Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD198517 Howard H. Shore, Judge.
HALLER, Acting P.J.
A jury convicted Wayne Goodman of selling cocaine base and possessing cocaine base for sale. The trial court imposed a nine-year sentence, consisting of three years for selling cocaine base and two consecutive three-year terms for prior drug related convictions. (Health & Saf. Code, § 11370.2, subd. (a).) The court stayed the sentence on the possessing cocaine base for sale count (Pen. Code, § 654), and dismissed three prior prison term enhancements (Pen. Code, § 1385).
On appeal, Goodman's sole contention is that insufficient evidence supported the finding that he possessed the drugs with the intent to sell them. We reject this contention, and affirm the judgment.
FACTS
At approximately 9:00 p.m., San Diego Police Officer Roberto Lemus, an undercover narcotics officer, approached Goodman at the corner of 29th Street and Imperial Avenue and told him that he was looking for "a 20 of rock" cocaine. The officer was involved in a "buy-walk" operation where he was attempting to buy narcotics from suspected sellers in the area. Goodman said he knew where to find the cocaine, and the officer followed Goodman.
Goodman then approached a group standing on the sidewalk and told them that the officer was looking for $20 worth of rock cocaine. One person said, "I'm out." The officer thanked Goodman and began to walk away, but stopped when he heard Goodman call out. The officer turned around and saw Goodman waving at him and walking away from the group.
Goodman asked Officer Lemus for his money, and the officer handed him a prerecorded $20 bill. In exchange, Goodman handed the officer a small piece of rock cocaine. As he walked away with the cocaine, Officer Lemus gave concealed police officers the predetermined bust signal and a description of Goodman. These officers then spoke with Goodman, patted him down for weapons, and released him after he gave his identifying information. During the questioning, Officer Lemus identified Goodman as the person who sold him the cocaine. The prerecorded $20 bill was never found.
At trial, Shane Lynn, a former San Diego police officer, opined that Goodman possessed the cocaine for the purpose of selling it. He based this conclusion on his extensive law enforcement experience with cocaine dealers and users, and the fact that Goodman actually sold the cocaine to the undercover officer.
During closing arguments, defense counsel conceded that on the night of the incident, "a sale took place and the person who sold [the cocaine base] had the knowledge that this was a controlled substance and had the intent to sell [the drugs]." (Italics added.) Defense counsel argued, however, that Goodman was not the individual who sold the cocaine to Officer Lemus.
The jury rejected this argument, and found Goodman guilty of both counts—selling the cocaine base and possessing the cocaine base for the purposes of sale. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5.)
DISCUSSION
On appeal, Goodman does not challenge the evidence establishing that he possessed the cocaine and sold the drugs to Officer Lemus. His sole contention is that insufficient evidence supported that he possessed the drugs with the intent to sell.
"Possession of illegal drugs for sale requires that the defendant have the intent to sell the drugs." (People v. Peck (1996) 52 Cal.App.4th 351, 357.) In reviewing a challenge to the sufficiency of evidence on this intent element, " 'the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found [the intent element] beyond a reasonable doubt." ' " (People v. Young (2005) 34 Cal.4th 1149, 1175.) As an appellate court, we " 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.)
The record here supports that Goodman possessed the drugs with the intent to sell them. First, he sold the drugs to the officer. It is reasonable to infer that a person who is holding drugs and then sells the drugs was holding the drugs with the intent to sell them. Additionally, former police officer Lynn, who had substantial law enforcement experience with cocaine dealers and users, opined that based on the manner of the sale, Goodman possessed the drugs with the intent to sell them. An expert opinion is sufficient to support the intent element of the possession for sale offense. (See People v. Harris (2000) 83 Cal.App.4th 371, 374-375; People v. Peck, supra, 52 Cal.App.4th at p. 357.)
In challenging the sufficiency of the evidence, Goodman makes two arguments. First, he asserts that he could not have intended to sell the drugs to Officer Lemus when he actually sold them because he did not immediately sell the drugs to the officer when the officer first sought to buy the drugs. The logic of this argument escapes us. The fact that a defendant, who possesses a controlled substance, is initially reluctant to sell the drugs, or acquires them after a buyer initially seeks a purchase, does not mean that the defendant did not form this intent once he acquired the drugs and/or changed his mind and actually sold the drugs. To prove the possession with the intent to sell offense, there is no requirement that the intent to sell must be held the entire time of the possession. The jury was properly instructed that it must find proof of the "union or joint operation of the act and wrongful intent" with respect to each crime. We therefore must presume the jury found that Goodman had the intent to sell the drugs when he possessed the drugs.
Second, Goodman argues that the expert opinion in this case was insufficient to support the intent-to-sell finding because an expert opinion on this element is generally based on the presence of "other indicia of drug sales," such as the quantity of drugs or the packaging. (See People v. Harris, supra, 83 Cal.App.4th at pp. 374-375; People v. Peck, supra, 52 Cal.App.4th at p. 357.) However, in those cases, this evidence was important because there was no evidence of the actual sale. In this case, the fact that Goodman actually sold the drugs to the officer made it unnecessary for the prosecution to present this type of additional evidence. In any event, former Officer Lynn did refer to the manner in which the drugs were sold as one basis for his opinion on the intent issue.
DISPOSITION
Judgment affirmed.
WE CONCUR: AARON, J. IRION, J.