P. v. Martinez

Filed 10/20/06 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Barbara R. Johnson, Judge. Affirmed.

Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ryan B. McCarroll , Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________

Defendant and appellant Carlos Martinez was spotted by police engaging in a hand-to-hand transaction. Police followed him and found him in possession of a bindle containing individual pieces of rock cocaine. A search incident to arrest revealed several crumpled bills of small denomination in his pocket. He was convicted of possession for sale of cocaine base. Defendant appeals, asserting there was insufficient evidence that the cocaine base in his possession was possessed for purposes of sale. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 1, 2005, at 9:30 a.m., Los Angeles Police Department Officer Jorge Trejo was patrolling an area known for narcotics sales and use. Officer Trejo had been in the Narcotics Enforcement Detail for two years. He had completed 40 hours of narcotics training at the Police Academy, and also attended a five day narcotics school. He has made 500 arrests for possession, possession for sale and sale of rock cocaine. He has also testified as an expert in the areas of possession, possession for sale, and sale of rock cocaine.

From sixty feet away, Officer Trejo observed defendant and another man engage in “a transaction.” The other man handed something to defendant, which defendant accepted in his left hand and put in his left front pants pocket. Defendant then handed something to the other man, which the other man immediately placed in his own mouth. The two men departed in different directions. Officer Trejo concluded he had witnessed a drug sale in which defendant was the seller and the other man the buyer. He testified that it was common for drug users and dealers to place narcotics in their mouths, so that they can destroy the evidence by swallowing it if contacted by police.

While observing the transaction, Officer Trejo radioed other officers. Detective Hull, his supervisor, responded. Detective Hull and Officer Trejo formulated a plan to approach defendant on foot. While waiting for Detective Hull’s arrival, Officer Trejo watched defendant walk approximately one block away, where he sat on a bench.

Officer Trejo and Detective Hull approached defendant. Officer Trejo saw defendant holding a brown paper bindle in his right hand. Officer Trejo identified himself as a police officer. Defendant immediately jumped up and tried to get away; Officer Trejo and Detective Hull blocked his path. Officer Trejo recovered the bindle, opened it, and saw “numerous” thin wafers of cocaine base therein.^[1] Defendant was arrested and searched. In his left front pocket, defendant had fifteen crumpled one-dollar bills and two crumpled five-dollar bills. He had additional currency neatly folded in his back pocket. Officer Trejo stated that, based on his experience and training, drug dealers do not want to be seen handling cash, so when they receive money, they immediately “stash it” in their pockets with no attempt to join it with other currency they may be carrying. Defendant was not in possession of any paraphernalia for using cocaine base.

The cocaine base in defendant’s possession was 1.38 grams in total. While Officer Trejo conceded that this amount could possibly be a single user’s one-day supply, he noted that, in the area in which he arrested defendant, rock cocaine was commonly sold in individual wafers, not in bunches. Each wafer sells for between $5 and $10.

On August 2, 2005, defendant was charged by information with one count of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) It was also alleged, within the meaning of Health and Safety Code section 11370, subdivision (a), that defendant had suffered a previous drug possession conviction (Health & Saf. Code, § 11350).

Defendant pleaded not guilty and proceeded to jury trial. At defendant’s request, trial on the prior conviction allegation was bifurcated. The jury found defendant guilty of possession for sale of cocaine base. Defendant then admitted the prior conviction. The trial court then struck the prior conviction allegation and sentenced defendant to the low term of three years in prison. Defendant filed a timely notice of appeal.CONTENTION ON APPEAL

Defendant contends that the evidence was insufficient to support his conviction in that there was insufficient evidence that the cocaine base he concededly possessed was possessed for sale. We disagree.

DISCUSSION

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment 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. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) ‘ “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.]” ‘ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

In cases involving illegal drugs, “it is settled that an officer with experience in the narcotics field may give his opinion that the narcotics are held for purposes of sale based upon matters such as quantity, packaging, and the normal use of an individual. On the basis of such testimony convictions of possession for purposes of sale have been upheld.” (People v. Hunt (1971) 4 Cal.3d 231, 237.) In this case, Officer Trejo’s opinion that defendant possessed cocaine base for sale was based on the following factors: (1) drug dealers and users often place drugs in their mouths to hide them from police; (2) drug dealers immediately shove money from sales in their pockets; (3) the area in which the transaction occurred was known for sales of individual wafers of cocaine base; (4) the “numerous” pieces of cocaine base found in defendant’s possession; and (5) defendant had no paraphernalia for drug use in his possession. Officer Trejo’s conclusion was thus well-supported by the evidence.

Defendant asserts that the evidence is equally susceptible to the interpretation that he had been the buyer in the transaction observed by Officer Trejo. Defendant relies on the size of his prior criminal record, as set forth in the probation report, to assert that he was a longtime drug user who (it may be inferred) used a substantial quantity of cocaine base each day. Yet defendant’s criminal record was not before the jury in this matter; it is therefore not evidence on which defendant may rely.^[2] Defendant also asserts that he was the buyer in that the other man might have put cash in his mouth upon receiving it from defendant. Yet there was no evidence in the record that dealers store money in their mouths; the only evidence was that users and dealers commonly put drugs there. In short, Officer Trejo’s opinion was supported by the facts and his expertise, and the jury verdict is well-supported.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] At trial, the parties stipulated that the substance in the bindle was cocaine base.

^[2] In any event, we note that, to the extent defendant relies on his criminal record to prove he was a user and not a seller, he overlooks his sustained petition for transportation or sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), as well as one pending prosecution and two additional arrests for the same offense.