P. v. James

Filed 6/22/06 P. v. James CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Janet I. Kintner, Judge. Affirmed.

A jury convicted codefendants Elmer Dawayn James and Eric Wayne Young of selling cocaine base in violation of Health & Safety Code^[1] section 11352, subdivision (a) (count 1) and Young of resisting a peace officer in violation of Penal Code section 148, subdivision (a)(1) (count 2).

The count 1 verdict as to James included a finding that the act on which the jury relied for that verdict was James's involvement in the "sale/furnishing of a controlled substance" to Alexei Kavanaugh, a prosecution witness who testified under a grant of immunity. The count 1 verdict as to Young included a finding that the act on which the jury relied for that verdict was Young's involvement in the "sale/furnishing of a controlled substance" to Detective David Hall.

James admitted two previous violations of section 11352, subdivision (a) within the meaning of section 11370.2, subdivision (a), and a violation of section 11351.5 within the meaning of Penal Code section 1203.07, subdivision (a)(11), making him ineligible for parole. Young admitted three prison priors within the meaning of Penal Code sections 667.5, subdivision (b) and 668, and one strike prior within the meaning of Penal Code sections 667, subdivisions (b) through (i), 668, and 1170.12.

In May 2005 the court sentenced James to the middle term of four years on count 1, plus an additional three years for one of the section 11370.2, subdivision (a) enhancements, for an aggregate prison term of seven years. In June 2005 the court sentenced Young to an aggregate prison term of 13 years, consisting of 10 years (double the upper term of five years) on count 1, plus three consecutive one-year terms for the three prison priors.

Defendants separately appeal their convictions. Young contends (1) the evidence was insufficient to sustain the verdicts as to counts 1 and 2, and (2) imposition of the upper term violated his constitutional right to a jury trial and to proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments to the federal Constitution. James contends the evidence was insufficient to support the jury's finding that he supplied a controlled substance to Kavanaugh because the jury received no evidence beyond conjecture as to the chemical composition of the substance. We conclude that substantial evidence supports defendants' convictions, and the court did not violate Young's constitutional right to a jury trial when it sentenced him to the upper term for count 1.

FACTUAL BACKGROUND

A. The People's Case

On January 12, 2005, the San Diego Police Department was conducting a "buy/bust" narcotics operation. Detective Hall, who was working undercover as part of the Central Division Narcotics Team Eight in the 1600 block of "K" Street in San Diego, came into contact with Young. Detective Hall had in his possession prerecorded currency consisting of a $20 bill, a $10 bill, and three $5 bills. Detective Hall asked Young whether Young could "hook [him] up with a 20," which in street terminology means $20 worth of cocaine base. Young replied, "I can't help you out there, officer," and continued walking.

Detective Hall continued asking people whether they could hook him up with a 20, came in contact with Kenneth Bailey, and asked him the same thing. Bailey agreed to help and told Detective Hall to wait. Bailey walked eastbound, then returned to Detective Hall after failing to obtain any cocaine. When Bailey told him he needed the money, Detective Hall gave Bailey the prerecorded $10 bill and two $5 bills. Bailey then walked westbound on the south sidewalk of 1600 "K" Street, where he met up with James.

James was with Kavanaugh, a cocaine addict. Kavanaugh asked for a 20 from James. James replied he could get it for Kavanaugh, and told Kavanaugh to wait. Bailey, who had Detective Hall's prerecorded money, then approached James and began walking with James westbound on the south side of 1600 "K" Street. They walked up to a group of people at the corner of 16th and "K" Streets. Young was among the people in that group. After a brief conversation, the group, including James, Young and Bailey, began walking southbound on the east sidewalk of the 200 block of 16th Street. At this point, Detective Hall lost sight of James, Young and Bailey. Kavanaugh was still waiting, close to where Detective Hall was waiting on the "K" Street sidewalk.

Detective José Laguda, another member of the narcotics team, was working as the "eyes" of the team in a public parking lot on the northwest corner of 16th and "K" Street, conducting surveillance with binoculars. Detective Laguda was able to hear the discussion between Detective Hall and Bailey when Detective Hall gave the money to Bailey.

Detective Laguda had an unobstructed view of James, Young and Bailey walking together. They walked to a brown stucco apartment. Detective Laguda still had a clear view of all three men. He saw Bailey reach toward Young and hand him something which Young accepted. In return, Young handed something to James. Detective Laguda then saw James reach out and hand something to Bailey. The three men talked briefly, and then Bailey and James walked back to the area where Detective Hall and Kavanaugh were located.

About five minutes after Bailey and James walked around the corner and out of sight, Detective Hall saw the two men reappear. Bailey walked up to Detective Hall, and James walked up to Kavanaugh. James and Kavanaugh engaged in a conversation that Detective Hall was able to hear. Kavanaugh asked James whether he "had gotten his 20." James replied, "Yeah, it's right here." Detective Hall observed James give a small, off-white, rock-looking substance to Kavanaugh. Based on his training and experience, Detective Hall opined that the substance was cocaine base. Detective Hall heard Kavanaugh arguing with James, saying, "[T]his is a small [piece], this ain't a 20." James responded, "That's all the guy had, man." Kavanaugh then said, "Whatever," and walked away.

Detective Hall then asked Bailey, "Have you got it?" Bailey replied, "Yeah," and placed an off-white rock substance in the palm of Detective Hall's hand. The off-white rock looked similar in size and substance to the off-white rock that James had handed to Kavanaugh. Detective Hall thanked Bailey and gave him a $5 bill from the prerecorded money for helping him. Detective Hall then gave the bust signal to the other member of his team. Detective Laguda also observed the hand-to-hand exchanges between Bailey and Detective Hall, and between James and Kavanaugh.

Officer Jessie Zaldivar apprehended Bailey in the 1600 block of "K" Street. Officer Zaldivar recovered from Bailey's hand the prerecorded $5 bill that Detective Hall gave to Bailey for helping to sell the drugs to Detective Hall.

Officer Michael Spears detained James. As Officer Spears was detaining James, Young walked away at a fast pace or trot. Detective Laguda saw Young walking toward the door of a liquor store and then running westbound in the 1500 block of "K" Street.

Kavanaugh testified that after he purchased the rock of cocaine from James and started walking away, he saw police officers approaching the area and dropped the rock on the road. Kavanaugh then went to his pickup truck and began to drive away when he encountered Young. Young said, "Let me get a ride." Young got into the passenger side of Kavanaugh's truck. Kavanaugh said to Young, "Let me get another 20." Young replied, "I don't have any drugs."

Officer Zaldivar saw Young riding as a passenger in Kavanaugh's pickup truck. As he was preparing to activate his overhead lights and siren to stop the truck, Officer Zaldivar saw the front right passenger door open while the truck was moving. Officer Zaldivar immediately activated his overhead lights and siren, and Young jumped out of the truck and began running away. Officer Zaldivar exited his patrol car and ran after Young. Officer Zaldivar identified himself and yelled at Young to stop During the chase, Young ran into a warehouse, exited, and continued running. Officer Zaldivar again ordered Young to stop, but Young climbed over a fence and continued running.

Another undercover member of the narcotics team, Detective Matthew Novak, who was also involved in the chase, saw Young approach a red Jeep parked on Island Avenue, where he ducked down. Frederick James, a state parole agent assisting the narcotics team and riding with Detective Novak, saw Young throw something under the Jeep, stand up, and run eastbound. Shortly thereafter, Officer Spears drove up to Young, told him to get on the ground, handcuffed him, and took him into custody.

Detective Novak testified that he and some other officers searched the area near the Jeep where Young had ducked down and found a number of bills wadded up on the ground near where they had seen him kneel down. The bills included a $10 bill and two $5 bills, all of which were prerecorded bills used by Detective Hall.

The substance sold to Detective Hall tested positive for cocaine base, and weighed 0.12 grams.

B. The Defense

Young called Detective Hall as a witness. Hall clarified that prerecorded money was found under the red Jeep.

Young also called John Ballard, defense investigator. Ballard took measurements of the scene on the morning of his second day of testimony. The distance from where Detective Laguda was parked to the southeast corner of 16th and "K" Streets is 128 feet. The distance from the northwest corner of 16th and "K" Streets to three-quarters of the way up the block towards 17th and "K" Streets is 230 feet.

James did not call any witnesses.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

"'"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence─i.e., evidence that is credible and of solid value─from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."' [Citations.] When undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment. [ Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 848-849.)

The same standard of review applies in cases in which the People mainly rely on circumstantial evidence. (People v. Stanley (1995) 10 Cal. 4th 764, 792.) "'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. "'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.]' [Citation.] '"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt."' [Citation.]" (Id. at pp. 792-793.)

"'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [ Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

B. Analysis

Young and James separately appeal their convictions. We address Young's sufficiency of the evidence challenges first, then James's.

1. Young

a. Count 1

Young maintains there was insufficient evidence to support his conviction of selling cocaine base in violation of section 11352, subdivision (a) because "[n]o witness saw [him] give a controlled substance to either Bailey or [Detective] Hall." Young ignores the very strong circumstantial evidence the prosecution presented against him.

The elements of the offense of selling a controlled substance (§ 11352, subd. (a)) are (1) sale of the substance, and (2) knowledge of the presence and nature of the substance. (People v. Murphy (2005) 134 Cal.App.4th 1504, 1508.) These elements "can be established by circumstantial evidence and any reasonable inferences drawn from that evidence." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746, citing People v. White (1969) 71 Cal.2d 80, 83 & People v. Eckstrom (1986) 187 Cal.App.3d 323, 331.)

Here, the prosecution presented direct and circumstantial evidence from which any rational jury could have found Young guilty beyond a reasonable doubt of selling a controlled substance in violation of section 11352, subdivision (a). Detective Hall testified that when he asked Young whether Young could "hook [him] up" with $20 worth of cocaine base, Young replied, "I can't help you out there, officer," and continued walking. Detective Hall then asked Bailey the same thing. Bailey agreed to help and said he needed the money. Detective Hall gave Bailey a prerecorded $10 bill and two prerecorded $5 bills. Bailey then walked away and met up with James.

James was with Kavanaugh, a cocaine addict that testified at trial under a grant of immunity, who was asking to purchase $20 worth of drugs from James. Bailey and James separately told the buyers (Detective Hall and Kavanaugh) to wait while they (Bailey and James) walked to the corner of 16th and "K" Streets where they met with Young.

Detective Hall testified that after a brief conversation, Young, James, and Bailey began walking southbound on the east sidewalk of the 200 block of 16th Street. At this point, he lost sight of them. However, Detective Laguda was working as the eyes of the narcotics team in a public parking lot on the northwest corner of 16th and "K" Streets, conducting surveillance with binoculars. He had been able to hear the discussion between Detective Hall and Bailey when Detective Hall gave the money to Bailey.

Detective Laguda testified he had an unobstructed view of James, Young and Bailey as they walked together to a brown stucco apartment. He observed Bailey reach toward Young and hand him something, which Young accepted. Young, in return, handed something to James. Detective Laguda then saw James hand something to Bailey. The three men talked briefly, and then Bailey and James walked back to the area where Detective Hall and Kavanaugh were waiting.

Detective Hall testified that he saw Bailey and James reappear about five minutes after they walked around the corner and out of sight. Bailey approached Detective Hall, and James approached Kavanaugh. Detective Hall stated he was able to hear the conversation between James and Kavanaugh. Kavanaugh asked James whether he "had gotten his 20," and James replied, "Yeah, it's right here." Detective Hall then saw James give a small, off-white, rock-looking substance to Kavanaugh. Based on his training and experience, Detective Hall opined that the substance was cocaine base. Detective Hall then heard Kavanaugh argue with James, saying, "[T]his is a small [piece], this ain't a 20." When James replied, "That's all the guy had, man," Kavanaugh said, "Whatever," and walked away.

Detective Hall also testified that when he asked Bailey, "Have you got it?", Bailey replied, "Yeah," and placed in the palm of Detective Hall's hand an off-white rock substance that looked similar in size and substance to the off-white rock that James had handed to Kavanaugh. Detective Hall gave Bailey a $5 bill from the prerecorded money and then gave the bust signal to the other members of his team. Detective Laguda testified that he observed the hand-to-hand exchanges between Bailey and Detective Hall, and between James and Kavanaugh. The substance sold to Detective Hall tested positive for cocaine base, and weighed 0.12 grams.

Kavanaugh testified that when he saw police officers approaching the area, he dropped the rock he had purchased from James on the road. Kavanaugh then went to his pickup truck and began to drive away when he encountered Young. Young asked for a ride and got into the passenger side of Kavanaugh's truck. Kavanaugh asked Young for "another 20," and Young replied, "I don't have any drugs."

Officer Zaldivar testified he was informed that Young was in a black pickup truck, and when he saw the truck, he activated his overhead lights and siren as Young jumped out of the truck and began running away. Officer Zaldivar exited his patrol car and ran after Young, identifying himself and yelling at Young to stop. Detective Novak, who was also involved in the chase, saw Young duck down behind a red Jeep, throw something, and run away.

Officer Spears drove up to Young, told him to get on the ground, handcuffed him, and took him into custody. Detective Novak testified that he and some other officers searched the area near the Jeep where Young had ducked down, and found a number of bills wadded up on the ground, including the prerecorded $10 bill and two prerecorded $5 bills used by Detective Hall.

From the foregoing evidence, we conclude that any rational jury could infer that (1) James and Bailey were "runners" who obtained cocaine base for Detective Hall and Kavanaugh, who were seeking to purchase it; (2) James and Bailey went to Young, who, in exchange for the prerecorded money that Detective Hall had given to Bailey, handed two "10s" (each worth $10) of cocaine base to James; (3) James handed one of the 10's to Bailey; (4) Bailey gave a 10 to Detective Hall, and James gave the other 10 to Kavanaugh, who threw his 10 away when he saw police officers approaching the area; and (5) Young threw away the $20 in prerecorded money near the Jeep as he was attempting to evade arrest, demonstrating his consciousness of guilt. The evidence of Young's guilt was substantial and overwhelmingly demonstrated that Young was the supplier of the cocaine base, and he knew the nature of the controlled substance he was supplying during the transaction.

By asserting on appeal that no witness saw him give a controlled substance to either Bailey or Detective Hall, that his hand motion by the Jeep "could be unrelated to a drug transaction," and that the testimony concerning the prerecorded money was "suspicious," Young is essentially asking this court to reweigh the substantial evidence that the jury found established his guilt. Citing Jackson v. Virginia (1979) 443 U.S. 307, 317, and People v. Mosher (1969) 1 Cal.3d 379, 395, Young himself acknowledges in his discussion of the applicable substantial evidence standard of appellate review that, in assessing the sufficiency of the evidence, this court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the charged offense. Young ignores the fundamental principle that the evidence must be assessed in that light, not in the light most favorable to the defense.

b. Count 2

Young also contends there was insufficient evidence to support his count 2 conviction of resisting a peace officer in violation of Penal Code section 148, subdivision (a)(1), which provides: "Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment." We reject this contention.

Young points to a conflict in the evidence. First, he notes Detective Laguda's testimony that when Officer Spears contacted Young and attempted to take him into custody, Young ignored Officer Spears's command that he put his hands behind his back so they could be handcuffed. Young then cites Officer Spears's testimony, asserting that this testimony shows that when Officer Spears approached him and told him to get onto the ground with his hands behind his head, he complied and "did not give [Officer] Spears any problem."

Young claims that count 2 was based on Young's alleged behavior at the time Officer Spears was attempting to handcuff him on the ground, when in fact the record shows count 2 was based on Young's act of fleeing as Officer Zaldivar was attempting to detain him at the time he jumped out of Kavanaugh's truck after committing the crime of selling cocaine base (count 1).^[2]

Substantial evidence supports Young's conviction of count 2. As already discussed, Officer Zaldivar testified he was informed that Young was in a black pickup truck and when he sighted the truck he activated his overhead lights and siren as Young jumped out of the truck and began running away. Officer Zaldivar stated he exited his patrol car and ran after Young, identifying himself and yelling at Young to stop, but Young continued to run and entered a warehouse. Detective Novak, who was also involved in the chase, saw Young duck down behind a red Jeep, throw something, and run away. The foregoing evidence, which Young ignores in violation of the fundamental principle (discussed, ante) that we assess the evidence in the light most favorable to the prosecution (see People v. Mosher, supra, 1 Cal.3d at p. 395), is substantial and amply supports Young's conviction of count 2.

2. James

James contends the evidence was insufficient to support the jury's finding that he supplied a controlled substance to Kavanaugh because the jury received no evidence beyond conjecture as to the chemical composition of the substance. He asserts that because the prosecution argued at trial that Kavanaugh lost the substance that he (James) gave to Kavanaugh, the only evidence as to the composition of that substance consisted of "assumptions made by Detective Hall and Kavanaugh that it was cocaine base," and the substance "could just as easily have been 'bunk.'" We reject these contentions.

"[T]he nature of a substance, like any other fact in a criminal case, may be proved by circumstantial evidence. [Citations.]" (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.) It can be proved by evidence of the expert opinion of the arresting officer (see People v. Marinos (1968) 260 Cal.App.2d 735, 738-739) and by the conduct of the defendant indicating consciousness of guilt (see People v. Patterson (1959) 169 Cal.App.2d 179, 186). The nature of a substance may also be proved by evidence showing it was a part of a larger quantity that was chemically analyzed. (People v. Francis (1969) 71 Cal.2d 66, 71-72.)

Here, as already discussed, Kavanaugh testified that when he saw police officers approaching the area, he dropped the rock he had purchased from James. It is undisputed that this substance was not recovered, and thus it was neither subjected to chemical analysis nor produced at trial.

However, substantial evidence (discussed, ante) establishes that (1) both this rock and the substance that Detective Hall obtained from Bailey came from the same source─Young─at the same time, and (2) the substance Detective Hall obtained tested positive for cocaine base. Detective Hall testified that he saw James hand to Kavanaugh an off-white substance. Based on his training and experience, Detective Hall opined that the substance was cocaine base. He examined People's exhibit No. 11, a sealed envelope, and testified that it was the envelope in which he had placed the controlled substance he obtained from Bailey. Detective Hall opened the envelope, which contained a plastic bag. He identified the contents of the plastic bag as the substance he purchased from Bailey for $20. Detective Hall also stated that the substance looked the same as the cocaine base he had seen in Kavanaugh's hand. He testified that after he impounded the cocaine base that Bailey handed to him, he had it submitted to the San Diego Police Department lab for testing and analysis.

Kavanaugh testified that he was a chemical dependency counselor for Sharp Health Care, and he had used base cocaine "off and on for 12 years." He stated he had seen cocaine base thousands of times, and he was familiar with it from both personal use and his training as a chemical dependency counselor. Kavanaugh examined the cocaine base that Detective Hall had obtained from Bailey, opined that it looked like rock cocaine, and stated it looked "identical" to the substance James gave him.

We conclude that any rational jury could find from the foregoing substantial direct and circumstantial evidence, and from reasonable inferences drawn therefrom, that the substance James sold to Kavanaugh was cocaine base, and thus substantial evidence supported James's count 1 conviction of selling cocaine base in violation of section 11352, subdivision (a).

II. BLAKELY

Last, citing Blakely v. Washington (2004) 542 U.S. 296, Young contends the court's imposition of the upper term during sentencing based on factors in aggravation that were not determined by a jury, violated his constitutional right to a jury trial and to proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments to the federal Constitution. We reject this contention.

As Young acknowledges, the California Supreme Court rejected a similar contention in People v. Black (2005) 35 Cal.4th 1238, 1244, concluding that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Italics added.) The Black majority explained that "in operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the 'statutory maximum' and a trial court's imposition of an upper term sentence does not violate a defendant's right to a jury trial under the principles set forth in Apprendi [v. New Jersey (2000) 530 U.S. 466], Blakely v. Washington[, supra, 542 U.S. 296], and [United States v. Booker (2005) 543 U.S. 220]." (People v. Black, supra, 35 Cal.4th at p. 1254.)

This court is bound to follow People v. Black, supra, 35 Cal.4th 1238. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject Young's claim of constitutional error.

DISPOSITION

The judgments are affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Apartment Manager Attorneys.

^[1] All further statutory references are to the Health and Safety Code unless otherwise specified.

^[2] During her closing arguments, the prosecutor explained to the jury the People's theory that Young committed the offense alleged in count 2 before he was arrested: "[T]he minute this crime starts is the minute that [Kavanaugh] pulled over that truck, and behind him were lights and sirens, and Officer Zaldivar in his police uniform. [Young] jumped out of that [truck] and ran into that warehouse for no other reason than to prevent himself from being arrested."