Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 204260
Marchiano, P.J.
The People appeal from an order granting defendant Ronald Houff’s motion under Penal Code section 995 to set aside the information, which alleged that defendant had sold cocaine base in violation of Health and Safety Code section 11352, subdivision (a). We conclude that the magistrate’s probable cause determination was supported by substantial evidence, and therefore reverse.
I. BACKGROUND
San Francisco Police Officer Melonee Alvarez testified at the preliminary hearing that she approached defendant on the night of December 12, 2007, and asked him if he “had a 20,” a “[c]ommon reference to $20 worth of rock cocaine.” Defendant said, “Yeah, I got you,” reached into a jacket pocket, took out a brown piece of paper holding what appeared to be crack cocaine, and showed it to Alvarez. He gave the object to Alvarez, and Alvarez gave him $20.
San Francisco Police Officer Robert Doss testified as an expert in the recognition of cocaine base and, after visually examining and touching the purported rock cocaine, exhibit 1A, opined that the white rock Alvarez received from defendant was crack cocaine. Doss had been a police officer for over 23 years, and had seen and purchased crack cocaine “thousands of times.” He had taken a “DEA FBI 80-hour course dealing with crack cocaine,” and testified “hundreds of times” as an expert on possession of crack cocaine for sale. Doss admitted that, without a chemical test he could not be “100 percent sure,” but he believed, based on the object’s “appearance, feel, texture,” that it was crack cocaine. He said that “bunk” falsely sold as crack cocaine has a different color, and is often softer than the real substance.
The magistrate rejected defendant’s argument that there was insufficient evidence, without a chemical analysis, to establish that the substance exchanged was cocaine base, and held defendant to answer.
After granting defendant’s Penal Code section 995 motion in light of People v. McChristian (1966) 245 Cal.App.2d 891 (McChristian) and Cook v. United States (9th Cir. 1966) 362 F.2d 548 (Cook), the court attempted to reconsider and deny the motion based on the opinion in People v. Wesley (1990) 224 Cal.App.3d 1130 (Wesley). Because the initial granting of the motion was a final order, we issued a writ of prohibition on defendant’s petition that prevented the court from taking further action in the case, without prejudice to the People’s right to appeal. (Houff v. Superior Court of the City and County of San Francisco (Apr. 25, 2008, A121228) [nonpub. opn.].)
II. DISCUSSION
Under Penal Code section 995, an information must be set aside if the defendant has been committed without “reasonable or probable cause.” (Pen. Code, § 995, subd. (a)(2)(B).) The magistrate must be convinced of a state of facts that would lead a person “of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.” (Taylor v. Superior Court (1970) 3 Cal.3d 578, 582, overruled on another ground in People v. Antick (1975) 15 Cal.3d 79, 92, fn. 12 (Antick).) “[I]t is the magistrate who is the finder of fact; the superior court has none of the foregoing powers, and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citations.] On review by appeal . . . the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer,” which must be upheld if it is supported by substantial evidence. (People v. Laiwa (1983) 34 Cal.3d 711, 718.)
Antick, supra, 15 Cal.3d 79 was disapproved on an unrelated ground in People v. McCoy (2001) 25 Cal.4th 1111, 1123.
The evidence here “was produced on the preliminary hearing not on a trial where the court or jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime. . . . ‘Evidence that will justify a prosecution need not be sufficient to support a conviction . . . . An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’ ” (Wesley, supra, 224 Cal.App.3d at pp. 1146-1147, italics omitted.)
The issue in this case is whether, as the People argue, the nature of the object in question could be established for purposes of the preliminary hearing by the expert officer’s physical examination of the object, or whether, as defendant argues, chemical testing of the object was required.
The People’s position is supported by Wesley, supra, 224 Cal.App.3d 1130, where the court reversed the dismissal of an information. In that case, Officer Qualls, a police officer in a “reverse sting” operation, was given 15 baggies containing a substance. Qualls examined the substance, and, based upon his training and experience, he formed the opinion that the substance was rock cocaine. He sold a baggie to defendant, who threw it away as soon as he realized he was about to be arrested. (Id. at p. 1136.) The superior court judge set aside the information on several grounds, including that “there [was] no competent testimony that the substance [sold to the defendant] was cocaine” because the rocks had not been chemically analyzed. (Id. at pp. 1137, 1146.) The Court of Appeal held that Qualls’s expert opinion, which was credited by the magistrate, was sufficient to hold the defendant to answer. (Id. at p. 1146.) “[I]t was reasonable for the magistrate to conclude Qualls was qualified to give an expert opinion as to the nature of the substance he sold to defendant, and reasonable for him to accept Qualls’s expert opinion it was rock cocaine.” (Id. at p. 1147.)
The People’s argument is also supported by People v. West (1990) 224 Cal.App.3d 1337 (West), another reverse sting sale by Officer Qualls. As in Wesley, Qualls opined at the preliminary hearing that the object he sold was rock cocaine. The defendant argued that the opinion “was insufficient as a matter of law to prove that the item was cocaine. He further contends that it is ‘not significant’ that the evidence was presented at a preliminary hearing rather than at trial. But, it is, of course. The opinion given by Qualls, who testified that he had seen and touched rock cocaine at least 500 times, was sufficient to establish that the rock was cocaine.” (West, supra, at p. 1347, fn. 9.)
Defendant contends that Wesley and West are distinguishable because they were reverse stings where the drugs were supplied by the police department, rather than the defendant. Defendant submits that it was reasonable to infer that the police “employed actual cocaine base seized in earlier arrests” in Wesley and West, and that no comparable inference can be drawn here. However, the source of the cocaine was not cited as a relevant factor in the reasoning of either of those cases, and we do not agree that their holdings are limited to reverse sting operations.
Defendant relies on McChristian, supra, 245 Cal.App.2d 891 where police officers testified at the preliminary hearing that on two separate occasions they observed the defendant in possession of multi-colored balloons. They failed to recover any of the balloons, which appellant tried to swallow or otherwise destroy. The officers opined that the balloons contained heroin, based on their experience in cases in which they had found heroin in similar balloons. (Id. at p. 895.) The superior court granted the defendant’s motion to dismiss the information, and the Court of Appeal affirmed, holding that the officers’ testimony based upon the outward appearance of the balloons was “speculative and conjectural.” (Id. at p. 897.)
We do not construe McChristian to justify the broad proposition that expert testimony that a substance is contraband based upon a physical examination is always insufficient, and that evidence of the results of chemical testing is always required. McChristian is distinguishable because the officers in that case gave their opinion based only upon the outward appearance of the balloons, and never physically observed the substance within, or even determined that the balloons contained a substance, and the balloons were never recovered. By contrast here, the object at issue was introduced into evidence and was physically examined by the testifying expert.
Moreover, the McChristian court failed to address the procedural distinction between the sufficiency of evidence to support a finding of probable cause, and a finding of guilt beyond a reasonable doubt necessary for conviction. In fact, Cook, supra, 362 F.2d 548, the primary case upon which McChristian relied for the general proposition that “whether or not a powder or substance is a narcotic cannot be determined by a mere inspection of its outward appearance” (McChristian, supra, 245 Cal.App.2d at pp. 896-897), was an appeal from a conviction, not an appeal from an order setting aside an information.
We note also that the use of expert testimony based on physical examination in lieu of chemical testing was not at issue in Cook, supra, 362 F.2d at page 549, because “[t]here was no qualified witness called to establish or testify that any of the powders were in fact narcotic drugs” in that case. We note further that many federal courts have refused to require chemical testing of alleged contraband. “To our knowledge, no court has held that scientific identification of a substance is an absolute prerequisite to conviction for a drug-related offense, and we too are unwilling to announce such a rule. In view of the limitations that such a burden would place on prosecutors, and in accordance with general evidentiary principles, courts have held that the government may establish the identity of a drug through cumulative circumstantial evidence. [Citations.] So long as the government produces sufficient evidence, direct or circumstantial, from which the jury is able to identify the substance beyond a reasonable doubt, the lack of scientific evidence is not objectionable.” (U.S. v. Schrock (6th Cir.1988) 855 F.2d 327, 334; accord, U.S. v. Walters (1st Cir. 1990) 904 F.2d 765, 769 [collecting cases from other federal circuits].)
Defendant observes that, under Evidence Code section 412, “[i]f weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” However, as the People rightly respond, this statute provides for a permissive, not a mandatory, inference. Defendant asserts, and we will accept for purposes of this opinion, that “ ‘bunk’ drug sales are a pervasive fact of life in the illicit drug market.” Again, however, reasons to question whether the object here was in fact crack cocaine—Officer Doss himself admitted that he could not be “100 percent sure” without a chemical test—did not as a matter of law compel a finding contrary to that of the magistrate.
Defendant asserts that chemical test results are routinely introduced at preliminary hearings in drug cases, and that dispensing with such evidence would be a “sea change” in the way such hearings are conducted. However, it has been settled since Wesley and West that chemical test results are not necessarily required at the preliminary hearing stage, and we see no reason to depart from those cases. It would be a change in the law to require chemical testing in every case, in contravention of the rule that “the nature of a substance, like any other fact in a criminal case, may be proved by circumstantial evidence.” (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369; see People v. Bailey (1991) 1 Cal.App.4th 459.)
The magistrate’s determination in this case was adequately supported by the expert opinion that, based on its appearance and texture, the object at issue was crack cocaine. The opinion provided a rational ground for assuming the possibility that the charged offense had been committed and that defendant was guilty of it. (Wesley, supra, 224 Cal.App.3d at p. 1147.) A chemical test confirming the nature of the object was not as a matter of law required. The magistrate’s decision was properly based on credible expert opinion, supported by the testimony that defendant offered the object for sale as crack cocaine.
III. DISPOSITION
The order granting the Penal Code section 995 motion is reversed.
We concur: Margulies, J. Graham, J.
Retired judge of the Marin Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.