People v. Salas CA3

Filed 9/30/16 P. v. Salas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C079324

Plaintiff and Respondent, (Super. Ct. No. 12F03953)

v.

JUAN SALAS,

Defendant and Appellant.

A jury convicted defendant Juan Salas of possessing methamphetamine for sale (Health & Saf. Code, § 11378), and the court found true the allegation that he had a prior conviction for the same offense (Health & Saf. Code, § 11370.2, subd. (a)). Sentenced to a split sentence of six years, including four years in custody and two years in mandatory supervision, defendant contends (1) there was insufficient evidence of constructive possession and (2) the suspended parole revocation restitution fine imposed under Penal Code section 1202.45 must be stricken because defendant’s sentence does not include a period of parole. The Attorney General concedes the fine was improper. We shall modify the judgment to strike the fine and affirm as modified.

1

FACTUAL AND PROCEDURAL BACKGROUND The Present Offense Around 8:55 a.m. on June 6, 2012, law enforcement officers went to a duplex on Judah Street in Sacramento to conduct a search. The parties stipulated that the search was lawful and that the duplex was the home of defendant and codefendant Patricia Caviness. After giving knock-notice at the front door for over two minutes without a response, the officers forced entry. They found Caviness standing in the hallway, halfway out of the bathroom. In a bedroom, they found a man and a woman asleep, along with a backpack and a purse.1 When the officers entered the master bedroom, they found defendant standing on the other side of the door. Inside the bathroom, California Highway Patrol Officer Mario Galvez, the officer designated to maintain and document evidence at the scene, found a wet Tupperware container that appeared to have just been rinsed out. On the toilet seat rim and “toward the floor and bottom of the” toilet, Officer Galvez saw a powder that proved to be methamphetamine; it amounted to 0.72 gram. Based on the time it took the officers to gain entry, Caviness’s location when found, and the Tupperware container and methamphetamine in the bathroom, Galvez believed Caviness had flushed some amount of methamphetamine down the toilet. On a coffee table in the living room, the officers found a Tupperware container holding two plastic bags containing a white crystal-like substance that later tested positive for methamphetamine; the larger bag weighed 25.3 grams, and the smaller bag weighed 2.02 grams. Also on the coffee table was a container holding two pipes for smoking methamphetamine. Nearby was a digital scale coated with a white residue.