Filed 3/17/16 P. v. Williams CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


THE PEOPLE,                                                         D067924

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN328432-2)

BERNICE WILLIAMS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Blaine K.

Bowman, Judge. Affirmed as modified and remanded with directions.


         William G. Holzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette

Cavalier and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and

Respondent.

         A jury convicted Bernice Williams of transportation of cocaine base and

possession of cocaine base for sale. Williams appeals, contending: (1) there was
insufficient evidence to establish that she transported and possessed the cocaine base; (2)

the trial court failed to sua sponte instruct the jury on the lesser included offense of

simple possession; and (3) the trial court erred by staying rather than striking four prison

prior enhancements. Lastly, Williams asks us to independently review a sealed transcript

to determine whether the trial court properly declined to reveal the identity of a

confidential informant. The Attorney General concedes and we agree that the trial court

erred in failing to strike the prison prior enhancements. In all other respects, we affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In December 2013, Detective Joe Kempton of the San Diego County Sheriff's

Department Narcotics Task Force began a drug-trafficking investigation into Williams.

As part of that investigation, Detective Kempton placed a GPS tracking device on

Williams's car. The GPS tracking revealed that Williams traveled from the north

San Diego area to Compton regularly, sometimes multiple times a week. During those

trips, Williams would stop in Compton for 10 to 15 minutes and then come right back to

San Diego.

       Detective Kempton and other officers also conducted physical surveillance of

Williams's movements. On one occasion, Detective Kempton observed conduct that in

his opinion was consistent with drug sales. In particular, Williams pulled over on a side

street, picked up a Black male, drove about two blocks, and then pulled over again to let

the male out of the car. After two months of conducting GPS and physical surveillance

on Williams, Detective Kempton concluded she was involved in selling crack cocaine

that she obtained in Compton.

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       On a day in February 2014, electronic surveillance showed that Williams's vehicle

made a trip from Fallbrook to Compton and then quickly turned around and returned.

Detective Kempton believed that Williams had gone to Compton that day to replenish her

supply of crack cocaine. Thus, he asked Oceanside police officers to make contact with

Williams's vehicle.

       Upon their arrival, officers observed Williams's vehicle parked in a carport with

the engine still running. The front passenger door was propped open halfway by the

passenger's leg. Williams was sitting in the driver's seat with her purse on her lap. Valisa

Joy was in the front passenger seat. Both women were looking down at Joy's purse,

which was sitting open on the center console. Williams and Joy each had one hand on

Joy's purse. When Joy noticed the officers, she grabbed her purse from the center

console and tried to hide it under her seat.

       The officers spoke with Williams and Joy. The officers determined that Joy lived

in the apartment complex where Williams had parked her car. Williams stayed at the

apartment sometimes and had a key to it. While talking to the officers, Williams

appeared anxious and was shaking.

       An officer searched Williams's car and the purses found in it. The officer found

three cell phones in Williams's purse and five $100 bills in a glass cup in the center

console of the vehicle. Inside Joy's purse, the officer found a black plastic bag, which

was tied in a loose knot and contained three hard circular objects. Those objects were

disks of crack cocaine, weighing 625.2 grams and worth $62,500.



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       Detective Kempton later searched Williams's three cell phones, but did not find

any evidence related to drug trafficking. He believed Williams had deleted any

incriminating messages. According to Detective Kempton, it is common for drug

traffickers to have multiple cell phones to conduct their business.

       Detective Kempton explained that Compton is a hub for cocaine trafficking.

Dealers often went to Compton to purchase cocaine and then brought it down to

San Diego. The cocaine from Compton was good quality, could be purchased at a

cheaper price than in San Diego, and resold for more money. For example, one ounce of

crack cocaine could be purchased in Compton for $650 versus $900 in San Diego.

Although it can vary, the typical amount of cocaine purchased by a street level user was

approximately one gram, which costs $100 in San Diego. Detective Kempton opined that

Williams possessed the crack cocaine officers found in this case for sale. He based that

opinion on the amount of cocaine found, the bulk form of the cocaine, Williams's

frequent trips to Compton, and Williams's multiple cell phones.

       Joy pleaded guilty to possession of cocaine base for sale. The trial court admitted

her guilty plea into evidence. Based in part on that guilty plea, the defense argued the

cocaine in Joy's purse belonged only to Joy. Further, the defense argued that Williams

did not possess the cocaine found in Joy's purse because there was no evidence that it

came from Compton. Rather, the defense claimed that the only reasonable inference

from the evidence was that just before officers arrived at the carport, Joy had entered

Williams's vehicle with the cocaine already inside of her purse.



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                                       DISCUSSION

                               I. Sufficiency of the Evidence

A. Standard of Review

        In assessing the sufficiency of the evidence, we examine the whole record in the

light most favorable to the judgment to determine whether it discloses substantial

evidence from which a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We must presume

in support of the judgment the existence of every fact the trier of fact could reasonably

deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless it is

clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to

support the verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423,

429.)

        "The standard of review is the same in cases in which the People rely mainly on

circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a

defendant if it finds that circumstantial evidence is susceptible of two interpretations, one

of which suggests guilt and the other innocence [citations], it is the jury, not the appellate

court which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If

the circumstances reasonably justify the trier of fact's findings, the opinion of the

reviewing court that the circumstances might also reasonably be reconciled with a

contrary finding does not warrant a reversal of the judgment.' " [Citations.]' [Citation.] '

"Circumstantial evidence may be sufficient to connect a defendant with the crime and to



                                              5
prove his guilt beyond a reasonable doubt." ' " (People v. Stanley (1995) 10 Cal.4th 764,

792-793.)

B. Transportation

       Williams argues insufficient evidence supported her conviction for transportation

of a controlled substance. We disagree.

       "Transportation of a controlled substance is established by carrying or conveying a

usable quantity of a controlled substance with knowledge of its presence and illegal

character. [Citations.] 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 (Meza).) "Circumstantial evidence is like a chain which link by

link binds the defendant to a tenable finding of guilt. The strength of the links is for the

trier of fact, but if there has been a conviction notwithstanding a missing link it is the

duty of the reviewing court to reverse the conviction." (People v. Redrick (1961) 55

Cal.2d 282, 290 (Redrick).)

       Here, the parties stipulated that Williams "knew of the nature or character of

cocaine base as a controlled substance." She challenges only the sufficiency of the

evidence to support the "carrying or conveying" element of the offense, arguing there was

no evidence that the cocaine was inside her vehicle when she traveled from Compton to

San Diego.

       Viewing the evidence in the light most favorable to the judgment, as we must, the

circumstantial evidence and reasonable inferences therefrom were sufficient to support

Williams's conviction for transportation of a controlled substance. Detective Kempton

                                              6
testified that "Compton is a hub of cocaine trafficking." He further testified that

Williams's pattern of driving from San Diego to Compton, stopping only briefly, and

returning was consistent with drug trafficking. He explained that when drug traffickers

travel to a location to replenish or "re-up" their drug supply, the meeting is brief to avoid

law enforcement detection.

       Williams's conduct on the day of her arrest was consistent with the "re-upping"

behavior described by Detective Kempton. Just before Williams was arrested in this

case, she had traveled from San Diego to Compton and had quickly turned around and

returned. The engine of her car was still running when officers contacted her. Further,

Williams had her hand on Joy's purse and was looking into it. Although there was no

direct evidence that Williams picked up cocaine in Compton before returning to

San Diego, the circumstantial evidence supported this conclusion.

       Williams asserts that Detective Kempton's belief that Williams had crack cocaine

in her vehicle when she traveled from Compton to San Diego is "mere speculation" and

cannot support a finding of fact. It is, of course, settled that a conviction cannot be based

on mere speculation and conjecture. (People v. Marshall (1997) 15 Cal.4th 1, 35 ["mere

speculation cannot support a conviction"]; People v. Harvey (1984) 163 Cal.App.3d 90,

105, fn. 7 ["Substantial evidence means more than simply one of several plausible

explanations for an ambiguous event."].) However, as we explained, on the totality of the

evidence here, a reasonable trier of fact could draw nonspeculative inferences that

Williams transported the cocaine from Compton to San Diego just before she was

arrested.

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       Lastly, Williams argues that because the drugs were in Joy's purse and the car was

parked at Joy's apartment complex, the record suggests Joy brought the drugs into the car

with her. "The existence of possible exculpatory explanations, whether they are simply

suggestions not excluded by the evidence or even where they could be reasonably

deduced from the evidence, could not justify this court's rejecting the determination of

the trier of fact that defendant is guilty unless on appeal it 'be made clearly to appear that

upon no hypothesis whatever is there sufficient substantial evidence to support the

conclusion reached in the court below.' " (Redrick, supra, 55 Cal.2d at p. 290.) While

the evidence may be reconciled with a finding that Joy had the drugs in her purse when

she entered Williams's vehicle, the circumstances also reasonably justify the jury's

findings. Where, as here, we find no missing link in the chain of circumstantial evidence,

we will not interfere with the jury's findings simply because there is a possible

exculpatory explanation. (Ibid.)

C. Possession

       Williams argues insufficient evidence supported her conviction for possessing a

controlled substance for sale because it was pure speculation that she possessed the crack

cocaine found in Joy's purse. We disagree.

       "Unlawful possession of a controlled substance for sale requires proof the

defendant possessed the contraband with the intent of selling it and with knowledge of

both its presence and illegal character." (Meza, supra, 38 Cal.App.4th at pp. 1745-1746.)

"Possession may be either actual or constructive; the latter is established by showing that

defendant maintained some control or right to control over contraband in the physical

                                              8
possession of another." (People v. Rogers (1971) 5 Cal.3d 129, 134.) "[P]ossession may

be imputed when the contraband is found in a place which is immediately and exclusively

accessible to the accused and subject to his dominion and control, or to the joint

dominion and control of the accused and another." (People v. Williams (1971) 5 Cal.3d

211, 215.) However, defendant's mere presence in the place where the contraband is

found is not sufficient on its own to support a finding of unlawful possession. (People v.

Johnson (1984) 158 Cal.App.3d 850, 854.)

       Here, the record contains substantial evidence of possession. The evidence

established that Williams owned the vehicle in which the officers found Joy's purse

containing cocaine base. When officers approached William's vehicle, Williams and Joy

were both looking down at Joy's purse, which was sitting open on the center console

between them. Williams and Joy each had one hand on the purse. This evidence

established that Williams had access to the purse containing the cocaine base and it was

subject to her dominion and control. The fact that Joy also had dominion and control

over the purse does not defeat Williams's possession. "[P]ossession need not be

exclusive to support a conviction of possession of a narcotic." (People v. White (1970)

11 Cal.App.3d 390, 396.)

       Williams offers a "variety of innocent explanations" for why her hand was on

Joy's purse. For example, she claims she could have been looking for another item,

steadying the purse on the center console, or attempting to purchase a small amount of

drugs from Joy. However, "[t]he credence and ultimate weight to be given the evidence

of the various particular circumstances are of course for the trier of fact, and '[i]t is the

                                               9
trier of fact, not the appellate court, that must be convinced of a defendant's guilt beyond

a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the

opinion of the reviewing court that the circumstances might also be reasonably reconciled

with a contrary finding does not warrant a reversal of the judgment.' " (Redrick, supra,

55 Cal.2d at p. 289.) Based on the record before us, there was substantial evidence to

support the jury's finding of possession.

                          II. Lesser Included Offense Instruction

       Williams argues the trial court erred by failing to sua sponte instruct the jury on

the lesser included offense of simple possession. We reject this argument.

       Simple possession is a lesser included offense of possession of a controlled

substance for sale. (People v. Oldham (2000) 81 Cal.App.4th 1, 16.) The trial court has

a sua sponte duty to instruct the jury on lesser included offenses when the evidence raises

a question as to whether all of the elements of the charged offense were present, "but not

when there is no evidence the offense was less than that charged." (People v. Saldana

(1984) 157 Cal.App.3d 443, 453-454; People v. Birks (1998) 19 Cal.4th 108, 118.) "In

deciding whether there is substantial evidence of a lesser offense, courts should not

evaluate the credibility of witnesses, a task for the jury." (People v. Breverman (1998) 19

Cal.4th 142, 162 (Breverman).) Instructions on lesser included offenses are required only

if the evidence would justify a conviction of the lesser included offense. (People v.

Lopez (1998) 19 Cal.4th 282, 287-288; People v. Leach (1985) 41 Cal.3d 92, 106.) " 'On

appeal, we review independently the question whether the trial court failed to instruct on

a lesser included offense.' " (People v. Avila (2009) 46 Cal.4th 680, 705.)

                                             10
       Here, the evidence did not support a conviction on the lesser offense of simple

possession. Officers found three disks of crack cocaine, weighing 625.2 grams and worth

$62,500. They also found three cell phones in Williams's purse and five $100 bills in the

center console of her vehicle. According to Detective Kempton, the typical amount of

cocaine purchased by a street level user was approximately one gram, which costs $100

in San Diego. Further, he testified that drug dealers often use multiple cell phones to

conduct their business. This evidence suggests Williams was guilty of possession for

sale, and we find no substantial evidence to support simple possession. Moreover,

Williams's defense was that she did not have possession of the cocaine base at all;

instead, she claimed it belonged to Joy who had it in her purse when she entered the

vehicle. (People v. Anderson (1979) 97 Cal.App.3d 419, 425 ["Where the giving of the

instruction is in direct conflict with the defense theory, the court does not have the sua

sponte duty of giving that instruction."].) Therefore, we conclude the trial court did not

err when it failed to sua sponte instruct the jury on the lesser included offense of simple

possession.

       Even if we were to find error, the error would be harmless. In Breverman, the

California Supreme Court held that "in a noncapital case, error in failing sua sponte to

instruct, or to instruct fully, on all lesser included offenses and theories thereof which are

supported by the evidence must be reviewed for prejudice exclusively under [People v.]

Watson [(1956) 46 Cal.2d 818]." (Breverman, supra, 19 Cal.4th at p. 178.) Under this

test, we must examine the entire record to determine whether it was reasonably probable

the error affected the outcome. (Ibid.) Under the facts of this case, we find it is not

                                              11
reasonably probable that the alleged error affected the outcome. As discussed above, the

crucial evidence uniformly pointed to Williams's guilt of the greater offense of

possession for sale. Therefore, it is not reasonably probable that an instruction on the

lesser offense would have produced a different result.

                              III. Prison Prior Enhancements

       In pronouncing Williams's sentence, the trial court noted that it could impose a

sentence of 21 years, but did not feel it was warranted in this case. Instead, the trial court

sentenced Williams to a total term of 17 years, split between a custody term of 13 years

and a mandatory supervision term of four years. The trial court stayed the imposition of

sentence for Williams's four prison priors.

       Williams argues and the People concede that the trial court erred by staying rather

than striking the prison priors. We agree with the parties. A trial court is required to

either impose the prison prior enhancement or strike it. (People v. Garcia (2008) 167

Cal.App.4th 1560, 1561.) Where, as here, it is clear from the record that the trial court

intended to strike the enhancements, we have jurisdiction to correct the sentence.

(People v. Jack (1989) 213 Cal.App.3d 913, 916.) Williams's sentence is modified to

strike the four prison prior enhancements under Penal Code section 667.5, subdivision

(b).

                           IV. Identity of Confidential Informant

       A public entity can refuse to disclose the identity of a confidential informant

where such disclosure is "against the public interest because the necessity for preserving

the confidentiality of his or her identity outweighs the necessity for disclosure in the

                                              12
interest of justice." (Evid. Code, § 1041, subd. (a)(2).) If a criminal defendant requests

disclosure on the ground the informant is a material witness on the issue of his guilt, the

court must conduct a hearing outside the presence of the jury; if the privilege is asserted

in that hearing, the prosecuting attorney may request that the court conduct an in camera

hearing outside the presence of the defendant and his counsel. At the in camera hearing,

the prosecution may present evidence to aid the court in its determination of whether the

identity of the informant must be disclosed. (Evid. Code, § 1042, subd. (d).) The court

cannot order disclosure unless, based upon the evidence presented at the hearings, it

concludes that there is a reasonable possibility that nondisclosure might deprive the

defendant of a fair trial. (Ibid.)

       Prior to trial, Williams moved for disclosure of the identity of a confidential

informant based on a police report indicating that Detective Kempton learned from an

informant that Williams was selling crack cocaine in the north San Diego County area.

Williams argued there was a reasonable probability that the informant could provide

evidence that would exonerate her. The prosecution opposed the motion, asserting the

privilege against disclosure set out in Evidence Code section 1041, and requested an in

camera hearing. The trial court conducted an in camera hearing in which it heard

testimony from Detective Kempton. The court thereafter ruled that the informant could

not offer exculpatory or impeachment evidence benefiting Williams and the need for the

privilege outweighed any need to disclose the information.




                                             13
       Williams asked this court to independently review the sealed transcript of the in

camera hearing so as to assess the correctness of the trial court's ruling, and the People

express no objection. Having done so, we conclude the trial court did not err in denying

defense counsel's request to disclose the identity of the confidential informant because

the informant did not provide information that was exculpatory or material to Williams's

guilt or innocence with respect to the offenses charged in this case. (Evid. Code, § 1040,

subd. (d).)

                                      DISPOSITION

       The judgment is modified to strike the four prison prior enhancements; as so

modified, the judgment is affirmed. The matter is remanded to the trial court to amend

the abstract of judgment reflecting this modification and forward a copy of the amended

abstract of judgment to the Department of Corrections and Rehabilitation.

                                                                               PRAGER, J.*

WE CONCUR:


McCONNELL, P. J.


NARES, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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