Opinion
H029829
4-27-2007
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL THOMAS DULIN, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Samuel Thomas Dulin appeals a judgment entered following a jury trial in which he was convicted of possession for sale of ecstasy (Health & Saf. Code, § 11378). On appeal, defendant asserts the judgment should be reversed because there is not substantial evidence to support his conviction for possession for sale without his extrajudicial statements.
STATEMENT OF THE FACTS AND CASE
Defendant was found in the passenger seat of a car with another person in the drivers seat. Officers searched the car and found marijuana, methamphetamine and ecstacy pills between the drivers seat and the center console.
Defendant was arrested, and while being driven to the jail for processing, he said that he had drugs in his left sock. An officer removed a plastic bag that had seven blue pills inside, consisting of ecstacy.
Defendant admitted to the officers that he intended to sell the ecstacy, and denied ever personally using ecstacy. Defendant was not under the influence of a controlled substance at the time he was arrested.
Defendant was charged with possession for sale of ecstacy (§ 11378), and possession of methamphetamine (§ 11377, subd. (a)). The information also alleged that defendant had suffered a prior strike conviction, and had served a prior prison term (Pen. Code, §§ 1170.12, 667.5.)
Defendant was convicted following a jury trial of possession for sale of ecstacy, and was acquitted of possession of methamphetamine. Defendant admitted his prior strike conviction and prior prison term. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant asserts the People failed to prove the corpus delicti of the offense without use of the defendants extra-judicial statements.
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez); see also People v. Ochoa (1998) 19 Cal.4th 353 (Ochoa).) The purpose of the rule is to assure that the accused is not admitting to a crime that never occurred. (Ochoa, supra, 19 Cal. 4th at p. 405.)
In Ochoa, the Supreme Court recognized the long standing rule that defendants extrajudicial statements were inadmissible over a corpus delicti objection absent some independent evidence of the crime to which the statements relate. (Ochoa, supra, 19 Cal.4th at p. 404-405.) In Alvarez the court concluded that Proposition 8 abrogated any corpus delicti basis for excluding the defendants extrajudicial statements from evidence, but that it did not abrogate the corpus delicti rule insofar as it provides that every conviction must be supported by some proof of the corpus delicti aside from or in addition to such statement. (Alvarez, supra, 27 Cal.4th at p. 1165.)
The bulk of the evidence used to convict defendant was expert testimony of Officer Lagorio regarding the typical characteristics of the crime of possession for sale of ecstacy. Officer Lagorio opined that the ecstacy in defendants sock was possessed for sale based on the fact that a total of 13 pills were found—seven in defendants sock and six in the car. According to Officer Lagorio, a typical user carries no more than one pill. Officer Lagorio also testified that defendants admission that he intended to sell the ecstacy corroborated his opinion.
Defendant asserts on appeal that the trial court erred in qualifying Officer Lagorio as an expert in ecstacy sales, because Officer Lagorio lacked the experience and education needed to be considered an expert in possession for sale of ecstacy.
"A trial court has discretion to determine whether a proposed witness is qualified to testify as an expert under [Evidence Code section 720], and this determination will not be disturbed absent an abuse of discretion. [Citation.]" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1421.) Such abuse of discretion will be found only where " ` "the evidence shows that a witness clearly lacks qualification as an expert . . . ." [Citation.]" (People v. Chavez (1985) 39 Cal.3d 823, 828.) "[A]n experts qualifications `must be related to the particular subject upon which he is giving expert testimony. Qualifications on related subject matter are insufficient. [Citations.] [Citation.]" (Ibid.)
Here, we do not find the court abused its discretion in qualifying Officer Lagorio as an expert in ecstacy sales. Officer Lagorio testified that he had been a police officer for 10 years, and had received a total of 50 hours of narcotics training. Officer Lagorio also testified that he had participated in field training that exposed him to possession for sale of narcotics, and had talked to other officers about narcotics sales, including five times for ecstacy sales. Officer Lagorio stated that he had been qualified and testified between 10 and 15 times as an expert in the possession for sale of narcotics, including one time for ecstacy. Finally, Officer Lagorio testified that he had made between 75 and 100 arrests for possession for sale of narcotics, including three times for ecstacy.
Based upon the testimony above, the court qualified Officer Lagorio as an expert in possession for sale of ecstacy. We find no abuse of discretion in this determination. This is not a case in which " ` "the evidence shows that a witness clearly lacks qualification as an expert . . . ." [Citation.]" (People v. Chavez, supra 39 Cal.3d at p. 828.) Here, Lagorio had training and experience in the field of possession for sale of narcotics, and specifically ecstacy. As such, the court properly qualified him as an expert at trial.
In addition, Officer Lagorios testimony provided sufficient independent evidence of possession for sale to satisfy the corpus delicti rule. Pursuant to Alvarez, the prosecution must still provide corroboration of the criminal agency in addition to defendants statement in order to prove the corpus delicti of the crime alleged. "The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as `slight [citation] or `minimal [citation]. The People need make only a prima facie showing ` "permitting the reasonable inference that a crime was committed." [Citations.] The inference need not be `the only, or even the most compelling, one . . . [but need only be] a reasonable one . . . . [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 301-302.) The evidence here, taken together, created a reasonable inference of criminal agency.
We are not persuaded by defendants argument that the jurys acquittal of defendant on possession of methamphetamine found in the car undercuts Officer Lagorios opinion that defendant possessed the ecstacy with the intent to sell. Defendant asserts that Officer Lagorios opinion that defendant possessed the ecstacy for sale was based on the ecstacy found in defendants sock as well as that found in the car, and the fact that the jury acquitted defendant of possessing the methamphetamine found in the same location in the car as the ecstacy, the jury must have also rejected the notion that defendant possessed the ecstacy found in the car. Because it could not include the ecstacy found in the car, defendant contends Officer Lagorios opinion was unsubstantiated and could not support the verdict.
Contrary to defendants argument, Officer Lagorios opinion that defendant possessed the ecstacy for sale is sufficient to support the conviction. Regardless of the ecstacy found in the car, Officer Lagorio testified regarding his opinion that the average user only carried at most one pill, and typically only consumes one pill at a time; defendant possessed seven pills of ecstacy in his sock, and was not under the influence of ecstacy at the time of his arrest. Based on the evidence, Officer Lagorios opinion that defendant possessed ecstacy for sale was substantiated.
Here, not only does the evidence include Officer Lagorios expert opinion that defendant possessed the ecstacy for sale, but there also is the fact that defendant had seven pills of ecstacy in his sock, defendant was not under the influence of a controlled substance when he was arrested, and there was no evidence of methamphetamine in defendants bloodstream. Defendants possession for a large quantity of ecstacy coupled with the fact that he was not under the influence at the time provides the "slight or prima facie showing" required to show criminal agency under the corpus delicti rule. Therefore, the trial courts admission of defendants statement that he was selling ecstacy was not in error.
DISPOSITION
The judgment is affirmed.
We Concur:
PREMO, J.
ELIA, J. --------------- Notes: All further unspecified statutory references are to the Health & Safety Code.