Opinion
A148443
01-25-2018
THE PEOPLE, Plaintiff and Respondent, v. LEWIS LONZELL MCCRAY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR313287)
Defendant Lewis Lonzell McCray appeals a judgment entered upon a jury verdict finding him guilty of possession of a controlled substance for sale. (Health & Saf. Code, § 11351.) His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of his right to personally file a supplemental brief, but he has not done so.
Defendant was charged by information with possession for sale of a controlled substance, heroin. Before trial, he moved to suppress physical evidence and statements he made at the time of his arrest on the ground they were the result of an unreasonable warrantless search. (Pen. Code, § 1538.5.)
At the hearing on the suppression motion, Officer Roger Canady of the Vacaville Police Department testified that on March 11, 2015, his partner, who was investigating a drug transaction in the parking lot of a motel in Vacaville, told him the person he had stopped was staying in room 227 of the motel. Canady and another officer knocked on the door, and defendant opened it. Canady told defendant the reason he was there; as he was standing outside the threshold, he looked into the room. On a nightstand, in plain view, were two small brown items that looked like heroin, two scales, and some syringes. There was nothing obstructing Canady's view of the nightstand. Canady asked defendant for his identification, then entered the room and detained him. In the room he found more suspected heroin, a coffee grinder, and some empty pill bottles with coins in them. He seized the items as evidence. Canady read defendant his Miranda rights, and defendant agreed to speak with him. Defendant told Canady he used the items because he had a drug problem. Canady arrested defendant and took him to jail. At the jail, defendant told Canady he had other contraband hidden in underwear, and Canady retrieved something that looked like heroin. The trial court denied the motion to suppress evidence.
The record contains a video of the incident, which the trial court viewed, and photographs of the room. Some of the contraband was on the lower shelf of the nightstand, which does not appear to be visible in the video at the time Canady was standing outside the room. However, Canady testified that he wore the camera on his lapel, about a foot below his line of vision.
During jury selection, the prosecutor excused a juror, and defendant made a Batson-Wheeler motion. (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.) Defense counsel noted the juror was a person of color, that there were not many people of color on the jury panel, and that the juror had connections to law enforcement. Defense counsel argued there was nothing to suggest the juror would be biased toward either the defense or the prosecution. The prosecutor told the court there were at least two other African-Americans on the panel. He said the reasons he excused the juror were that she had been convicted of a criminal offense in the same county and that one of her responses indicated she thought people jumped to conclusions. He was concerned she would be skeptical of the expert opinions of a police officer. The court did not find a prima facie case of purposeful discrimination. It noted this was the prosecutor's first challenge of an African-American juror and that there were others on the panel waiting to be called into the jury box, and concluded there were legitimate non-racial reasons to dismiss the juror.
Evidence at trial showed that a police officer stopped a car that was speeding in the parking lot of the motel. The driver had a pill bottle containing one-tenth gram of what appeared to be heroin. A bindle of what appeared to be methamphetamine and a syringe were in the driver's door panel. A search of the passenger revealed heroin and a hypodermic syringe. There were additional hypodermic needles and heroin in the car. The officer spoke with the driver and passenger, then called for more units to investigate room 227 of the motel.
Officer Canady testified at trial; his testimony was consistent with that given at the hearing on the suppression motion. He testified that some of the pill bottles he found in the motel room had coins inside them. Inside one of them was a powder residue that was consistent with a "cutting agent." He also found baking powder in the room. He found digital scales, a coffee grinder, syringes, and plastic wrapping from which smaller pieces had been torn. He did not find any guns, ammunition, knives, money, or pay-owe sheets. The heroin he found in the room weighed approximately 10 grams.
After Canady arrested defendant and took him to jail, defendant told him he had a cutting agent hidden in his underwear. In defendant's underwear, Canady found a plastic bag containing what smelled like heroin, and was later found to contain heroin. It weighed approximately 17 grams.
Detective Michael Miller of the Vacaville Police Department testified as an expert in the possession for sale of heroin. He testified that cutting agents (such as baking powder, milk sugar, or flour) were mixed with heroin to increase its bulk, and hence the seller's profits. Heroin could be mixed with cutting agents by shaking them together in a small bottle with coins. Grinders could be used to mix larger quantities of heroin and cutting agents. People who used heroin were not likely to cut their own heroin. Nor were people who only used heroin—rather than selling it—likely to use a scale to weigh the drug, or to need packaging material. Heroin was often packaged in plastic. In Miller's experience, users did not buy large quantities of heroin at a time.
A typical dose of heroin for sale was approximately one-tenth gram, and cost ten dollars. Pay/owe sheets were not normally used for transactions of this size. The combined amount of heroin and cutting agent could produce 27 grams of heroin to sell, or 270 dosage units at ten dollars each.
The jury found defendant guilty of possession of heroin for sale. The trial court suspended imposition of sentence, placed defendant on formal probation for three years, and ordered him to pay fines and fees. Among the conditions of probation, the court ordered him to serve 180 days in jail, to remain in custody until placed in a residential treatment program, and to commit himself to a treatment program and remain there until released by the director upon satisfactory completion.
There are no meritorious issues to be argued.
DISPOSITION
The judgment is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Streeter, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------