Opinion
A130148
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. QUIANA MASON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Alameda County Super. Ct. No. CH48116
Quiana Mason appeals from her conviction of two felonies: Possession for sale of cocaine base (Health & Safe. Code, § 11351.5) and transportation of a controlled substance (Health & Safe. Code, § 11252, subd. (a)). Her counsel raises no issues and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
BACKGROUND
On October 24, 2008, at approximately 1:15 am, San Leandro Police Officer Alex Hidas noticed an older model Toyota Camry driving southbound on Washington Avenue within the speed limit. Suspecting the Camry might be stolen because Camrys are "one of the highest stolen vehicles in Alameda County," Hidas made a U-turn and followed the car. As the Camry turned right onto Monterey Boulevard, Hidas observed that a brake light was broken.
Hidas turned on his overhead emergency lights and indicated to the driver, appellant, that she should pull over to the roadside. The car drove an additional three blocks and Hidas observed appellant making "furtive movements" to and from the center console area. Suspicious of the movement and appellant's failure to stop immediately, Hidas radioed dispatch for assistance.
Once appellant pulled over, Hidas observed the interior of the vehicle through the rear window as he walked to the passenger side. Hidas asked appellant's passenger, Detwone Watson, for identification. Watson handed Hidas his parole card and explained that he was on both parole and probation. Hidas then asked appellant for identification and noticed the steering column was broken open, exposing the ignition wiring. Concerned that the Camry might be stolen, Hidas asked appellant whose car it might be and requested the registration. Appellant informed Hidas that her license was suspended and that the Camry belonged to her cousin, Latoya Lee. Dispatch reported the Camry was registered to Anh Nguyen.
After Police Officer Catherine Pickard arrived, Officer Hidas detained Watson for public intoxication. He escorted Watson to his patrol car and searched him. When Pickard approached appellant, appellant was still seated in the driver's seat with the door closed and window rolled up. Pickard observed appellant using a cell phone and ordered her to stop. When Pickard opened the driver's side door, appellant informed Pickard that she did not have a valid driver's license. Dispatch confirmed that appellant's license was suspended. Thereafter, Hidas signaled to Pickard to detain appellant for driving with a suspended license. Pickard ordered appellant to leave the vehicle and handcuffed her. Pickard escorted appellant to the rear of her patrol car and searched her.
Before searching appellant, Pickard asked appellant "if she had anything that I needed to be concerned with?" Appellant "didn't really say anything." Pickard searched appellant and felt an abnormal bulge in the front portion of her waistband. Pickard found what she described as a "cue ball" of rock cocaine in appellant's waistband of her jeans, "What I pulled out is a ball of plastic with little tiny tied-off plastic pieces with what looks like little macadamia nuts, which are consistent with rock cocaine." Pickard then asked appellant again if appellant had anything with which she ought to be concerned. This time appellant replied that she had three baggies of marijuana in her bra. Pickard did not find any contraband or tools one would ordinarily use to personally ingest marijuana.
When Pickard informed Hidas that she had retrieved rock cocaine and marijuana from appellant's person, Hidas shifted his investigation to whether appellant was in possession of drugs for sale. He proceeded to searched appellant's vehicle and purse. Hidas found four cell phones, three of which were found in her purse and one in the vehicle. Two of the phones were operable. He also found a smaller coin purse inside her purse containing $2,350 in folded bills and $69 in loose cash. He also found "34 empty push lock baggies," each with a blue Superman emblem, similar to the baggies containing the marijuana found in appellant's bra. Hidas did not find any paraphernalia which could be used to personally ingest marijuana. Hidas did not find any tools one would use to personally ingest marijuana on Watson. Appellant was booked at the San Leandro Police Station where she was interviewed by Hidas and signed a written statement.
An information filed on December 23, 2009, in Alameda County Superior Court charged appellant with one count of possession of cocaine base for sale (Health & Safe. Code, § 11351.5) and one count of transportation of a controlled substance (Health & Safe. Code, § 11252, subd. (a)). Appellant pleaded not guilty. Before trial, appellant filed a motion to suppress evidence, which the trial court denied. A three-day jury trial began on August 30, 2010.
The prosecution offered testimony from Officers Hidas and Pickard, Officer Ronald Johnson, and Elynne Salazar. Hidas testified both as a percipient witness and as an expert regarding the subjects of trafficking and possession for sale of cocaine base. Johnson testified as an expert witness in the field of possession and sale of cocaine, cocaine base, rock cocaine, and marijuana. Salazar testified as an expert witness in the field of identifying and analyzing cocaine and cocaine base.
Hidas testified that in his opinion the evidence indicated that appellant possessed the rock cocaine and marijuana for sale. He testified that the manner in which the rock cocaine was concealed and packaged, as well as the quantity involved, indicated that the rock cocaine "was for sales purposes and not for individual purposes." He further stated that it is common for the same person to sell not only rock cocaine but also marijuana.
Hidas opined that finding 34 empty push lock baggies, each with the same emblem, is common with one who sells drugs because: "emblems are a way for drug dealers to keep track of the products they sell" and that "a drug dealer . . . can be referred to based on the type of packaging they use." Hidas also stated that the number of cell phones found in appellant's possession "is a way to communicate with others—to be able to communicate with people who would like to purchase drugs. It's a way to make it difficult to investigate these types of crimes by having different numbers of cell phones."
Johnson also opined that the evidence indicated that appellant possessed the rock cocaine and marijuana for sale. He based his opinion on the packaging of the rock cocaine, the fact that "[t]here's no use paraphernalia, . . . the four cell phones. . . . [¶] . . . [¶] [and] when we find the narcotics and the money [$2,350], a lot of times narcotic dealers are known to carry large amounts of cash on them." He also testified that rock cocaine is not something a dealer would leave in a car unguarded or unattended.
As to the marijuana found on appellant, Johnson said that the marijuana was held for sale "because they are in the business of selling even if it is for personal use, if you come up and ask them, they will sell it to you." Moreover, when asked during cross-examination whether his opinion would be altered if two of the four cell phones did not work, Johnson replied, "[I]t doesn't really play a big part if they're turned on or off because you already have the packaging, the number of cash, also additional packaging for marijuana."
The prosecution's final expert, Salazar, is employed with the Alameda County Sheriff's Office Crime Lab and testified that she tested the rock cocaine found on appellant and determined that it was cocaine base.
Appellant's defense was that she did not have the requisite intent for the sale of controlled substances. Appellant, Watson and her mother, Alana Williams, testified for the defense. Appellant testified that when she was picking up Watson near midnight, (before Hidas pulled her and Watson over) she bought 3 baggies of marijuana from somebody that lives in the apartment complex where Watson was staying. Watson was not with her when she bought the marijuana. She stated she bought the marijuana for personal use.
Appellant and Watson were on their way to the store to pick up "swishers" in order to "roll [her] weed and smoke it." Hidas pulled the Camry over before she made it to the store. Appellant testified that the movement Hidas observed before she came to a complete stop was due to her dropping her cell phone and her attempt to pick it up. When she found her cell phone on the side of the seatbelt next to the center console, she "felt something else down there, squeezed it, [and] instantly [knew] what it was." She picked up the "cue ball" of rock cocaine and "stuck it in [her] pants" because she believed had she left the rock cocaine in the vehicle and the officers found it, "they would have put it on [Watson]." When she felt it, she said, "what the hell is this," but she did not believe Watson heard her "because he was too busy looking at the police."
As for the four cell phones, appellant testified that she used only two of the phones—the two that worked—because her phone could not make outgoing calls. She claimed the two cell phones that did not work had been on the back seat of the vehicle at the time of her arrest and they belonged to her cousin. According to appellant, the 34 empty push lock baggies, each with a blue Superman emblem, were also in the back seat but she did not know to whom the baggies belonged. She had seen the phones and the baggies for nearly a month in the back seat. When questioned about Hidas's testimony that he found those items in her purse, she stated that Hidas's report was inaccurate. Appellant also explained that the written statement, which Hidas wrote and she signed, was the sole product of Hidas. She stated that she intended to be uncooperative and did not read the statement before she signed it. Appellant's contention was that although the written statement and Hidas's report stated that Hidas found the phones and baggies in her purse, he must have actually found them in the back of the vehicle.
Appellant further explained that the money found in her purse had been given to her by her mother and father. She stated that the money from her mother was for furniture because she had moved a month prior to the arrest, and that the money from her father was for a car. Again, appellant insisted that Hidas was incorrect when he wrote on the statement that she had stated the money from her mother was to be used to buy a car. She testified that she actually told Hidas that her father gave her the money for a car.
Watson testified that he had seen appellant twice on the day in question. He stated that the first time he saw appellant was around 6:00 pm when she picked him up in the Camry. Since he had just been released from jail, he checked the vehicle to make sure nothing was broken; that is, to make sure there would be no reason for the police to stop the vehicle. He "went to the back and . . . checked the registration, . . . looked at it and got in the car." He testified that the taillights were working, but that he could not check the brake lights because the car was parked. He further testified that he did not see appellant making furtive moments to and from the center console, but that he also did not see her drop her phone. He stated that he "wasn't paying attention to that . . . because [he] was too busy trying to figure out what was going on."
Appellant's mother, Williams testified that she had given appellant $1,600 of the $2,350 for moving costs, specifically to buy furniture. However, Williams provided no documents that this $1,600 came from her earnings, nor did she provide any bank records showing that the $1,600 had been withdrawn from her bank account. Appellant's signed, written statement recorded that "[her] mother gave her $1,500 so [she] can buy a car."
The jury convicted appellant of both counts. Appellant was sentenced to five years probation "with normal terms and conditions," which included 180 days in the county jail with credit for time served. Appellant was also to pay a $200 restitution fine, a $50 lab fee, and a $100 drug program fee. At sentencing, the trial court indicated that the convictions reflected that appellant's testimony "was totally disbelieved by the jury."
This timely appeal followed. Appellant's counsel advised her that she had the right to file a supplemental brief in this matter, but appellant declined to do so.
DISPOSITION
Our independent review of the record reveals no arguable issues that require further briefing. The judgment is affirmed.
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Lambden, J.
We concur: ________________
Kline, P.J.
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Haerle, J.