P. v. Laverty
Filed 6/12/13 P. v. Laverty CA2/3
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
SEAN LAVERTY,
Defendant and Appellant.
B239965
(Los Angeles County
Super. Ct. No. NA089959)
APPEAL
from a judgment of the Superior
Court of
County,
Arthur Jean, Judge. Modified and, as modified, affirmed
with directions.
Jin
H. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and
Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
>
Appellant Sean Laverty
appeals from the judgment entered following his convictions by jury on count 3
– possession of heroin for sale
(Health & Saf. Code, § 11351), count 4 – transportation of heroin
(Health & Saf. Code, § 11352, subd. (a)), count 5 – possession of hydrocone
for sale (Health & Saf. Code, § 11351), count 6 – possession of oxycodone
for sale (Health & Saf. Code, § 11351), and count 7 – possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), with court
findings that he had suffered prior felony narcotics convictions (Health &
Saf. Code, § 11370.2, subd. (a)) and prior prison terms (Pen. Code, §
667.5, subd. (b)). The court sentenced
appellant to prison for 10 years. We
modify the judgment and, as modified, affirm it with directions.
Viewed in accordance with
the usual rules on appeal (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that
about 9:40 a.m. on September 1, 2011, Long Beach Police Officer
Eric Barich was dispatched to a Walgreens store in Long Beach to investigate a report
that someone was intoxicated.
name="_ftnref1" title="">[1] Upon arrival, Barich saw appellant asleep and
sitting in the driver’s seat of a Ford SUV parked in front of the store. Appellant was the sole occupant of the SUV. The key was in the ignition in the accessory
position, the radio was on, but the motor was not running. The SUV belonged to Danielle Jewett,
appellant’s codefendant.
name="_ftnref2" title="">[2] The store was open.
Police found two Ziploc baggies in appellant’s right lower rear pants
pocket. One baggy contained 8.42 grams
of heroin and the other contained .451 grams of methamphetamine. Two metal spoons and a cotton swab were in
the SUV’s center console. The spoons
contained brown residue and the bottom of each spoon was charred. The glove box contained two unused hypodermic
needles, three cellphones, and a charger.
There were items in the backseat, including pill bottles containing
prescription medication (i.e., hydrocodone, oxycodone, alprazolam, and amitriptyline),
“several unused handwritten prescription [notepads] or – the paperwork for
prescriptions,†unused hypodermic needles, and a small digital scale. The above mentioned notepads were also on the
floorboard. The scale was within arm’s
reach of appellant.
At the scene, appellant told Barich the heroin belonged to appellant but
everything else Barich found in the SUV belonged to Jewett. Appellant said concerning the prescriptions
or paperwork in the SUV that Jewett’s friend worked at a medical group and
wrote prescriptions. Appellant said
Jewett “goes and turns a prescription in and sells them,†i.e., “[Jewett] gets
the prescription filled and she sells the prescriptions.â€
During the police investigation, Jewett walked towards Barich, saw
police, then quickly walked away. While
Barich was transporting appellant to jail, Barich saw Jewett about 20 blocks
from the Walgreens store. Police
arrested Jewett some distance from the store.
A
criminalist testified concerning the previously mentioned bottles as
follows. The bottles contained, inter
alia, 150
hydrocodone bitartrate/acetaminophen pills, and
95
oxycodone pills. Two bottles were for
Jewett. One bottle was for
appellant. Other bottles were for other
persons.
Long Beach Police Detective Luis Rodriguez,
assigned to the drug investigation and major narcotics section, testified as
follows. Heroin in the amount of 8.42 grams net weight had a
street value of about $680, was a significant amount of heroin for a person to
carry, and would supply a heroin user for 42 days. Hydrocodone and oxycodone were opiates
similar to heroin. Sometime before noon on September 1, 2011,
Rodriguez saw appellant in the booking area of the police station. Appellant appeared to be under the influence of a controlled
substance and his behavior was consistent with heroin use.
Rodriguez testified that on September 5, 2011, appellant told Rodriguez the following. Appellant was a routine heroin user and
sometimes smoked methamphetamine.
Appellant sold some of the heroin and prescription medication to support
his heroin habit. The heroin and
methamphetamine that police found on appellant’s person, the scale that was
near him in the SUV, and two of the three recovered cell phones, belonged to
appellant. Appellant was unaware of the
lawful medical purpose of the prescription medication and he had no medical
problems. The spoons, two of the pill
bottles, and some of the syringes belonged to Jewett.
Appellant told Rodriguez that appellant lived in Laguna Niguel. The following occurred during the
prosecutor’s direct examination of Rodriguez:
“Q Did [appellant] tell you why
he actually was in Long Beach? [¶]
A Yes. [¶]
Q What did he tell you? [¶]
A [Appellant] stated that he came
to Long Beach because pharmacies in Orange County do not sell syringes. They are more readily available in L.A. County, in this case Long Beach. So he came across from Seal Beach to Long Beach to buy the syringes at
Walgreens in Long Beach.†Rodriguez testified appellant told Rodriguez
“that a friend obtained the prescriptions, gives them to [appellant] and
[appellant] fills them out. . . . [Appellant] then . . . has friends
go inside the pharmacy and receive the medication for him.â€
Rodriguez examined appellant’s phones and saw messages in the inbox of
one of the phones. Rodriguez did not
remember the exact number of subjects asking for prescribed narcotics. Rodriguez, an expert in possession of drugs
for sale, opined at trial that appellant possessed for sale the heroin,
oxycodone, and hydrocodone. The basis
for Rodriguez’s opinion included the following facts. Appellant had multiple prescriptions filled
out under various names and for the same medication. Rodriguez then testified, “The medication
that was recovered, you go to Walgreens.
You get your medicine.†All of the
medications were obtained from the pharmacy between “August 27 and September
1.â€
Moreover, appellant had two cellphones, and only one had messages in its
inbox. Drug dealers used two phones, one
for drug dealing and the other for personal use. Drug users knew how much they were going to
use, and Rodriguez had never come across a situation “where users [were]
walking around with [8.42 grams of] . . . heroin and a scale so he could weigh
out his product.†However, Rodriguez
“always [came] across that when it is a drug dealer.â€
The prosecutor asked Rodriguez for other bases for his opinion, and
Rodriguez later testified, “. . . I am basing – my opinion is he is coming from
Laguna Niguel. The syringes are not
readily available in Orange County. So he is coming down here.†Appellant admitted to Rodriguez that
appellant was selling some of the heroin and selling the prescription
medications. During cross-examination,
appellant asked Rodriguez if Jewett had been seen inside Walgreens. Rodriguez replied, “I believe the call was
negated because a female, Miss Jewett, was coming in and out. And it appeared she was intoxicated on
drugs.†(Sic.) Appellant presented no
defense evidence.
Appellant claims (1) there is
of heroin, (2) Penal Code section 654 barred multiple punishment on his
convictions for possession of heroin for sale (count 3) and transportation of
heroin (count 4), and (3) and this court should review the sealed transcript of the in
camera proceedings pertaining to appellant’s Pitchess
name="_ftnref3" title="">[3] motion.
1.
Conviction for Transporting Heroin (Count 4).
Appellant claims there is
insufficient evidence supporting his conviction for transporting heroin in
violation of Health and Safety Code section 11352, subdivision (a)
subdivision provides, in relevant part, that “every person who
transports†heroin commits a felony.
Appellant concedes he possessed the heroin police found on his person on
September 1, 2011, and disputes only the sufficiency of the evidence that he
“transport[ed]†that heroin.
A person “transports†a
controlled substance within the meaning of Health and Safety Code section
11352, subdivision (a) when a person moves the substance from one place to
another. (People v. Arndt (1999) 76 Cal.App.4th 387, 398; People
v. Cortez (1985) 166 Cal.App.3d 994, 998-999.) The transportation element does not quantify the distance that must be
traversed and does not require more than minimal movement. (Cf. People
v. Emmal (1998) 68 Cal.App.4th 1313, 1315-1316 [interpreting the
substantially similar Health & Saf. Code, § 11379, subd. (a)].) Where the movement occurs in a vehicle the “evidence
need only show that the vehicle was moved while under the defendant’s
control.†(Id. at p. 1318.) The offense can be established by
circumstantial evidence and any reasonable inferences drawn from that
evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
In the present case, on September
1, 2011, Barich found appellant, the sole occupant of the SUV, asleep and
sitting in its driver’s seat with the key in the ignition in the accessory
position and the radio operating. The
SUV was parked in front of the Walgreens store.
The jury reasonably could have concluded someone drove the SUV
there. We note Barich did not testify
that he saw (1) someone other than appellant drive or park the SUV or
(2) appellant enter the SUV only after it was parked. Whether or not appellant was in possession of
the SUV, Barich did not testify he saw someone other than appellant in
possession of it. Barich did not testify
that, before police found the heroin in appellant’s rear pants pocket, Barich
saw someone put the heroin there.
On September 5, 2011, appellant told Rodriguez that appellant lived in Laguna
Niguel. Appellant also told Rodriguez
why appellant “actually was in Long Beach.â€
Although Rodriguez did not explicitly testify appellant told him why
appellant actually was in Long Beach “on September 1, 2011,†there is no
evidence appellant “actually was in Long Beach†on any day other than September
1, 2011, i.e., the day appellant possessed the heroin. Police arrested appellant for his narcotics
possession on September 1, 2011, in Long Beach.
Appellant’s statements to Rodriguez reflect that when appellant referred
to the fact that appellant “actually was in Long Beach,†appellant was
referring to the fact that he was there on September 1, 2011, when Barich saw
him. Appellant’s statements betray no
confusion on this issue.
Accordingly, appellant told
Rodriguez that appellant “came across from Seal Beach to Long Beach to buy the
syringes at Walgreens in Long Beach.†On
September 1, 2011, the SUV was parked in front of Walgreens in Long Beach. Appellant told Rodriguez that appellant
filled out prescriptions and had friends enter the pharmacy and receive the
medication for him. Rodriguez testified
to the effect Jewett (to whom the SUV belonged) was coming in and out of
Walgreens on September 1, 2011.
In Rodriguez’s expert opinion, appellant possessed for sale heroin and
other drugs, and part of the basis for Rodriguez’s opinion was, “The
medication that was recovered, you go to
Walgreens. You get your
medicine.†(Italics added.) Rodriguez’s testimony provided evidence
appellant was a drug dealer, and Rodriguez testified to the effect Rodriguez
always had come across situations in which a drug dealer was “
. heroin.†(Italics added.)
The prosecutor asked Rodriguez
for other bases for his opinion, and Rodriguez later testified, “. . . I am
basing – my opinion is he is coming from
Laguna Niguel. The syringes are not
readily available in Orange County. So
2011, appellant and Jewett travelled together in the SUV to Walgreens to
implement an illegal scheme to obtain drugs from Walgreens, i.e., the Walgreens
in front of which the SUV was parked with appellant in its driver’s seat.
In light of the previous discussed authorities and evidence, there was
sufficient evidence to convince a rational trier of fact, beyond a reasonable
doubt, that appellant transported heroin for purposes of Health and Safety Code
section 11352, subdivision (a), including sufficient evidence appellant moved
the heroin from one place to another, with the result appellant “transport[ed]â€
the heroin with the meaning of that subdivision.
2.
Penal Code Section 654 Barred
Multiple Punishment on Counts 3 and 4.
Appellant’s prison sentence of 10 years included a
five-year upper term for transportation of heroin (count 4) with a concurrent
four-year upper term for possession of heroin for sale (count 3). Appellant claims Penal Code section 654
barred multiple punishment on counts 3 and 4.
Respondent concedes the issue.
In
light of part 1 of our Discussion, there was substantial evidence appellant
simultaneously possessed for sale, and transported, the heroin by driving the
SUV to Walgreens while possessing the heroin in his pocket. However, once appellant parked outside
Walgreens the transportation ceased and only the possession for sale continued.
Nonetheless,
even if the possession for sale, and transportation, of the heroin were
multiple acts, it appears appellant had the same criminal objective when
committing them – to sell the heroin.
(See People v. Bradley
(2003) 111 Cal.App.4th 765, 769.) Moreover,
for all the record reflects, appellant was asleep (although apparently under
the influence of heroin) after the transportation of heroin ceased and during
the subsequent period within which he possessed the heroin for sale. That is, during that subsequent period he was
not selling drugs. The purpose of Penal Code
section 654 is to insure that a defendant’s punishment is commensurate with
culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) We
accept respondent’s concession.
(Cf. People v. Avalos
(1996) 47 Cal.App.4th 1569, 1583.)
3.
Responsibilities Under Pitchess.
The
nonconfidential record reflects as follows.
On November 28, 2011, appellant filed a Pitchess motion, seeking various information in the personnel files
of Barich and Rodriguez. On December 23,
2011, the parties stipulated that the motion be granted in part, i.e., “for
false police reports†as to Rodriguez and “for false testimony†as to
Barich. The court granted the motion to
that extent only.
On December 27, 2011, the court conducted an in camera
transcript of the hearing. Following
that hearing, the court, in open court, indicated there was one discoverable
item as to Rodriguez. The trial court
did not indicate there was any other discoverable information.
Appellant claims this court should review the record
pertaining to the Pitchess motion to
determine whether the trial court erred by ruling there was only one
discoverable item. Trial courts are
granted wide discretion when ruling on motions to discover police officer
personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827;
transcript of the December 27, 2011 in camera Pitchess hearing. The transcript
constitutes an adequate record of the trial court’s review of any document(s)
provided to the trial court during the in camera hearing, and said transcript
fails to demonstrate that the trial court abused its discretion by failing to
disclose any additional information.
(Cf. Samayoa, at
p. 827; see People v. Mooc
(2001) 26 Cal.4th 1216, 1228-1230, 1232.)
The trial court fulfilled its responsibilities under
The
judgment is modified by staying execution of sentence on appellant’s conviction
for possession of heroin for sale in violation of Health and Safety Code
section 11351 (count 3) pending completion of his sentence on his conviction
for transporting heroin in violation of Health and Safety Code section 11352,
subdivision (a) (count 4), such stay then to become permanent, and, as
modified, the judgment is affirmed. The
trial court is directed to forward to the Department
of Corrections an amended abstract of judgment reflecting the above
modification.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN,
P. J.
ALDRICH, J.
name="_ftn1" title="">[1] Barich
testified during cross-examination that the original call he had received
related to a female acting strangely.
The female was ultimately discovered farther down the street.
name="_ftn2" title="">[2] Jewett
is not a party to this appeal.
