Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City & County of San Francisco Super. Ct. No. 203846
Jones, P.J.
A jury convicted appellant Jorge Cruz of offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a)) and possession of cocaine base for sale (§ 11351.5). Appellant filed a timely appeal. Appellant has asked this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436.
Unless otherwise noted, all further references are to the Health and Safety Code.
FACTUAL AND PROCEDURAL BACKGROUND
A complaint filed on December 14, 2007, charged appellant with transportation of cocaine base (§ 11352, subd. (a)) and possession of cocaine base for sale (§ 11351.5). Appellant pleaded not guilty. Following a preliminary hearing, appellant was held to answer both charges and the prosecution filed a conforming information. In February 2008, the trial court heard and denied appellant’s Penal Code section 995 motion to dismiss.
During trial, the prosecution amended the information to allege that appellant had violated section 11352, subdivision (a) by “offering to sell” cocaine base.
Trial began in March 2008. Three witnesses testified for the prosecution: (1) Calvin Lew; (2) Lawrence Mack; and (3) Debbie Madden.
On the afternoon of December 11, 2007, Lew, a San Francisco police officer, was driving an unmarked police car in the Tenderloin District. His car contained Sergeant Mark Obrcotha, Officer Mike Montero, and parole agent Jose Segura. Lew testified that the corner of O’Farrell Street and Jones Street is known for drug dealing and that he had made over 1,000 arrests for narcotics transactions in the Tenderloin.
As he was driving, Lew saw a group of about 10 people standing in front of an apartment building located at 450 Jones Street, near O’Farrell Street. Lew had received several complaints from the manager of 450 Jones regarding the sale and use of rock cocaine in front of the building. Lew double parked his car next to a white van and he and his partners approached the group of people. As the officers approached, the crowd scattered.
As he approached the curb, Lew saw appellant standing in the middle of the sidewalk. He saw appellant’s “right hand, palm up, extended outward” and a “white rock-like object in the palm of his right hand.” Based on his training and experience, Lew believed the object was rock cocaine. Lew saw a man facing appellant. The man was standing about three or four feet in front of appellant with his “left hand extended out to [appellant’s] right hand, and in the other male’s right hand was paper currency which he was extending out to [appellant].” Lew saw appellant notice the presence of police officers and immediately put the rock cocaine into his right jacket pocket.
Although he did not hear any conversation between appellant and the other man, Lew concluded that appellant had just attempted to sell rock cocaine; Lew believed appellant “was the seller and [the] other male was the buyer.” Lew reached this conclusion based on “the fact that [he] saw the other male with paper currency, hand it towards [appellant]. The fact that [appellant] had a white rock-like object . . . suspected rock cocaine[,] which he was extending out to the male.” Lew testified that he observed appellant for about three to five seconds.
Lew and Segura arrested appellant for “offering suspected rock cocaine for sale.” Lew searched appellant and found one unwrapped piece of suspected rock cocaine in appellant’s right jacket pocket. Lew also found five large chunks of suspected rock cocaine and an unspecified amount of money. He did not find any drug paraphernalia. Appellant did not appear to be under the influence of a controlled substance.
Madden, a criminalist from the San Francisco Police Department, also testified for the prosecution. She testified that the unwrapped rock tested positive for cocaine base and weighed .43 grams. She also stated that the five larger pieces tested positive for cocaine base and, together, weighed 7.67 grams. Finally, Mack, a San Francisco police officer, testified as an expert in identifying narcotics transactions. He testified that the transaction described by Lew was an interrupted “street deal” where appellant was trying to sell crack cocaine to another person. Mack based his opinion on the following factors: (1) crack cocaine is commonly sold in the area where the incident occurred; (2) appellant did not possess any drug paraphernalia; and (3) the amount of crack cocaine was “consistent with sales activities.”
After the prosecution rested, appellant moved to dismiss the charges pursuant to Penal Code section 1118.1. The court denied the motion.
Three witnesses testified for the defense: (1) James Adams; (2) Gerald Miller; and (3) appellant. Adams, an assistant manager for the Kean Hotel on Mission Street, testified that appellant checked into the hotel on December 10, 2007, and that San Francisco General Hospital had paid for seven days of appellant’s lodging. Miller offered expert testimony on how crack cocaine is sold on the street and testified that it was possible that appellant was buying — not selling — the crack cocaine on the day of the incident.
Appellant testified that he checked into the Kean Hotel on December 10, 2007, after being released from General Hospital. He had been in the hospital to receive treatment for a stab wound in his legs. He explained that he is a drug addict and that he was buying drugs on the day of his arrest. Appellant had an unwrapped rock and a crack pipe: he planned to “test” the rock to make sure it was real crack cocaine. Finally, he testified that he did not intend to sell the drugs; he purchased enough crack cocaine to last him for several days so that he could return to his hotel and recover from his injuries.
The jury convicted appellant of offering to sell cocaine base (§ 11352, subd. (a)) and possession of cocaine base for sale (§ 11351.5). The court suspended imposition of sentence and placed appellant on probation for three years. The court concluded that appellant’s mental condition constituted an unusual circumstance and that his mental and physical condition were circumstances in mitigation. The court also determined that appellant’s prior conviction was a circumstance in aggravation.
The court imposed a booking fee of $135 but later amended its minute order to reduce the fee to $125 in accordance with Government Code section 29550.3.
DISCUSSION
We appointed counsel to represent appellant on appeal. Counsel presents no argument for reversal, but asks this court to conduct an independent review of the record in accordance with People v. Wende, supra, 25 Cal.3d at pages 441-442. Counsel informed appellant that he had the right to file a supplemental brief on his own behalf, but appellant declined to do so. We have conducted our independent review and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: Needham, J., Stevens, J.
Retired Associate Justice of the Court of Appeal, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.