Filed 3/14/14 P. v. Hernandez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058775

v.                                                                       (Super.Ct.No. FWV1202522)

DANIEL ANTHONY HERNANDEZ,                                                OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Stanford E.

Reichert, Judge. Affirmed as modified.

         Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marissa

Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Daniel Anthony Hernandez appeals from a judgment of

conviction of possession of a controlled substance and possession of a syringe. (Health

& Saf. Code, §§ 11377, subd. (a); 11364.1, subd. (a).) His primary contention on appeal

is that the evidence was insufficient to establish either possession, that the substance was

a “usable quantity,” or that he was aware that he possessed a “usable quantity.” We find

these contentions meritless and affirm the judgment. He also argues that the trial court

improperly imposed a $200 criminal laboratory fee when it should have been only $50.

The People concede this point.

                                 STATEMENT OF FACTS

       On October 4, 2012, Ontario police officer Wes Willemstyn made a traffic stop of

a vehicle driven by defendant. Defendant informed the officer that he lived in a detached

structure in the backyard of the home in which his parents resided. No one else resided in

the structure, which was also described as a small guest house. Defendant also told the

officer that his personal property was in the guest house and that no one else kept

property there. Defendant had the only key.

       The officer and a back-up officer searched the guest house.1 In the pocket of a

shirt hanging in the closet Officer Willemstyn found a syringe containing a clear liquid

substance which, based on his training and experience, he believed might be liquefied

methamphetamine. If it proved to be methamphetamine, he believed it was a usable

       1 Defendant was on probation and subject to a search condition, but to avoid
prejudice the jury was not informed of this fact. The jury was simply instructed that it
must assume that the search was lawful.


                                              2
quantity. He explained that if a syringe contained merely residue from use, it was usual

for the plunger to be completely depressed rather than, as here, drawn back above the

liquid. The officer also observed that the other clothing in the closet was of a similar

size, and it was all men’s clothing.

       Officer Willemstyn also testified that when defendant saw that the officer had the

syringe, he began to tremble and appeared to panic. He asked the officer if he was going

to be charged with possession of the syringe, and the officer confirmed that he would be

and that he might also be charged with a controlled substance offense, depending on the

results of testing the liquid. Defendant reacted to this by beginning to cry and admitting

that he had a serious drug problem.

       Back at the police station, Officer Willemstyn performed a preliminary test on the

liquid in the syringe which indicated that it was methamphetamine. The remaining liquid

was transferred to a glass vial2 and sealed for formal testing.

       The only other witness (defendant did not testify) was the criminalist, who

identified the liquid as containing methamphetamine and also testified that the reactions

were not difficult to analyze, as might have been the case with a very diluted sample.

She also testified that the amount of the sample was 0.16 milliliters.




       2   We have corrected the spelling of “vile” given in the transcript.


                                               3
                                       DISCUSSION

       In considering a claim of insufficient evidence, the reviewing court’s task is

simply to determine from the record whether there is evidence which is reasonable,

credible, and of solid value in support of the judgment. (People v. Watkins (2012) 55

Cal.4th 999, 1019.) The fundamental issue is not whether the appellate court believes

that the evidence establishes guilt beyond a reasonable doubt, but whether any rational

trier of fact could have found the elements of the crime true beyond a reasonable doubt.

(Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Rodriguez (1999) 20

Cal.4th 1, 11.)

       Defendant first3 argues that the evidence was not sufficient to prove that the

amount of methamphetamine in the syringe was a “usable amount.” This term is defined

simply as contraband which is in a form and quantity which makes it possible for it to be

used in the manner commonly employed, as distinguished from a “blackened residue or

useless trace.” (People v. Rubacalba (1993) 6 Cal.4th 62, 66.) It is not necessary that the

amount of contraband be sufficient, either in size or quality, to produce any narcotic

effect. (Id. at p. 65.) Officer Willemstyn testified that according to his training and

experience, the liquid in the syringe appeared to be a usable quantity, and this was

corroborated by his testimony that the plunger had not been fully depressed—that is, that

complete depression of the plunger would have resulted in the injection of some of the


       3 Actually, this is the second prong of his argument, but it makes more sense to
consider it first.


                                              4
liquid into the user’s body. This constitutes substantial evidence that the amount of

methamphetamine-containing liquid was “usable.”

       Defendant argues that the “usable amount” finding was based merely on the fact

that the syringe contained a “testable” amount, citing People v. Leal (1966) 64 Cal.2d

504, 509 which notes that as forensic science advances, smaller and smaller real amounts

of contraband may be detected by the scientist. But Rubacalba stresses that purity or

concentration is not relevant to the issue of whether an amount is “usable.” As we

discussed above, the evidence here showed an amount of liquid that could be injected.

That was “usable.”

       Defendant then argues that the evidence was not sufficient to establish that he had

knowledge that the amount was usable. Rubacalba does acknowledge that the purity of a

substance may be relevant to this point, although it finds that the form of the contraband

may also be relevant. (Rubacalba, supra, 6 Cal.4th at p. 67.) The example given is that

where a “microscopic amount of cocaine” is found included in a package of talcum

powder, such circumstances, the court commented, do not strongly suggest that the

defendant knew the amount was usable.

       This case is far different. The methamphetamine was not found, for example,

diluted in a bottle of mouthwash. It was contained in a syringe which is itself illegal to

possess. The syringe was in a pocket of a shirt in defendant’s home. Although in his

reply brief defendant asserts that his possession of the shirt was merely “constructive,”

implying that the shirt might have belonged to someone else and wound up in his closet



                                             5
without his knowledge of its contents, he told Officer Willemstyn that no one else kept

property in the guest house. To suppose that a third party, whose very existence is not

suggested by the record, placed either the shirt and syringe, or just the syringe in the

closet is the sheerest speculation. On the contrary, the inferences that the shirt belonged

to defendant and that he was aware of the presence of the syringe in his own shirt are

virtually inescapable. Furthermore, this conclusion is also corroborated by his extreme

anxiety when the syringe was discovered and his admission that he has a “drug problem,”

indicating his familiarity with substances and paraphernalia. As our discussion above

establishes, the amount was clearly “usable” in the legal meaning of the term and would

clearly have been considered such by an experienced “user.”

       Finally, the trial court imposed a $200 criminal laboratory fee pursuant to Health

and Safety Code section 11372.5. However, that section only mandates a fine of $50 for

“each separate offense” listed in subdivision (a). There is no provision for increasing this

amount. As defendant was convicted of only one listed offense—that under Health and

Safety Code section 11377, subdivision (a)4—the fine should be reduced to $50, and we

will so order. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.)




       4 Health and Safety Code section 11372.5, subdivision (a), also references the
possession of drug paraphernalia offense but lists it as section 11364. However, this
offense is currently described in section 11364.1, operative until January 1, 2015.
Section 11364 is currently inoperative until that date. In other words, the section 11364.1
conviction is not listed in section 11372.5 because that statute was not changed to reflect
the renumbering of the paraphernalia statute.


                                              6
                                    DISPOSITION

       The judgment is modified to reflect a fine under Health and Safety Code section

11372.5 in the sum of $50, and is otherwise affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                             HOLLENHORST
                                                                       Acting P. J.
We concur:



McKINSTER
                         J.



KING
                         J.




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