Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA306223. Barbara R. Johnson, Judge.
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, Assistant Attorney General, Paul M. Roadarmel, Jr. and Nancy G. James, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
Corey Brown (appellant) appeals from the judgment entered following a jury trial resulting in his convictions of possessing cocaine base for sale (Health & Saf. Code, § 11351.5; count 1) and offering to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 2). He admitted to having served three separate prison terms for a felony. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced him to an aggregate four-year term in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends (1) that the evidence is insufficient to support his convictions and (2) he requests that this court review the sealed reporter’s transcript of an in camera Pitchess discovery hearing (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) in conformity with the decision in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc).
The evidence is sufficient to support the convictions, and there are no flaws in the proceedings on the Pitchess discovery. Consequently, we affirm the judgment.
FACTS
Los Angeles Police Officer Anthony Jackson was a 13-year veteran police officer. For the last six years, he had been assigned to work as a narcotics officer in a “buy-bust” team that worked all over the city in response to complaints of street drug trafficking. His role within the team was to act as an undercover purchaser of narcotics, or, alternatively, to act as a plainclothes surveillance officer to protect other team members’ safety when they made undercover drug purchases. Officer Jackson had special training in narcotics, including “the five-day California P.O.S.T. Certified Narcotics School.” He had experience and training with controlled substances generally and, most commonly, with the illicit narcotic known as cocaine in the base form or “rock cocaine.” He had performed “field enforcement,” was knowledgeable in how buyers and sellers package and sell illicit narcotics on the street, and had written and served search warrants. He had testified numerous times as an expert witness with respect to the sale of and possession for sale of narcotics, including the sale and possession of cocaine in its base form.
The Legislature has classified the illicit narcotics “cocaine” and “cocaine hydrochloride,” also known as “cocaine base,” “cocaine in its base form,” or “rock cocaine,” as different drugs. (People v. Adams (1990) 220 Cal.App.3d 680, 685-687; see also Health & Saf. Code, §§ 11054, subd. (f)(1), 11055, subd. (b)(6).) The penalty for possessing cocaine base for sale (three, four, and five years in state prison) is greater than that for possessing for sale of all other forms of cocaine (two, three, and four years in state prison). (See Health & Saf. Code, §§ 11351.5 and 11351.)
At about 9:40 p.m. on July 19, 2006, Officer Jackson was working in a 24-man narcotics “buy-bust” operation with supervisors, uniformed off-site “chase officers,” who only make the arrests, and a number of undercover or plainclothes operatives. Currently, his team was involved in purchasing cocaine base at Main and 7th Streets in downtown Los Angeles. Officer Jackson’s partner, Officer Diaz, was functioning as the purchaser and was attempting to buy cocaine base at the hub of the illegal sales activity in that area, the northwest corner of Main and 7th Streets. Officer Jackson explained that the area surrounding the intersection was an area in which drug sellers and purchasers congregate for sales, and the activity there consists of a blatant “walk-up” sales trade.
During that operation, Officer Jackson’s function was primarily to safeguard Officer Diaz’s safety. Officer Jackson was also responsible for monitoring the sellers to make sure that the chase officers arrested the proper person. In order to clandestinely position himself to observe Officer Diaz purchase illicit narcotics, Officer Jackson crossed Main Street eastbound a half block south of the intersection of Main and 7th Streets. When he reached the east curb of Main Street, appellant was standing there. Appellant said, “Cavi, cavi,” as the officer approached.
Officer Jackson explained that in street vernacular the word “cavi” refers to cocaine base. The officer stepped onto the sidewalk and looked at appellant, but did not respond. He walked a few feet away and leaned up against the building. As the officer stepped away from appellant, appellant said that he “had ‘dubs,’” which was street terminology for $20 worth of illicit narcotics. The officer replied that did not have any money. Officer Jackson concluded that appellant was addressing him with an offer to sell illicit narcotics because as the officer stepped onto the curb, appellant was looking in the officer’s direction and appellant kept looking in his direction. Officer Jackson observed Officer Diaz make a purchase of illicit narcotics. At the same time, Officer Jackson kept appellant in view. The only businesses open on the block at that hour were the Cecil Hotel, Crabby Joe’s Bar, a fish market, and a hamburger stand, and appellant did not appear to be patronizing these businesses.
For the next three minutes, Officer Jackson did nothing about appellant’s offer to sell. To have arrested appellant at that point might have endangered officer safety and compromised Officer Diaz’s ongoing purchase. After chase officers arrived and arrested the person who had sold illicit narcotics to Officer Diaz, Officer Jackson radioed the chase officers. The chase officers then took appellant into custody and obtained $44 in currency from him in denominations of a $20 bill, a $5 bill, and 19 $1 bills.
After appellant’s arrest, during a strip search at the station, Officer Justin Thomas recovered a black bindle from the ground that fell from appellant’s buttocks. The officers discovered that the bindle contained an “off-white rock-like substance,” which when tested was 0.57 grams of cocaine in the base form. During the trial, the criminalist/chemist testified that 0.5 grams of cocaine base is relatively a “small amount” of that substance.
At trial, Officer Jackson testified that the net weight of the cocaine base in the bindle was just over a half a gram. In his opinion, such a quantity would be worth between $20 and $60 if sold on the street. He explained that cocaine base is most commonly sold in quantities of a tenth of a gram at a cost of $10. However, sometimes, the quantity appellant had would be broken into two pieces and sold for $20 each. He indicated that in the area of 7th and Main Streets, the purchasers do not have a lot of money. Consequently, he commonly saw $5 purchases there, and he had heard addicts request the sale of a $1 quantity of cocaine base. In his opinion, all such quantities constituted a usable quantity of cocaine base.
The officer gave his opinion that appellant’s conduct indicated that appellant was engaging in the street sale of cocaine base and that appellant had offered to sell the officer cocaine base. The officer opined that the cocaine base in the black bindle was possessed for the purpose of sale. The basis for this latter opinion was that prior to the recovery of the illicit narcotics, appellant made the explicit offers to sell. Also, appellant did not appear to be under the influence of illicit narcotics. Participating in street sales in that area would not involve possessing the indicia of larger-scale sales of narcotics, such as “pay and owe sheets,” scales, cellular telephones or pagers, or packing materials. The officer said that in his experience, because of the economics of the area, possessing 0.57 grams most commonly indicates that the possessor intends to sell the substance he possesses.
During his testimony, Officer Jackson admitted that depending on tolerance, a person could personally use 0.57 grams of cocaine base in the course of one day. Further, a personal user would not necessarily be carrying paraphernalia for personal use even if he intended only personal use; he might be planning to use the illicit substance at a location off site where there was paraphernalia. The officer acknowledged that appellant did not appear to be a transient and that his team never used a camera as they did not have one and because the sales generally take place too quickly to photograph. Also, a seller may be found with only a small amount of cocaine base because he has already sold most of his product. The intersection of 7th and Main Streets is not an area of downtown where transients live and camp on the street.
In defense, appellant did not testify or present evidence.
DISCUSSION
I. The Sufficiency of the Evidence
Appellant contends that the evidence of specific intent was insufficient to support his convictions and the judgment.
We disagree.
A. The Standard of Review
Recently, in People v. Prince (2007) 40 Cal.4th 1179, 1251, the court reiterated the well-accepted standard of review: “We ‘“review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, 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. Hillhouse (2002) 27 Cal.4th 469, 496; see also People v. Berryman (1993) 6 Cal.4th 1048, 1082–1083 [same standard under the state and federal due process clauses].) We presume ‘“in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.] This standard applies whether direct or circumstantial evidence is involved.’ (People v. Catlin (2001) 26 Cal.4th 81, 139.)”
B. The Relevant Legal Principles
The offenses of which appellant is convicted are specific intent crimes. (People v. Daniels (1975) 14 Cal.3d 857, 861 [the offense of an offer to sell requires the specific intent to sell]; People v. Harris (2000) 83 Cal.App.4th 371, 374 [the offense of possessing illicit narcotics for sale includes the element of the specific intent to sell].)
Section 11352, subdivision (a), provides that: “[E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, . . . any controlled substance . . . shall be punished by imprisonment in the state prison for three, four, or five years.”
The elements of offering to sell cocaine base are an offer to sell the controlled substance with the specific intent to make a sale. The proscribed act is the making of the offer. The offense is complete when an offer is made with the accompanying requisite intent; neither delivery of the controlled substance, an exchange of money, nor a direct, unequivocal act toward a sale are necessary elements of the offense. (People v. Daniel, supra, 14 Cal.3d at p. 861; People v. Encerti (1982) 130 Cal.App.3d 791, 800-801.) Because the specific intent to sell a controlled substance is an essential element of the crime of offering to sell a narcotic, “[p]ersons who offer to sell narcotics with no intention of performing are not engaged in narcotics traffic.” (People v. Jackson (1963) 59 Cal.2d 468, 469-470.)
Health and Safety Code section 11351.5, states, in pertinent part: “Except as otherwise provided in this division, every person who possesses for sale . . . cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054, shall be punished by imprisonment in the state prison . . . .”
“In order to secure a conviction of [possession of a controlled substance for the purpose of sale, a violation of Health and Safety Code section 11351.5], the prosecution must prove beyond a reasonable doubt that (1) the defendant exercised dominion and control over the controlled substance, (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it.” (People v. Parra (1999) 70 Cal.App.4th 222, 225-226 (Parra).) The offense of selling cocaine base for sale also requires that the amount possessed be sufficient for sale and that when a defendant possesses the drugs that they are possessed with the specific intent that they are to be sold. (People v. Groom (1964) 60 Cal.2d 694, 696; People v. Consuegra (1994) 26 Cal.App.4th, 1726, 1731-1732 & fn. 4.)
The specific intent to sell may be established by circumstantial evidence and the reasonable inferences drawn from such evidence. (People v. Groom, supra, 60 Cal.2d at pp. 696-697; People v. Harris, supra, 83 Cal.App.4th at p. 374.)
C. The Analysis
Defendant makes two claims in this contention: (1) that the words of the particular offer to sell are insufficient to support the jury’s conclusion that there was specific intent, and (2) without further proof that appellant intended to go through with the sale, the proof of appellant’s specific intent is insufficient to support his convictions and the judgment.
These claims amount to nothing more than an invitation to this court to reweigh the evidence and substitute its judgment for that of the jury. That is not the function of an appellate court. (People v. Culver (1973) 10 Cal.3d 542, 548.) “It is well settled that ‘. . . experienced [police] officers may give their opinion[s] that the narcotics are held for purposes of sale based upon such matters as quantity, packaging, and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.’ [Citations.]” (Parra, supra, 70 Cal.App.4th at p. 227.) Officer Jackson was a trained and experienced narcotics officer, and appellant never challenged his training or expertise. Based on the quantity of narcotics seized and the offer of sale, the officer testified to his opinion that appellant possessed the cocaine base with the specific intent to sell. Such testimony from an experienced police officer is sufficient to support the jury’s conclusion that the cocaine base was possessed with the requisite specific intent.
Also, an experienced police officer may testify to the significance of street terminology used during illicit drug sales and to the modus operandi of certain crimes, including an offer to sell, so as to assist a jury in determining issues such as intent. (People v. Torres (1995) 33 Cal.App.4th 37, 47 & fn. 3; People v. Hardy (1969) 271 Cal.App.2d 322, 327-328; see also People v. Brown (1981) 116 Cal.App.3d 820, 828-829 [officer explained the defendant’s role as a drug “runner”]; People v. Perez (1994) 29 Cal.App.4th 1313, 1318 [the trial evidence included the officer’s opinion on the street terminology used to designate drugs in the illicit narcotics trade]; People v. Wesley (1990) 224 Cal.App.3d 1130, 1136 [the same].) Officer Jackson had been working as an undercover narcotics officer for six years, and his role with his team of officers was to make the illicit purchases or to serve as an undercover backup officer. He was familiar with the particular vernacular used by drug sellers and purchasers during street sales to describe and to sell cocaine base. The officer testified to the meaning of the street terminology used by appellant and gave his opinion that appellant’s words and conduct demonstrated that appellant was addressing the officer with an offer to sell cocaine base. The officer’s opinion and his interpretation of appellant’s use of a specialized vocabulary provides a sufficient basis upon which the jury could conclude that appellant had the requisite intent to sell when he made the offer.
The officer also testified that appellant was standing on the street with no apparent business in that block of downtown Los Angeles at 9:40 p.m. Appellant was dressed reasonably well and was standing in an area that is known for its blatant walk-up drug trade. Upon appellant’s arrest, at booking, the officers recovered a quantity of cocaine base on appellant’s person. When we examine the entire record, we conclude that the evidence is sufficient to support the verdicts and the judgment. (People v. Encerti, supra, 130 Cal.App.3d at p. 801.)
Appellant argues that in this instance, the evidence is insufficient because “[p]ersons who offer to sell narcotics with no intention of performing are not engaged in narcotics traffic.” He cites People v. Jackson, supra, 59 Cal.2d at pages 469-470, for this proposition. However, the proposition does not determine the issue of sufficiency in this context. The court in People v. Jackson was also explicit in asserting that “delivery is not an essential element of the offense of offering to sell a narcotic.” (Id. at p. 469.) As we stated previously in this opinion, the “proscribed act is the making of the offer. . . [and] the offense is complete when an offer is made with the accompanying requisite intent; neither delivery of the drug, an exchange of money, nor a direct, unequivocal act toward a sale are necessary elements of the offense.” (People v. Encerti, supra, 130 Cal.App.3d at pp. 800-801.) No further proof was required in this case to demonstrate specific intent.
Also, the court in People v. Jackson, supra, 59 Cal.2d 468, considered the sufficiency of the evidence to support jury instructions, a far different claim than is made here. (Id. at pp. 469-470; People v. Casper (2004) 33 Cal.4th 38, 43 [“It is axiomatic that cases are not authority for propositions not considered”].) The decisions in Parra, supra, 70 Cal.App.4th at pages 226-227, and In re Christopher B. (1990) 219 Cal.App.3d 455 also fail to support appellant’s claims.
In his reply brief, appellant makes further arguments that he did not raise in his opening brief. He argues that because appellant would have had to drop his pants in order to gain access to the cocaine base and because Officer Jackson agreed that the quantity of cocaine base he had on his person could be possessed for personal use, the trial evidence is insufficient to support the jury’s conclusions of an intent to sell. Despite the rule that matters first raised in the reply brief need not be considered, we will briefly dispose of these arguments. (People v. Barragan (2004) 32 Cal 4th 236, 254, fn. 5 [because appellant did not raise this argument in either the Court of Appeal or the opening brief in this court, we decline to address it]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [basic notions of fairness dictate that we decline to entertain arguments that a party has chosen to withhold until the filing of its reply brief because this deprives the respondent of the opportunity to address them on appeal].)
Appellant cannot prevail with his initial argument because the inconvenience of retrieving the cocaine base may not have deterred appellant from attempting to sell cocaine base to passersby. Also, a rock of cocaine base is so small that before he was booked, appellant may have successfully discarded or swallowed any rock on his person that he intended to sell. Further, the rule that to justify a conviction on circumstantial evidence, the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other reasonable conclusion does not apply to an appellate court. Such a rule constitutes only guidance for the jury. It is settled that “even though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant’s innocence, this alone does not warrant interference with the determination of the jury. [Citations.] Whether the evidence presented at trial is direct or circumstantial . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Towler (1982) 31 Cal.3d 105, 118-119; accord, People v. Abilez (2007) 41 Cal.4th 472, 504; People v. Bean (1988) 46 Cal.3d 919, 932.)
II. A Review of the In Camera Pitchess Proceedings
In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court held that a criminal defendant is entitled to discovery of officer personnel records where the information contained in the records is relevant to his ability to defend against the charge. Later-enacted legislation implementing the court’s rule permitting discovery (§§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047) balanced the accused’s need for disclosure of relevant information against a law enforcement officer’s legitimate expectation of privacy in his or her personnel records. The Legislature concluded that a defendant by written motion may obtain information contained in a police officer’s personnel records if the information is material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) If the court orders disclosure, the custodian of the officer’s records brings to the trial court all the potentially relevant personnel records and, in camera, the trial court determines whether any of the records are to be disclosed to the defense. During the in camera hearing, neither the defense nor the prosecution is present. (Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
The decision in Mooc, supra, 26 Cal.4th 1216, requires that, at the time of an in camera hearing on Pitchess discovery, the trial court must facilitate appellate review of its in camera rulings, as follows. “The trial court should . . . make a record of what documents it examined before ruling on the Pitchess motion. . . . If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party’s ability to obtain appellate review of the trial court’s decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer’s privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed.” (Mooc, supra, 26 Cal.4th at p. 1229, fn. omitted.)
Pursuant to this authority, appellant has requested that this court review the sealed reporter’s transcript of the in camera Pitchess proceedings. He wants to be assured that he has obtained all the discovery to which he was entitled. We have performed this task.
A trial court’s ruling on a motion for access to law enforcement personnel records is reviewed for an abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221; People v. Breaux (1991) 1 Cal.4th 281, 311-312.)
The essential facts disclosed by the unsealed record are that before trial, appellant filed a Pitchess motion. Appellant requested complaints as to “violation of constitutional rights, fabrication of charges, fabrication of evidence . . . false arrest, perjury, dishonesty, writing of false police reports . . . planting of evidence, false or misleading internal reports including but not limited to false overtime or medical reports, and any other evidence of misconduct amounting to moral turpitude within the meaning of People v. Wheeler (1992) 4 Cal.4th 284” as to Officers Jackson, Diaz, Saragueta, Pettinato, Carias, and Thomas.
In support of the request for discovery, trial counsel filed an affidavit, which indicated that at trial, appellant intended to show that the charges were “false, manufactured, and/or, manipulated to support his arrest.” Also, the defense would establish that appellant did not communicate with the officer by “gestures, signs or movement” or by communicating orally with the officer, as is indicated by the arrest report. Further, the trial evidence will show the statements attributed to appellant by Officer Jackson “were fabricated in order to conduct a hunting expedition” of males walking in the area, and appellant possessed only $15 worth of illicit narcotics for his own personal use. The discovery would be used to locate witnesses to testify that the officer has a character trait, habit, and custom of engaging in misconduct of the type alleged and that these witnesses would testify to specific acts of relevant misconduct. The information might serve to impeach the officer’s testimony.
The trial court granted the motion only with respect to Officer Jackson. It ordered discovery of any complaints involving acts of false reporting, as well as discovery of acts of dishonesty that would be relevant to the officer’s credibility insofar as the officer claimed that appellant made the offer to sell.
After conducting in camera hearings, the trial court ordered the disclosure of the identity of five complainants. We have independently reviewed the sealed reporter’s transcripts of the in camera Pitchess hearings. The trial court’s comments and findings in the sealed transcripts are sufficient to permit appellate review of its rulings. (See Mooc, supra, 26 Cal.4th at pp. 1229, 1232.) After reading the reporter’s transcripts of the in camera proceedings, we conclude that the trial court properly exercised its discretion by ordering the disclosure of the five citizen complainants.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.