No. G052253.

THE PEOPLE, Plaintiff and Respondent, v. JESUS DIAZ ORNELAS, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.

Attorney(s) appearing for the Case

Thea Greenhalgh and Leslie Rose , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Scott C. Taylor and Alan L. Amann , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Jesus Diaz Ornelas appeals from a judgment after a jury convicted him of a single count of possession of methamphetamine for sale (Health & Saf., §§ 11378).1 The court placed Ornelas on three years' probation. Ornelas claims no evidence was introduced to demonstrate he had dominion or control over the bedroom in which a large quantity of methamphetamine was found. He also argues the trial court erred by failing to instruct the jury sua sponte a police officer's testimony was to be weighed and judged by the same standards that apply to other witnesses. We find no error, and affirm the judgment.


Ornelas lived in a single family home in Fullerton. The house had at least two bedrooms. In 2012, Fullerton police searched the home pursuant to a search warrant. When police executed the search warrant, Ornelas was in the house. Conflicting evidence was presented as to whether Robert Veteto was at the residence on the day of the search.

The house was equipped with a security camera outside the front door, which displayed a live feed on a monitor inside. During the search, a cell phone located in the living room rang and an officer answered it. A female voice warned that police were nearby and to "hide your shit." This was interpreted by the police as "hide your methamphetamine." Text messages found on Ornelas's cell phone before and during the search demonstrated he was engaged in methamphetamine sales.

Police determined the southwest bedroom belonged to Veteto as it contained: mail addressed to Veteto, a sign with Veteto's name, and a prescription for Veteto's girlfriend, Kerri Christensen. The prescription listed an address different from the residence it was found in. None of Ornelas's personal effects were found in the room. In the southwest bedroom police also found: a bag with 26.9 grams of methamphetamine, a bag with .7 grams of methamphetamine, $3,050 in cash, and a digital scale.

Police determined the southeast bedroom belonged to Ornelas as it contained mail addressed to him. In the room, police discovered a bag of .6 grams of methamphetamine, a container with .4 grams of loose methamphetamine, and another bag of . 4 grams of methamphetamine. They also found eight empty, zip-lock plastic bags used to package methamphetamine, as well as a mirror and a glass pipe with methamphetamine residue on them. Police found $97 on Ornelas's person. Prosecution expert Detective Kenneth Edgar opined that a user can also sell. He testified the 1.4 grams of methamphetamine found in Ornelas's bedroom amounted to approximately 75 to 80 individual doses of methamphetamine with a street value of approximately $140 to $200. The 26.8 grams found in Veteto's bedroom was worth approximately $1,000 to $1,200 and consisted of approximately 1,200 to 1,400 doses. Edgar opined that Ornelas and Veteto were working together to sell methamphetamine.

At trial, Veteto, who was tried as a codefendant, presented evidence that he was living in northern California from October 2011 to August 29 or 30, 2012. When he returned to southern California, he lived in Orange for two to three weeks to recover from food poisoning and gall bladder surgery. Veteto was acquitted of both possession of methamphetamine for sale and the lesser included offense of possession of methamphetamine. Charges against the other codefendant, Christensen, were dismissed.

At trial, the court instructed the jury, in accordance with CALCRIM No. 226, on witness credibility and reminded the jury that it must "judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have," and set out the factors the jury should consider in evaluating witness testimony. No further instruction pertaining to witness credibility was requested by the defense.


Ornelas contends the evidence was insufficient to support the single guilty verdict against him. He claims the only theory the prosecution could have prevailed on was constructive possession of the larger quantity of methamphetamine found in Veteto's bedroom because sellable amounts of methamphetamine and a large amount of cash were not found in Ornelas's possession. Ornelas further argues the trial court committed reversible error by failing to instruct the jury sua sponte a police officer's testimony is to be weighed by the same standards that apply to other witnesses. For the reasons set forth below, we disagree with Ornelas and affirm his conviction. We discuss each issue in turn.

Our standard of review on a challenge to the sufficiency of the evidence to support a conviction is whether `"on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) A reviewing court may not reverse a conviction based upon insufficient evidence unless it is clear "that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.)

To prove Ornelas guilty of possessing methamphetamine for sale, the prosecution needed to prove he knowingly possessed a useable amount of methamphetamine with the intent to sell it and while knowing of its nature as a controlled substance. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) At issue on appeal is whether there was sufficient evidence to establish possession. Possession may be actual or constructive. (People v. Williams (1971) 5 Cal.3d 211, 215.) Possession, whether actual or constructive, requires "that the accused had the right to exercise dominion and control over the contraband or at least that he had the right to exercise dominion and control over the place where it was found." (People v. Rice (1976) 59 Cal.App.3d 998, 1002.) "[E]xclusive possession or control is not necessary." (Id. at p. 1003.) "A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others." (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) While "[d]ominion and control" cannot be inferred merely from the defendant's proximity or access to the contraband, "the necessary additional circumstances may, in some fact contexts, be rather slight." (People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)

Ornelas contends the mere presence of an accused where the contraband is found is not sufficient evidence alone, to justify a conviction for possession for sale. While the general proposition of law is true, Ornelas ignores the evidence presented in this case involved more than just his mere presence at the residence where the methamphetamine was found. In Ornelas's bedroom, police found 1.4 grams of methamphetamine, approximately 75 to 80 individual doses, along with empty plastic baggies commonly used to package methamphetamine for sale. In Veteto's unlocked bedroom in the shared residence, police found 26.9 grams of methamphetamine, enough for approximately 1,200 to 1,400 doses of methamphetamine, and $3,050 in cash. Evidence at trial showed Veteto was not living at the residence during the search or in the months prior to it. Additionally, the residence had a security system displaying a live feed to a television monitor and Ornelas's cell phone received several text messages pertaining to drug sales.

Based upon this evidence, a reasonable juror could have inferred Ornelas possessed the 26.9 grams of methamphetamine in Veteto's bedroom. Moreover, Ornelas's guilt could reasonably be based solely upon his possession of 1.4 grams of methamphetamine, which equaled 75 to 80 individual doses combined with the cellphone messages. Thus, based on the entire record, there is sufficient evidence supporting Ornelas's conviction under both the federal and state constitutional due process clauses. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-577.)

Ornelas also claims the court was required to instruct the jury sua sponte that a police officer's testimony is to be weighed by the same standards that apply to other witnesses. We reject this claim.

The record clearly shows the court instructed the jury, in accordance with CALCRIM No. 226, that it must "judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have." This instruction conveyed to the jury that they were to treat the testimony of officer witnesses according to the same standards as civilian witnesses. Ornelas never requested a more specific "pinpoint" instruction on the issue. Contrary to Ornelas's argument, there is no sua sponte duty to instruct the jury not to "give an officer's testimony any artificial weight merely because he is an officer."

Ornelas's reliance on People v. Hill (1998) 17 Cal.4th 800 for this proposition is misplaced. In Hill, a jury convicted defendant of robbery and first degree murder (id. at p. 814), but the Supreme Court reversed based upon prosecutorial misconduct and trial court error. (Id. at pp. 844, 853.) One of court's many errors was permitting the courtroom bailiff to remain a functioning courtroom officer after he testified against the defendant. (Id. at p. 846.) The Supreme Court opined the trial court could have avoided "these problems by transferring [the bailiff] to another courtroom and instructing the jury to give [the bailiff's] testimony no extra weight." (Ibid.)

Hill does not create a duty for the trial court to instruct the jury sua sponte that a police officer's testimony is to be weighed by the same standards that apply to other civilian witnesses. The court's instruction was proper. Ornelas never requested a more specific instruction, and the court was not bound to give such an instruction on its own.


The judgment is affirmed.



1. All statutory references are to the Health and Safety Code.


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