Filed 9/24/20 P. v. Aguirre CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077164
Plaintiff and Respondent,
v. (Super. Ct. No. SCS307634)
ALEJANDRO AGUIRRE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Roderick Shelton, Judge. Affirmed as modified and remanded with
directions.
Rachel M. Ferguson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
Rogers, Lise Jacobson and Christopher P. Beesley, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury convicted Alejandro Aguirre of resisting an executive officer
(Pen. Code,1 § 69); battery on a peace officer (§ 243, subd. (b)); possession of a
controlled substance (Health and Saf. Code, § 11350, subd. (a)); possession of
drug paraphernalia (Health and Saf. Code, § 11364); and possessing a stun
gun (§ 22610, subd. (a)). The court found true an alleged prison prior
(§ 667.5, subd. (b)).
The court sentenced Aguirre to the two-year midterm for resisting an
officer. The remaining counts were sentenced concurrently with the
section 69 term. The court struck the prison prior and imposed a split
sentence of 16 months in custody and eight months under mandatory
supervision.
Aguirre appeals, contending the evidence is not enough to prove he
possessed a vest containing heroin and a stun gun. Aguirre also contends the
court’s written order imposing an electronic search condition is invalid. The
People concede the court erred in the manner of the imposition of the search
condition because such condition was not orally imposed by the court at
sentencing. In any event, the People observe the condition is not likely
proper under the facts of this case and asks the court to strike the search
condition. Otherwise, the People argue there is enough evidence to prove
Aguirre possessed the vest.
We will agree with the parties regarding the search condition and
remand the case to the trial court with directions to strike it. Otherwise, we
will find the record contains enough evidence to support the jury’s findings.
1 All further statutory references are to the Penal Code unless otherwise
specified.
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STATEMENT OF FACTS
The parties do not disagree about the facts presented at trial. The
factual dispute is about the sufficiency of the evidence.
We will adopt the summary of the facts as set forth in the respondent’s
brief for convenience.
While on routine patrol, an officer was parked in his police cruiser in an
area known for a lot of narcotics activity when he saw that Aguirre’s car,
parked in a lot across the street, was missing a front license plate. The
officer saw Aguirre walk up to the car, get in, and drive out of the parking lot.
The officer pursued Aguirre to stop him for the missing front plate.
Almost immediately after the officer started his pursuit, Aguirre drove
his car back into the parking lot from which he had come and parked his car
across two parking stalls. As the officer stopped his cruiser behind Aguirre’s
parked car, Aguirre got out of his car and tried to hurry away.
The officer repeatedly commanded Aguirre to stop and explained to
Aguirre why he was being detained. Aguirre was having none of it and kept
trying to walk away. The officer continued to urge Aguirre to stop, but
Aguirre would not listen. During the interaction, as the officer tried to gain
physical control over him, Aguirre jabbed the officer with his fist.
The officer called for backup, used a Taser to incapacitate Aguirre, and
took him into custody. During a pat-down search of Aguirre, the officer
recovered two syringes in his pocket. In a search of Aguirre’s car, another
officer found two additional syringes with a brown residue inside in the
center console, and a vest that was right behind the driver’s seat. In the vest
pockets, the officer found two bindles of heroin and a stun gun.
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DISCUSSION
I
Sufficiency of the Evidence of Possession
Aguirre contends the evidence was not enough to prove he possessed
the vest containing heroin and a stun gun found behind the driver’s seat of
Aguirre’s car. We will reject this contention.
A. Legal Principles
When a person challenges the sufficiency of the evidence to support a
conviction, we review the challenge under the substantial evidence standard
of review. Under that standard we review the entire record drawing all
reasonable inferences in favor of the trial court decision. We do not weigh the
evidence, nor do we make credibility decisions. It is our task to determine
whether there is enough substantial evidence to permit the jury to find each
element of the offense to be proved beyond a reasonable doubt. (People v.
Johnson (1980) 26 Cal.3d 557, 578; People v. Young (2005) 34 Cal.4th 1149,
1180.) We apply the same standard in evaluating the sufficiency of
circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)
In order to prove possession of a substance or a weapon, the People
must show the defendant exercised dominion and control over the item,
whether the possession be actual or constructive. (People v. Palaschak (1995)
9 Cal.4th 1236, 1242; People v. Pena (1999) 74 Cal.App.4th 1078, 1083.)
Constructive possession means the item is not in the defendant’s
physical possession, but the defendant knowingly exercises control or the
right to control the item. (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.)
“[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.” (People v. Williams (1971) 5 Cal.3d 211, 215.)
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B Analysis
The vest in issue was found in Aguirre’s car. He told police it was his
car. He was the only person in the car, and the vest was discovered behind
the driver’s seat. Aguirre had syringes on his person when arrested, and
syringes were discovered in the center console of the car. There was no
evidence at trial that anyone other than Aguirre had access to the car.
When approached by police, Aguirre parked his car and tried to walk
away from the car, which led to the encounter with the officer. His evasive
behavior regarding the car as well as the drug equipment on his person and
in the car could support an inference he did not want police to see what was
in his car and support an inference he knew the contraband was in the car.
Thus, we think a reasonable jury could conclude, on these facts, that Aguirre
exercised dominion and control over the car and the things in it. It could also
conclude from his behavior that Aguirre was aware of the existence of the
drugs and the stun gun.
Applying the proper standard of review and drawing all reasonable
inferences in support of the verdict, we are satisfied there is enough
substantial evidence in the record to support the verdict.
II
The Electronic Search Condition
At the sentencing hearing, the court did not orally specify what
conditions of mandatory supervision would be imposed. The clerk filed a
written order, which contained the conditions, including search of electronic
devices. Aguirre contends the failure to orally pronounce the condition is at
odds with the written order.
The People agree with Aguirre. Principally, they note the written order
does not track the oral pronouncement of sentence. The People also observe
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it is doubtful such condition would meet the high standards set by the court
in In re Ricardo P. (2019) 7 Cal.5th 1113. There is nothing in the record
implicating possible use of electronic devices by Aguirre in this case or in the
future as such devices might impact his supervision. The People suggest, in
the interest of judicial economy and because Aguirre only challenges the one
condition, that we strike the condition. In light of the record, we believe it
would be an idle act to remand to reconsider the condition. We accept the
People’s invitation and order the trial court to strike the search condition.
DISPOSITION
The trial court is directed to strike the electronic search condition for
mandatory release and to modify the judgment accordingly. In all other
respects, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O’ROURKE, J.
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