P. v. Flores

Filed 2/7/07  P. v. Flores CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I.  INTRODUCTION

            Appellant Ricardo Flores appeals from the judgment following his conviction by a jury of possession for sale of cocaine base (Health & Saf. Code, §  11351.5) and cocaine (Health & Saf. Code, §  11351).  Appellant contends the trial court improperly denied his pretrial motion to suppress evidence and made several erroneous evidentiary rulings during the trial.  Finding no reversible error, we will affirm.

II.  FACTUAL AND PROCEDURAL BACKGROUND

            On October 6, 2005, the San Francisco County District Attorney filed an information charging appellant with possession for sale of cocaine base (Health & Saf. Code, §  11351.5, count one) and cocaine (Health & Saf. Code, §  11351, count two).  The information also charged probation ineligibility based on the quantity of cocaine base possessed for sale (Pen. Code, §  1203.073, subd. (b)(5), count one) and prior convictions (Health & Saf. Code, §  11370, subds. (a) & (c), counts one and two).  Two prior prison terms (Pen. Code, §  667.5, subd. (b)) were also alleged:  (1) on July 10, 1996, for possession of marijuana (Health & Saf. Code, §  11357, subd. (a)); and (2) on June 4, 2003, for possession of a controlled substance (Health & Saf. Code, §  11350, subd. (a)). 

            Prior to trial, appellant moved pursuant to Penal Code section  1538.5 to suppress evidence.  The court denied the motion.[1] 

            At trial, it was uncontested that appellant possessed more than 17 grams of a substance containing cocaine base and 3.97 grams of a substance containing cocaine salt.  The issue at trial was whether he possessed the drugs for sale.

Prosecution Case

            On August 13, 2005, at approximately 9:15 p.m., San Francisco police officers Mathew Neves and Carlos Manfredi stopped appellant and his companion, Mr. Gomez-Sanchez, at 21st Street and Bartlett in San Francisco.  Neves searched appellant and found two tightly wrapped paper bindles in his left front pants pocket.  One contained 114 individually-wrapped, off-white rocks of suspected cocaine base.  The second bindle contained five small plastic baggies of white powder the officer believed was cocaine salt. 

            Two rocks randomly selected for testing were found to contain cocaine base.  The total weight of the rocks was 17.08 grams.  The powder in one of the five baggies tested positive for cocaine salt and weighed 3.97 grams. 

            Manfredi arrested appellant.[2]  Appellant had over $600 in cash:  five hundreds, two twenties, one ten, nine fives, and thirty-one ones.  Appellant possessed no paraphernalia for ingesting cocaine and had no marks or burns on his fingers, which would have been suggestive of smoking cocaine.  Manfredi wrote in his police report that appellant weighed 118 pounds, but he did not remember how he got that information.  Manfredi testified that it could have come from an identification card.  Appellant did not appear to be malnourished, as cocaine addicts frequently are.  Unlike smokers of crack cocaine, who are jittery and cannot stand still, appellant was calm and appeared to be in good health. 

            Neves testified that the majority of persons he saw who used cocaine were homeless.  He generally found paraphernalia on them for ingesting the drug.  Appellant did not appear to be homeless; his clothes and body were clean. 

            On cross-examination, Manfredi agreed with defense counsel that the area of 21st and Bartlett was not a high crime area in the â€