Filed 4/2/14 P. v. Suarez CA2/6
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B248105
                                                                          (Super. Ct. No. 2012003233)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

JESUS SAMUEL SUAREZ,

     Defendant and Appellant.


                   Jesus Samuel Suarez appeals a judgment following conviction of possession
of methamphetamine for sale and transportation of methamphetamine, with findings that
the methamphetamine exceeded 28.5 grams by weight and that he served three prior prison
terms. (Health & Saf. Code, §§ 11378, 11379, subd. (a)1; Pen. Code, §§ 1203.073, subd.
(b)(2), 667.5, subd. (b).) We affirm.
                                   FACTS AND PROCEDURAL HISTORY
                   In the afternoon of January 26, 2012, Ventura Police Detectives Adam
Delgado and Joshua Young patrolled Johnson Drive in an unmarked vehicle. They saw
Suarez in a silver-colored Chrysler automobile linger at a stop sign and then look "up and
down the street."
                   The detectives followed Suarez to a nearby gasoline station. There, he
remained inside his vehicle, spoke on a cellular telephone, and looked around. Suarez then

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    All further statutory references are to the Health and Safety Code unless otherwise stated.
walked inside the station's convenience store, returned to his vehicle, pumped gasoline,
and spoke on the telephone. Afterward, he drove to the north side of the station where
again, he looked around and spoke on the telephone.
              The detectives continued to monitor Suarez because they suspected he was
involved in criminal activity. While watching him, they checked the license plate number
of his automobile and learned that it belonged to Enterprise Rent-A-Car. This information
heightened the detectives' suspicions.
              Suarez left the gasoline station and drove to a nearby fast-food restaurant.
There, he parked the automobile, opened and closed its trunk quickly, looked around, and
then drove a short distance within the parking lot. Suarez parked the automobile and
walked into a liquor store where he purchased two cold beverages. Meanwhile, James
Lopez drove into the shopping center and parked his Chevrolet Malibu automobile near
Suarez's automobile. By this time, Detective Delgado had requested assistance from
Ventura Police Officer Kyle Robinson.
              When Suarez returned to his automobile, he and Lopez conversed. Suarez
opened the passenger door of Lopez's automobile and walked to the Chrysler automobile
and retrieved items from the front seat. Suarez carried the items, including the cold
beverages, to the front seat of Lopez's automobile. Detective Young video-recorded the
encounter between the two men, and at trial, the prosecutor played the recording.
              When Officer Robinson arrived, Lopez shut the door of the Chevrolet
automobile. Robinson searched Suarez and found $427, a digital scale, and 1.18 grams of
methamphetamine (in a prescription pill container) in a clothing pocket. Suarez did not
appear to be under the influence of narcotics nor did he possess any narcotics
paraphernalia. Suarez admitted to Robinson that the substance in the pill container was
methamphetamine.
              Robinson also searched the two automobiles. In the front seat of the
Chevrolet automobile, he found a large jewelry box containing 148.10 grams of
methamphetamine, and two bottles of cold beverages. He also found a digital scale in the
trunk of the automobile. The jewelry box had a porous surface that precluded obtaining

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fingerprint evidence. Neither the jewelry box nor the baggies containing the
methamphetamine had sufficient DNA material deposits for testing. Robinson searched
the Chrysler automobile and found a cellular telephone with no record of calls.
              Robinson arrested Suarez and Lopez. A later search of Lopez revealed $40
and a blank money order for $350.
              The jury convicted Suarez of possession of methamphetamine for sale (count
1), and transportation of methamphetamine (count 2). (§§ 11378, 11379, subd. (a).) It
also found that the methamphetamine exceeded 28.5 grams by weight. (Pen. Code,
§ 1203.073, subd. (b)(2).) In a separate proceeding, Suarez admitted serving four prior
prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial
court sentenced Suarez to a prison term of six years, consisting of a three-year middle term
for count 2, plus three consecutive one-year terms for the prior prison term enhancements.
The court also imposed a 16-month consecutive term for count 1, but stayed sentence
pursuant to Penal Code section 654. Finally, it struck the remaining prison term
enhancement, imposed a $200 laboratory fee, a $200 drug program fee, and a $280
restitution fee, and awarded Suarez 228 days of presentence custody credit. (§§ 11372.5,
11372.7, subd. (a); Pen. Code, 1202.4, subd. (b).)
              Suarez appeals and contends that: 1) insufficient evidence supports the
judgment; 2) the trial court erred by instructing with CALCRIM No. 373 ("Other
Perpetrator"); and 3) the prosecutor committed misconduct by misstating the evidence.
                                       DISCUSSION
                                              I.
              Suarez argues that insufficient evidence supports the judgment, particularly
the elements of possession and intent to sell. He asserts that there is no evidence that he
constructively possessed the 148.10 grams of methamphetamine found in the jewelry box
because forensic evidence did not connect him to the box and the police did not see him
remove or carry the box from his Chrysler automobile. Suarez adds that a conviction
resting upon insufficient evidence violates federal and California constitutional principles
of due process of law.

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               In reviewing the sufficiency of evidence to support a conviction, we examine
the entire record and draw all reasonable inferences therefrom in favor of the judgment to
determine whether there is reasonable and credible evidence from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. (People v. Streeter
(2012) 54 Cal.4th 205, 241.) Our review is the same in a prosecution primarily resting
upon circumstantial evidence. (People v. Watkins (2012) 55 Cal.4th 999, 1020.) We do
not reweigh the evidence or reassess the credibility of witnesses. (People v. Albillar
(2010) 51 Cal.4th 47, 60.) We accept the logical inferences that the jury might have drawn
from the evidence although we would have concluded otherwise. (Streeter, at p. 241.) "If
the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be reconciled with
a contrary finding." (Albillar, at p. 60.) In our review, we focus upon the evidence that
does exist, rather than the evidence that does not exist. (People v. Story (2009) 45 Cal.4th
1282, 1299.)
               The crime of possession of a controlled substance for sale is established by
proof that the defendant possessed the contraband with the intent of selling it and with
knowledge of both its presence and illegal character. (People v. Ghebretensae (2013) 222
Cal.App.4th 741, 754; People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) The
crime of transportation of a controlled substance is established by proof that defendant
carried or conveyed the contraband with knowledge of its presence and illegal character.
(People v. Ormiston (2003) 105 Cal.App.4th 676, 682.) "'The crux of the crime of
transporting is movement of the contraband from one place to another.'" (Ibid.)
               Sufficient evidence and reasonable inferences therefrom support the
elements of possession and intent to sell. The detectives saw Suarez open the trunk of his
automobile, retrieve an object, and then return to the driver's seat. Suarez behaved
"nervous[ly]" and looked around before meeting Lopez in the parking lot. When he met
Lopez, Suarez opened the passenger door of Lopez's automobile, retrieved items from the
front seat of the Chrysler automobile, including two cold beverages, and deposited the
items on the front seat of Lopez's automobile. Detective Young testified: "I saw [Suarez]

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get out of the driver's side. He had some items in his hand he was carrying almost like you
would carry, like, a football or something, and kind of cradled it into a Chevy that was
parked just next to him . . . ." Young recorded Suarez's actions and, at trial, the prosecutor
played the recording. Lopez did not enter his automobile following the transfer. Officer
Robinson immediately found the jewelry box containing methamphetamine and the two
cold beverages on the front seat. Moreover, a search of Suarez revealed a digital scale in
his clothing pocket, permitting the reasonable inference that he intended to sell the
methamphetamine that he possessed and transferred to Lopez.
                                              II.
              Suarez contends that the trial court erred by instructing with CALRIM No.
373 ("Other Perpetrator") because it undermined his defense that Lopez was the culpable
party. He claims that the error denied him due process of law pursuant to the federal
Constitution because the instruction precluded the jury's consideration of the
constitutionally relevant evidence that Lopez alone possessed the jewelry box containing
methamphetamine.
              CALCRIM No. 373 provides: "The evidence shows that another person may
have been involved in the commission of the crimes charged against the defendant. There
may be many reasons why someone who appears to have been involved might not be a
codefendant in this particular trial. You must not speculate about whether that other
person has been or will be prosecuted. Your duty is to decide whether the defendant on
trial here committed the crimes charged."
              For several reasons, there is no error.
              First, Suarez consented to the instruction, pointing out that the instruction
use note provides that the instruction should be given upon request. Suarez also stated that
"[i]t just seems like an appropriate instruction." He may not now raise an objection to this
instruction. (People v. Whalen (2013) 56 Cal.4th 1, 81-82.)
              Second, it is settled that an instruction on unjoined perpetrators does not
interfere with a third party culpability defense. (People v. Farmer (1989) 47 Cal.3d 888,
918-919, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn.

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6.) "[T]he instruction does not tell the jury it cannot consider evidence that someone else
committed the crime. [Citation.] It merely says the jury is not to speculate on whether
someone else might or might not be prosecuted." (Id. at p. 918 [considering predecessor
instruction CALJIC No. 2.11.5].) CALCRIM No. 373 did not preclude or diminish
Suarez's defense of third party culpability; it merely directed the jury not to be distracted
from its task of determining Suarez's guilt or innocence by considering whether an
uncharged person might also be culpable. (People v. Sanders (1990) 221 Cal.App.3d 350,
360.)
                                              III.
              Suarez argues that the prosecutor committed misconduct by making these
statements not supported by evidence at trial: "Dope dealers drive rental cars because
when the law enforcement runs their license plate, they don't learn anything about the
individual driving it," and "Dope buyers . . . [are] not going to go out and rent a car every
time they want to go out and buy a gram of dope." In each instance, the trial court struck
the prosecutor's statement and admonished the jury that argument of counsel is not
evidence. The prosecutor also displayed a slide during summation, stating that drug
dealers use rental cars. Suarez again objected, and the court admonished the jury that the
prosecutor's argument was not evidence. The court declined to direct the prosecutor to
remove the slide, however.
              The standards governing review of claims of prosecutorial misconduct are
well settled. (People v. Gonzales (2012) 54 Cal.4th 1234, 1275.) "When a prosecutor's
intemperate behavior is sufficiently egregious that it infects the trial with such a degree of
unfairness as to render the subsequent conviction a denial of due process, the federal
Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial
fundamentally unfair may still constitute misconduct under state law if it involves the use
of deceptive or reprehensible methods to persuade the trial court or the jury." (People v.
Panah (2005) 35 Cal.4th 395, 462.) To prevail on a claim of prosecutorial misconduct
based on remarks to the jury, the defendant must show a reasonable likelihood that the jury
understood or applied the complained-of comments in an improper or erroneous manner.

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(People v. Gamache (2010) 48 Cal.4th 347, 371; People v. Caldwell (2013) 212
Cal.App.4th 1262, 1269.)
              Although a prosecutor has a wide latitude in presenting his case, he may not
mischaracterize or misstate the evidence. (People v. Hamilton (2009) 45 Cal.4th 863,
928.) The prosecutor may fairly comment on the evidence, including reasonable
inferences or deductions to be drawn therefrom. (People v. Gamache, supra, 48 Cal.4th
347, 371.)
              The prosecutor's comments regarding rental cars and drug sellers are
reasonable common sense inferences drawn from the evidence at trial. Police officers do
not "learn anything about the individual driving [a rental car]" when checking the license
plates. Drug buyers are also not likely "to go out and rent a car every time they want to go
out and buy a gram of dope."
              In any event, the trial court sustained Suarez's objections to the prosecutor's
comments and instructed that the prosecutor's argument was not evidence and that the jury
alone would determine the facts. We presume the jury understands and follows the court's
instructions. (People v. Pearson (2013) 56 Cal.4th 393, 414 [presumption that jury
understands and follows court's instructions]; People v. Hamilton, supra, 45 Cal.4th 863,
957 [claim that prosecutor prejudicially misstated evidence not prejudicial where court
instructed that argument by counsel was not evidence].)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                          GILBERT, P.J.
We concur:


              YEGAN, J.



              PERREN, J.

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                                 Bruce A. Young, Judge

                            Superior Court County of Ventura

                          ______________________________


             Pamela J. Voich, under appointment by the Court of Appeal, for Defendant
and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Allison H. Chung, Deputy Attorney
General, for Plaintiff and Respondent.




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