Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA071320, James Pierce, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KITCHING, J.
Sky Pepe (Pepe) appeals from the judgment entered following a jury trial which resulted in his conviction of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and his admissions that he previously had been convicted of a drug related offense (Health & Saf. Code, § 11370.2, subd. (a)) and had served two prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced Pepe to nine years in prison. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
At approximately 6:35 p.m. on August 6, 2006, Los Angeles Police Officer Bruce Nelson (Nelson) and his partner, Officer Tobaris, were on patrol on 10th Street, near the intersection of Palos Verdes Street, in San Pedro. The intersection and surrounding area were known as a “high narcotic trafficking area.” The officers were dressed in plain clothes and were driving a plain, undercover police vehicle. Nelson observed Pepe standing in the roadway next to a Chrysler, leaning inside an open window on the driver’s side of the car. Pepe was standing in the eastbound traffic lane. The Chrysler was in the westbound lane, blocking traffic.
The officers negotiated a u-turn and pulled their car up behind the Chrysler. At that moment, Pepe “removed his head from the window” and the Chrysler pulled away. When Pepe looked in his direction, Nelson recognized Pepe as someone the officer previously had cited for possession of marijuana. On this occasion, Nelson intended to cite Pepe for being a pedestrian blocking traffic in the roadway, a violation of the Vehicle Code.
After Pepe stepped out of the street, he made a comment to Nelson to the effect of, “ ‘You’re the one who gave me the weed ticket.’ ” When Nelson asked Pepe if he had taken care of the ticket, Pepe responded that he had not and that there was a warrant out for his arrest. Tobaris ran a warrant check and found that there was a $5,000 warrant for Pepe for the narcotics violation. Nelson and Tobaris performed a “pat down search” before taking Pepe into custody and transporting him to the station. Because the warrant was narcotics related, department policy allowed the officers to strip search Pepe. As part of such a search, the suspect is asked to lean over and spread his “butt cheeks.” After Pepe was asked several times, he complied with the request and, protruding from his rectum, Nelson observed what appeared to be a white substance wrapped in plastic. When Nelson asked Pepe if he would remove the object, Pepe refused.
A warrant for a body cavity search was obtained and Pepe was transported to County USC Medical Center. There, a medical doctor “reached up into [Pepe’s] anus and removed some off-white rock[]-like substances resembling rock cocaine which were in two individual bindles.” Each bindle contained several rocks “which appear[ed] to be the same size and shape, [as if they had] been cut off a larger piece and made to be the same size [or] weight.”
Another detective, Hans Baemayr (Baemayr), had accompanied Pepe to the hospital. After the doctor removed the bindles from Pepe’s body, Baemayr placed them in a clear plastic baggie, which he then placed into an evidence envelope. Baemayr sealed and initialed the envelope and, after returning to the station, gave the sealed envelope to Nelson, who booked it into evidence.
During the search of Pepe and his clothing, the officers found nothing with which to ingest the narcotics. Pepe was carrying no narcotics paraphernalia and he was not under the influence of narcotics at the time he was taken into custody. He was not carrying a cellular telephone, pager or two way radio. Pepe had in his possession $28.50 in cash.
Baemayr, an experienced narcotics officer who had participated in the investigation of over 1000 cases involving cocaine base, was of the opinion Pepe possessed the rock cocaine for sale. Baemayr based his opinion on the “area of the arrest, the activity [observed by] Officer Nelson . . ., the fact that there were two individual bindles . . . [and that] all the rocks [were] about the same size [and] shape,” as if they had been cut for sale. In addition, Baemayr stated that, when he had worked as the supervisor of a “buy team,” the team “frequently bought drugs from individuals who removed them from their buttocks area.” Baemayr continued, “It’s a common practice among street dealers because, if the police just drive up and pat them down, they’re not going to find [the narcotics] in their pockets. They’re not going to reach up in there . . . .”
A total of 3.88 grams of cocaine base was recovered from Pepe. An individual “dose” of cocaine generally weighs approximately two-tenths of one gram. Baemayr estimated the value of the cocaine recovered from Pepe to be between two hundred and four hundred dollars.
2. Procedural History.
Following a preliminary hearing, on September 19, 2006, Pepe was charged by information with one count of possession for sale of cocaine base in violation of Health and Safety Code section 11351.5. It was further alleged Pepe previously had suffered a conviction for a narcotics related offense within the meaning of Health and Safety Code section 11370.2, subdivision (a), and that he had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Pepe entered a plea of not guilty to the charge of possession for sale of cocaine base.
On December 14, 2006, Pepe filed a motion to suppress evidence pursuant to Penal Code section 1538.5. He argued “the strip search . . . was conducted without reasonable individualized suspicion in violation of his constitutional rights.” The trial court denied the motion. The trial court indicated that, although the arresting officers initially intended to cite Pepe only for a traffic violation, because he was observed leaning inside a car window, they suspected a narcotics transaction might have occurred. This suspicion was bolstered by the fact that Nelson recognized Pepe as an individual he had recently cited for possession of marijuana. The officers then determined Pepe had failed to appear for disposition of the infraction and that there was a warrant for his arrest. Finally, there was a stipulation by counsel that all of the officers involved knew that Pepe was on felony probation for a violation of Health and Safety Code section 11377, the unauthorized possession of a controlled substance, and that the officers understood that there were “search and seizure conditions attached” to the grant of probation. The trial court determined that, under these circumstances, the strip search of Pepe was lawful.
At proceedings held on January 8, 2007, the trial court granted Pepe’s motion to bifurcate the trial on his prior conviction and prison terms from the trial on the substantive offense of possession of cocaine base for sale.
During deliberations, the jury submitted the following question to the trial court: “Is there a legal amount of rock cocaine that can be on a person[ ] [t]o distinguish between personal use and sale[?]” In response, the trial court stated, “First of all, there’s no legal amount of cocaine anywhere. You can’t have a scintilla of cocaine on you at any time. . . . Any amount of cocaine is illegal. . . . [¶] But if you’re trying to distinguish – I think what you’re asking is between personal use and for purposes of sales. That’s what this whole case is about. So I’m kind of glad you’re honing in on that. But that’s for you to decide. There is no – if you’re thinking that, well, . . . if you have under two grams, it’s a personal amount, and over two grams is for sales. There’s no such standard . . . . [¶] So the direct question – the direct answer to your question is no. There is no legal standard amount for anything. [¶] A person may have a very small amount, and it may be for purposes of sale. And if you can prove that it’s for sale, it’s for sale. Do you understand? They may have a large amount, and that may be for personal use. And if it’s for personal use and not for sale, it’s for personal use. That’s for the jury to decide. But the amount is significant because the amount may tend to show one or the other. . . . [¶] So you have to look at the totality of all the evidence and decide . . . . ” A short time later, the jury returned with its verdict finding Pepe guilty of possession for sale of cocaine base.
At proceedings held on January 26, 2007, Pepe waived his right to a court trial, to confront and cross-examine the witnesses against him, his right to subpoena witnesses and present a defense and his privilege against self-incrimination and admitted previously having suffered a drug related conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a) and having served two prison terms within the meaning of Penal Code section 667.5, subdivision (b).
On February 8, 2007, counsel for Pepe made a motion for a new trial. Counsel argued some of the testimony given at the preliminary hearing regarding how often an individual might place narcotics intended for his personal use between his buttocks was inconsistent with testimony regarding that question at trial. In addition, counsel indicated Pepe was not provided a complete defense in that counsel’s expert, who would have stated that it would not be unusual for one to conceal drugs for personal use between his or her buttocks, had been unavailable to testify. The trial court denied the motion, stating, “I think the record speaks for itself. And I think the issues were fairly presented to the jury.”
At the same February 8th proceedings, the trial court sentenced Pepe to the middle term of four years in state prison for his conviction of possession of cocaine base for sale. For his prior drug related conviction, the trial court imposed a consecutive term of three years. For his prior prison terms, the trial court sentenced Pepe to one year for each of the two terms, the sentences to run consecutively to each other and all other terms imposed. In total, the trial court sentenced Pepe to nine years in prison. The trial court imposed a $500 restitution fine (Pen. Code, § 1202.4, subd. (b)), then imposed and suspended a $500 parole revocation restitution fine (Pen. Code, § 1202.45). Pepe was directed to pay a $50 laboratory fee (Health & Saf. Code, § 11372.5) and a $20 security fee (Pen. Code, § 1465.8, subd. (a)(1)). The trial court awarded Pepe presentence custody credit for 174 days actually served and 86 days of good time/work time, for a total of 260 days.
Pepe filed a timely notice of appeal on March 7, 2007.
This court appointed counsel to represent Pepe on appeal on June 18, 2007.
CONTENTIONS
After examining the record, counsel for Pepe filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice, filed September 10, 2007, the clerk of this court advised Pepe to submit within 30 days any contentions, grounds of appeal, or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied Pepe’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J, ALDRICH, J.