P. v. Senegel

Filed 6/13/06 P. v. Senegel CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

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

Lisa M. Chung, Judge. Affirmed.

Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Joseph Eric Senegel was convicted, following a jury trial, of one count of possession of cocaine for sale in violation of Health and Safety Code section 11351.5 and one count of resisting executive officers in the performance of their duties in violation of Penal Code section 69. The trial court sentenced appellant to the upper term of five years in state prison for the cocaine conviction and to a concurrent two year term for the section 69 conviction.

Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support his conviction for possession of cocaine for sale, and further contending that the trial court's imposition of the upper term violated his Sixth Amendment right to a jury trial. We affirm the judgment of conviction.

Facts

At about 7:30 p.m. on December 8, 2004, Los Angeles County Deputy Sheriff Paul Zarris and partner Deputy Robinson were on patrol in Lancaster when deputy Zarris noticed appellant standing next to a parked Mazda on 13th Street West.

The deputies stopped their car and approached appellant to question him. Deputy Zarris noticed a strong odor of marijuana, conducted a pat-down search of appellant and recovered a pill bottle containing a substance later determined to be rock cocaine.

Deputy Zarris handcuffed appellant and began to walk him to the patrol car. Appellant broke free, kicked Deputy Zarris in the stomach, and began running away. The deputies followed appellant and eventually recaptured him.

A bag of marijuana was also recovered from appellant. No items were recovered that could be used to ingest cocaine. Appellant was not under the influence of cocaine at the time of his arrest.

Los Angeles County Deputy Sheriff Kerry Levenson testified as a narcotics expert. The pill bottle found on appellant contained five grams of cocaine, or total of about 250 doses. The cocaine had been cut into 20 pieces, each worth about $20, for a total value of about $400. This size piece was the size typically sold at street level. Officer Levenson had come across sellers who had pieces of pre-cut cocaine in a container, but the pieces were not individually wrapped. Officer Levenson also testified that a typical chronic user of cocaine would possess only one piece at a time and would use cocaine as fast as he could get it, typically using cocaine every two to four hours. A chronic user would typically be under the influence of cocaine for the entire day. Officer Levenson had never met a user who bought a large amount at one time for personal use.

It was Officer Levenson's opinion that appellant possessed the cocaine for purposes of sale.

Appellant testified in his own behalf that he possessed the cocaine for personal use. He denied selling cocaine.

A friend of appellant's testified that he observed appellant's arrest, but did not see appellant kick either of the deputies at any time.

Discussion

1. Sufficiency of the evidence

Appellant contends that there is insufficient evidence to show that he possessed the cocaine with the specific intent to sell it. We do not agree.

In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 514, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)

As appellant acknowledges, the intent to sell a controlled substance may be established by circumstantial evidence. (See People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on other grounds by People v. Daniels (1975) 14 Cal.3d 857, 862.)

Here, appellant possessed over five grams of cocaine, broken down into 20 pieces. Each piece was worth about $20. Appellant was not under the influence of cocaine when he was arrested, and police found no devices for ingesting cocaine. The prosecution presented the expert testimony of Officer Levenson that cocaine users rarely possess more than one piece of rock cocaine at a time and that a heavy user of cocaine would typically be under the influence the entire day, using cocaine every two to four hours. The expert also testified that the size and amount of cocaine possessed by appellant was consistent with "street level" sales. It is more than reasonable to infer from this evidence that appellant possessed the cocaine with the intent to sell it.

Appellant points out that the rocks were not individually packaged, and that police found no scales, pay-owe sheets or other paraphernalia associated with drug sales. He also points out that Officer Levenson testified that 20 pieces of cocaine was "not a high volume in terms of the average seller" and did not testify that 20 pieces of cocaine was more than an individual could use in a short period of time. Since we have found that the evidence supports a reasonable inference that appellant did intend to sell the cocaine, reversal is not warranted by the fact that the circumstances might also be reasonably reconciled with a finding that appellant did not intend to sell the cocaine. (See People v. Thomas, supra, 2 Cal.4th at p. 514.)

2. High term

Appellant contends that the imposition of the high term based on facts that were neither found by a jury or admitted by him violates his federal constitutional right to trial by jury as set forth in Blakely v. Washington (2004) 542 U.S. 296.

The California Supreme Court has found that Blakely does not invalidate California's procedure for imposing an upper term. (People v. Black (2005) 35 Cal.4th 1238.) We are bound by the decision of that Court.[1]

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] The United States Supreme Court has granted a petition for writ of certiorari on the issue of whether Blakely affects California's upper term procedure, in California v. Cunningham, No. 056551.