P. v. Menchaca

Filed 2/6/07  P. v. Menchaca CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

                        Appellant Martin Ortiz Menchaca appeals his conviction by jury of transportation of cocaine (Health & Saf. Code, §  11352, subd. (a))^[1] and possession for sale of a controlled substance.  (§  11351.)  The trial court suspended imposition of sentence, and granted appellant 36 months formal probation, with 240 days of jail time and other terms and conditions.  Appellant argues that the judgment must be reversed because the evidence was insufficient to support the conviction.  We affirm.

FACTS

                        On October 12, 2004, while on patrol, Sergeant Robert Gager observed a banana yellow Humvee^[2] vehicle parked in the lot of the Prichard Library in the City of Port Hueneme.  Sergeant Gager recognized the Humvee as belonging to appellant because he contacted appellant previously in that vehicle in the same area.  Sergeant Gager pulled his patrol vehicle into an adjacent parking lot and watched the Humvee.  He was no more than 50 yards away.  He saw that appellant was in the driver's seat.  An unidentified male walked up to the driver's side window and spoke to appellant for a few seconds.  The unidentified male gave folded United States currency to appellant and received something else almost simultaneously. 

                        After the exchange, the male walked away on a bike path, and appellant's Humvee started to pull out of the lot.  Sergeant Gager followed the Humvee for about two and a half miles, and then made a traffic stop.  Officer Elida Mendoza arrived to assist with a Spanish language translation.

                        Appellant consented to a search of the vehicle.  Sergeant Gager found an electronic digital scale in the driver's side door pouch.  He found what he believed to be about 2 grams of cocaine hidden in a socket wrench in the glove compartment.  Appellant was not under the influence of drugs.  There were no personal use ingestion devices in the vehicle.

                        Sergeant Gager also found approximately $150 in appellant's right front pocket in mostly $20 denominations.  These bills were folded in half twice.  It appeared the bills had been hurriedly stuffed into appellant's pocket.  Appellant's wallet contained $200 in neatly placed bills. 

                        Appellant testified that he sells gold jewelry for which he receives about $1,500 to $2,000 per month, explaining the presence of the cash and scale.  He denied that any man had approached his car.  He testified that he was at the parking lot to meet his girlfriend.  He testified that the cocaine in the glove compartment was for his own use and that he used a little of it four or five days prior to his arrest.  He had hidden it in the wrench so his wife would not discover it.  He does not use a wallet and always puts his money in his pocket.

                        Sergeant Gager found no gold in the Humvee.  The cocaine was packaged in a plastic bag that had been knotted and burned on the top, and did not appear to have been opened.  Appellant's girlfriend did not testify.

DISCUSSION

                        Appellant argues that there was no substantial evidence to support his conviction.  We review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (People v. Osband (1996) 13 Cal.4th 622, 690.) 

                        Appellant argues that there is no substantial evidence that he completed a sale of a controlled substance."  A completed sale was not required to prove either charge.  " Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character."   (People v. Meza (1995) 38 Cal.App.4th  1741, 1746.)  " 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."   (Id. at pp. 1745-1746.)

                        The evidence was sufficient to prove transportation of a controlled substance in violation of section 11352, subdivision (a).  Appellant admitted knowledge of the presence and character of the cocaine.  He testified that he uses cocaine, that the cocaine was his and that he hid it in his socket wrench in the glove box of his vehicle.  Conveyance was proved by appellant's testimony that he drove the vehicle from the parking lot to another location.  Movement from one place to another must be proved, but may be minimal.  (People. v. Ormiston (2003) 105 Cal.App.4th  676, 684.)  Sergeant Gager established that the quantity of cocaine was usable.

                        The evidence was also sufficient to prove possession for sale of a controlled substance in violation of section 11351.  There was sufficient circumstantial evidence to support the finding that appellant possessed the cocaine with the intent of selling it.  Intent to sell drugs may be proved by circumstantial evidence of the quantity and quality of the substance, and its packaging and location.  (People v Campuzano (1967) 254 Cal.App.2d  52, 55.) 

                        In cases involving possession of a controlled substance, " 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, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.)

                        Sergeant Gager is a supervisor with the Investigative Services Division of the Port Hueneme Police Department.  He has been in law enforcement since 1989 and is a certified drug recognition expert.  He has served as a narcotics detective for the City of Glendale, buying and selling narcotics at the street level and has observed hundreds of drug deals including hand-to-hand exchanges.

                        Sergeant Gager testified that based on his experience, training and observations, the cocaine was possessed for sale.  His opinion was supported by his observation of the hand-to-hand exchange, the presence of a digital scale in the vehicle, appellant's possession of currency wadded in his front pocket in a manner consistent with having just received it, the fact that the substance was concealed in the glove box, and the absence of implements for ingestion.  Sergeant Gager also testified that the amount and manner of packaging were consistent with street level dealing.  The cocaine weighed 2 grams with packaging and 1.43 grams without packaging. 

                        Appellant testified that shrubs and mounds of dirt obstructed Sergeant Gager's view.  Sergeant Gager testified he had a clear view.  The testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.  (People v. Scott (1978) 21 Cal.3d  284, 296.  There is nothing physically impossible or inherently improbable in Sergeant Gager's testimony.  

                        Appellant points out that the other male was not pursued or identified.  Sergeant Gager explained his decision to focus limited resources upon appellant.  Sergeant Gager followed the money.

                        The jury rejected appellant's innocent explanations for the presence of the cocaine (personal use), the scale and the cash (jewelry business).  " [W]here the jury rejects the hypothesis pointing to innocence by its verdict, and there is evidence to support the implied finding of guilt as the more reasonable of the two hypotheses, [the reviewing] court is bound by the finding of the jury."   (People v. Perkins (1937) 8 Cal.2d  502, 519.)  

DISPOSITION

                        The judgment is affirmed.

                        NOT TO BE PUBLISHED.

                                                                        COFFEE, J.

We concur:

                        GILBERT, P.J.

                        YEGAN, J.

Charles R. McGrath, Judge

Superior Court County of Ventura

______________________________

                        Nelson Mendez for Defendant and Appellant.

                        Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.

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            ^[1] All statutory references are to this code unless otherwise stated.

            ^[2] The witnesses used the terms " Humvee," " Hummer" and " H2" interchangeably.  For consistency we have used " Humvee" throughout.