P. v. Sult

Filed 4/11/07 P. v. Sult CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from a judgment of the Superior Court of the County of Los Angeles. Rafael A. Ongkeko, Judge. Affirmed.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a jury trial, appellant Harry Brian Sult was convicted of possession of methamphetamine for sale. The trial court suspended imposition of sentence and placed him on four years of probation, with 180 days in county jail. This appeal followed.

Appellant and his girlfriend lived in a downstairs bedroom of his mothers house, next to the garage. Appellants mother and sister lived elsewhere in the house. The police searched the house, pursuant to a search warrant. In appellants bedroom and the adjacent garage, they found 39.6 grams of methamphetamine, a scale, and numerous small plastic bags. Appellant later told a narcotics detective that the methamphetamine belonged to him, and not to the other occupants of the house. He also said that he sold it to support his personal habit. At the trial, the detective testified that the methamphetamine was possessed for sale, based on its quantity and the presence of packaging materials.

Appellant contends that the trial court committed prejudicial error when it failed to instruct sua sponte that a conviction could not be based solely on his out-of-court statements. (CALCRIM No. 359.) The instruction sets forth the corpus delicti rule, which requires proof that a crime occurred, apart from the defendants extrajudicial statements. (People v. Alvarez (2002) 27 Cal.4th 1161, 1169.) Such an instruction must be given sua sponte, where the prosecution relies in part on such statements. (Id. atpp.1170, 1178, 1180.) Here, as in Alvarez, the absence of the instruction was harmless, based on the overwhelming evidence of the corpus delicti, through the methamphetamine and drug packaging materials found in appellants bedroom and the adjacent garage, and the expert testimony regarding possession of the drug for sale. (Id. at p. 1181; People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

RUBIN, Acting P. J.

BOLAND, J.

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