Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. YA064814 of Los Angeles County, John R. Johnson, Commissioner.
Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
James McCoy was convicted by a jury of possession of marijuana for sale and sentenced by the trial court to two years in state prison. On appeal McCoy contends there is insufficient evidence to support his conviction.
FACTUAL AND PROCEDURAL HISTORY
1. The Information
McCoy was charged in an information with one count of possession of marijuana for sale (Health & Saf. Code, § 11359). The information also specially alleged McCoy had suffered two prior felony convictions for which he had served separate prison terms within the meaning of Penal Code section 667.5, subdivision (b), and that one of his prior convictions was for robbery, a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
2. The Search and Discovery of the Marijuana
According to the evidence presented at trial, at 11:30 in the morning of April 28, 2006, Los Angeles Police Detective Roman Gomez, along with several other law enforcement officials, executed a parole search at 938 East 68th Street in Inglewood. After Gomez knocked on the front door of the residence, a man later identified as Lamont McCoy answered the door. Asked where Gomez could find James McCoy, Lamont McCoy responded he was “in the back.”
Gomez walked down the driveway to the garage and knocked on its side door, which was ajar. Gomez then pushed the door so that it opened fully and saw McCoy lying on a bed. It appeared to Gomez the garage had been crudely converted into living quarters, with a bed and shelves. Gomez searched the garage and found a tin can containing a clear plastic bag filled with 62 grams of marijuana, another clear plastic bag containing 10 to 15 smaller empty baggies, lighters, an ashtray, a spray bottle and a piece of mail addressed to McCoy. No drug paraphernalia specific to marijuana use, such as a marijuana pipe or rolling papers, were found on the premises.
As the parties noted at oral argument, additional amounts of marijuana were found in two small plastic bags.
After completing the search of the garage, Gomez conducted a search of the main house. Gomez discovered additional marijuana, several more plastic baggies and a digital scale. There was no evidence McCoy resided in the main house.
Lamont McCoy was also charged with possession of marijuana for sale. He pleaded no contest to the charge prior to trial. Pursuant to stipulation of counsel, the jury in James McCoy’s case was informed of Lamont McCoy’s plea.
At trial Detective Gomez described the items he had discovered during his search of the garage. Also testifying as an expert witness with eight years of experience in narcotics investigations, Gomez opined the amount of marijuana found in the garage (62 grams) was far too large for personal use only and must have been held with the intent to sell it. According to Gomez, even when purchasing in bulk, individuals buying marijuana for personal use typically do not buy more than 10 to 15 grams of marijuana because it dries out. Gomez also testified his opinion concerning McCoy’s intent to sell was supported by the presence of the spray bottle, which is commonly used by drug sellers to preserve the marijuana, and the small plastic baggies, which are frequently used in street transactions to distribute the marijuana in small amounts. Gomez also testified the scale found in the main residence is the type used to weigh marijuana to determine the proper amount for street sales and opined McCoy likely had access to the scale because, in his experience, it is common for there to be multiple narcotics sellers within the same residence and “to share . . . scales where there is a connection between individuals.”
4. The Verdict and Sentence
The jury found McCoy guilty of possession of marijuana with intent to sell. In a bifurcated proceeding the trial court dismissed both the prior strike conviction and the allegations regarding McCoy’s prior prison terms pursuant to Penal Code section 1385. McCoy was sentenced to the middle term of two years in state prison.
DISCUSSION
1. Standard of Review
In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, at p. 331.)
“Substantial evidence” in this context means “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; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“‘“[w]hen the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’”].) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
2. Substantial Evidence Supports McCoy’s Conviction
Possession of narcotics for sale requires proof the defendant possessed the contraband with the specific intent to sell it and with knowledge of both its presence and illegal character. (People v. Parra (1999) 70 Cal.App.4th 222, 225-226; accord, People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) The intent to sell may be established by circumstantial evidence. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) It is well settled that “‘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. Carter (1997) 55 Cal.App.4th 1376, 1378; Harris,at p. 375; cf. People v. Chakos (2007) 158 Cal.App.4th 357 [arresting officer with limited expertise in differentiating citizens who possess marijuana lawfully pursuant to Compassionate Use Act, which authorizes possession of eight ounces of marijuana for medical use, from those who possess the drug unlawfully with intent to sell not qualified to serve as expert witness on question whether defendant possessed drug for lawful medical use].)
McCoy contends the evidence was insufficient to establish he possessed the marijuana found in the garage with the intent to sell it. He asserts the “main evidence that [he] possessed the marijuana for sale rather than personal use” was Lamont McCoy’s no-contest plea to the same charge prior to trial. Emphasizing the search of the garage did not yield items typically associated with drug sales such as cash, pay-owe sheets or a scale, McCoy argues the People’s case was based on that plea and a theory of “guilt by association.”
McCoy’s argument simply ignores much of the evidence presented against him. Detective Gomez testified, based on his training and experience as a narcotics officer, that 62 grams of marijuana was too large an amount for personal use. He also testified the plastic baggies found in the garage were typically used by sellers to package the marijuana for street sales and noted the absence of certain drug paraphernalia associated with personal use of marijuana. The jury was permitted to and did credit Gomez’s testimony. (People v. Carter, supra, 55 Cal.App.4th at p. 1378; People v. Harris, supra, 83 Cal.App.4th at p. 374.) Although McCoy recites other, more favorable facts to support his defense theory (arguing the ashtray and lighter evidence his personal use of marijuana and the absence of cash and pay-owe sheets was inconsistent with sales transactions), the jury resolved those evidentiary conflicts against him. Substantial evidence supports the jury’s determination.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J.,WILEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.