Filed 6/14/17 P. v. Ambrizalcantar CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO AMBRIZALCANTAR,

Defendant and Appellant.


G053247

(Super. Ct. No. 15NF2815)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Glenn R. Salter, Judge. Reversed and remanded with directions.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found Fernando Ambrizalcantar (Alcantar) guilty of possession of methamphetamine for sale. He contends there was insufficient evidence he intended to sell the methamphetamine, despite expert opinion to the contrary. We agree and reverse. As we will explain, no reported California case has affirmed such a conviction, based solely on possession of a small quantity consistent with two or three days of personal use.
FACTUAL AND PROCEDURAL BACKGROUND
Around 1:00 a.m., Anaheim Police Officer Daniel Heffner spotted Alcantar sitting with a female, along a wall in a building’s darkened stairway. Heffner illuminated the couple with his patrol car spotlight, and Alcantar dropped behind the wall, from his left hand, what turned out to be five clear plastic bindles of methamphetamine. Four of the bindles were twist tied at the top and the other one was heat sealed. Each bindle contained a slightly different quantity of the drug, ranging from 0.280 to 0.498 grams.
Heffner searched Alcantar at the scene and found no cash in Alcantar’s wallet, no scale for weighing drugs, no “pay/owe” sheets for keeping track of transactions, no text messages suggesting sales on Alcantar’s cell phone, and no empty packaging materials. Heffner also found no drug paraphernalia.
Alcantar admitted to Heffner that he had possessed the methamphetamine, but denied he had any intent to sell it. Alcantar explained he “got the methamphetamine . . . from a subject in Fullerton,” but forgot he had it, and “it was in his pocket for a while.” Heffner found no signs Alcantar was a methamphetamine user. Heffner did not see any needle marks on Alcantar’s arms, and Alcantar did not appear to be under the influence of methamphetamine, although Heffner did not conduct a “full drug recognition evaluation.”
The court allowed Heffner to testify as a narcotics expert witness at trial, over defense counsel’s objections concerning his qualifications and experience. Heffner said he looks for certain indicia to assess whether a person possesses drugs for sale, including scales, pay/owe sheets or logs, packaging materials, cash, and cell phone text messages. He admitted none of these indicia were present in this case.
Nevertheless Heffner opined, over defense counsel’s lack of foundation objection, Alcantar possessed the methamphetamine for sale, because Alcantar had five packages of similar weights; the packages were in his hand when Heffner shined the spotlight on him; it was late at night; and he was with a woman.
Heffner speculated he had “possibly interrupted a drug transaction” between Alcantar and the woman. But Heffner acknowledged they seemed to know each other, calling “each other by their names,” and Alcantar asked her to care for his bicycle after his arrest. Heffner did not know if the woman had any cash in her purse.
Heffner conceded 2.5 grams, the amount he originally thought Alcantar possessed, is a “really small amount of methamphetamine to have for purposes of sales.” He further conceded 1.6 grams, the amount Alcantar actually possessed according to the crime laboratory, “is even less to sell . . . .”
According to Heffner, low quality methamphetamine might sell for $10 per gram, while high quality would go for $70 to $100 per gram. But he did not test the quality of the methamphetamine Alcantar possessed. Heffner also testified a methamphetamine user might use as much as a gram a day, and might “purchase drugs in multiple bindles.”
At the conclusion of the People’s case-in-chief, the defense moved to dismiss the possession for sale charge under Penal Code section 1118.1. The court denied the motion stating, among other things, “I would indicate . . . it’s pretty thin evidence. This is not the normal sales case we would see. But I think it’s just barely enough to get across the line for purposes of letting it go to the jury.”
DISCUSSION
Alcantar challenges the sufficiency of the evidence to support his conviction. He argues the evidence shows he was guilty only of simple possession of methamphetamine, a misdemeanor (Health & Saf. Code, § 11377, subd. (a)), not possession of methamphetamine for sale, a felony (Health & Saf. Code, § 11378).
The test for sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-578 (Johnson).) The reviewing court reviews the whole record and evidence in the light most favorable to the judgment below and determines whether the record contains substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (Johnson, at p. 562.) The evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Albillar (2010) 51 Cal.4th 47, 60.)
“Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.” (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746; People v. Harris (2000) 83 Cal.App.4th 371, 374 (Harris).) “Intent to sell may be established by circumstantial evidence.” (Harris, at p. 374.)
“In cases involving possession of [controlled substances], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.” (People v. Newman (1971) 5 Cal.3d 48, 53 (Newman), disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 861.) In most circumstances, “it is for the jury to credit such opinion or reject it.” (Harris, supra, 83 Cal.App.4th at p. 375.)
But in some circumstances, an expert’s opinion that narcotics are possessed for sale, “may not be held to be substantial evidence to support the conviction.” (People v. Hunt (1971) 4 Cal.3d 231, 237 (Hunt).) As our Supreme Court explained in Hunt: “‘“The chief value of an expert’s testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion . . . it does not lie in his mere expression of conclusion.” (Italics added.) [Citation.] In short, “Expert evidence is really an argument of an expert to the court, and is valuable only in regard to the proof of the facts and the validity of the reasons advanced for the conclusions.” (Italics added.) [Citations.]’” (Hunt, at p. 237, quoting People v. Bassett (1968) 69 Cal.2d 122, 141.)
In the circumstances of this case, Heffner’s opinion that Alcantar possessed the methamphetamine for sale, “is worthy of little or no weight, and should not constitute substantial evidence sufficient to sustain the conviction.” (Hunt, supra, 4 Cal.3d at p. 238.) Among the reasons advanced for Heffner’s opinion, the only one which is arguably valid is that Alcantar possessed five separate bindles of similar weights. But this fact alone has little weight because users may buy drugs in multiple bindles.
Looking at the record as a whole, in the light most favorable to the judgment as we must, there are no other proven facts which support Heffner’s possession for sale opinion. That the bindles were in Alcantar’s hand, it was late at night, and he was with a woman, all have no bearing on the issue. The same is true of Heffner’s speculation he had possibly interrupted a drug transaction between Alcantar and the woman. This evidence has no ponderable legal significance.
Significantly, the quantity and value of the drugs do not support the opinion either. By Heffner’s own testimony, a user might use as much as a gram a day. Thus the quantity Alcantar possessed, either 1.6 or 2.5 grams, would have been at most a two or three-day personal use supply. And, while Heffner opined it could have been worth as much as $250, it could also have been worth as little as $25, depending on the quality.
These facts are crucial because, “There is a reasonable relationship between the quantity and value of contraband possessed by an individual and the nature of the use which he intends to make of it.” (People v. Shipstead (1971) 19 Cal.App.3d 58, 78.)
The total absence of common indicia of sales activity is also remarkable. Again Alcantar had no scales, no pay/owe sheets or logs, no empty packaging materials, no cash, and no drug-related cell phone text messages. No reported California decision has ever upheld a possession for sale conviction in comparable circumstances.
In fact, the totality of the circumstances in this case contrasts with those found in typical cases affirming possession for sale convictions. (See, e.g., Newman, supra, 5 Cal.3d at p. 53 [sealed envelope below the dashboard contained eight plastic bags holding 4.5 grams of methedrine; toxicologist testified the drug is usually dispensed in five to 10 milligram quantities and the quantity in the eight plastic bags was sufficient to produce 450 capsules; experienced officer testified the bindles could be sold for $10 on the street, each bindle could provide four injections for a total of about 32 injections, ordinarily one injection is all that one would take in a day]; People v. Ramos (2016) 244 Cal.App.4th 99, 104 [the defendant admitted ownership and control over her purse and large quantities of heroin and methamphetamine, a scale and packaging materials].)
People v. Parra (1999) 70 Cal.App.4th 222 (Parra), the main case relied upon by the Attorney General, is factually inapposite. In Parra, a search of the defendants’ car revealed more than a kilogram of cocaine hidden behind the dashboard. (Id. at p. 225.) One prosecution expert opined the amount of cocaine, as well as the lack of drug paraphernalia in the car, indicated the cocaine was possessed with intent to sell it. (Ibid.) Another prosecution expert opined the defendants possessed it with the intent to sell, “based on (1) the way the cocaine was packaged, (2) the amount of cocaine recovered from the defendants’ car, (3) the fact that cocaine was concealed behind the dashboard of the car, (4) the absence of any drug paraphernalia in the car, and (5) the fact that neither of the defendants appeared to be under the influence of narcotics.” (Ibid.)
Parra is similar to this case only insofar as Alcantar did not possess any drug paraphernalia and did not appear to be under the influence. Parra is dissimilar as to the quantity, packaging and location of the drugs. More than a kilo (almost 1,000 grams) of cocaine, in a single package, concealed behind the dashboard of a car, bears no material similarity to 1.6 or 2.5 grams of methamphetamine, in five bindles, held in one’s hand. Thus, the Parra court’s finding there was sufficient evidence to support possession for sale convictions has no application here. (Parra, supra, 70 Cal.App.4th at p. 227.)
Accordingly, the evidence is insufficient to sustain the judgment.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to reduce the conviction to possession of methamphetamine, a misdemeanor (Health & Saf. Code, § 11377, subd. (a)) pursuant to Penal Code section 1260.



THOMPSON, J.
I CONCUR:



FYBEL, J.

ARONSON, J., Dissenting.
I respectfully dissent from the majority’s conclusion no substantial evidence supported the jury’s decision Fernando Ambriz Alcantar possessed methamphetamine for sale. The test for sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must accept logical inferences the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) We therefore must consider whether substantial evidence supports the jury’s verdict, “not whether guilt is established beyond a reasonable doubt.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) This indeed was a close issue for the jury. But in finding no substantial evidence supported the jury’s verdict, the majority has demonstrated nothing more than the evidence would have supported an acquittal on the possession for sale charge. (People v. Albillar (2010) 51 Cal.4th 47, 60 [“[i]f the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding”].) We may not reverse unless the evidence required the jury to reach a different conclusion. I dissent because the majority in my view reaches this conclusion by reweighing the evidence.
Substantial evidence supports the jury’s finding Alcantar possessed the methamphetamine for sale. Alcantar and a woman sat in a dark stairway around 1:00 o’clock in the morning. When Heffner shone his light on Alcantar, he dropped five bindles of methamphetamine behind the wall. The quantity, 1.6 grams, was more than an individual would generally use in a day. The plastic bindles were of similar weight, suggesting they were packaged to sell. Alcantar did not have drug paraphernalia on him and did not appear to be under the influence. The jury reasonably could find Heffner had interrupted a drug transaction before Alcantar could sell the drugs to his female companion. The absence of a scale or “pay/owe” sheets supports Alcantar’s claim he possessed the contraband for personal use, but the jury was not bound to draw this conclusion. Indeed, the jury reasonably could conclude a small-time, street-level dealer might not carry a scale to sell prepackaged bindles, and if he conducted his business in cash or with acquaintances, he might not need a log to record sales.
Officer Heffner, testifying as a narcotics expert, explained he looks for certain indicators in assessing whether a person possessed drugs for sale, including a scale, pay/owe sheets or a log, packaging material, money or currency, and cell phone text messages. Heffner formed the opinion Alcantar possessed the methamphetamine for sale because he possessed five packages of the same drug of similar weights, the drugs were in Alcantar’s hand when Heffner shined the spotlight on him, and it was late at night. Heffner believed he had “possibly interrupted a drug transaction” between Alcantar and the woman. High quality methamphetamine might fetch $70 to $100 per gram, and the five bindles might have netted $250. The jury may rely on the opinion of an experienced officer that the defendant possessed narcotics for sale and “it is for the jury to credit such opinion or reject it.” (People v. Harris (2000) 83 Cal.App.4th 371, 375.)
The majority concedes as “arguably valid” Heffner’s opinion Alcantar possessed the methamphetamine for sale because he held five separate bindles of similar weights, but concludes this is entitled to “little weight because . . . users may buy drugs in multiple bindles.” (Maj. opn. at p. 5.) This assertion hardly proves as a matter of law that Alcantar held the methamphetamine for his personal use. Indeed, based on Heffner’s expert opinion and the surrounding circumstances, the jury reasonably could conclude Alcantar was a small-time dealer who was about to sell his prepackaged bindles to his female companion. The majority simply reweighs the evidence to conclude Heffner’s opinion is entitled to “little weight.”
The majority also rejects Heffner’s testimony the five bindles Alcantar possessed may have been worth $250.00. The majority reweighs the evidence in rejecting Heffner’s testimony by finding “it could also have been worth as little as $25, depending on the quality.” (Maj. opn. at p. 5.) This interpretation of the evidence is not compelled, however. The majority simply is second-guessing the jury’s contrary conclusion. I respectfully disagree and would affirm the judgment.



ARONSON, ACTING P. J.