Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 194886
Kline, P.J.
Karl Weatherspoon (appellant) appeals after the trial court revoked his probation and executed a previously imposed four-year state prison term. On appeal, he contends there was insufficient evidence to support the revocation of his probation and the trial court abused its discretion by revoking probation and executing his prison sentence. We shall affirm.
PROCEDURAL BACKGROUND
On February 28, 2005, appellant pleaded guilty to one count of possession of cocaine for sale (Health & Saf. Code, § 11351.5) in return for the dismissal of two additional counts, a four-year prison sentence with execution suspended, and placement on five years’ probation. He was sentenced in accordance with the plea agreement on April 12, 2005.
Appellant twice subsequently admitted violating probation, but was continued on probation with modifications.
A third motion to revoke probation—based on appellant’s arrest for possession of cocaine base (Health & Saf. Code, § 11350)—went to a contested hearing and, on July 25, 2008, after denying appellant’s motion to suppress evidence, the trial court found appellant in violation of probation and executed the four-year state prison term.
On August 6, 2008, appellant filed a notice of appeal.
FACTUAL BACKGROUND
At the hearing on the motion to suppress evidence, San Francisco Police Officer Kevin Moylan testified that he had been a police officer for 10 years and had been “doing plain clothes” for approximately five years. He had made thousands of narcotics-related arrests, including arrests related to cocaine base. He had previously testified as an expert regarding cocaine base. Moylan also had taken courses regarding narcotics, including a 40-hour course on narcotics recognition.
On March 19, 2008, in the early afternoon, Moylan was in a patrol car in the area of O’Farrell and Jones Street in San Francisco when he saw “a group of individuals loitering and hovering around a garbage can at the corner of O’Farrell and Jones which has been a problematic spot for us in terms of drug use and drug activity.” He and two other officers got out of their car to investigate possible narcotics activity.
Moylan observed appellant slowly begin to walk away. Moylan contacted appellant and asked his name. He then asked if he was on parole or probation. Appellant said he was on probation for drugs. Moylan searched him and found a piece of suspected cocaine base in the right coin pocket of his pants. Moylan arrested appellant and then asked if appellant had any more narcotics in his possession. Appellant showed him “a piece in his mouth and he spit it to the sidewalk.” Moylan seized and booked both pieces of suspected cocaine base. Moylan opined that the cocaine base seized from appellant was a usable amount.
After defense counsel objected on hearsay grounds to introduction of the report on the laboratory analysis of the substances seized from appellant, the trial court found the report inadmissible, telling the prosecutor that he would need to have Officer Moylan “testify [regarding what the substance appeared to be] based on his training and experience, or bring in the chemist that did the analysis.” The prosecutor then asked Moylan, based on his training and experience, what he believed the substance to be. Moylan answered that he believed it to be a usable amount of cocaine base. He based his opinion on having previously seen that amount of cocaine base numerous times. He had seen cocaine base “every day” and it was similar in terms of composition and color to the substance seized from appellant. He also believed the substance was cocaine base based on its size, texture, and the way it was packaged.
The trial court asked Moylan if there was anything significant about the area of O’Farrell and Jones that caused the officer to patrol it. Moylan responded that police get “constant complaints from residents and merchants with regards to the sales and use of drugs,” predominantly cocaine base. Both he and other officers had bought cocaine on that corner and he had done “hours and hours of surveillance on that corner and arrested numerous people for possession of cocaine base, possession for sale of cocaine base.” The court then asked the significance of appellant carrying one of the rocks in his mouth. Moylan responded that many people who sell cocaine base store it in their mouth. Also, addicts buy a rock of cocaine and store it in their mouth to conceal it from police.
The trial court denied appellant’s motion to suppress, found him in violation of his probation, and executed the previously imposed prison sentence. In its ruling, the court first noted that appellant had been before the court several times on probation violation matters. The court further stated: “In this case, he’s found in a narcotics area, significant proportion. He’s found in possession when the officer approaches him.... [¶] Then we have the officer asking the Defendant if he has any more drugs at which time the Defendant produces... the larger rock of crack cocaine. The Defendant’s conduct indicates he is in possession of drugs and that what he’s providing is in fact controlled substance. [¶] And the nature of how he was carrying and transporting it is further indicia that he’s aware of the incriminating nature and corroborates his conduct of spitting it out, that it was incriminating substance.
“So based upon the preponderance of the evidence, even if the report doesn’t come in,... based upon testimony of the officer and the behavior and admission of the Defendant, is a basis for this Court to conclude that he was in possession of contraband. [¶] I might add, there is no contrary evidence in this record that’s been submitted as to what the substance was other than contraband.”
DISCUSSION
Appellant contends the order revoking his probation should be reversed because the prosecution failed to prove the substance recovered from him was a controlled substance.
In deciding this question, we review the entire record in the light most favorable to the decision to determine whether it discloses substantial evidence from which a reasonable trier of fact could find that appellant violated his probation. (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.)
A trial court may revoke a defendant’s probation if it has “reason to believe” that the defendant has violated any condition of his probation and the interests of justice warrant such a revocation. (Pen. Code, § 1203.2, subd. (a).) The trial court is “granted great discretion in determining whether to revoke probation” and its decision will not be disturbed unless an abuse of discretion is demonstrated. (People v. Rodriguez (1990) 51 Cal.3d 437, 442, 445.) The facts warranting revocation of probation need only be established by a preponderance of the evidence. (Id. at pp. 442, 446-447.)
It is well settled that circumstantial evidence is sufficient to prove a substance’s nature. (People v. Palaschak (1995) 9 Cal.4th 1236, 1241-1242; People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.) The court in People v. Sonleitner observed that the nature of a substance “may be proved, for example, by evidence that the substance was a part of a larger quantity which was chemically analyzed [citations], by the expert opinion of the arresting officer [citation], and by the conduct of the defendant indicating consciousness of guilt. [Citation.]” (People v. Sonleitner, at p. 369.)
In the present case, the trial court found that appellant possessed cocaine base, in violation of his probation, based on the following facts: the arresting officer’s opinion, training and extensive experience, that appellant possessed a usable amount of cocaine base; appellant’s conduct in carrying the substance in his mouth and spitting it out in response to the officer’s question as to whether he had any more narcotics in his possession; and the fact that appellant was in an area known for narcotics sales and use, predominantly involving cocaine base. This undisputed evidence is clearly sufficient to support the trial court’s finding, by a preponderance of the evidence, that the substance in appellant’s possession was cocaine base. For the same reasons, no abuse of discretion has been shown. (See People v. Rodriguez, supra, 51 Cal.3d at pp. 442, 445, 446-447; People v. Sonleitner, supra, 183 Cal.App.3d at p. 369.)
Appellant claims that the trial court relied on the fact that appellant was in a known narcotics area only in denying the motion to suppress and therefore this evidence should not be considered with respect to the court’s decision to revoke probation. However, the court specifically asked the officer about the significance of the area where appellant was arrested and the officer’s response provides substantial evidence in the record to support the court’s decision to revoke probation. (See People v. Kurey, supra, 88 Cal.App.4th at pp. 848-849.)
DISPOSITION
The order revoking appellant’s probation and executing the previously imposed prison sentence is affirmed.
We concur: Haerle, J., Lambden, J.