P. v. McCaskill

Filed 5/23/06 P. v. McCaskill CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Michael M. Johnson, Judge. Affirmed.

Judith Vitek, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alan D. Tate, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant and appellant Robert McCaskill appeals from the judgment entered following a jury trial that resulted in his conviction for possession of a controlled substance. McCaskill was sentenced to a prison term of four years.

McCaskill contends the evidence was insufficient to support the verdict, in that there was no showing the amount of heroin he possessed was usable. McCaskill further requests that we review the sealed record of the trial court's Pitchess[1] examination to determine whether the court abused its discretion by failing to order sufficient disclosure. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

On April 19, 2005, at approximately 3:30 p.m., an officer observed McCaskill standing on a Los Angeles street corner. A man walked up to McCaskill, spoke with him briefly, and handed him some cash. McCaskill then took balloons from his mouth and handed them to the man. After the man walked away, officers stopped the man to whom McCaskill had handed the balloons. They confiscated three balloons, containing heroin, from him.

Meanwhile, other officers arrested McCaskill. They recovered an additional balloon from his mouth. It contained .12 grams of a brown solid substance which was later determined to contain heroin. An officer familiar with narcotics transactions testified that buyers and sellers of drugs typically keep balloons containing drugs in their mouths. The officer opined that the heroin was possessed for sale.

2. Procedure.

Trial was by jury. McCaskill was convicted of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), a lesser included offense of possession for sale of a controlled substance. The jury acquitted McCaskill of sale of a controlled substance. McCaskill admitted suffering a 1994 â€