P. v. Perez

Filed 6/30/06 P. v. Perez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Frederick Maguire, Judge. Affirmed.

A jury convicted Fermin Reynada Perez of possession for sale and transporting a controlled substance. (Health & Saf. Code, §§ 11378, 11379, subd. (a).) Perez was sentenced to two years in prison. He appeals, arguing there was insufficient evidence to convict him for possession of methamphetamine for sale. We affirm.

FACTS

A. Prosecution Evidence

On the morning of December 7, 2004, a border patrol agent was working at the Buckman Springs off-ramp along Interstate 8. The agent twice observed appellant drive his car up the freeway on-ramp, stop and then reverse back down. Suspicious, the agent followed the car into the Buckman Springs rest area and conducted an inspection.

Appellant falsely told the agent he was a United States citizen and presented a photocopy of an Arizona driver's license bearing another individual's name. Once in custody, an electronic fingerprinting system identified appellant as an undocumented alien, whose true name was Perez. Nothing in appellant's appearance or behavior indicated that he was under the influence of narcotics. The border patrol agent's cursory search of appellant's car did not produce any drugs or associated paraphernalia.

A more thorough search at the border patrol station revealed a plastic ziploc bag in appellant's sock containing 11.2 grams of crystal methamphetamine. Federal Drug Enforcement Agent George Vernia took him into custody. Appellant told Vernia the bag contained methamphetamine but claimed that he had found the drugs in the border patrol station holding cell. At trial, appellant admitted he lied and had actually purchased the drugs in San Diego. At the time of his arrest, appellant was also carrying $847 in cash.

Heavy methamphetamine users show outward signs of their addiction, such as poor personal hygiene, abscesses on their face and arms, sunken facial features and dental problems. Agent Vernia did not notice any of these symptoms in appellant, who confirmed he had not used drugs in over a year. Vernia testified drug users typically carry only the amount of drugs needed to make it through the day. San Diego Police Detective Conrado Decastro testified that a normal dose of methamphetamine would be one-twentieth of a gram. Additionally, the detective stated that in his 19 years of experience he had never encountered someone in possession of 11 grams of methamphetamine who was merely a drug user.

Defense expert witness Tom Griffin testified it is extremely common for drug dealers to claim their drugs were intended for personal use. Griffin also stated he had never seen "pay-owe" sheets in his 31 years of narcotic involvement. He found their use impractical and explained most sellers kept mental track of what individuals owe.

B. Appellant's Evidence

Appellant testified he was a heavy drug user and the 11.2 grams of methamphetamine was strictly for his personal consumption. He was living in Tucson, Arizona, and working as a mechanic. Because of his illegal status, appellant was paid in cash. He testified the $847 was a combination of his salary and cash he had received for some auto parts in Los Angeles. Appellant had purchased approximately half of an ounce (14 grams) of methamphetamine for $300 in San Diego. The 11.2 grams found in his sock was the remainder of that purchase.

Defense expert testimony described the typical dosage of methamphetamine as a tenth of a gram. New research shows heavy users may be capable of surviving the consumption of 3.5 to 10 grams in a 24-hour period. A heavy user would be agitated, hostile, extremely dangerous to others and incapable of sleeping. Appellant's girlfriend testified he went to work five days a week and came home each night to have dinner and go to bed. Although uncertain, she had been suspicious of appellant's drug use since finding small plastic baggies containing crystal methamphetamine in his socks.

Appellant testified he had been using one to two grams of methamphetamine per day in the five months prior to his arrest. He had gained 25 pounds since being incarcerated. Despite his heavy drug use, appellant explained he had become capable of sleeping two to three hours each night and ate the meals his girlfriend cooked him in an attempt to hide his addiction.

SUFFICIENCY OF THE EVIDENCE

Appellant argues that the quantity of drugs and cash were insufficient, without the presence of other indicia of sales, to establish his intent to sell beyond a reasonable doubt. Appellant maintains the drugs were for personal use and the evidence presented to the jury merely provided a suspicion they were possessed with the intent to sell. Citing People v. Redmond (1969) 71 Cal.2d 745, 755, appellant contends "[e]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction." (Ibid.) However, in assessing the sufficiency of evidence on appeal, this court does not have license to second-guess a jury's verdict and cast its findings into the category of suspicion. We must review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Wader (1993) 5 Cal.4th 610, 640; see also People v. Johnson (1980) 26 Cal.3d 557, 578.) The judgment of the trial court will only be set aside if it clearly appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond, supra, 71 Cal.2d at p. 755.)

A conviction for possession for sale of a controlled substance requires proof of five elements. (CALJIC No. 12.01.) Appellant only challenges the sufficiency of the evidence to satisfy the final element, specific intent.

Appellant was caught with 11.2 grams of crystal methamphetamine. Based on expert witness testimony, 11.2 grams would constitute between 112 and 224 doses for a typical addict. At the time of his arrest, appellant was also carrying $847 in cash. The defense did not provide evidence to corroborate why appellant was carrying $847 in cash nor any substantiating evidence appellant was a heavy drug user.

The defense detailed the economic benefits of buying drugs in bulk. However, those same principles are the motivation behind selling drugs. The presence of a scale, "pay-owe" sheets, or smaller baggies may be probative, but are not determinative, in assessing the intent to sell. For example, a witness for the defense testified that in 31 years he had never seen a "pay-owe" sheet. These peripheral indicators could have strengthened the prosecution's case but were not required to convince the jury beyond a reasonable doubt.

In sum, there was substantial evidence in the record that appellant had the intent to sell crystal methamphetamine. It was the jury's responsibility to credit such opinion or reject it. (People v. Harris (2000) 83 Cal.App.4th 371, 375.)

Judgment affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

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