admitted only one prior conviction in
that case. Respondent also contends that the minute orders in case No. VCF271588A for the hearing on October 3, 2012, and November 22, 2013, and Carter’s abstra ct of judgment erroneously list her conviction for robbery in case No. VCF271588A , as a conviction for attempted second degree robbery. We agree and we will direct the trial
court to correct these errors.
DISPOSITION The trial court is directed to issue the following: ( 1) an amended abstract of judgment that does not contain any reference to a second prior conviction enhancement in
case No. VCF287052 and which indicates that in case No. VCF271588A she was convicted of second degree robbery; ( 2) an a mended minute order in case No. VCF287 05 2 for Carter’s November 22, 2013, sentencing hearing that does not contain any reference to a second prior conviction enhancement and which indicates that in case No. VCF271588A Carter was convicted of second degree robbery; and ( 3)
amend ed minute order s in c ase No. VCF271588A for her October 3, 2012 and November 22, 2013, hearing s which indicate Carter was convicted of second degree robbery in th at

case. The trial court is further directed to forward a certified copy of the corrected9

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ame nded abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.