Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F02596
SIMS, J.A jury found defendant Patrick Devon Blanks guilty of selling a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). The court denied defendant’s motion for new trial (Pen. Code, § 1181; undesignated section references are to the Penal Code) and sentenced him to the middle term of four years in state prison.
On appeal, defendant contends the evidence was insufficient to support a guilty verdict, and the trial court’s denial of his motion for new trial constituted reversible error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Detectives Malmquist and Hunkapiller were working undercover purchasing illegal narcotics from “street-level” vendors. Having been advised that a potential dealer was “loitering in the area, ” the detectives drove up and stopped in front of Francille Sanders. Malmquist, who was sitting in the passenger seat, said, “Can you help us out.” When Sanders asked Malmquist what he needed, he told her he “needed a 20, ” meaning $20 worth of drugs. Sanders told them to drive around the corner.
Malmquist described a “street-level” vendor as a narcotics dealer who “stands on a street corner or in a park” and sells small amounts of drugs to anyone willing to buy.
As Hunkapiller drove, Malmquist watched Sanders, briefly losing sight of her as she walked down an alley. Once the car was parked, however, Malmquist again saw Sanders standing on the sidewalk talking to an unidentified female. Malmquist overheard Sanders say, “He’s over at the Carl’s Jr.” and saw her point to the Carl’s Jr. restaurant across the street.
Sanders walked past the car towards Carl’s Jr. She was met by the defendant, who had jogged toward her from the direction of the restaurant. They had a brief conversation out of earshot of Malmquist, during which Sanders pointed towards the undercover car. Then, defendant walked towards the car with Sanders following behind him.
While Sanders waited just behind the car, defendant approached the passenger window and asked, “What do you want?” Malmquist said he “needed a fat $20, ” meaning a big rock of cocaine. Defendant stepped closer to the car, bent down and looked at the detectives for several seconds. As he did so, Malmquist noticed a “small pebble size white chunk” in his mouth. After sizing up the detectives, defendant walked back towards Sanders with his back to the car. Although Malmquist could not hear their conversation, he saw the defendant raise his right hand towards his mouth, bring his hand down towards the right hand of Sanders, and then walk away. Sanders walked back to the passenger window and held out her right hand, revealing a piece of rock cocaine wrapped in clear cellophane and tied off with a small knot. Malmquist took it and gave Sanders $20.
By complaint deemed to be the information, defendant and Sanders were both charged with transportation or sale of a controlled substance. Defendant entered a plea of not guilty. Defendant and Sanders were tried together.
At the conclusion of a three-day trial, the jury notified the court they had reached their verdicts. However, when the court examined the verdict forms, it was discovered that the jury had signed two forms as to Sanders--one “guilty” and one “not guilty”--and returned blank verdict forms as to defendant. After conferring with counsel off the record, the court addressed the jury as follows: “Ladies and Gentlemen, I’m going to ask you [to] return to the jury deliberation room. I am going to send in new verdict forms. We received verdict forms for [defendant] that are blank, in other words, those are not filled out, and we received inconsistent verdict form[s] for [codefendant] Sanders, so Deputy Bates will return these to the jury deliberation room, and we’ll have new verdict forms printed for you, and if the jury has reached verdicts, please execut[e] the appropriate forms.”
The jury returned shortly thereafter, finding defendant and Sanders guilty as charged.
Prior to sentencing, defendant filed a motion for new trial pursuant to section 1181, arguing the trial court “misdirected the jury” with regard to the verdict forms and further arguing the verdict was not supported by the evidence. After considering argument by counsel, the court denied the motion and sentenced defendant to the middle term of four years in state prison, minus applicable custody credits, and ordered that he pay various fees and fines.
Defendant filed a timely notice of appeal.
DISCUSSION
I
A. Sufficiency of Evidence to Support Guilty Verdict
“Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]” (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) Defendant challenges the sufficiency of the evidence as to his “knowledge of the presence of drugs or that a drug transaction was in progress.”
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).)
In reviewing the sufficiency of the evidence, the relevant inquiry is not whether this court is convinced of defendant’s guilt beyond a reasonable doubt, but “whether ‘“any rational trier of fact” ‘“could have been so persuaded’”’ [citation].” (People v. Hernandez (2003) 30 Cal.4th 835, 861.) If the evidence supports the jury’s verdict of guilty, the opinion of an appellate court that the evidence might also be reconciled with a contrary finding does not require reversal of the judgment. (Kraft, supra, 23 Cal.4th 978, 1054.)
Here, the evidence supports the jury’s guilty verdict. Malmquist told Sanders he “needed a 20.” She instructed him to drive around the corner and immediately went to talk with the unidentified female. Malmquist heard Sanders say, “He’s over at the Carl’s Jr., ” and saw her point in that direction. When Sanders walked towards Carl’s Jr., she was met by the defendant (who came from the direction of the restaurant). Their conversation was brief and, when Sanders pointed towards the undercover vehicle, the defendant walked directly to the car, asking only, “What do you want?” and saying nothing more but displaying an object in his mouth which, based on the surrounding circumstances and Malmquist’s training and experience, Malmquist believed to be rock cocaine. When Malmquist asked for “a fat 20, ” defendant’s response was to walk towards Sanders, remove an object from his mouth, hand it to Sanders and then leave the scene. Sanders, having made no movements to suggest she obtained the drugs from her pockets or anywhere on her person, immediately walked back to the car and handed Malmquist the cocaine.
This series of events is sufficient to demonstrate that defendant not only knew a drug transaction was in progress, but was a principal in that transaction.
Defendant argues there is no evidence as to how Sanders contacted defendant. Given that their eventual contact is undisputed, none is required. Defendant also argues there is no evidence that Sanders ever spoke with the unidentified woman at all, let alone to discuss where defendant was. Not so. Malmquist testified as to the portion of their conversation he overheard, and there was no evidence offered to dispute his testimony.
Defendant argues that Malmquist could not testify that defendant handed drugs to Sanders because Malmquist admitted he did not see them touch and never saw them make an exchange. We are not persuaded. Based on Malmquist’s training and experience, particularly with “street level” drug transactions where a team of two dealers work together to avoid police detection, the movements made by defendant and Sanders were consistent with making an exchange of drugs from one dealer to the other. Defense counsel effectively cross-examined Malmquist with regard to what he did and did not see during the brief exchange between defendant and Sanders, and the jury was free to determine whether that evidence proved beyond a reasonable doubt that an exchange actually took place. Given the totality of the circumstances, the evidence was sufficient to support such a finding.
Defendant also argues there is no proof defendant knew about the drug transaction because there was no evidence the object Malmquist saw in defendant’s mouth was “wrapped in cellophane and tied in a small knot.” On direct examination, Malmquist testified he saw a “small pebble size white chunk” in defendant’s mouth that was not shaped like a tooth. On cross-examination, defense counsel asked whether the object could have been an Altoid or a Tic-Tac, and Malmquist said he did not believe it was either because it was off-white in color and not round in shape. However, he was not asked whether the object was wrapped in cellophane, thus leaving that issue open for the jury’s determination.
The issue was raised again in closing argument by defense counsel, who reminded the jury that Malmquist never testified the object in defendant’s mouth was wrapped in cellophane and noted that Malmquist “had plenty of opportunity” to mention that fact, but did not. Thus, the issue was fresh in the minds of the jury when it deliberated. We conclude the jury could reasonably infer from Malmquist’s testimony that the object in defendant’s mouth was indeed the piece of rock cocaine that was passed from defendant to Sanders and sold to the undercover detectives.
B. Denial of Motion for New Trial
Defendant contends the trial court’s denial of his motion for new trial was error. This is so, he urges, because the court misdirected the jury when it instructed them to return to the jury room and correctly fill out the verdict forms as to both defendants. We disagree.
“Generally speaking, it is the duty of the court to see that verdicts are returned in proper form, and so far as form be concerned to aid the jury in returning correct verdicts. [Citation.] Of course if what the court did amounted in fact to telling the jury to reconsider a not guilty verdict it had returned, such direction would be improper [under section 1161], but even if such were the case it would have to appear further before prejudice could be claimed that on reconsideration a different verdict was returned.” (People v. Crawford (1953) 115 Cal.App.2d 838, 842 (Crawford).) “[E]rror must be affirmatively shown by the record and cannot rest upon speculation. [Citation.]” (Ibid.)
Defendant speculates the jury’s return of a “guilty” and a “not guilty” verdict as to Sanders demonstrates that “the jury in fact did intend to find one of the defendants not guilty.” However, in order to show error as to himself, defendant must show that the court told the jury “to reconsider a not guilty verdict it had returned.” (People v. Crawford, supra, 115 Cal.App.2d at p. 842.) That was not the case here, where the jury did not return a “not guilty” verdict as to defendant; it returned no verdict as to him at all. Because it was impossible to determine whether the jury intended to find defendant or Sanders guilty or not guilty, the trial court properly directed the jury to go back to the deliberation room and, “if the jury has reached verdicts, please execut[e] the appropriate forms.” The record indicates the jury returned within 15 minutes with completed verdict forms for both defendants. From that, we infer the jury intended to enter guilty verdicts as to both defendants, but mistakenly filled out the forms in the first instance. Indeed, the results of the jury polling bear that conclusion out. (People v. Wiley (1931) 111 Cal.App. 622, 625 [the authenticity of the verdict is ascertained by requiring it to be orally declared in open court by the foreman and, if demanded by either party, declared by each member of the jury]; § 1149.) There was no error.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.