P. v. Medina

Filed 8/28/06 P. v. Medina CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.

Daniel J. Kessler, 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, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, defendant Juan Rudy Medina was found guilty of possession of methamphetamine for the purpose of sale, in violation of Health and Safety Code section 11378, and unlawful possession of ammunition in violation of Penal Code section 12316, subdivision (b)(1). In addition, the court found true the allegations that defendant previously suffered a strike within the meaning of Penal Code section 667, subdivisions (c) and (e)(1), and that he served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). As a result, the court sentenced defendant to the upper term of six years for possession of methamphetamine for the purpose of sale, and a concurrent term of four years for the unlawful possession of ammunition.

Defendant appeals, arguing primarily that the evidence in support of his conviction for possession of methamphetamine for the purpose of sale is insufficient as a matter of law. Defendant further argues that in the event the court finds sufficient evidence to affirm the conviction, the judgment must nonetheless be reversed because the trial court failed to instruct the jury, sua sponte, on the lesser included offense of possession of a controlled substance. We disagree with defendant's arguments. Accordingly, we affirm.

STATEMENT OF FACTS

On the morning of July 15, 2004, in the City of Corona, defendant got into an argument with his boss. When the argument became violent, the police were contacted, and within approximately 15 minutes, an officer arrived.

As the officer approached the scene, he noticed defendant coming toward him. The officer immediately patted defendant down for weapons, handcuffed him, and put defendant in the back of his police car.

While the officer found no weapons on defendant, he did find a nylon carrier clipped to defendant's belt loop. Inside the carrier, the officer discovered a lighter and a plastic container holding nine bindles of what appeared to be methamphetamine. The officer, who was trained in identifying controlled substances,^[1] conducted a test onsite and confirmed that the substance was methamphetamine. A criminalist later tested seven of the nine bindles. Six bindles tested positive for methamphetamine with a total weight of 1.4 grams, and the seventh bindle contained .47 grams of cocaine hydrochloride. The remaining two bindles were not tested in order to save time and money.

At trial, the arresting officer testified that several factors influence an officer's determination of whether an individual possesses drugs for personal use or for sale. These factors include the quantity of the substance; the packaging of the substance, namely, whether it is packaged in small quantities or in bulk; whether the individual carries cash, scales, â€