Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F09364
SIMS, Acting P.J.A jury convicted defendant Eldon Curtis Elliot of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The court sentenced defendant to state prison for the midterm of four years.
Defendant appeals. He contends (1) insufficient evidence supports his conviction, (2) the trial court erred in continuing trial beyond the 60th day, and (3) the trial court procedurally erred in its consideration of a commitment to the California Rehabilitation Center (CRC). We reject defendant’s first two contentions but agree remand is required for the trial court to properly follow the procedures for commitment to CRC.
FACTS
About 6:30 p.m. on October 26, 2006, several sheriff deputies encountered defendant who had just walked out his front door and was heading down the walkway to the street. Deputy Andrey Osadchik asked defendant to face the wall but he refused. Deputy Miguel Arias forced defendant towards the wall where he struggled while he was handcuffed. Two or three deputies were required to escort defendant to an undercover car. Deputy Osadchik believed defendant was under the influence of alcohol. Defendant had a strong odor of alcohol on his breath. Deputy Arias who had the expertise to evaluate persons under the influence of alcohol or drugs did not detect the same signs but he had had limited contact with defendant.
A search of defendant revealed three baggies containing a total of 9.2 grams of cocaine base. There were two large baggies and one small baggie. The small baggie was separate. One of the large baggies was inside the other large baggie. Each baggie contained about the same amount of cocaine base and could be held and manipulated. Defendant had neither narcotics-use items nor indicia of sales.
Detective Erin McAtee, with 18 years as a police officer and almost half of those as a narcotics detective, opined that defendant possessed the cocaine base for sale. The detective had had training in narcotics and had conducted hundreds of investigations involving narcotics, spoken with users, sellers and informants, participated in undercover transactions and had testified more than 10 times in cocaine base cases and many more times in other controlled substances cases.
Detective McAtee explained that cocaine base is very addictive with an addict using about .4 grams in one sitting, getting high and then crashing or falling. A “bender” lasts no more than three days at the end of which the addict crashes and sleeps. While a heavy user uses more than a new user for the same high, a heavy user would not buy much more than needed at the moment.
Almost 100 percent of the addicts Detective McAtee had spoken to claimed that each buy was the last buy. Because an addict associates with other addicts, an addict would not buy 9.2 grams. With .2 grams worth about $20, defendant had cocaine base worth about $900 in street sales.
Detective McAtee claimed that an average daily user would not have 9.2 grams on his or her person nor would he walk around with that much in his pocket with nothing to use to smoke it. Defendant had his cocaine base packaged in a way that made sales easy. While a dealer made more money selling smaller amounts, a dealer may sell more to a particular buyer and give him or her a deal. A small-time dealer deals to support his habit and normally would not have indicia of sales while a large-scale dealer would have a lot of money, pay-owe sheets and a weapon. A lack of money and a large amount of cocaine base would suggest a dealer who had not yet had an opportunity to sell.
Detective McAtee opined that defendant possessed the cocaine base for sale based on the quantity alone. Detective McAtee noted that cocaine base is packaged the least among controlled substances. A person with that amount would keep it at home and not have it packaged separately.
Defendant’s former girlfriend testified that after five years, they broke up in August 2006 because of many disagreements including arguments over defendant’s drug use. She never saw him use but concluded he was using based on his appearance and behavior. She explained that in August 2006, defendant worked off and on for a temp agency.
Defendant’s mother, a former nurse, testified that in the summer of 2005 and 2006, defendant stayed with her two or three times a week and displayed symptoms of drug use.
The 45-year-old defendant testified that he began using cocaine base at 19 years of age, had used it over a thousand times, and stopped his use only when crashing or sleeping or while in custody. When he encountered the sheriff’s deputies, he had been using for four days in a row, his normal pattern of use. He had used 10 rocks of cocaine base that day and had smoked it in his house just before he walked out the door. He bought the 9.2 grams of cocaine base 45 minutes earlier for $80 and kept it in his pocket because he did not want to lose it nor did he want his girlfriend, mother or children to see it. He explained his method of using and claimed his average use was seven or eight rocks per day. He buys in bulk. He drinks alcohol to mellow him out and had been drinking all day when he met the deputies. He bought as much as possible with the money he had and the dealer “blessed” him with more than his money’s worth. He thought the 9 grams would last three days.
Defendant denied planning to sell the cocaine base and denied having ever done so. He refused to name his supplier. He claimed he paid for the cocaine base with money from working, collecting cans and panhandling. He got paid $9 or $10 an hour for an eight-hour day when he worked for the temp agency and got paid each day he worked. He had only worked six or seven days in October 2006.
DISCUSSION
I
Defendant challenges the evidentiary support for his conviction, that is, the evidence with respect to his intent to sell. He argues the trial court failed to instruct that Detective McAtee’s testimony was circumstantial evidence; thus, the detective’s testimony was given more credence than due.
In reviewing a challenge to the sufficiency of the evidence, we review the entire record in a light most favorable to the judgment below to determine whether substantial evidence supports the jury’s finding of guilt beyond a reasonable doubt. (People v. Johnson (1980)26 Cal.3d 557, 578 (Johnson).)
To prove that a person possessed cocaine base with intent to sell, the prosecutor must show that defendant possessed a controlled substance, knew of its presence and nature as a controlled substance, that he intended to sell it and the substance was cocaine base. With respect to the element of a person’s intent to sell, the only element defendant challenges on appeal, “experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.” (People v. Newman (1971) 5 Cal.3d 48, 53, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862; People v. Harris (2000) 83 Cal.App.4th 371, 375.)
The evidence was more than sufficient to support the jury’s finding that defendant possessed the cocaine base with intent to sell. Defendant had 9.2 grams of cocaine base in his pocket as he walked out of his home and towards the street. The cocaine base was packaged in three baggies, each containing about the same amount. The small baggie was separate from the two large baggies. One of the large baggies was inside the other large baggie. Defendant possessed no smoking device. Although no indicia of sales was found on defendant’s person, Detective McAtee opined that defendant possessed the cocaine base for sale. The detective’s opinion was based on his extensive work in narcotics. Detective McAtee acknowledged that a person may possess 9 grams for his or her personal use but noted the average daily user does not buy that much nor does the user keep it on his or her person especially with no smoking device. The manner in which the cocaine base was packaged made sales easy. Detective McAtee was aware of a bender lasting no more than three days. Detective McAtee noted that the 9 grams was worth about $900 in street sales. The jury simply rejected defendant’s self-serving testimony that he was blessed by his seller with 9.2 grams of cocaine base which defendant bought for $80 and that defendant was on his fourth day of a bender, having smoked 10 rocks that day.
Defendant’s failure to challenge the trial court’s standard instructions on direct and circumstantial evidence (CALCRIM Nos. 223 [direct and circumstantial evidence: defined], 225 [circumstantial evidence: intent or mental state]) or to request amplification or modification forfeits his claim on appeal that the trial court failed to instruct that Detective McAtee’s testimony constituted circumstantial evidence. (People v. Andrews (1989) 49 Cal.3d 200, 218.) Defendant also failed to challenge the trial court’s comment immediately after instructing the jury in the language of CALCRIM Nos. 223 and 225 and cannot do so for the first time on appeal. (See People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) In any event, we reject defendant’s assertion that the trial court’s comment “watered-down” the two-step process used in considering circumstantial evidence.
The trial court stated: “Now, at first reading, this may sound pretty confusing. I think, as you go over it, it’s not that difficult to analyze. What it’s telling you is, as to any issue to which you are relying substantially on circumstantial evidence, there is a certain logical process you have to go through to see if it is proven beyond a reasonable doubt. So it gives you the sort of analysis you need to make.”
Moreover, both counsel argued that Detective McAtee’s testimony was circumstantial evidence of defendant’s intent to sell. We find no instructional error and more than sufficient evidence to support defendant’s conviction.
II
Defendant contends that the trial court committed prejudicial error in continuing the beginning of trial beyond the 60th day. We find no error and even if the trial court erred, defendant has failed to demonstrate prejudice.
Background
Trial was originally scheduled to begin on January 23, 2007, and was confirmed on January 19, 2007. On January 23, 2007, the court granted a motion to continue the trial date. The record on appeal does not include the reporter’s transcript for January 23, 2007. Trial was continued to January 25, 2007. On January 25, 2007, the court granted a motion to trail the trial date to January 29, 2007, the 60th day. The record on appeal does not include the reporter’s transcript for January 25, 2007.
On January 29, 2007, Assistant Public Defender (APD) Melissa McElheney, appearing on behalf of APD Meghan Cunningham, requested a good-cause continuance to February 1, 2007. The court granted the request finding good cause. Defendant stated, “Your Honor, this is the 60th day.” The court agreed but noted that defendant’s “attorney is in trial so it gets trailed until her first available date, which is Thursday, February 1st. If she’s ready that day, you’ll go to trial. If not, the first day she’s available you go to trial.” Defendant asked to be released on his own recognizance (OR). The court denied defendant’s request, stating, “You’re looking at state prison.”
On Thursday February 1, 2007, APD Kelly Babineau, appearing on behalf of APD Cunningham, requested a good-cause continuance to Tuesday, February 6, 2007, noting that APD Cunningham was still in trial and expected to finish by then. The court granted the request to February 6 finding good cause. Defendant interrupted and then conferred with APD Babineau off the record. The following discourse ensued:
“The Court: We’re not violating your constitutional rights.
“The Defendant: This is the day of trial, your Honor.
“The Court: We’re not violating your constitutional rights.
“The Defendant: This is the day of trial.
“The Court: Your attorney is in trial.
“The Defendant: It’s not my fault.
“The Court: That’s right. That’s why the Court grants good cause until her first available date, which is Tuesday.
“The Defendant: Why can’t I get OR’d?
“The Court: I’m not giving you an OR. You’ve got a strike. If you’re convicted of this, you’re going to prison for a long time.
The information alleged a strike prior for first degree burglary but the allegation was later dismissed on the prosecution’s motion.
“The Defendant: My strike is overdue, man.
“The Court: It’s overdue? What happened to it?
“The Defendant: It’s no longer a strike.
“The Court: It isn’t? What happened? Why isn’t it?
“The Defendant: Because it’s old.
“The Court: Okay. It is a strike, sir, I’m afraid. A strike is always a strike unless it’s declared invalid by the Court and yours wasn’t.
“The Defendant: Okay. When is my tenth day up?
“The Court: Your last day is Tuesday unless your attorney is still in trial for some reason.
“The Defendant: I’m supposed to be in trial on the 23rd, your Honor.
“The Court: Please. I’m done with him.”
Trial began on February 6, 2007.
Analysis
Defendant contends the court either was unaware of controlling law with respect to a continuance or refused to apply it. Defendant argues his rights to a speedy trial and equal protection were denied due to the court’s grant of a continuance to simply resolve the public defender’s conflict between two clients. Defendant also claims counsel’s performance was deficient in failing to request a dismissal. He claims per se reversal applies and he need show no actual prejudice due to the delay because “trial counsel was not acting in [his] best interests, had a conflict of interest, and therefore [defendant] had no one to present the petition for extraordinary relief on his behalf.”
The Attorney General responds that defendant has forfeited his challenge by failing to object, that the trial court did not err because defendant impliedly agreed to the continuance, and even if the court committed error, defendant has failed to demonstrate prejudice.
Penal Code section 1382 requires dismissal where a defendant is not brought to trial within 60 days of the filing of the information unless good cause is shown, defendant expressly agrees to a general time waiver, or defendant expressly or impliedly requests or consents to setting the trial beyond the 60-day time period. Good cause is not shown by counsel’s calendar conflicts or conflicting obligations to other clients, limited public resources, or improper court administration. (Johnson, supra, 26 Cal.3d at pp. 562, 570-571.) Good cause is shown by unforeseen circumstances such as the unavailability of counsel. (Id. at p. 570.)
Where the 60-day time limit has been violated but defendant has been convicted, in order to reverse, defendant must prove that he suffered prejudice due to the unjustified delay. The appellate court must “weigh the effect of the delay . . . or the fairness of the subsequent trial itself” for prejudicial error. (People v. Wilson (1963) 60 Cal.2d 139, 150-152; Johnson, supra, 26 Cal.3d at pp. 562, 574-575.) Defendant fails to show prejudice where charges may be refiled and the fairness of the trial was not otherwise affected. (People v. Cory (1984) 157 Cal.App.3d 1094, 1101; Johnson, supra, 26 Cal.3d at p. 574.)
Here, the trial court found good cause based on counsel’s unavailability. Defendant has failed to demonstrate the court abused its discretion in so finding. (Johnson, supra, 26 Cal.3d at p. 570.) The record on appeal fails to include the transcript when counsel’s unavailability was first discussed. Even assuming the trial court erred, defendant has failed to prove prejudice. The charges could lawfully have been refiled (Pen. Code, § 1387, subd. (a)) and defendant has not argued that any unfairness has resulted from the eight-day delay in the start of trial. Per se reversal is inapplicable where the short delay had no affect on the judgment. Further, defendant has failed to demonstrate prejudice from counsel’s failure to seek a dismissal. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
III
Finally, defendant contends and the Attorney General concedes that the trial court erred in recommending that defendant be admitted to CRC if the Department of Corrections and Rehabilitation found him eligible and suitable. Welfare and Institutions Code section 3051 mandates that the judge suspend execution of sentence and order the prosecutor to file a petition for commitment to CRC if the judge finds that defendant may be addicted or in imminent danger of becoming addicted unless the judge finds excessive criminality rendering defendant unfit for commitment. Here, the trial court’s failure to follow the mandate of section 3051 resulted in an act in excess of jurisdiction and therefore void. (People v. Reyes (1988) 205 Cal.App.3d 770, 774.)
The Attorney General asserts in his brief that defendant is being housed in a substance abuse treatment facility in Corcoran and requests that we “readily verify by contacting CDCR such that it may be judicially noticed.” We decline the Attorney General’s request. We will remand to the trial court to conduct further proceedings.
We note that the abstract of judgment incorrectly reflects that defendant was convicted of the “sale of cocaine base.” Defendant was convicted of “possession of cocaine base for sale.” Any new abstract must correctly identify defendant’s offense.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for a new sentencing hearing. Defendant’s conviction for possession of cocaine base for sale is affirmed.
We concur: DAVIS, J., RAYE, J.