Filed 3/27/13 P. v. Chang 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CALI CHANG, Defendant and Appellant. G046233 (Super. Ct. No. 09CF3124)

O P I N I O N

Appeal from a judgment of the Superi or Court of Orange County, Lance Jensen, Judge. Affirmed. Tony Faryar Farmani, under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, Me lissa Mandel, Marissa Bejarano and Charles Ragland, Deputy Attorney s General, for Plaintiff and Respondent.
* * *2 A jury convicted defendant Cali Ch ang of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and possession of methamphetamine with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). Chang ch allenges the sufficiency of the evidence to support the ve rdicts and complains the trial court erred when it allowed the prosecution’s expert to testify that Cha ng possessed the drugs fo und by the officers. Finding no prejudicia l error, we affirm.
I
F ACTS AND P ROCEDURAL B ACKGROUND Sergeant Lorenzo Carrillo of the Santa Ana Police Department testified that on December 22, 2009, around 11 :30 a.m. he conducted su rveillance from an unmarked
vehicle of a residence on West St. Andrews. Officers received information that Christopher McDonald, a parolee with prio r felony drug convic tions, lived at the residence and may have violated parole. Carrillo saw a woman, later identifie d as Melissa Hayes, standing by the front door, adjacent to the atta ched garage. Two men, late r identified as Hugo Magana and Juvenal Marquez, emerged from the gara ge, entered a white van parked in the driveway, and drove off. Someone inside th e garage rolled down the door. Carrillo briefly followed the van, then radioed fo r other officers to stop the vehicle. Officers Gustavo Moroyoqui and Justo Capacete, in a marked police unit, attempted to stop the van driven by Marquez, but the van sped off. During a brief pursuit the van’s occupants discarded blue plastic Ziploc baggies, a cl ear plastic sandwich baggie, and several small clear plastic baggi es through the front passenger side of the van. The van pulled over and officers found a glass drug pipe, $888, and a cell phone in Marquez’s possession. Three of the disc arded baggies contained methamphetamine totaling about 4.5 grams, including packaging. Meanwhile, Carrillo returned to his position near the residence. He spotted a man, later identified as Chang, exit the gara ge, go to the sidewalk, and use a cell phone.3 Chang looked around, then went back into the garage. He repeated this behavior about
three times. Carrillo believe d Chang was engaging in co unter-surveillance measures. Around 1:00 p.m., Rudolfo Lopez left the garage, went to a white truck parked in front of the house, opened the front door, reached inside, and retrieved a small item. Lopez then walked west along the si dewalk, crossed Fairview Street, and made contact with the driver of a waiting vehicle. He then proceeded back toward the house.
Carrillo notified one of his st andby teams, who arrested Lo pez a few hundred yards from the house. The parties stipulated Carrillo observed Lopez “proceeding to a nearby parking lot and contacting the occupants of a Land Rover and conducting what appeared to be a possible hand-to-hand narc otic transaction. [¶] Offi cers Padilla and Panzika then contacted Lopez and searched the white truc k, retrieving a scale and a trace amount of methamphetamine.” At approximately 1:30 p.m., Chang emerged from the garage, leaving the garage door open, entered an older model yellow Mercedes pa rked across the street, and
drove off. Carrillo notified other officers on hi s team, seven or eight of whom arrived at
the house about 15 minutes later. Capacete and Moroyoqui sto pped Chang shortly after he left the residence. Chang falsely claimed to be coming from a house several blocks away, even after Capacete confronted him with information ab out the surveillance. Capacete searched Chang and found $300 in crumpled bills in a jacket pocket, $80 in his wallet, and in his right front pocket a piece of white paper c ontaining names, numbe rs, and dollar signs, some crossed out. One of the names on the paper was “Juvenal” and the numbers “3.5”
and “220.” Below the “220” was a “minus sign with a hundred dow n and then it says ‘due 120.’” Capacete found a black handbag in the rear portion of Ch ang’s car. The bag contained paperwork addressed to Chang, including a receipt for the purchase of a
firearm.4 According to Capacete, drug purcha sers often pay appr oximately $220 for an “eight ball,” which is an eighth of an ounce or 3.5 grams of drugs, and Capacete stated the van’s occupants discarded drugs totaling 3.9 grams with packaging. Capacete also explained, “individuals who are involved in the sales of narcotics” frequently possess “firearms for protection.” After placing Chang in the back of their patrol car, Capacete and Moroyoqui returned to the house to conduct a parole check on McDonald. The officers looked into the garage through the open roll-up garage door and spot ted what turned out to be a loaded “44 Marlin rifle” in a partia lly open gun case on the garage floor. The rifle appeared to be operable, although ther e was no evidence auth orities test-fired it.
The officers knocked at the front d oor and Paul Blake, Jr. opened it.
Officers had information that Blake Jr.’s father owned the house, but that Blake Jr. lived there and he had a 1996 felony conviction for drug possession.
Blake Jr. allowed the offi cers to enter after they explained their purpose for being at the house. Hayes, in the living ro om area carrying an infa nt, admitted she owned a handgun. The officers sear ched the house and found a .45-caliber Colt handgun in Hayes’s bedroom, which they learned later ha d been stolen. The officers found no other
contraband in the home. Blak e Jr. later admitted he was hold ing the rifle in the garage
for his father. 1
The officers turned their attention to the garage, which had no direct access to the house. They found an open briefcase seven to 10 feet from the rifle. The briefcase contained a digital scale, numerous unused small plastic baggies, a padded mailing envelope addressed to Chang at a West Sain t Gertrude Place address, and an envelope

1 Blake pleaded guilty to felon in possession of a firearm (former Pen. Code, § 12021, subd. (a)) a nd ammunition (Pen. Code, § fo rmer 12316, subd. (b)(1)) concerning the rifle found in the gara ge. We affirmed the judgment. ( People v. Blake , Aug. 24, 2012, G045502 [nonpub. opn].)5 addressed to “P.J. or Cali” at the St. Andrew s address. The briefcase also contained a metal box with attached magnets. Inside th e metal box, officers found two drug pipes, pills in baggies, and a clear plastic bagg ie containing approximately 20 grams of methamphetamine. Capacete stated it was “ver y common for [narcotics dealers] to have
one of these containers to conceal narcotics and hide this container . . . underneath . . .
their vehicle . . . .” No forensic eviden ce, including fingerprints or DNA, connected Chang to the items found in the garage. Th e officers found additional ammunition for the rifle on a garage shelf. Capacete, based on his training and ex perience, explained a typical user might use 0.1 to 0.3 grams a day, but no one would possess 20 grams of methamphetamine for personal use. Capacete valued the methamphetamine in the metal box at $700 to $800. Capacete also noted the residence had surveillance cameras facing the street, a tactic criminals use to le arn “if police are in the area . . . .”
II
D ISCUSSION A. Substantial Evidence Supports the Convictions Chang challenges the sufficiency of the evidence to support the convictions. On appeal, the reviewing court must view the evidence in the light most favorable to the judgment. ( People v. Elliot (2005) 37 Cal.4th 453, 46 6.) It is the trier of fact’s exclusive province to assess witness cr edibility and to weigh and resolve conflicts in the evidence. ( People v. Sanchez (2003) 113 Cal.App.4th 325, 330 ( Sanchez ).) We therefore presume the existence of every f act reasonably inferred from the evidence in support of the judgment. ( People v. Crittenden (1994) 9 Cal.4th 83, 139.) The test is whether substantial evidence supports the conclusion of the trier of fact. ( Ibid .; People v.
Johnson (1980) 26 Cal.3d 557, 576.) Reversal is not warranted even if circumstances could be reconciled with a contrary finding. ( People v. Bean (1988) 46 Cal.3d 919, 932-6 933.) Consequently, a defendant attacking the sufficiency of th e evidence “bears an enormous burden.” ( Sanchez, at p. 330.) Chang contends the prosecution faile d to prove he constructively possessed the methamphetamine found in the briefcase, or that he knew of its presence or character. He argues the evidence establis hed only that he “was pres ent at a place where someone else was selling drugs that di d not belong to him and as to which he did not exercise any
dominion or control.”
The version of Health a nd Safety Code section 11378 in effect in December 2009 provided in relevant part, “every pe rson who possesses for sale any controlled substance [including methamphetamine] shall be punished by imprisonment in the state prison.” Health and Safety Code sec tion 11370.1 provided, “every person who unlawfully possesses any amount of . . . a substance containing methamphetamine
. . . while armed with a load ed, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years. [¶] As used in this subdivision, ‘armed with’ me ans having available for immediate offensive or defensive
use.” Unlawful possession of a controlled s ubstance for sale requires proof the defendant possessed the substan ce with the intent of selli ng it and with knowledge of both its presence and illegal character. ( People v. Harris (2000) 83 Cal.App.4th 371, 374.) The elements include defendant (1) unlawfully possessed a controlled substance; (2) knew of its presence; (3) knew of the subs tance’s nature or character as a controlled substance; (4) intended to se ll the controlled substance; (5 ) the controlled substance was methamphetamine; and (6) the controlled subs tance was in a usable amount. (CALCRIM No. 2302.) Chang argues no forensic evidence li nked him to the items found in the garage and “[n]o solid eviden ce connected” him to the methamphetamine in the metal
box in the briefcase. He concedes the enve lopes found in the briefcase addressed to him7 “might have indicated [he] owned the briefc ase,” but his ownership of the briefcase did not “justify an inference that he knew meth amphetamine was concealed in an enclosed box in the briefcase.” He emphasizes he di d not have exclusive us e or possession of the garage, and the trier of fact could not pres ume he was “aware of what may have been placed in the garage by one with access.” He points to other potentia l culprits, such as Magana and Marquez, who officers found in actual possession of methamphetamine minutes after exiting the ga rage, and Lopez, who sold drugs in a hand-to-hand transaction, and whose truck contained a sc ale and a trace amount of methamphetamine. Chang notes there was no evidence he participated in a hand-to hand drug sale, made any admissions, or displayed eviden ce of drug use. Finally, he claims Blake’s admission he
controlled his father’s ri fle exonerates Chang. Ample evidence supported the ju ry’s conclusion Chang knowingly possessed the methamphetamine and the rifle was available for his use. Soon after Marquez and Magana drove away from the ga rage, they discarded methamphetamine in an amount approximating an “eight ball” whil e fleeing from police officers. After they left, Chang exited the garage and employed counte r-surveillance measures. A short time later, Lopez left the garage, grabbed something out of his truck, and then apparently sold drugs in a hand-to-hand transaction. Chang was the last person to leave the garage and
officers detained him a short time after he left . No one else was in the garage. Chang’s pocket contained incriminating items, the most significant being a pay/owe sheet recording the recent sale of an eight ball to “Juvenal.” Chang lied to Capacete and Moroyoqu i by claiming he came from a house several blocks away from the West St. Andrew s residence. Jurors reasonably could infer guilty knowledge from Chang’ s counter-surveillance behavior and his attempt to
disassociate himself from a residence where he knew dr ugs would be found. ( People v. Tripp (2007) 151 Cal.App.4th 951, 9 56 [defendant’s furtive acts and suspicious conduct indicating consciousness of guilt shows know ledge of substance’s narcotic nature].)8 Investigators found the methamphetamine in a magnetic drug-carrying container, located in an open briefcase contai ning correspondence addressed to Chang at the West St. Andrews address. Items found in a person’s briefcase, like those found in a purse or wallet, are presumably contro lled and possessed by its owner, especially when the person has just left the place where the briefcase is located and no one else is nearby.
This is not a case where th e defendant simply possessed premises recently visited by others who could have brought in the contraband, or where evidence linked other highly suspicious people to the drugs at issue. ( People v. Showers (1968) 68 Cal.2d 639, 644 [insufficient evidence the defenda nt possessed heroin found in ivy where evidence suggested another man dropped the drugs]; People v. Monson (1967) 255 Cal.App.2d 689, 691 [no reasonable infere nce the defendant possessed marijuana in
a bedroom closet from the fact she lived in the apartment and the closet contained female garments]; People v. Savage (1954) 128 Cal.App.2d 123, 125 [“no legal inference possible” the defendant possessed marijuana found in a sofa simply because he rented room, where several guests had recently attende d a party and sat on the sofa].) Nothing connected Lopez or the others who accessed th e garage to the briefcase, metal box, or methamphetamine found inside it. Although circumstances suggested Lopez also may have been selling, or assisting Chang, that did not undermine the evidence ag ainst Chang. The jury reasonably could conclu de Lopez kept his drugs in his truck, while Marquez and Magana appeared to be purchasers rather than sellers. Blake Jr. kept a rifle and ammunition in the garage, but not hing connected him or Hayes to the briefcase or drugs.
We have reviewed the cases cite d by Chang on the issues of guilty knowledge and constructive possession and s ee no need to rehash them here. (See People v. Stanford (1959) 176 Cal.App.2d 388; People v. Antista (1954) 129 Cal.App.2d 47; People v. Foster (1953) 115 Cal.App.2d 866.) Su ffice it to say none undermines our conclusion substantial evidence supporte d the jury’s conclusion Chang knowingly9 possessed the drugs found in the briefcase and the rifle in the partially open gun case near Chang’s briefcase was available for his use.
B. Officer Capacete’s Opinion Tes timony Did Not Prejudice Chang During Officer Capacete’s testimony, th e prosecutor asked: “Now, officer, putting together all of the pieces that you e ither saw yourself or you were told by other officers in this case, that being the fact that a man named Juvenal Marquez and Hugo Magana was seen exiting this garage at 2722 St. Andrew Place, they were later seen to have methamphetamine thrown from their car, Mr. Chang is seen coming in and out of that same garage, Mr. Chang is stopped in a vehicle and denies being at that house, Mr. Chang has a pay/owe sheet on it that we discu ssed earlier, as well as $300 in cash, as well as a sales receipt for a firearm; you found the firearm in the garage, you find 20 grams of methamphetamine in an open briefcase in a metallic box along with plastic baggies and a digital scale, along with the fact there ar e surveillance cameras at the time up at the residence – taking all that in totality, do you have a conclusion about whether or not Mr. Cali Chang was the one who possessed that me thamphetamine for the purposes of selling
it?” Chang’s lawyer objected to the question on the grounds it lacked foundation and invited an improper opinion. Before the court ruled on the objection, Capacete answered “Yes.” After an unreported sidebar discussion, 2 the trial court sustained the objection as an improper hypothe tical and invited the prosecutor to rephrase the question.

2 The court subsequently described the sidebar conversation: “I had indicated that I sustained the defense objec tion because the way it was phrased. It was phrased – it was not phrased necessarily as a hypothetical in the se nse that we divorce ourselves from gathering an opinion on the defe ndant himself, his or her intent or mental state in regards to possession. And certainly, there’s plenty of case law that says experts in rendering expert opinions based on hypothetic als have to do so ba sed on hypotheticals, not on the defendant himself. A nd then, of course, there’s a ll those lines of cases that deal with that.”10 The prosecutor then asked, “Officer, le t me ask you this in a hypothetical form, not relating to the defendant here partic ularly.” The prosecut or repeated the facts of the hypothetical omitting reference to Cha ng, and concluded by asking “do you have an opinion about whether or not this hypothetical pers on possessed that 20 grams of methamphetamine for the purpose of selling it. ” The court overruled Chang’s objections, and Capacete testified he “formed the opinion on the following: this particular person is seen by a police officer in and out of this residence – the garage; this individual – two
individuals leave this residence and eventu ally evade police and they’re arrested for possession of narcotics the 3.9 grams. [¶] After the evade – after the evading of the police, these two individuals are under arrest; th e individual that leaves the residence is contacted and is in possession of $300 of cas h, which was in his pocket, the $80 in his wallet, the pay/owe sheet with the name of the individual that was just previously arrested for evading and transportation of a controlled substance, methamphetamine. [¶] In addition to that, the receipt for a firearm. Continuing th rough the investigation, the search of the garage revealed that there was a firearm located in plain view, a loaded rifle. In addition to that, a container wh ich contained a little over 20 grams of methamphetamine with empty Ziploc baggies, a digital scale, in addition to that paperwork which led to the same name th at was contacted on the traffic stop who contained the pay/owe sheet, as well as the surveillance cameras in the garage. [¶] Based on the totality of this, I formed the opinion that the individual was in possession of this narcotics for the purposes of sales.” In an swering the prosecutor’s follow up questions, Capacete testified the presence of another pe rson in the house who had a prior felony conviction and a handgun did not change his “opinion about whether or not the hypothetical person was the person who posse ssed this methamphetamine for sale.” Later during the prosecutor’s redire ct questioning of Capacete, the prosecutor asked, “So when you formed the opi nion that the drugs found inside of the garage were possessed by the hypothetical pe rson whose name is on the letters, who had11 the pay/owe sheet in his pocket, you includ ed the facts that there was another person [Lopez] that was seen doing what appeared to be a hand-to-hand transaction in the area, is that right?” Counsel “again, object[ed] . . . to th is entire line of questioning under the hypothetical is improper under [Evidence Co de section] 801.” The court overruled the objection. Chang’s lawyer complained Capacete had been allowed to “opine as to possession, not just as to whether the narco tics were” possessed for sale. Counsel stated, “the fact that [Capacete] says, ‘him’ in stead of ‘Cali Chang’ doesn’t make it a hypothetical.” The officer was “not opining that these narcotics were possessed for the purpose of sales. He was opining that Mr. Chang, or the person who is obviously Mr. Chang in the hypothetical, possessed the narc otics.” Chang’s coun sel complained it was “improper for an expert to opine as to domini on and control of a hypothetical situation.” Counsel later clarified “[m]y objection wa s never to whether it was phrased as a hypothetical or not. My objection was the way in which the officer was being asked to render an opinion that was improper opinion for the jury.” Chang first complains Capacete answer ed “Yes” before the court sustained the objection to the prosecutor’s initial question, and this fell into the category of error “beyond the curative powers of judicial admoniti on . . . . it was simply too late to ‘unring the bell.’” He also complains the prosecu tor immediately repeat ed “the same exact hypothetical, except that it [subs tituted] the word ‘person’ fo r Chang and ‘individuals’ for Marquez and Magana” and it woul d be “purely fictional to c onclude that such minor and
technical modifications cured the violation.” The Attorney General responds the prosecutor’s revi sed “question was proper because it was posed as a hypothetical question and it was grounded in the facts of this case. Further, [Capacete’s] testimony wa s proper expert opinion because whether a controlled substance is possessed for sale ve rsus personal use is a matter sufficiently12 beyond the common experience of an average juror.” Finally, she argues any error was harmless. ( People v. Watson (1956) 46 Cal. 2d 818, 836 ( Watson ).) “‘California law permits a person with “special knowledge, skill, experience, training, or education” in a par ticular field to qualify as an expert witness [citation] and to give testimony in the form of an opinion [citation]. Under Evidence Code section 801, expert opinion testimony is ad missible only if the subject matter of the testimony is “sufficiently beyo nd common experience that the opinion of an expert would assist the trier of fact.” [Citation.]’” ( People v. Vang (2011) 52 Cal.4th 1038, 1044; Evid. Code, §§ 720, 801.) The evidence is admissible even thou gh it encompasses the ultimate issue in the case. ( People v. Olguin (1994) 31 Cal.App. 4th 1355, 1371; see Evid. Code, § 805.) But “[e]xpert opinion is not admissible if it consists of inferences
and conclusions which can be dr awn as easily and intelligently by the trier of fact as by the witness.” ( People v. Torres (1995) 33 Cal.App.4th 37, 45; “A witness may not express an opinion on a defenda nt’s guilt. [Citations.] The reason for this rule is not because guilt is the ultimate i ssue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] ‘Rather, op inions on guilt or innocence are inadmissible because they are of no assistan ce to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.’ [Citation.]” ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77; People v. Brown (1981) 116 Cal.App.3d 820, 828- 829 [narcotics expert’s opinion the defendant was a drug runner in admissible].) “As a general rule, a trial court has wide discretion to admit or exclude expert testimon y. [Citations.] An appellate court may not
interfere with the exercise of that discreti on unless it is clearly abused. [Citation.]” ( People v. Page (1991) 2 Cal.App.4th 161, 187.)
It is of course “settled that an office r with experience in the narcotics field may give his opinion that the narcotics are held for purposes of sale. . . .” ( People v.
Hunt (1971) 4 Cal.3d 231, 237.) Capacete wa s free to express an opinion the drugs were13 possessed for sale, and to base his opinion on the facts in this ca se, including that a pay/owe sheet was found on a person who had re cently left the location where the drugs
were found. But even assuming error, the evid ence linking Chang to the methamphetamine was overwhelming. Capace te’s opinion stating the obvious was not likely to have affected the jury’s decision. ( Watson , supra , 46 Cal.2d at p. 836.)
III
D ISPOSITION The judgment is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.