Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court Super. Ct. No. BA321535of Los Angeles County. Mary H. Strobel, Judge.
Patrick J. Hennessey, 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, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
SUMMARY
James Odom appeals from the judgment and sentence entered following a bifurcated jury trial resulting in his conviction of possession of cocaine base in violation of Health and Safety Code section 11350. The two issues presented on appeal are whether there was sufficient evidence presented to support the finding of possession, and whether the trial court abused its discretion in denying appellant’s motion to strike his prior convictions under the Three Strikes law. Finding sufficient evidence to support the conviction and no abuse of discretion by the trial court in denying the motion, we affirm.
BACKGROUND AND PROCEDURAL HISTORY
Appellant was charged by information on May 22, 2007, with possession of cocaine base for sale in violation of Health and Safety Code section 11351.5. Two “strike” prior convictions for intimidation of a witness (Pen. Code § 136.1, subd. (c)(1)) and rape (Pen. Code § 261, subd. (a)(2)) were alleged under Penal Code sections 1170.12 (a) through (d). It was also alleged that appellant has a prior conviction for possession of firearm by a felon (Pen. Code § 12021, subd. (a)(1)). The People decided to proceed with the case as a second strike rather than a third strike case. On October 3, 2007, the information was amended to charge possession of a controlled substance in violation of Health and Safety Code section 11350 and dismiss the charge of possession of cocaine base for sale, proceeding solely on the charge of possession of cocaine base.
On October 10, 2007, appellant was found guilty of possession of a controlled substance. On November 6, 2007, appellant admitted the prior felony conviction and prison term, and a motion to strike the conviction was denied. He was sentenced to the mid-term of two years, which was doubled under the Three Strikes law for a total of four years.
Appellant filed a timely notice of appeal.
SUMMARY OF THE FACTS
On April 20, 2007, Officers Cooney and Mitchell and Detective Razo, of the Los Angeles Police Department were patrolling in an unmarked van, wearing plain clothes, westbound on 25th Street near Hooper Street, Los Angeles, a neighborhood known for narcotics activity. The officers observed appellant walking while counting money. Detective Razo pulled the van over to the side of the street, and the officers exited to engage in consensual conversation with appellant, to determine why he was openly counting money in a high narcotics area.
Upon exiting the van, Officer Mitchell produced his badge and identified himself as a police officer. Appellant immediately began running away from the officers. Officer Cooney and Detective Razo pursued on foot, and Officer Mitchell drove the van after the appellant. Officer Cooney commanded appellant to stop, and after a short pursuit appellant complied. As appellant turned to kneel on the ground, Officer Cooney observed him opening his right hand and dropping a clear plastic baggie containing several off-white solid substances.
At trial, a police criminologist identified the substances as 3.25 grams of cocaine base. Officer Cooney gave expert testimony that the amount was usable, and that depending on how it was cut, it could be divided into between 10 and 20 rocks. Appellant presented no affirmative defense.
Appellant waived his right to a jury trial on and admitted to his prior convictions for intimidation of a witness and possession of a firearm by a felon. The prosecution noted that the present offense had been the second parole violation following two serious felonies, and that the temporal distance between the convictions was explained by the fact that much of that time was spent in prison. The court denied appellant’s motion to dismiss the prior strike under Penal Code section 1385, and sentenced appellant to four years in state prison, comprising the mid-term of two years doubled pursuant to the Three Strikes law.
DISCUSSION
Appellant presents two issues on appeal. First, he alleges that there was insufficient evidence to prove him in possession of the narcotics found at the time of his arrest. Second, appellant argues that the court erred in denying his motion to strike his prior strike convictions, given the non-violent nature of the present offense and the passage of time since the convictions.
1. Sufficiency
Appellant argues there was insufficient evidence presented to support the finding he was the possessor of the narcotics found on the street at the time of his arrest. Where the sufficiency of evidence resulting in a conviction is challenged, the court considers whether substantial evidence supports the conclusion. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Reversal of the finding is warranted only where “‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citations.]’ [Citation.]” (People v. Parra (1999) 70 Cal.App.4th 222, 225.) The reviewing court construes all evidence in favor of the respondent, and presumes every fact reasonably deducible from the evidence in favor of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Appellant notes that neither officer testified that he observed appellant reach into his pocket, and that the officers did not see the baggie in appellant’s hands when they first approached him. These considerations do not change the dispositive fact that Officer Cooley saw the baggie containing narcotics drop from appellant’s hand at the end of the pursuit. How the drugs came to be in appellant’s hand is irrelevant to the question of possession.
Appellant further asserts that “his presence and/or presumed access to the item ostensibly within his reach is not sufficient to support a finding of knowing possession of contraband.” To support this claim, he notes that Officer Mitchell did not testify that he saw appellant drop the baggie after the pursuit, which is supposedly “inconsistent” with the testimony of Officer Cooley. However, Officer Cooney testified that while he pursued appellant on foot, Officer Mitchell returned to the van and followed in it. Therefore, that Officer Mitchell did not see appellant drop the baggie does not rise to a “serious question[] as to the quantity and quality of evidence . . . .” Moreover, Evidence Code section 411 clearly states that “[e]xcept where additional evidence is required by statute, the direct evidence of a single witness who is entitled to full credit is sufficient for proof of any fact.” (See also People v. Vega (2005) 130 Cal.App.4th 183, 190 [“the testimony of a single witness, including an expert witness, is sufficient to constitute substantial evidence to support a jury’s finding”].) Officer Cooley gave testimony that he observed appellant drop the baggie, later found to contain narcotics, from his hand. This testimony is sufficient to support the jury’s finding that appellant possessed the cocaine base.
2. Strike Priors
Appellant argues that the trial court should have granted the motion to strike his prior convictions due to the minor nature of the current offense. Trial courts have the discretion to strike one or more of a defendant’s prior convictions where the decision is supported by appropriate reasons showing the defendant to be outside the spirit and intent of the Three Strikes sentencing scheme (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508.) This court reviews the trial court’s decision to grant or deny the motion to strike a prior serious felony conviction under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) On appeal, the burden falls on the appellant to demonstrate the sentencing decision was irrational or arbitrary. (Ibid.) In the absence of such showing, the reviewing court cannot substitute its judgment for that of the trial court. (Ibid.) Only if the trial court’s ruling “falls outside the bounds of reason under the applicable law and the relevant facts” will the reviewing court set it aside. (People v. Williams (1998) 17 Cal.4th 148, 162.) The record shows that the court considered the dates of the prior convictions, and weighed them against the fact that appellant was on parole at the time of this offense. Given the appellant’s history of recidivism, the trial court’s denial of the motion was within its discretion. (People v. Superior Court (Romero), supra, at p. 508.)
DISPOSITION
Construing the facts under the mandatory rules of appellate review, we conclude that that jury’s finding of possession for sale of cocaine base was sufficiently supported by the evidence presented at trial and that the trial court did not abuse its discretion in denying the motion to strike prior convictions. The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.