Filed 5/19/14 P. v. Osbourn CA3
                                           NOT TO BE PUBLISHED
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
                                      THIRD APPELLATE DISTRICT
                                                        (Colusa)
                                                            ----




THE PEOPLE,                                                                             C074353

                   Plaintiff and Respondent,                        (Super. Ct. Nos. CR53993, CR54247)

         v.

WALTER LEROY OSBOURN III,

                   Defendant and Appellant.




         Stemming from two separate incidents involving the execution of a search warrant
and the response of police officers to a domestic violence report, the trial court found
defendant Walter Leroy Osbourn III guilty of possession of Vicodin, possession of
hydrocodone, attempted burglary, corporal injury to a cohabitant, and several other
counts.1 On appeal, defendant argues there was insufficient evidence to prove he



1       The trial court consolidated the two cases resulting from the two incidents into one
trial. There was also a third case consolidated into this trial that is not at issue.

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possessed either Vicodin or hydrocodone. Defendant also contends the court should have
stayed punishment for the attempted burglary because it “arose in the same course of
conduct and with the same objective as” what defendant characterizes as the “assaultive
conduct” for which the court had already sentenced him. We disagree and affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
                                              I
                              May Incident (Case No. 53933)
       The first incident arose out of the execution of a search warrant by a detective in
the Colusa County Narcotics Task Force. During the course of the search, Detective Jose
Ruiz found Vicodin and hydrocodone located with defendant’s other property.
       Detective Ruiz served a narcotics-related search warrant at a single-wide, one-
bedroom trailer. Defendant and two others were inside the trailer when Detective Ruiz
served the search warrant. In the bedroom , Detective Ruiz found methamphetamine on a
mirror and in a pen tube, several small baggies, a large black plastic bag, a scale, over
$1,300 in cash, concentrated cannabis, a bottle containing Vicodin, and a bottle
containing hydrocodone.
       After discovering these items, Detective Ruiz questioned defendant. Defendant
explicitly stated to Detective Ruiz that he owned the methamphetamine and concentrated
cannabis found in the bedroom. Defendant did not admit or deny ownership of the
Vicodin and hydrocodone; he only admitted he did not have a prescription for either item.
In a court trial, the court found him guilty of seven separate counts, including two counts
of possession of a controlled substance relating to the Vicodin and hydrocodone.
                                             II
                              July Incident (Case No. 54247)
       The second incident was the culmination of an altercation between defendant and
his girlfriend that began earlier in the evening at a casino and continued over the course



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of three separate episodes that night and in the early morning of the next day at his
girlfriend’s apartment.
       Chantel Parker, defendant’s girlfriend, went to a casino to celebrate her birthday.
Defendant and Parker had a “pushing [and] shoving match” at the casino. The altercation
turned violent when defendant grabbed Parker’s hair and dragged her down a hallway
after she fell to the floor. About an hour after the attack, Parker left the casino and
decided to return to her apartment. Fearing defendant might assault her at her apartment
when she returned home, Parker stopped at the Colusa County Sheriff’s Department,
located across the street from her apartment, and asked for an escort. City of Colusa
police officers were dispatched to the sheriff’s department and escorted Parker back to
her apartment. As part of the escort, the officers entered Parker’s apartment and found
defendant in Parker’s bedroom. Defendant left but returned three to five minutes later
and began yelling and knocking on the back door. Parker immediately ran out of her
apartment to the sheriff’s department to report the incident. Officers responded and
defendant left again.
       Approximately three to five hours later, Parker awoke2 to “someone banging on
[her] kitchen window and door.” (An officer later observed that the window screen on
the kitchen was bent outward and damaged.) Suspecting it was defendant, Parker asked
“who’s there,” and moved toward the front door. At the front door she said, “that’s it
I’ve had it . . . [I’m] headed back to the sheriff’s department for help.” Just as she exited
the front door of her apartment, defendant grabbed her by the neck, hit her in the face,
and started choking her on the ground. He then began to pull her into the apartment and




2      Parker could not recall why she awoke during the third incident. She did not
answer any further questions describing the third incident but admitted to a letter she
wrote on the day after the incident, which became the factual basis for the trial court’s
finding.

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threatened to kill her “if she contacted law enforcement” or “called the police.”
Defendant continued to attack Parker inside the apartment. At some point, defendant
stopped the assault, let Parker put her head on his shoulder, got her an ice pack, and
carried her to bed. In the morning, defendant and Parker remained at the apartment until
police officers arrived in response to a domestic violence report.
       On these facts, the trial court found defendant guilty of eight charges, including
attempted burglary and the “assaultive conduct” (corporal injury to a cohabitant), false
imprisonment, and criminal threats. At sentencing, the trial court imposed an upper term
of four years on the corporal injury conviction, a consecutive eight-month term on the
attempted burglary conviction, an additional consecutive eight-month term on the false
imprisonment conviction, and stayed the two-year sentence on the criminal threats charge
pursuant to Penal Code3 section 654. The court stated that it chose consecutive terms
because the crimes were “independent in the criminal motive for their commission, [and]
were committed at separate times and places.”
                                      DISCUSSION
                                             I
                 Possession Of Vicodin And Possession Of Hydrocodone
       Defendant argues there was insufficient evidence to convict him of both
possession charges. He contends the prosecution did not demonstrate he had dominion or
control over either the Vicodin or hydrocodone. He also argues that nothing in the record
demonstrates that he lived in the room where Detective Ruiz found the Vicodin and
hydrocodone. Defendant’s arguments are unpersuasive.
       “ ‘On appeal, we review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence--that is, evidence




3      All further section references are to the Penal Code.

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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. Sanghera (2006) 139
Cal.App.4th 1567, 1572.) To meet this standard, the record must provide substantial
“evidence of each of the essential elements of the crime.” (People v. Hernandez (1988)
47 Cal.3d 315, 345-346.) “An appellate court’s function is to correct errors of law; and
where a jury has been waived, . . . [the trial court is] [t]he trier of fact [and] is the sole
judge of the weight and worth of the evidence.” (People v. Hills (1947) 30 Cal.2d 694,
701.) “ ‘Before the judgment of the trial court can be set aside for the insufficiency of the
evidence, it must clearly appear that on no hypothesis whatever is there sufficient
substantial evidence to support the verdict.’ ” (Sanghera, at p. 1573.)
       It is well established the elements of possession of a controlled substance are
“physical or constructive possession thereof coupled with knowledge of the presence of
the drug and its narcotic character.” (People v. White (1969) 71 Cal.2d 80, 82.)
“Constructive possession occurs when the accused maintains control or a right to control
the contraband; possession 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.) The court may establish possession
through reasonable inferences drawn from circumstantial evidence. (Ibid.)
       Detective Ruiz found defendant inside the trailer while serving the search warrant.
Because of the small size of the trailer, defendant could easily access all of the items
discovered in the bedroom. Detective Ruiz also discovered both substances in the
bedroom where defendant had dominion and control over his personal effects. When
questioned by Detective Ruiz, defendant admitted the methamphetamine and
concentrated cannabis discovered in the bedroom were his property. From this evidence,
the court could reasonably infer defendant had constructive possession of the Vicodin and
hydrocodone because they were located with his other property. Although defendant did

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not admit owning either substance, it is not necessary for defendant to explicitly admit
owning either the Vicodin or hydrocodone for the court to properly find he possessed a
controlled substance. (People v. Bass (1952) 110 Cal.App.2d 281, 285.)
       In Bass, the defendant had a key that provided him immediate and exclusive
access to a two-room shack. (People v. Bass, supra, 110 Cal.App.2d at pp. 281-282.)
When police searched the shack they found documents belonging to the defendant and
marijuana in one of the rooms. (Id. at p. 282.) The defendant admitted owning the
documents but denied ownership of the marijuana. (Ibid.) The appellate court affirmed
the trial court’s finding that the defendant had constructive possession of the marijuana
because he had access to the shack and the marijuana was located with his other property.
(Id. at p. 285.) This case is similar to Bass because the Vicodin and hydrocodone were
found in a room where defendant had a right to control his other property.
       Defendant’s other argument -- that there is insufficient evidence of possession
because the other people in the trailer had access to the Vicodin and hydrocodone -- is
also without merit. “Exclusive possession is not necessary” to support a finding that
defendant constructively possessed the Vicodin and hydrocodone. (People v. Rushing
(1989) 209 Cal.App.3d 618, 622.) Therefore, it was proper for the trial court to find
defendant possessed both substances even though the others in the trailer also may have
had a right to exercise dominion and control over the bedroom.
                                             II
                      Penal Code Section 654 -- Attempted Burglary
       The trial court found defendant guilty of attempted burglary for trying to enter
Parker’s apartment during the July incident and also found him guilty of corporal injury
to a cohabitant for attacking Parker during the same incident. Defendant argues that
because the attempted burglary charge arose from the same course of conduct and with
the same objective as his “assaultive conduct,” the sentence for attempted burglary must
be stayed pursuant to section 654. We disagree.

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       Section 654, subdivision (a) provides in relevant part that “[a]n act or omission
that is punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” Section 654 is
applicable when a course of conduct violates more than one statute. (Neal v. State (1960)
55 Cal.2d 11, 19.) The court must decide whether the course of conduct “comprised a
divisible transaction which could be punished under more than one statute within the
meaning section 654.” (Ibid.) To determine whether a course of criminal conduct is
divisible, the court must determine the intent and objective of the defendant. (Ibid.) If
the court determines the defendant “entertained multiple criminal objectives which were
independent of and not merely incidental to each other, [the defendant] may be punished
for independent violations committed in pursuit of each objective even though the
violations shared common acts or were parts of an otherwise indivisible course of
conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639; People v. Vidaurri (1980) 103
Cal.App.3d 450, 464-465.) “ ‘[M]ultiple crimes are not one transaction where the
defendant had a chance to reflect between offenses and each offense created a new risk of
harm.’ [Citation.] Under section 654, a course of conduct divisible in time, though
directed to one objective, may give rise to multiple convictions and multiple punishment
‘where the offenses are temporally separated in such a way as to afford the defendant
opportunity to reflect and renew his or her intent before committing the next one, thereby
aggravating the violation of public security or policy already undertaken.’ ” (People v.
Lopez (2011) 198 Cal.App.4th 698, 717-718.)
       “The determination of whether there was more than one objective is a factual
determination, which will not be reversed on appeal unless unsupported by the evidence
presented at trial. [Citation.] The factual finding that there was more than one objective
must be supported by substantial evidence.” (People v. Saffle (1992) 4 Cal.App.4th 434,
438.) “ ‘[W]e review the trial court’s findings “in a light most favorable to the

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respondent and presume in support of the order the existence of every fact the trier could
reasonably deduce from the evidence.” ’ ” (People v. Lopez, supra, 198 Cal.App.4th at
p. 717.)
       Here, we must determine whether the record contains evidence that could
reasonably lead to the conclusion that defendant’s objectives in committing the attempted
burglary and the “assaultive conduct” were divisible. (People v. Nelson (1989) 211
Cal.App.3d 634, 638.) Defendant argues the attempted burglary and the “assaultive
conduct” shared the same intent and objective, which was to assault Parker. In other
words, defendant contends he was trying to enter Parker’s apartment in order to
physically assault her, which he ended up doing when she exited her apartment to contact
the sheriff’s department. The People, on the other hand, argue there was substantial
evidence to support the court’s implied finding of two different objectives and that the
acts were temporally separated such that defendant could reflect and renew his intent to
commit the offenses. We agree with the People’s second contention.
       Substantial evidence supports the conclusion that defendant’s intent during the
attempted burglary was simply to assault Parker. Every time defendant was alone with
Parker that evening, he acted in a violent manner toward her. He also continued to
attempt to enter Parker’s apartment twice after sheriff’s deputies removed him from the
residence. Each time he returned he yelled and attempted to break in through a window
or a door, which the trial court could have logically found demonstrated his continued
intent to assault Parker. The record also demonstrates Parker was fearful of defendant
attacking her, which provides context to demonstrate defendant’s intent. Parker feared a
potential attack by defendant when she requested an escort from the police officers upon
returning home from the casino. She also was fearful when she ran to the sheriff’s
department after defendant returned to her apartment yelling and banging on her back
door. One police officer also testified that Parker feared if she did contact the sheriff’s
department, defendant would harm her. When the trial court viewed the defendant’s

                                              8
actions in the context of the entire evening, it could have reasonably determined
defendant’s objective during the attempted burglary was to assault Parker because he
continued to demonstrate violent behavior toward Parker, which Parker’s fear
substantiated.
       Although substantial evidence also supports a finding that the intent and objective
of the assault was the same as the attempted burglary, the trial court could have
reasonably determined that defendant reflected on and renewed his intent between the
attempted burglary and the assault on Parker. (See People v. Lopez, supra, 198
Cal.App.4th at p. 698; People v. Louie (2012) 203 Cal.App.4th 388, 399; People v.
Kurtenbach (2012) 204 Cal.App.4th 1264, 1289.) Defendant initially attempted to break
into Parker’s apartment by damaging a screen on the kitchen window and banging on the
door. Subsequently, Parker awoke, got out of bed, attempted to talk to defendant through
the door, opened the front door, and proceeded to leave her apartment. After these events
occurred, defendant assaulted Parker. The offenses were divisible in time because
defendant had time to reflect and renew his intent, which created a new risk of harm to
Parker. Accordingly, the trial court did not err in refusing to stay the sentence for
attempted burglary.
                                      DISPOSITION
       The judgment is affirmed.


                                                        ROBIE                  , Acting P. J.
We concur:



      BUTZ                  , J.



      DUARTE                , J.


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