Filed 12/19/13 P. v. Williams CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136945
v.
CHRISTOPHER WILLIAMS,                                                (Solano County
                                                                     Super. Ct. No. FCR284024)
         Defendant and Appellant.


         Defendant Christopher Williams appeals from a judgment following a jury verdict
finding him guilty of transportation of heroin (Health & Saf. Code, § 11352, subd. (a)).1
He contends: (1) There was insufficient evidence to support the verdict; (2) the guilty
verdict was inconsistent with the jury’s verdict of not guilty on a related possession
count; (3) the trial court misled the jury when it responded to a question during
deliberations; and (4) the court’s order to pay a $50 drug program fee was not supported
by a finding of ability to pay. We reject defendant’s contentions and affirm.
                                                       I. FACTS
         Defendant was driving in the City of Fairfield during the afternoon on April 12,
2011, when he was pulled over for a traffic infraction. After initiating the traffic stop,
Fairfield Police Officer Matthew Thomas approached defendant on the driver’s side of
the car. Thomas’s partner, officer Derrick Fok, approached on the passenger side. A
passenger, Kenneth Owens, was sitting in the front passenger seat of the car.
         1
        All further code section references are to the Health and Safety Code unless
otherwise noted.


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       Officer Thomas noticed a strong odor of marijuana when he reached the driver’s
side window. He then noticed an unlit marijuana “cigar” in defendant’s lap. Thomas
asked for the cigar and defendant complied by handing it to Thomas. One or both of the
officers told defendant and his passenger to get out of the car. The officers searched the
men and found nothing of note. Officer Fok then searched the car and found two plastic
baggies in a compartment in the roof above the center console. Fok described the
compartment as “where the sunglasses are normally held.” Fok believed one baggy
contained marijuana and that the other contained heroin.
       After Thomas read defendant his Miranda rights, defendant denied knowledge and
ownership of the substances in the baggies. He added that he had just bought the car.
       An analysis of the contents of the baggy of suspected heroin confirmed that it
contained 9.55 grams of heroin. The baggies were examined for fingerprints, but none
were found.
                         II. PROCEDURAL BACKGROUND
       The People charged defendant with one count of transportation of heroin in
violation of section 11352, subdivision (a), and one count of possession of heroin in
violation of section 11350, subdivision (a). After a brief trial, the jury found defendant
guilty on the transportation count, but not guilty on the possession count. The trial court
suspended imposition of sentence and placed defendant on probation for three years. The
court ordered defendant to pay several fees, including a $50 drug program fee
(§ 11372.7).
                                    III. DISCUSSION
A. Sufficiency of the Evidence to Support the Verdict
       Defendant contends there was insufficient evidence of his knowledge that heroin
was present in his car. Knowledge of the presence and character of the drug is an
essential element of the offense of transportation. (People v. Rogers (1971) 5 Cal.3d 129,




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133 (Rogers); see § 11352, subd. (a).)2 Defendant characterizes the evidence of his
knowledge as a “mere smidgen.”
       “The law is clear and well settled. ‘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 guilty beyond a reasonable doubt.
(People v. Johnson (1980) 26 Cal.3d 557, 578 . . . ; see also Jackson v. Virginia (1979)
443 U.S. 307, 317-320 . . . .)’ ” (People v. Abilez (2007) 41 Cal.4th 472, 504.)
       Here, the substance was found in defendant’s car, and he was the driver. While
the heroin was not in plain view, it was found in a baggy in an ordinary compartment of
the car, and Officer Fok apparently had no trouble finding it. In the same compartment
was a second baggy containing marijuana. Defendant, at the time of the traffic stop, had
a marijuana cigar in his lap. This constitutes reasonable, credible, and solid evidence
from which a rational finder of fact could find, beyond a reasonable doubt, that defendant
knew he was transporting heroin in his car. A driver’s knowledge of the character and
presence of the drug, together with his control over the vehicle, is sufficient to establish
his guilt for transporting the drug. (Rogers, supra, 5 Cal.3d at pp. 135-136) The crime
can be established by circumstantial evidence and any reasonable inferences drawn from
that evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
       Taking all the possible scenarios into account, the most logical inference remains
that defendant, as owner and driver of the car, knew there was a baggy of heroin in his
car. The jury could reasonably reject the contention that defendant’s passenger, Owens,
put the heroin in defendant’s car without his knowledge. Although it is not inherently
implausible that the car’s former owner left the baggies of heroin and marijuana in the

       2
        Section 11352, subdivision (a), in pertinent 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 [a controlled substance unless upon written
prescription] shall be punished by imprisonment pursuant to subdivision (h) of
Section 1170 of the Penal Code for three, four, or five years.”


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car, it is not likely that a person would leave behind items of value; nor was it established
exactly how recently defendant had purchased the car.3 Further, because the heroin was
not found in a hidden recess or cavity in the car, the jury could reasonably conclude
defendant knew it was there.
       In arguing otherwise, defendant cites People v. Redrick (1961) 55 Cal.2d 282, 285
(Redrick) for the proposition that “proof of opportunity of access to a place where
narcotics are found, without more, will not support a finding of unlawful possession.”
From this premise defendant argues the many circumstances that were not present—lack
of furtive movements, lack of intoxication, lack of fingerprints, lack of chemical testing
of the marijuana, and lack of drug paraphernalia, among other things—and cites cases in
which convictions were upheld (and knowledge found) based on the presence of the
narcotics plus other incriminating circumstances. (See, e.g., People v. Richardson (1970)
6 Cal.App.3d 70, 77 [furtive movement and defendant’s admission of heroin use]; People
v. Vasquez (1969) 1 Cal.App.3d 769, 778-780 [defendant’s admitted familiarity with
narcotics, his attempt to bar officers from apartment, and large quantity of heroin found];
People v. Watkins (1950) 96 Cal.App.2d 74, 77 [erratic driving upon seeing the police,
furtive movements, and anger when passenger made admission].) These cases, however,
do not hold that in the absence of one or more of these additional factors there is always
insufficient evidence of knowledge. Nor is this a case in which defendant merely had
“opportunity of access to a place where narcotics were found.” Here, defendant was the
driver and the owner of the car in which the heroin was found. (Cf. Redrick, supra, 55
Cal.2d at pp. 288-289 [defendant had nonexclusive access to a storeroom where heroin
was found].)




       3
         Department of Motor Vehicles (DMV) “paperwork” was admitted into evidence;
according to defendant, the exhibit was a title document that was processed by the DMV
on April 13, 2011, the day after the traffic stop. No evidence was introduced indicating
the date defendant took possession of the car, or how long it takes the DMV to process a
title document.


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       Defendant also cites People v. Boddie (1969) 274 Cal.App.2d 408 (Boddie), a case
in which a heroin possession conviction was reversed for lack of sufficient evidence to
establish knowledge of the presence of the narcotics. (Id. at pp. 411-412.) As in the
instant case, the narcotics in Boddie were found in an automobile, but there the defendant
was a passenger in the car. Thus, Boddie is inapposite because defendant here was the
driver/owner, not the passenger.
       Defendant’s conviction for transportation of heroin is supported by substantial
evidence.
B. Inconsistent Verdicts
       Defendant asserts the jury’s verdict of guilty on the transportation count is
inconsistent and irreconcilable with its acquittal on the possession count. He argues that
if he did not have possession of the heroin, he could not have transported the drug.
Citing a footnote in Rogers, supra, defendant suggests the offense of possession was a
necessarily included offense of transportation in his case. (See Rogers, supra, 5 Cal.3d at
p. 134, fn. 5; but see People v. Watterson (1991) 234 Cal.App.3d 942, 946-947 [footnote
in Rogers was dicta and possession for sale count was not necessarily included in a
transportation count].)
       The law is well settled that inconsistent verdicts do not require reversal of a guilty
verdict. Indeed our Legislature has expressly decreed: “An acquittal of one or more
counts shall not be deemed an acquittal of any other count.” (Pen. Code, § 954.)
       The Legislature’s statement is in harmony with United States and California
Supreme Court precedent. “As a general rule, inherently inconsistent verdicts are
allowed to stand. (United States v. Powell (1984) 469 U.S. 57, 64-69 . . . (Powell);
People v. Lewis [(2001)] 25 Cal.4th [610,] 656.) For example, ‘if an acquittal of one
count is factually irreconcilable with a conviction on another, or if a not true finding of an
enhancement allegation is inconsistent with a conviction of the substantive offense, effect
is given to both.’ (People v. Santamaria (1994) 8 Cal.4th 903, 911.) Although ‘ “error,”
in the sense that the jury has not followed the court’s instructions, most certainly has
occurred’ in such situations, ‘it is unclear whose ox has been gored.’ (Powell, supra, 469


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U.S. at p. 65.) It is possible that the jury arrived at an inconsistent conclusion through
‘mistake, compromise, or lenity.’ (Ibid.) Thus, if a defendant is given the benefit of an
acquittal on the count on which he was acquitted, ‘it is neither irrational nor illogical’ to
require him to accept the burden of conviction on the count on which the jury convicted.
(Id. at p. 69.)” (People v. Avila (2006) 38 Cal.4th 491, 600.)
       Defendant cites no authority providing for an exception to the general rule in this
case. He does cite People v. Hamilton (1978) 80 Cal.App.3d 124 (Hamilton), a decision
that purported to find a “limited judicial exception . . . where all of the essential elements
of the crime of which the defendant was acquitted are identical to some or all of the
essential elements of the crime of which he was convicted, and proof of the crime of
which the defendant was acquitted is necessary to sustain a conviction of the crime of
which the defendant was found guilty.” (Id. at p. 130.)
       If such an exception exists, it would not apply here. The elements of
transportation and possession offenses are not identical. “Although possession is
commonly a circumstance tending to prove transportation, it is not an essential element of
that offense and one may ‘transport’ marijuana or other drugs even though they are in the
exclusive possession of another.” (Rogers, supra, 5 Cal.3d at p. 134.) As the People
suggest, it is possible in this case that the jury believed Owens possessed the heroin, and
that defendant was transporting Owens and his heroin. Or, stated another way, the
prosecution proved beyond a reasonable doubt that defendant transported heroin, but
failed to prove beyond a reasonable doubt that he possessed it. Of course the jury may
also have just reached a compromise verdict.
       In any event, we also concur with our colleagues in Division Three of this district
that the statement from Hamilton that defendant relies on “is inaccurate and misleading.”
(People v. Pahl (1991) 226 Cal.App.3d 1651, 1660 (Pahl).) The one settled exception to
the rule that inconsistent verdicts must stand involves conspiracy cases. (See id. at
p. 1657 [defendants charged and acquitted of offenses also alleged as overt acts of
conspiracy are necessarily acquitted of conspiracy].) As our Division Three colleagues
explained, however, that exception is narrow, and any suggestion in Hamilton or earlier


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cases of other, broader exceptions to the general rule are contrary to the language of
Penal Code section 954 and current California Supreme Court authority. (Pahl, supra, at
pp. 1657-1660.)
       Defendant was not charged with conspiracy and there was substantial evidence to
support the transportation verdict. (See Pahl, supra, 226 Cal.App.3d at p. 1657
[inconsistent verdicts no longer compel reversal if there is substantial evidence to support
the conviction].) Therefore, the general rule applies and the verdicts on both the
transportation and possession counts must stand.
C. Response to Jury Questions
       Defendant next takes issue with the trial court’s response to two questions posed
by the jury during its deliberations. A note from the jury to the court stated: “1) When
was the defendant arrested? (DATE) 2) When did he purchase the car officially?
(DATE).”
       The trial court, defense counsel, and the prosecutor all recognized there was no
direct evidence on these questions. One could infer that defendant was arrested at the
time the suspected heroin was seized on April 12, 2011, but neither of the witnesses
(officers) testified that defendant was arrested that date. Similarly, the only evidence on
when defendant “purchased” the car was indefinite. Officer Fok testified regarding
defendant’s statement that, “[H]e just bought the car.” As we have noted, there was also
DMV paperwork admitted into evidence, but no one testified regarding that exhibit.
According to defendant, it was a title document that was processed by the DMV on
April 13, 2011, the day after the traffic stop. The prosecution noted during the discussion
of the jury questions that it appeared from the DMV document that the car was a gift to
defendant.
       The court proposed to tell the jury that defendant was arrested on the “date of this
incident, April 12th.” Defense counsel objected: “Well, I don’t want them instructed on
that issue unless they heard evidence of it.” When it was confirmed, after consultation
with the court reporter, that there was no testimony on when defendant was arrested, the
court gave the following answer to the jury: “No testimony regarding that.”


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        With respect to when defendant purchased the car, defense counsel and the
prosecution were in agreement that there was no evidence on the question other than
defendant’s statement to Fok. So the court responded to the jury’s second question with,
“Per Officer Fok the defendant stated, he quote, ‘just bought the car.’ ”
        Defendant contends the court’s answers misled the jury, violating his due process
right to a fair trial.
        Defendant invited any error by directly participating in crafting the responses to
the jury questions. “Inasmuch as defendant both suggested and consented to the
responses given by the court, the claim of error has been waived.” (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1193; see also People v. Boyette (2002) 29 Cal.4th 381, 430
[defendant’s failure to object when trial court proposed not to respond to juror’s note
waived claim of error].) Although defendant cites authority for the proposition that
instructional error may be reviewed without an objection by the defendant (People v.
Coffman (2004) 34 Cal.4th 1, 103, fn. 34; People v. Thompkins (1987) 195 Cal.App.3d
244, 251, fn. 4; Pen. Code, § 1259), those authorities do not apply to the situation here—
responses to jury questions crafted with the aid of defendant. (See People v. Roldan
(2005) 35 Cal.4th 646, 729-730, overruled on other grounds as stated in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22).
        We note, in any case, that the trial court’s responses to the questions were
accurate. Defendant does not point to any direct evidence showing the date he was
arrested. Similarly, there is nothing in the record showing when he purchased the car,
other than his statement to Officer Fok that he just bought the car. Defendant does not
claim the DMV document established an official date of purchase. Of course the more
pertinent question would have been when did defendant take possession of the car.
        In sum, there was no error, and even if there were, defendant invited it and waived
any claim of error.




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D. Drug Program Fee
       Defendant contends the trial court’s order to pay a $50 drug program fee
(§ 11372.7) should be vacated because the trial court failed to make a finding of ability to
pay.
       Defendant has forfeited this claim of error by failing to object below. In People v.
McCullough (2013) 56 Cal.4th 589, our Supreme Court held a defendant who failed to
object to the imposition of a similarly de minimis booking fee (Gov. Code, § 29550.2,
subd. (a)) forfeited his right to challenge the fee on appeal. (People v. McCullough,
supra, at p. 591.) “[W]e hold here that because a court’s imposition of a booking fee is
confined to factual determinations, a defendant who fails to challenge the sufficiency of
the evidence at the proceeding when the fee is imposed may not raise the challenge on
appeal.” (Id. at p. 597.)
       For purposes of the necessity to make an objection, we find no way to distinguish
the drug program fee at issue here from a booking fee, or from any of the other fees and
fines for which courts have required an objection to preserve an ability to pay issue for
appeal. (See, e.g., People v. Nelson (2011) 51 Cal.4th 198, 227 [victim restitution fine];
People v. Snow (2013) 219 Cal.App.4th 1148, 1151 [probation report and supervision
fees]; People v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention fine]; People
v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 [probation fee]; see also People v.
Martinez (1998) 65 Cal.App.4th 1511, 1518 [prosecution waived any error by trial judge
in failing to state reasons for not imposing drug program fee].)
       Accordingly, we will uphold the trial court’s order to pay a $50 drug program fee.




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                                 IV. DISPOSITION
     The judgment is affirmed.




                                            _________________________
                                            Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




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