Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA023126, Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton, Melissa Mandel, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of sale of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior prison term (Pen. Code, § 667.5, subd. (b)), and two prior drug-related convictions (Health & Saf. Code, § 11370.2, subd. (a)). Following the denial of his motion to strike his prior conviction, defendant was sentenced to a total term of 15 years in state prison. On appeal, defendant contends the trial court prejudicially erred when it failed to consider his statements at sentencing that he was in custody at the time of the offense was committed as a new trial motion, and failed to either grant a new trial or a hearing to determine if he was in fact in custody as he claimed. For the reasons explained below, we reject these contentions and affirm the judgment.
I FACTUAL AND PROCEDURAL BACKGROUND
On an evening in June 2004, officers from the Fontana and Rialto Police Departments were conducting an undercover narcotics operation in an alley next to the 1400 block of Willow in Rialto because they had information that narcotics were commonly sold in that area. Indeed, that area was known for its extreme narcotics activities and gang violence. In these operations, “buy money” is issued by the police department to the officers to be used in the drug sales. An officer will typically pull his unmarked police vehicle up to a location, ask for narcotics, make the exchange, and then leave the area, broadcasting the suspect’s description to his partners. The partners will make contact with the suspect, who is then identified and arrested. In long-term investigations, such as here, the suspect is not arrested by the purchasing officer right after the buy since that would reveal the identity of the informants, the officers, and the procedures involved.
Here, sometime in June 2004, Officer James De La Torre was in an unmarked car equipped with a video camera mounted in his car when he pulled up next to defendant in the 1400 block of Willow. Defendant approached him, and Officer De La Torre asked defendant for a “veinte,” which is a street term for $20 worth of narcotics. Defendant told the officer to wait and said he would be right back. He walked northbound and returned a few minutes later. He approached the driver’s side window and handed the officer a small, off-white rock substance, and Officer De La Torre handed him $20. Defendant was videotaped during the transaction.
The date of the event is in issue. The information states that “on or about June 3, 2004,” defendant sold a controlled substance. The police report states that the event occurred on June 3 or 4, but the prosecutor and the officers referred to June 23 or 24. Later the officers noted that the event occurred on June 4. A San Bernardino County crime laboratory report stated that the date of the event was June 3, 2004.
Officer De La Torre drove off and radioed his partners that the suspect was a Black male wearing a white T-shirt and blue jeans, walking toward a garage eating some food. Officer De La Torre pulled over a few blocks away, at a predetermined location, to meet with his sergeant and wait for other officers to arrive.
Corporal Christopher Hice, who was in a marked police vehicle, went to defendant’s location after receiving the description of the suspect. Defendant met the description and was eating some food. Defendant looked in the direction of Corporal Hice and ran. He threw a shiny, square object as he ran. Agent Day, who was with Corporal Hice, got out of the car and chased defendant as Corporal Hice broadcast the information. Other units arrived, and defendant was taken into custody. Corporal Hice identified defendant by conducting a field interview and took a Polaroid photograph of him.
Corporal Hice then went to Officer De La Torre’s location and showed him the Polaroid picture of defendant. Officer De La Torre identified defendant from the picture as the seller of the narcotics. Officer De La Torre gave the drugs and the videotape to Corporal Hice. Corporal Hice weighed and field tested the drugs. The field test was positive for cocaine. Based on his experience, Corporal Hice opined the substance to be rock cocaine. Corporal Hice testified there was no doubt in his mind that defendant was the person who sold the drugs to Officer De La Torre.
A San Bernardino County crime laboratory criminalist performed three tests on the drugs. All three tests indicated the substance was cocaine. A presumptive test indicated the cocaine was base form, weighing 0.26 grams without the packaging.
II DISCUSSION
Defendant contends the trial court erred by failing to construe his statement at his sentencing hearing as a new trial motion and failing to hold a hearing on the motion. He also claims that he was prejudiced by the error because the hearing would have established he was in custody on the date the offense was committed.
Defendant here was convicted of selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a) on or about June 3, 2004. Prior to being sentenced, defendant stated: “For the record in the fact that I have been found guilty of sales of cocaine, the record of this case points to the fact that on the day in question, June 4, 2004, I, Willie Malveaux, was in custody on a parole violation. [¶] Preliminary hearing proceedings taken on the matter and the trial transcripts clearly show that Officer James De La Torre testified that on June 4th I sold him crack cocaine. See preliminary hearing transcript, page two, line 21. As for the records, my charge, see revocation tracking. [¶] I also -- I, Willie Malveaux, was arrested by Rialto P.D. June 3rd, so therefore there is no foreseeable way I, Willie Malveaux, could have sold cocaine to Officer James De La Torre on June 4. [¶] Also I request my counsel to explain the -- explain to the Court the fact that in custody June 4th that I have documentations that clearly show I was already in custody. [¶] I ask the judge in this case, in this matter, to defer [sic] the citizen and please investigate the issue at hand. I respectfully request that the response to these issues be placed on the record.” (Italics added.)
Defendant’s counsel responded to this statement by informing the court that defendant was arrested on June 3, 2004, and sent to Chino for a parole violation based on his conduct in this case. The prosecutor agreed with that analysis, pointing out, “I will note that he was arrested on the 3rd which makes his statement sort of -- sheds light on his statement.” Defendant’s counsel again agreed that defendant’s arrest (presumably for the parole violation) resulted from this case.
Initially, we note that defendant’s statements to the court prior to sentencing cannot be construed as a motion for a new trial. “A reasonable construction of [Penal Code] section 1181 . . . would imply that a defendant waives his right to a new trial upon all grounds included within the provisions of that section unless he specifies the grounds upon which he relies in his application therefor.” (People v. Skoff (1933) 131 Cal.App. 235, 240.) It follows that, since defendant failed to move for a new trial on the ground of insufficiency of the evidence, he cannot expect the court to so consider the issue.
However, even if we were to assume that it was intended as such, we would not find error in the way the court addressed the issue. Here, the trial court heard defendant’s statements concerning whether he was in custody at the time the offense was committed and responded that defendant was convicted by a jury and had an opportunity to pursue an appeal. The court thereafter allowed defense counsel and the prosecutor to respond to defendant’s statement. Both defense counsel and the prosecutor noted that defendant had been arrested on June 3, 2004, and sent to prison for a parole violation based on his conduct in this case. The statements of counsel directly addressed the points raised in defendant’s statements, i.e., whether defendant was in custody at the time he committed the instant offense. The jury was instructed that the crime occurred on or about June 3, 2004. There was no dispute that defendant was in custody on June 4, 2004, for a parole violation based on his conduct in this case. Notwithstanding the confusion over the date of the offense at trial, we believe the court addressed defendant’s statements.
Even if we assume defendant’s statements can be construed as a motion for new trial and the court erred in failing to provide him a hearing on the motion, defendant’s claim lacks merit.
Penal Code section 1181, subdivision (6) permits a defendant to move for a new trial on the ground that the verdict is contrary to the evidence. In deciding such a motion, the trial court’s function is to “see that the jury intelligently and justly perform[ed] its duty and, in the exercise of a proper legal discretion, to determine whether there is sufficient credible evidence to sustain the verdict.” (People v. Robarge (1953) 41 Cal.2d 628, 634 (Robarge).) The trial court’s duty is to review the evidence independently and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. (Id. at p. 633.)
A trial court is to be “guided” by a presumption in favor of the correctness of the jury’s verdict (see, e.g., People v. Davis (1995) 10 Cal.4th 463, 523-524) and may not arbitrarily reject a verdict which is supported by substantial evidence. The trial court is not bound by the jury’s determinations as to the credibility of witnesses or as to the weight or effect to be accorded to the evidence. (Robarge, supra, 41 Cal.2d at pp. 633-634.) Thus, the presumption that the verdict is correct does not affect the trial court’s duty to give the defendant the benefit of its independent determination as to the probative value of the evidence. (Ibid.) If the court finds that the evidence is not sufficiently probative to sustain the verdict, it must order a new trial. (Id. at p. 633.)
The trial court has broad discretion in determining whether the evidence has sufficient probative value to sustain the verdict (Robarge, supra, 41 Cal.2d at p. 633), and its order will not be reversed on appeal “‘absent a manifest and unmistakable abuse of that discretion.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 364.) In reviewing an order denying or granting a new trial based on insufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the trial court’s ruling, drawing all factual inferences that favor the trial court’s decision. (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304.) “The trial court’s factual findings, express or implied, will be upheld . . . if supported by any substantial evidence.” (People v. Drake (1992) 6 Cal.App.4th 92, 97.) The order will be reversed only if it can be said as a matter of law that there is no substantial evidence to support a judgment contrary to the verdict. (People v. Sheran (1957) 49 Cal.2d 101, 109.)
The trial court here impliedly denied defendant’s motion for new trial, impliedly finding that there was substantial evidence to support the verdict. Defendant was convicted of selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a). As to that crime, the jury was instructed, “The defendant is charged in Count 1 with selling cocaine base, a controlled substance. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant sold a controlled substance; [¶] Two, the defendant knew of its presence; [¶] Three, the defendant knew of the substance’s nature or character as a controlled substance; and [¶] Four, the controlled substance was cocaine base.”
Defendant does not claim the proof was lacking as to any of the above elements but, rather, that it was inherently improbable that he committed the crime on the date in question as prison records, which were not presented at trial but available to the court at the sentencing hearing, conclusively established he was in prison on the date of the offense. The record shows that though four different dates were discussed at trial, June 3, 2004, was the offense date in this case. June 3 was the date the People alleged defendant committed the crime, and the jury was instructed that was the relevant date. The jury was instructed, “It is alleged that the crime occurred on or about June 3rd, 2004. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.” The information notes that, “on or about June 3, 2004,” defendant sold a controlled substance.
In addition, although the prosecutor initially misspoke by orienting both Officer De La Torre and Corporal Hice to the date of June 24, 2004, and neither corrected the prosecutor at that point, Corporal Hice did clarify the discrepancies in the dates. Corporal Hice explained that his police report showed a date of June 3 on the face page and June 4 in the narrative. He clarified that his recollection of the date of the offense was that it occurred on June 3. His written narrative contained the date June 3, and the reference to June 4 in another part of the report was an error caused by the computer, which placed the date the report was generated onto a space in the report. Corporal Hice further testified that he recalled arresting defendant the following day, June 4, 2004, on an unrelated charge and that he had the police report pertaining to that arrest in his possession. The laboratory analyst also testified that the offense occurred on June 3, 2004 -- information obtained from the police report.
June 4, 2004, was the date improperly stamped on the police report pertaining to defendant’s June 3 arrest. June 4 was the date defendant was arrested for an unrelated offense. June 23 was the erroneous date Corporal Hice recalled being asked about on direct examination.
Moreover, aside from the confusion over the date of the offense and the fact that the date of the offense is not an element of the offense the prosecutor was required to prove beyond a reasonable doubt, there was overwhelming evidence that defendant committed the crime. Officer De La Torre observed defendant at close range as they engaged in a hand-to-hand drug transaction. Immediately thereafter, Officer De La Torre broadcasted defendant’s description, and shortly thereafter, defendant was observed by Corporal Hice wearing the clothing described by Officer De La Torre, in the exact location described by Officer De La Torre. When defendant saw Corporal Hice, he fled, indicating a consciousness of guilt. Upon apprehension, defendant was photographed. His photograph was shown to Officer De La Torre, who identified him at the time, and again at trial, as the person who sold him the rock of cocaine. Furthermore, the entire transaction was captured on videotape, which was played for the jury. Officer De La Torre testified he recognized defendant on the videotape and that there was no doubt in his mind it was defendant.
Notwithstanding the overwhelming evidence that defendant committed the crime in question, he claims that he was in custody on the date the offense allegedly occurred and that prison records conclusively support his claim. However, substantial evidence shows that defendant was obviously out of custody at the time of the commission of this offense and was reincarcerated on a parole hold as a consequence of his arrest on June 3, 2004. The evidence clearly supports a reasonable inference that defendant committed the crime in question.
In any event, the claim that defendant was in custody at the time of this offense is refuted by his own statement, the statement of his lawyer, and statements of the trial court and the prosecutor. At the sentencing hearing, defendant himself admitted that he was released from prison on December 27, 2003. The court noted that defendant committed the present offense on June 3, 2004. The prosecutor and the court noted that defendant was then held on a parole hold after his arrest for the June 3 incident. Defendant raised the issue of the prison records for the first time, stating that there was no reasonable way he sold rock cocaine to Officer De La Torre on June 4, 2004, as he was in custody. Defendant’s counsel responded to this statement by informing the court that defendant was arrested on June 3, 2004, and sent to Chino for a parole violation based on his conduct in this case. The prosecutor agreed with that analysis, agreed to give credits for his parole violation, and said, “I will note that he was arrested on the 3rd which makes his statement sort of -- sheds light on his statement.” Defendant’s counsel again agreed that defendant’s arrest resulted from this case.
Though four different dates were discussed during testimony, it is clear the jury relied upon June 3, 2004, as the date defendant committed the crime. Regardless, there was overwhelming evidence that defendant was identified as the person who committed the instant offense. Accordingly, there is more than ample substantial evidence supporting the jury’s conclusions that defendant sold a controlled substance on June 3, 2004. The trial court therefore properly denied the asserted motion for new trial.
III DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.