P. v. Lapan

Filed 4/10/06 P. v. Lapan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Thomas J. Borris, Judge. Affirmed.

Peter Afrasiabi, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Jason Matthew Lapan of felony possession for sale of a controlled substance in violation of Health and Safety Code section 11378 and misdemeanor possession of a smoking device in violation of Health and Safety Code section 11364. The jury returned a finding of true that defendant was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a) at the time he possessed the controlled substance for sale. The court suspended imposition of sentence and placed defendant on three years formal probation with a condition that he serve 365 days in the Orange County jail.

Defendant contends the trial court erred in failing to instruct the jury with CALJIC No. 2.02. He further contends the evidence against him was insufficient to sustain his conviction for possession for sale. We disagree with both of his contentions and affirm the judgment.

I

FACTS

At trial, Ed Leiva, a police officer for the City of Garden Grove, testified he and two other officers executed a search warrant of defendant's house. On a television stand next to the bed, the officers found a container which held 32 baggies, three of which contained methamphetamine residue. Also within the container were two baggies which each contained 1.7 grams of methamphetamine. Thirty-nine other Ziploc baggies were found in a floor safe in the bedroom, and four of them contained methamphetamine residue. Four of 10 additional baggies found in a desk drawer in the bedroom also contained methamphetamine residue. Four methamphetamine smoking pipes and two digital scales were found.

The officers found a 12-gauge pump shotgun next to the television stand in the bedroom. On the stand were shells for the shotgun. Additional shells for the shotgun were in the drawer.

Underneath the television stand in the bedroom, the officers found a bill and a check stub in defendant's name. Inside the safe on the floor of the bedroom was a property tax bill in defendant's name.

Leiva stated it was common for a person who sells drugs to sell drugs in baggies containing a â€