Opinion
No. B216746 No. BA333530 BA344659
07-29-2010
THE PEOPLE, laintiff and Respondent, v. ROBERT v. LASTRAP, efendant and Appellant.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendantand Appellant.Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief AssistantAttorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D.Martynec, Supervising Deputy Attorney General, Russell A. Lehman, Deputy AttorneyGeneral, for Plaintiff and Respondent.
Pamela J. Voich, 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, Susan D. Martynec, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GILBERT, P.J.
Robert V. LaStrap appeals a judgment following conviction of sale of heroin. (Health & Saf. Code, § 11352, subd. (a).) We award LaStrap 140 days of additional conduct credit, but otherwise affirm.
FACTS AND PROCEDURAL HISTORY
In the afternoon of August 6, 2008, Los Angeles Police Officer George Mejia and his partner, Officer Chapman, were in a building on San Julian Street observing the area for narcotics activity. The neighborhood had homeless people, rescue missions and halfway houses, and people using and selling drugs.
From a distance of approximately 100 feet, Mejia saw LaStrap walking south on San Julian Street toward Seventh Street. LaStrap appeared to be counting currency in his hand. He stopped walking and was approached by Eric Coburn. The two men engaged in brief conversation. Coburn then handed currency to LaStrap, who placed it in his front pants pocket. LaStrap placed his right hand over his mouth and handed an object to Coburn. Through his binoculars, Mejia saw Coburn look at two balloons in his hand, one red and one green. Coburn put the balloons in his front pants pocket and walked toward Seventh Street.
Mejia, an experienced narcotics officer, concluded that he had observed a hand-to-hand exchange of money for heroin. As a narcotics officer, Mejia had witnessed several hundred hand-to-hand sales of heroin.
Mejia then called for nearby police officers to detain LaStrap and Coburn. When the officers searched the two men, they discovered two balloons of heroin in Coburns pants pocket and $105 in small bills in LaStraps pants pocket. The two balloons contained.24 grams of heroin, an amount Mejia opined is "a very usable amount."
At trial, Mejia testified that heroin is commonly packaged for street sales by placing it in small balloons. He stated that a drug seller often places a balloon in his mouth and swallows it if detained by police.
At trial, LaStrap testified that he lived nearby and was walking to an outpatient program. He stated that he asked Coburn for spare change when he encountered him and another man on the sidewalk. LaStrap stated that Coburn gave him some coins but that he did not provide Coburn with heroin or other drugs. LaStrap explained that the bills in his pants pocket were his general relief funds that he had obtained recently.
The jury convicted LaStrap of the sale of heroin. (Health & Saf. Code, § 11352, subd. (a).) In a separate proceeding, he admitted suffering a prior narcotics conviction. (Health & Saf. Code, §§ 11351.5, 11370.2.) LaStrap also admitted serving three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).Pursuant to section 1385, the trial court struck the prior narcotics conviction allegation and two prior prison term allegations. It sentenced LaStrap (a probationer and a parolee) to a midterm sentence of four years, and added one year for a prior prison term served. (§ 667.5, subd. (b).) It also imposed restitution fines and various fees, and awarded LaStrap 416 days of presentence custody credits.
All further statutory references are to the Penal Code.
LaStrap appeals and contends that insufficient evidence supports his conviction of selling heroin. He also requests that we examine the records disclosed at the in camera hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. Finally, in his reply brief, LaStrap asserts that he is entitled to additional conduct credits pursuant to recent amendments to section 4019.
DISCUSSION
I.
LaStrap argues that there is insufficient evidence that he possessed heroin, knew of its presence, or sold it. He points out that Mejia saw him from a distance of 100 feet through a building window and that other pedestrians were on the sidewalk that afternoon. LaStrap adds that he explained the currency that he possessed when arrested. He asserts that his conviction violates due process of law as guaranteed by federal and state constitutions.
In determining the sufficiency of evidence to support a judgment, we view the evidence and draw all reasonable inferences therefrom to determine whether reasonable and credible evidence supports the decision of the trier of fact. (People v Boyer (2006) 38 Cal.4th 412, 480.) We do not reweigh the evidence nor do we reassess the credibility of witnesses. (Ibid.) An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise.(People v. Hovarter (2008) 44 Cal.4th 983, 1015.)
Sufficient evidence supports LaStraps conviction of sale of heroin. Mejia testified that he had unobstructed views of LaStrap and Coburn from a distance of 100 feet on a sunny day. There was light vehicle traffic that afternoon, and that area of San Julian Street prohibited curbside parking. Mejia saw Coburn hand currency to LaStrap. LaStrap then passed his hand across his mouth and handed something to Coburn.
Afterwards, Mejia saw Coburn holding a red balloon and a green balloon. Based upon his police officer experience, Mejia thought that he witnessed a hand-to-hand sale of heroin balloons. Other police officers immediately detained LaStrap and Coburn. LaStrap had $105 in small bills and Coburn had two balloons containing heroin in useable amounts. The jury determined witness credibility and drew the reasonable inference from the evidence that LaStrap had two balloons of heroin in his mouth. (People v. Boyer, supra, 38 Cal.4th 412, 480 ["Issues of witness credibility are for the jury"].) We do not substitute our views for those of the trier of fact. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
II.
Prior to trial, LaStrap filed a motion pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, seeking discovery of complaints in police personnel records against Police Officers Mejia and Chapman regarding fabrication and planting of evidence, among other matters. The custodian of records for the Los Angeles Police Department, represented by the city attorney, opposed the motion. The trial court held a hearing concerning the discovery request and found good cause for disclosure of complaints against Mejia. The court then held an in camera hearing regarding Mejias personnel files and found 14 complaints that it ordered turned over to defense counsel.
LaStrap requests that we independently examine the sealed transcript and records produced in response to his discovery motion. (People v. Samuels (2005) 36 Cal.4th 96, 110 [standard of review].) The sealed transcript of the in camera Pitchess hearing is part of the appellate record. We have reviewed the transcript and conclude that the trial court did not abuse its discretion by refusing to disclose other information produced in response to the discovery motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1229 [appellate court may review the transcript of the in camera Pitchess hearing to determine if trial court abused its discretion].)
III.
In his reply brief, LaStrap raises the issue of increased presentence custody credit pursuant to recent amendments to section 4019. At the time LaStrap was sentenced, section 4019 provided for two days of conduct credit for every four days served. Effective January 25, 2010, the section was amended to provide for two days of conduct credit for every two days served.
The question whether the amendment is retroactive is currently before our Supreme Court. (See People v. Rodriguez (2010) 183 Cal.App.4th 1 (review granted June 9, 2010, No. S181808).) We agree with the majority of decisions that have held the statutory amendment is retroactive pursuant to In re Estrada (1965) 63 Cal.2d 740, because it is an amendatory statute that mitigates punishment. We conclude that the amendment applies retroactively and that LaStrap is entitled to additional conduct credit.
We modify the judgment to award LaStrap an additional 140 days of conduct credit, but otherwise affirm. The trial court is directed to prepare an amended abstract of judgment reflecting a total of 556 days of presentence custody credit, and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
COFFEE, J.
PERREN, J.
Drew E. Edwards, Charles F. Palmer, Judges
Superior Court County of Los Angeles