P. v. McNally

Filed 5/21/08 P. v. McNally CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

John Robert McNally appeals from the judgment after a jury convicted him of possession for sale of a controlled substance (heroin) (Health & Saf. Code,  11351), giving false information to a police officer (Pen. Code,  148.9, subd. (a)), and resisting a peace officer (Pen. Code,  148, subd. (a)(1)). The trial court found that appellant had suffered three prior convictions for possession of controlled substances for sale (Health & Saf. Code,  11370.2, subds. (a) & (c)) and imposed an aggregate sentence of nine years state prison.

Appellant argues that the trial court erred in denying his motion for new trial because the evidence only supports a conviction for possession of heroin for personal use, not possession for sale. (Pen. Code,  1181(6).) We affirm.

Facts and Procedural History

Shortly after midnight on April 23, 2006, Hermosa Police Officer Gaetano Lobue saw appellant walk out of an apartment complex known for drug trafficking. Appellant had filed a stolen vehicle report three months earlier.

Officer Lobue stopped and asked if appellant had recovered his car. The officer also asked if appellant was carrying drugs and would he submit to a search.

Appellant consented to a search, reached into his front jacket pocket, and discreetly dropped a cellophane-wrapped object that looked like contraband. Appellant was directed to turn around and put his hands behind his back. Grabbing appellant's hands, Officer Lobue said, "I just saw you dump that dope."

Appellant "bolted" towards the object next to the police vehicle. Officer Lobou wrestled appellant and called for backup. Thrashing about, appellant broke free and crawled under the police vehicle.

With the help of a second officer, Officer Lobou pulled appellant out and arrested him. Appellant had $160 and a fake driver's license bearing the name Al Godwin. The cellophane-wrapped object was 9.21 grams of heroin. Officer Lobue determined that appellant was not under the influence of drugs and had no syringes or drug paraphernalia on his person.

Officer Greg Tiddle, a narcotics expert, opined that appellant possessed the heroin for sale. Heroin users either inject or inhale heroin with a nasal spray, but appellant had no drug paraphernalia on his person. Officer Tiddle testified that heroin users purchase heroin in small quantities (a tenth of a gram), which is customarily sold in balloons. Appellant dropped 9.21 grams of heroin, the equivalent of 92 doses, with a street value of $900. Officer Tiddle stated that it would take "a heavy, heavy user" several weeks to consume 9.21 grams of heroin and a heroin user would not carry such a large amount for fear of arrest.

Appellant did not testify

After the jury returned a guilty verdict, appellant retained new counsel and moved for new trial based on the declaration of John D. Nelson, a retired police officer. Nelson opined: "If Al Godwin has been a heroin addict for many years, it would be reasonable to assume that he . . . uses 3 grams of black tar heroin per day" and that the 9.1 grams was for personal use. Nelson stated that when drugs are possessed for sale, the drug dealer generally has glassine envelopes, a scale to weigh drugs, pay/owe sheets, and cell phones.^[1]

Appellant testified at the hearing. He claimed that he was an addict, denied dropping anything on the ground, denied that the heroin was his, and denied giving the officers a false name.

The trial court discredited appellant's testimony and denied the motion for new trial.

Discussion

We review for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1159.) In ruling on a motion for new trial based on insufficiency of the evidence, " 'the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court "should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict." [Citation.]' [Citation.]" (Ibid.)

Unlawful possession of a controlled substance for sale requires proof that the defendant possessed the contraband with the intent to sell it and knew of its presence and illegal character. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) Intent to sell may be established by circumstantial evidence such as drug quantity and its packaging and location. (People v. Harris (2000) 83 Cal.App.4th 371, 374; People v. Campuzano (1967) 254 Cal.App.2d 52, 55.) "[E]xperienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual . . . ." (People v. Newman (1971) 5 Cal.3d 48, 53.)

Here there was strong evidence of guilt. When asked about a pat-down, appellant dropped a large quantity of heroin on the ground. Appellant bolted towards the heroin after the officer said "I just saw you dump that dope." The heroin was not packaged for personal use and was the equivalent of 92 doses. Appellant also had $160, a fake driver's license, and did not appear to be under the influence of drugs or have drug paraphernalia. All of these factors were considered by Detective Tiddle who opined that the heroin was possessed for sale.

At the hearing on the motion for new trial, appellant argued that the heroin was possessed for personal use. Appellant's testimony was discredited by the trial court for several reasons. Appellant denied that he dropped anything on the ground, denied that the heroin was his, and claimed that he was under the influence of narcotics and suffered from heroin withdrawal before he was released from jail. Appellant stated that he wrestled the officer because "I saw that bag of stuff, and I didn't know what it was, and I figured he was going to put it on me." (Emphasis added.)

Having disclaimed ownership or possession of the heroin, appellant is estopped from arguing that the heroin was possessed for personal use. (See e.g., People v. Stanislawski (1986) 180 Cal.App.3d 748, 757 [defendant who disclaims possessory interest in item seized precluded from challenging the legality of the search]; People v. Dasilva (1989) 207 Cal.App.3d 43, 49 [same].) The large amount of heroin and appellant's frantic attempt to recover the heroin supports the finding that he possessed the heroin for sale. (See e.g., People v. Grant (1969) 1 Cal.App.3d 563, 570, disapproved on another ground in People v. Fleming (1981) 29 Cal.3d 698, 707.) Appellant argues that the $160 was not seized as evidence and that there were no pay/owe drug sheets. Unlike the trial court, it is not our function to reweigh the evidence or determine witness credibility, nor may we substitute our discretion for that of the trial court in ruling on the motion for new trial. (People v. Guerra, supra, 37 Cal.4th at pp. 1159-1160.) The heroin had a $900 street value and was bundled in a cellophane package, supporting the inference that appellant possessed it for sale.

The trial court did not err in discrediting appellant's claim that the heroin (all 92 doses) was for personal use and could have been consumed in two or three days. The argument is even less credible given appellant's tactical decision not to testify at trial. Had he testified, the jury would have learned about appellant's three prior convictions for possession of controlled substances for sale. The jury carefully considered the evidence and asked for a read back of Officer Tiddle's testimony. Appellant speculates that it was a close case, but the length of the deliberations can "easily be reconciled with the jury's conscientious performance of its civil duty, rather than its difficulty in reaching a decision." (People v. Walker (1995) 31 Cal.App.4th 432, 439; People v. Houston (2005) 130 Cal.App.4th 279, 301 [request for readback of testimony not indicative of close case].)

The trial court independently weighed the evidence and determined witness credibility, guided by a presumption in favor of the correctness of the verdict and the proceedings that support it. (People v. Davis (1995) 10 Cal.4th 463, 524.) It did not err in denying the motion for new trial. " 'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' [Citations.]" (People v. Williams (1988) 45 Cal.3d 1268, 1318.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

James R. Brandlin, Judge

Superior Court County of Los Angeles

______________________________

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]Defense counsel made a similar argument to the jury. Counsel stated that the heroin was not possessed for sale because the officers found no scales, balloons, tin foil, sandwich bags, or cell phones.