Filed 12/19/19 P. v. Mertle CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL THOMAS MERTLE,

Defendant and Appellant.

A156330

(Mendocino County

Super. Ct. No.

SCUK-CRCR-2018-93430-1)

Defendant and appellant Michael Thomas Mertle (appellant) appeals following his conviction of possession of a controlled substance for sale (Health & Saf. Code, § 11378). He contends insufficient evidence supports the conviction. He also requests remand for determination of his ability to pay fines and fees. We affirm.

PROCEDURAL BACKGROUND

In June 2018, the Mendocino County District Attorney filed an information charging appellant with sale or transportation for sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count one) and possession of a controlled substance for sale (Health & Saf. Code, § 11378; count two). In September, following a bench trial, appellant was acquitted on count one and convicted on count two.

In December 2018, the trial court placed appellant on probation for 36 months under various conditions, including that appellant serve a 120-day jail term. The court also imposed a restitution fine of $300 (Pen. Code, § 1202.4), a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)), a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov’t. Code § 70373).

This appeal followed.

FACTUAL BACKGROUND

On the evening of February 20, 2018, peace officer Adam Elledge responded to a Best Western Inn in Ukiah, California, in search of a suspect in an unrelated case. Another officer encountered appellant leaving the individual’s room. Officer Elledge searched appellant and found 10.214 grams of methamphetamine and a used pipe. The methamphetamine was packaged such that “[o]ne cellophane bag had a little bit and the majority of the methamphetamine was in another bag inside the first bag.”

Appellant told Officer Elledge that someone who owed him money gave him the methamphetamine and that that he planned to give away half of the drugs. At trial, the officer testified as follows regarding appellant’s explanation: “[Appellant] explained to me that having that large amount of methamphetamine on him is sort of like flash. It draws attention to him from other people in the drug community and he often gives it to people, and [appellant] told me that in exchange for the drugs sometimes people will provide him with information such as who’s looking for drugs and who has drugs currently.” Subsequently, Officer Elledge agreed with the prosecutor’s characterization that appellant said “he would often give [the methamphetamine] away to other people and once they got high they would provide information.”

The prosecution’s drug expert opined that a person possessing methamphetamine in circumstances like those in the present case “would be possessing it to furnish or sell it.” The expert testified the amount of methamphetamine appellant possessed would take a heavy user over ten days to consume.

DISCUSSION

I. The Verdict Was Supported by Substantial Evidence

Appellant contends there was insufficient evidence to support a finding that appellant intended to sell the methamphetamine in his possession. We reject the claim.

“ ‘To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. . . . A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142.)

“ ‘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. [Citation.]’ [Citations.] Intent to sell may be established by circumstantial evidence.” (People v. Harris (2000) 83 Cal.App.4th 371, 374.) “ ‘In cases involving possession of . . . [methamphetamine], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.’ ” (Id. at pp. 374–375.)

Appellant concedes that “sales” within the meaning of section 11378 of the Health and Safety Code include not only “sales for cash” but also “transfers other than for money” (People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845), including—hypothetically—the alleged exchanges for information involved in the present case. However, appellant points out the prosecution’s drug expert opined only that the circumstances suggested possession “to furnish or sell” the methamphetamine. (Emphasis added.) Appellant argues an intent to furnish the drugs is not equivalent to an intent to sell the drugs, as required to sustain the conviction.

Appellant also points out that Officer Elledge did not unambiguously testify that appellant said he intended to exchange methamphetamine for information. Instead, although the officer did at one place in his testimony use the word exchange, the officer later agreed with the prosecutor’s characterization of his testimony as being that appellant “would often give it away to other people and once they got high they would provide information.” The hypothetical recounted to the prosecution’s expert similarly described a “person [who] indicates that he has furnished methamphetamine to people in the past in order to get them under the influence of a substance and then get information from those people.” Appellant argues, “The surmise from these facts is not one of an exchange of information for the methamphetamine, but the hope of [appellant] to obtain information as a consequence of those receiving the methamphetamine becoming high and then divulging information.”

We agree with appellant that the expert’s ultimate conclusion is not substantial evidence to support the verdict because he testified the circumstances suggested possession to furnish the methamphetamine or to sell it. We also agree with appellant that the record does not reflect an unambiguous admission from appellant that he intended to exchange the methamphetamine for information, in contrast to an expectancy that users might divulge information while high. However, the trial court could also rely on the “circumstantial evidence” in finding appellant had intent to sell. (People v. Harris, supra, 83 Cal.App.4th at p. 374.) In particular, appellant possessed over 10 grams of methamphetamine; the prosecution’s drug expert testified that amount would take a heavy user over 10 days to consume and finding even one gram on a user would be unusual. Indeed, appellant admitted to Officer Elledge that the methamphetamine was not all for personal use. Contrary to appellant’s apparent belief, the trial court was not obligated to believe appellant’s story that he intended to give away half of the drugs with the hope of obtaining information. That tale was inherently incredible, considering the unlikelihood appellant would give away so much narcotics and the fact that the information appellant said he hoped to get—who needed drugs and who had drugs—would especially be useful to someone engaged in the sale of methamphetamine. Based on the amount of methamphetamine possessed by appellant and the dubious nature of the story he told Officer Elledge, the trial court could reasonably infer appellant intended to sell some of the methamphetamine or exchange some of the drugs for information, rather than give it away in the mere hope of getting information.

II. No Remand for Ability to Pay Determination

Appellant was ordered to pay a $300 restitution fine (§ 1202.4), a $50 laboratory analysis fee (Health & Saf., Code, § 11372.5), a $40 court operations assessment (§ 1465.8), and a $30 court facilities assessment (Gov’t. Code, § 70373). Appellant contends the matter should be remanded for a hearing on his ability to pay the fine, fee, and assessments, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano). We reject the claim.

A. Background

Section 1204.2, subdivision (b)(1) provides for a restitution fine in the minimum amount of $300, and up to a maximum amount of $10,000, when a defendant is convicted of a felony. Section 1202.4, subdivision (c) specifies, “The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states its reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of restitution in excess of the minimum fine. . . .” Thus, the statute requires the trial court to impose the statutory minimum regardless of the defendant’s ability to pay, but the court may consider ability to pay in setting a fine in excess of the statutory minimum. (People v. Kramis (2012) 209 Cal.App.4th 346, 350.) The laboratory analysis fee and the court facilities and operations assessments are mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 272; Health & Saf. Code, § 11372.5.)

In Dueñas, supra, 30 Cal.App.5th 1157, the defendant was indigent, homeless, a mother of two young children, afflicted with cerebral palsy, and barely surviving on public assistance. (Id. at pp. 1160–1161.) Her driver’s license had been suspended because she was unable to pay three juvenile citations, and she subsequently suffered a series of misdemeanor convictions for driving with a suspended license. (Id. at p. 1161.) In each case, she “was offered the ostensible choice of paying a fine or serving jail time in lieu of payment,” but each time she was unable to pay and served time in jail. (Ibid.) When she suffered another misdemeanor conviction for driving with a suspended license, she asked the trial court to set a hearing to determine her ability to pay court fees. (Id. at p. 1162.) The trial court imposed a restitution fine and court facilities and operations assessments, concluding they were mandatory. (Id. at p. 1163.)

On appeal, the Dueñas court held Penal Code section 1202.4 requires a trial court to impose a minimum restitution fine regardless of ability to pay, but the constitutional right of due process requires that execution of the fine be stayed until the defendant’s ability to pay is determined. (Dueñas, supra, 30 Cal.App.5th at p. 1172.) The court also found it was a violation of due process to impose the section 1465.8 and Government Code section 70373 assessments without finding that the defendant had the ability to pay them. (Dueñas, at p. 1168.) In Castellano, supra, 33 Cal.App.5th 485, the court of appeal held the defendant’s claim under Dueñas had not been forfeited and followed Dueñas, also applying the same reasoning to the Health & Safety Code section 11372.5 laboratory analysis fee. (Castellano, at pp. 489–491.)

B. Analysis

At the outset, we reject respondent’s contention that appellant forfeited any challenge under Dueñas because he failed to object on the ground of ability to pay below. “ ‘Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 92; see also People v. Edwards (2013) 57 Cal.4th 658, 705 [“ ‘ “We have excused a failure to object where to require defense counsel to raise an objection ‘would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections. . . .’ ” ’ ”].) At the time of sentencing, Dueñas had not yet been decided and the trial court was obligated by statute to impose the minimum restitution fine and the statutory fee and assessments. An objection on the ground now asserted would have been futile. (See Castellano, supra, 33 Cal.App.5th at p. 489.)

On the merits, we agree with those courts that have concluded that Dueñas, although possibly correct on its facts, was incorrect to the extent it stated a broader rule that, as a matter of constitutional due process, an ability-to-pay hearing is required before imposition of fines. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917.) As the cases explain, in contrast to the two strands of authority on which Dueñas relied, the failure to determine ability to pay a minimum restitution fine, fees, and assessments does not, absent unusual circumstances, impair a defendant’s access to the courts or subject them to imprisonment as a consequence. Imposition of the fine, fee, and assessments in the present case did not violate appellant’s right to due process.

DISPOSITION

The judgment is affirmed.

 

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

(A156330)