P. v. Cooper

Filed 8/4/06 P. v. Cooper CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Sylvia L. Husing, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Frederick Warren Cooper of transporting methamphetamine (Health & Saf. Code, § 11379) and of driving without a license (Veh. Code, § 12500, subd. (a)). The court found true the enhancement allegations regarding six prior convictions (Pen. Code, § 667.5, subd. (b)), as well as one related to a previous conviction of Health and Safety Code section 11379.6, subdivision (a). (Health & Saf. Code, § 11370.2, subd. (a).) The court sentenced defendant to a total term of eight years in state prison. On appeal, defendant contends there was insufficient evidence to sustain the conviction of transportation of methamphetamine since he did not possess a usable amount of methamphetamine. We disagree and affirm the judgment.

FACTUAL BACKGROUND

On June 2, 2005, defendant was driving in a car, and failed to stop at a stop sign and yield the right of way to another car. Officer Daniel Torning was in his patrol car and witnessed this violation. When Officer Torning attempted to pull defendant over, defendant sped up and then eventually stopped. Officer Torning asked defendant why he did not stop earlier, and he said he thought he might have a warrant for his arrest. Officer Torning asked to see defendant's driver's license. Since he did not have one, Officer Torning placed defendant under arrest and patted him down for weapons. Officer Torning found a baggie containing a white substance that he believed to be methamphetamine in defendant's wallet, which was in defendant's front right pocket. The white substance lined the bottom of the baggie. The police also found a syringe in defendant's trunk.

Officer Torning later tested the white substance at the police station using a Narcotics Identification Kit (NIK). The test results confirmed that the substance was methamphetamine. Officer Torning weighed the methamphetamine with the packaging since there was only a small amount in the bag. The total weight was .3 grams. At trial, Officer Torning testified that the amount of methamphetamine found on defendant was a usable amount. Two other expert witnesses also testified that the quantity found was a usable amount.

ANALYSIS

Defendant contends there was insufficient evidence to sustain his conviction for transportation of methamphetamine. Specifically, he claims that the amount of methamphetamine found in his pocket was a useless trace, not a usable amount. We disagree.

A. Standard of Review

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