Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03191
HULL, Acting P. J.A jury convicted defendant Raymond Anthony Hill of several drug and weapons charges. (Pen. Code, §§ 12021, subd. (a)(1), 12025, subd. (b)(6), 12031, subd. (a)(2)(F), 12022, subd. (c); Health & Saf. Code, §§ 11378, 11379, subd. (a), 11370.1, subd. (a).) The trial court found true allegations that defendant had a prior strike and had served a prior prison term. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b).) The trial court sentenced defendant to prison for 13 years on this case, and an additional 16 months on an unrelated case. Defendant timely appealed.
On appeal, defendant contends no substantial evidence shows that he possessed the drug ecstasy for purposes of sale (Health & Saf. Code, § 11378), and therefore we should modify one count to simple possession of drugs (Health & Saf. Code, § 11377, subd. (a)). (See Pen. Code, § 1260.) We conclude that, given the quantity of ecstasy defendant possessed and the circumstances surrounding his possession of ecstasy, the jury could rationally find he possessed it for purposes of sale. We affirm the judgment.
Facts and Proceedings
On April 13, 2006, California Highway Patrol officers pulled defendant, a convicted felon, out of a GMC Yukon in an unincorporated area of Sacramento County. Defendant had a Smith and Wesson.40 caliber handgun tucked in his pants, and there was a Colt.45 caliber handgun under the driver’s seat. Both were loaded with hollow-point bullets. Neither gun was registered to defendant.
While handcuffed in a patrol car on the way to jail, defendant squirmed around “a lot” in the back seat. An officer testified that at the scene of the arrest he felt a bulge like a “bean bag” in defendant’s pants, but that bulge was gone when he searched defendant at the jail; however, the officer found a baggie with 99 ecstasy (MDMA) tablets under a seat cushion in the patrol car. The baggie had two other baggies in it, with 50 and 48 tablets each, as well as another tablet that was in a small wrapper. The patrol car had been searched at the beginning of the shift, and defendant had been the only person transported in the patrol car that night.
A CHP employee who qualified as a drug expert testified a common dose of ecstasy is one tablet, which gives the user a high lasting for three to six hours. A typical user takes one or two tablets for a party (or “rave”) on the weekend, but in “most extreme cases” where users reported taking six tablets in a week, “the body can’t sustain the heightened stimuli and it will shut down and they need to rest for several days afterwards.” Ecstasy sells for between $10 and $30 per tablet, with an average price of about $20 per pill, so the 99 tablets were worth between $990 and $2,970. The tablets were stamped with an apple symbol, a marketing tool used in the ecstasy trade. That defendant had so many tablets indicated possession for sale, not personal use. His possession of guns strengthened this view, as drug dealers typically had guns, but ecstasy users typically did not.
Discussion
Defendant contends no substantial evidence supports the jury’s conclusion he possessed ecstasy for sale. We disagree with this contention.
We note that, at trial, defendant did not argue he lacked intent to sell. He argued the drugs were not his, and that the “bulge” testimony lacked credibility, as did the testimony that the patrol car had been searched before he entered it. He also argued that, as a handcuffed suspect, he could not have taken the baggie from his pocket and secreted it under the seat cushions.
In any event, “‘On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Abilez (2007) 41 Cal.4th 472, 504.)
“‘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.]’ [Citations.] Intent to sell may be established by circumstantial evidence.” (People v. Harris (2000) 83 Cal.App.4th 371, 374 (Harris).)
Defendant possessed 99 ecstasy tablets stamped with a distinguishing brand, and possessed two loaded handguns. An expert testified that that many tablets showed possession for sale, and the concomitant possession of loaded guns strengthened the expert’s conclusion.
The facts rationally support the expert’s opinion. Generally, “an officer with experience in the narcotics field may give his opinion that the narcotics are held for purposes of sale based upon matters such as quantity, packaging, and the normal use of an individual. On the basis of such testimony convictions of possession for purposes of sale have been upheld.” (People v. Hunt (1971) 4 Cal.3d 231, 237 (Hunt).)
Defendant points to cases where larger quantities of other unlawful drugs were found sufficient to support the conclusion of possession with intent to sell. In Harris, supra, 83 Cal.App.4th 371, Harris had 200 doses of methamphetamine and 280 small marijuana cigarettes, collectively worth $3,500 to $4,000, and this quantity of drugs, coupled with other incriminating circumstances was sufficient evidence of possession for purposes of sale. (Id. at pp. 373-375.) In People v. Shipstead (1971) 19 Cal.App.3d 58, Shipstead had a 300-day supply of amphetamines worth over $5,000. (Id. at pp. 76-77.)
Defendant reasons that because he had a fewer number of doses, the evidence was not sufficient. We disagree with this mode of reasoning. The fact more drugs would show possession for sale does not mean that the amount in this case does not support the inference of intent to sell.
Defendant also relies on Hunt, supra, 4 Cal.3d 231, for the proposition that an officer’s testimony regarding the amount possessed “is legally insufficient” to support a finding of possession with intent to sell. Hunt had vials of Methedrine for which he had apparently valid prescriptions. (Id. at pp. 233-235.) Distinguishing cases involving inherently unlawful drugs, Hunt held: “In the absence of evidence of some circumstances not to be expected in connection with a patient lawfully using the drugs as medicine, an officer’s opinion that possession of lawfully prescribed drugs is for purposes of sale is worthy of little or no weight and should not constitute substantial evidence sufficient to sustain the conviction.” (Id. at p. 238.) Hunt also addressed the value of drugs, as used to determine intent to sell, as follows: “The fact that medicine purchased lawfully at reasonable prices may demand a much greater price in the illegal market furnishes no reason to suppose that a possession of a two-week supply of the drug pursuant to prescription is held for profit rather than use.” (Ibid.)
But in this case, there is no claim that defendant lawfully possessed ecstasy. Therefore, the discussion in Hunt regarding what may or may not show intent to sell--when a defendant has a prescription for the drugs--is unavailing in this case.
Defendant also points out that there was no testimony about the strength of the tablets. Generally, “The chemical analysis of the material possessed need only establish the existence of a controlled substance. A quantitative analysis establishing the purity of the controlled substance is not required.” (People v. Rubacalba (1993) 6 Cal.4th 62, 65.) The fact the record does not show whether or not defendant had a good product does not tend to show simple possession, rather than possession for sale.
Accordingly, we conclude substantial evidence supports the conviction for possession of narcotics for purposes of sale.
Disposition
The judgment is affirmed.
We concur: ROBIE, J. BUTZ, J.