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People v. Perry

California Court of Appeals, First District, First Division
Mar 27, 2008
No. A117278 (Cal. Ct. App. Mar. 27, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DAVID MICHAEL PERRY, Defendant and Appellant. A117278 California Court of Appeal, First District, First Division March 27, 2008

NOT TO BE PUBLISHED

Solano County Super. Ct. No. VCR-182281

Swager, J.

Defendant was convicted following a jury trial of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). The trial court found that he suffered two prior drug convictions (Health & Saf. Code, § 11370.2, subd. (c)), and served a prior prison term (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to an aggregate term of seven years in state prison. In this appeal, he challenges the sufficiency of the evidence to support the conviction of possession of cocaine base for sale. We find that the record contains substantial evidence of intent to sell, and affirm the judgment.

STATEMENT OF FACTS

Sergeant Park of the Vallejo Police Department was on patrol in a marked police vehicle just after midnight on January 18, 2006, traveling westbound on Tennessee Street at Sonoma Boulevard, a “drug-infested area” of Vallejo. He observed defendant and another person standing “face-to-face” in an alley just south of the Nation’s Hamburger parking lot. Defendant appeared to be “handing something off” to the other person. In light of his experience and the “very high” incidence of narcotics use and sales in the area, Sergeant Park believed that “a possible narcotics transaction or sale had occurred.”

Sergeant Park made a U-turn, drove into a nearby alley, and turned his lights off. Defendant began walking westbound in the alley directly toward the officer. When Sergeant Park turned his lights back on, defendant “made an abrupt about-face turn,” and walked in the opposite direction away from the patrol vehicle, toward Sonoma Boulevard. Sergeant Park drove onto Sonoma Boulevard, where he observed defendant “still walking away at a hurried pace.”

Sergeant Park noticed that defendant committed pedestrian traffic infractions. He pointed his spotlight at defendant, identified himself “as police,” and yelled “stop.” Defendant looked back over his shoulder but “just continued to walk” toward the main gate of the Traveler’s Inn Motel. Sergeant Park thought defendant was “trying to elude” him. He requested assistance, drove to the front of the motel, got out of his car, and “started running towards” defendant.

As defendant reached a staircase, Sergeant Park observed that he made a “motion of his right hand going towards his mouth,” which signified to the officer that he may be swallowing drugs, and ran up the stairs. Sergeant Park “gave chase” up the stairs, as defendant reached the second floor balcony at the top of the staircase and “started to walk away in a hurried pace again.” Defendant then began “throwing personal items over the railing” of the balcony. Sergeant Park repeatedly ordered defendant to “stop” and “get on the ground,” but defendant did not comply. According to Sergeant Park, he had a good view of defendant in the alley illuminated by the patrol vehicle spotlight, and maintained a “continuous view” of him thereafter–except for a “second or two” when defendant turned the corner of the building.

Sergeant Park caught defendant on the balcony and pushed him to the ground. Defendant’s right hand disappeared into the “belly area” of his bulky clothing, which caused the officer concern that he might be “in possession of a weapon.” Sergeant Park “unholstered” his firearm, pointed it at defendant and commanded him to “lay down on the ground.” Again defendant did not comply. He froze momentarily, then stood up, lunged abruptly and contacted Sergeant Park’s arm, causing the gun to discharge into the ceiling above.

After the shot was fired defendant immediately raised his hands and dropped to the ground as ordered by Sergeant Park, whereupon he was handcuffed. Defendant remained “agitated and hostile.” A search of defendant uncovered a key to room 24 of the motel. No weapon or drugs were found in defendant’s personal possession.

After backup officers arrived the motel room was searched. DMV paperwork, a car registration, and other documents with defendant’s “name on it” were found. Defendant was the only person registered in room 24, and no “paperwork belonging to anybody else” was found. A large clear plastic bag that contained 24 “rocks” of crack cocaine, each one individually wrapped in plastic with a knot at the top, having a total weight of 3.73 grams, was found in a drawer in the motel room. The officers did not discover a cell phone, smoking pipe or other drug paraphernalia, packaging material, or money in the room or in defendant’s possession. Defendant continued to exhibit “hostile and uncooperative” behavior, so Sergeant Park did not administer a test to determine if he was under the influence of drugs. Sergeant Park “couldn’t tell” from defendant’s appearance and conduct if he was “under the influence” of cocaine.

Two “small knotted pieces” of plastic baggies were observed at the base of the stairs where Sergeant Park had seen defendant throw “something down.” The knots appeared to have been bitten or torn off plastic baggies, and were “similar” in size to the knots on the baggies of crack cocaine found in defendant’s motel room. A plastic bag which contained loose tobacco, a piece of paper and match sticks was left on the railing outside the room.

The bag was apparently found by an officer in the vicinity on the ground, and placed on the railing.

Sergeant Park also testified that crack cocaine is typically ingested by smoking it. The rocks are broken into smaller pieces and mixed together with tobacco into cigarettes. The “high” from smoked crack cocaine lasts about 15 to 20 minutes, and a heavy user may consume five to 10 rocks a day.

Detective Lucero of the Vallejo Police Department undercover narcotics unit testified as an “expert in the possession for sale of cocaine base.” He reviewed the arrest reports in the case, and discussed the incident with the Sergeant Park and other officers who were present. Detective Lucero concluded that the cocaine seized from defendant’s motel room “was possessed for sale.” He based his conclusion on several factors: the “large amount” of rock cocaine in “prepackaged” form; the individual packaging of each “$20 rock,” “tied with a knot on the end of the plastic wrap,” a method “commonly” used by street level dealers; the “location where this incident occurred is known for drug-sales related activity” and other crimes; the observation of an apparent “hand-to-hand transaction” by Sergeant Park across from the motel; and the lack of any “instruments for using rock cocaine” found during the search of defendant and the motel room, which, he testified, users “always possess.” Detective Lucero had never encountered “only a user” who had 24 individual rocks of cocaine in his possession, although he testified that some “drug dealers” “do sell to supplement the cost of their use.” In Detective Lucero’s experience the “largest quantity of cocaine base” he had previously discovered in possession of a “personal user and not a seller” of crack cocaine is “one or two rocks.”

Detective Lucero also testified that he personally arrested defendant for possession for sale of cocaine base on August 15, 2001. Detective Lucero responded to a report of “a person selling drugs” at Shasta and Florida Streets in Vallejo. He encountered defendant, who was dressed in “clothing as described by the caller,” standing on the corner. He was nervous, “physically shaking,” and “kept trying to reach under his jacket.” When defendant was searched he was found in possession of marijuana and 57 individually wrapped pieces of rock cocaine in a plastic bag, with a total weight of 7.11 grams. Detective Lucero formed the opinion at the time of the arrest that defendant possessed the cocaine “for sale.” A stipulation was entered that “based on the contact” by Detective Lucero with defendant, he suffered a conviction of possession for sale of cocaine base on December 7, 2001.

The trial court instructed the jury to consider the prior conviction only for “the limited purpose of whether or not the defendant acted with the intent to possess cocaine base for sale in this case.”

Defendant admitted in his testimony that he possessed the cocaine, but claimed it was only for his personal use. Defendant testified that he had been “using crack for six years, since 2001,” and also smoked marijuana and drank alcohol daily. He usually smokes between five and 10 rocks per day. According to defendant, he buys cocaine in “big amounts,” to last him “four or five days.” He purchases a “bulk amount” to get “a deal” on the price, and so he does not need “to go back on the street” as often. His drug purchases are financed with $500 a month he receives in SSI disability payments, additional money he occasionally receives from his father, or income from “odd jobs.”

Defendant testified that he purchased 24 rocks of cocaine for $200 the day of his arrest. That night, he was drunk. He was returning to his motel room when he observed a police vehicle driving on Sonoma Boulevard near Nation’s Giant Hamburgers. After the patrol car drove up the hill, defendant noticed “two individuals” running “from the alley” or the “parking lot of Nation’s,” across the street, into a room at the Traveler’s Inn Motel where he lived. Defendant continued to walk up the stairs toward his motel room. When defendant reached the landing above the stairs, he stopped and pulled out his tobacco to roll a cigarette. Defendant testified that he did not see or hear Sergeant Park until the officer ran up the stairs and appeared “face to face” in front of him on the second floor. He did not run from Sergeant Park.

Sergeant Park then “pulled his gun” on defendant and ordered him to “lay down on the ground.” Before defendant could respond, other than to put his hands up–that is, less than a second later–Sergeant Park’s “gun went off.” Defendant immediately fell to the ground as he was tackled by Sergeant Park. Defendant insisted that he did not touch or resist the officer in any way.

Defendant also denied that he had any crack cocaine with him; all of it was in the dresser in his motel room. He testified that to avoid discovery by motel cleaning staff or by his parole agent during an “unexpected” search, he did not keep his smoking pipes or other drug paraphernalia in his room. Defendant thought the cocaine was safe in the dresser because his parole agent would not search there without a “legitimate reason.”

DISCUSSION

The sole contention presented by defendant in this appeal is that the evidence does not support the conviction for possession for sale of cocaine base. He specifically claims that the evidence fails to prove his intent to sell the cocaine found in his motel room. He acknowledges Detective Lucero’s expert opinion testimony that the cocaine was possessed for sale, but maintains that the officer’s opinion was “biased,” and failed to take into consideration defendant’s use of a “large amount of cocaine base on a daily basis” and the lack of any drug sales paraphernalia discovered in the room.

“In order to secure a conviction of a violation of Health and Safety Code section 11351, the prosecution must prove beyond a reasonable doubt that (1) the defendant exercised dominion and control over the controlled substance, (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it.” (People v. Parra (1999) 70 Cal.App.4th 222, 225–226, italics added; see also People v. Montero (2007) 155 Cal.App.4th 1170, 1175.) The element of intent to sell, like the remaining elements of the crime, “may be established by circumstantial evidence” and any reasonable inferences drawn from that evidence. (People v. Harris (2000) 83 Cal.App.4th 371, 374; see also People v. Morales (2001) 25 Cal.4th 34, 41; People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)

Our role as “an appellate court in reviewing the sufficiency of the evidence is limited.” (People v. Ceja (1993) 4 Cal.4th 1134, 1138; see also People v. Lewis (2001) 25 Cal.4th 610, 643; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) “[W]e ask not whether there is evidence from which the trier of fact could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellant’s guilt, i.e., evidence that is credible and of solid value, from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, our sole function as a reviewing court in determining the sufficiency of the evidence is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (In re Michael M. (2001) 86 Cal.App.4th 718, 726, fns. omitted; see also In re Babak S. (1993) 18 Cal.App.4th 1077, 1088–1089.)

As a reviewing court we do not resolve creditability issues or evidentiary conflicts. Those determinations are made by the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955; see also People v. Wader (1993) 5 Cal.4th 610, 640.)

“However, ‘[e]vidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. . . .’ [Citation.]” (People v. Tripp, supra, 151 Cal.App.4th 951, 955–956; see also People v. Wader, supra, 5 Cal.4th 610, 640.) “ ‘Substantial evidence must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact.’ [Citation.]” (People v. Thongvilay (1998) 62 Cal.App.4th 71, 79.) To withstand an insufficiency of the evidence challenge, the trial court must find and the record must contain evidence substantial enough to support the finding of each essential element of the crime. (United States v. Gaudin (1995) 515 U.S. 506, 522–523; People v. Johnson (1992) 5 Cal.App.4th 552, 558.) That means not only every element of the offense, but also all of the “facts necessary to establish each of those elements.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278; see also People v. Crawford (1997) 58 Cal.App.4th 815, 821.)

Detective Lucero’s expert opinion testimony that the cocaine was possessed for sale furnishes substantial evidence of the intent to sell element in the present case. In cases involving possession of controlled substances, “ ‘experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld. [Citations.]’ [Citation.] Thereafter, it is for the jury to credit such opinion or reject it.” (People v. Harris, supra, 83 Cal.App.4th 371, 374–375; see also People v. Chakos (2007) 158 Cal.App.4th 357, 365; People v. Carter (1997) 55 Cal.App.4th 1376, 1377–1378.) Detective Lucero was an experienced, qualified expert–defendant does not claim otherwise–and offered convincing reasons for his professed opinion that defendant intended to sell rather than merely use the cocaine found in his room, foremost among them the large quantity of the “24 rocks” of cocaine seized. “Intent to sell can be established circumstantially by the quantity of the drugs in defendant’s possession.” (People v. Austin (1994) 23 Cal.App.4th 1596, 1614.) In addition the officer cited as supporting factors the nature of the packaging of the drugs, the high incidence of drug sales in the area, the lack of any user paraphernalia in defendant’s room, and defendant’s act of “handing something off” to another person at a nearby street corner that was observed by Sergeant Park just before the search.

Defendant contests the credibility of Detective Lucero’s testimony, however, by asserting that it conflicts with other evidence offered in the case. Defendant points out that he was not the “typical crack head” described by Detective Lucero who could afford to purchase and possess for his personal use only “one or two rocks” of cocaine, but rather had income sufficient to “buy at a given time large amounts of crack cocaine for personal use.” Defendant testified that he was a heavy user of rock cocaine and often purchased large quantities of drugs, as he had done just that day. He adds that the lack of user paraphernalia mentioned as a factor by Detective Lucero is of no consequence here in light of defendant’s testimony that he often used disposable instruments to smoke cocaine, and did not keep them in his motel room to avoid detection by cleaning personnel or his parole agent. He also asserts that the lack of any drug sales paraphernalia found in his motel room–packaging material, scales, a cellular telephone, pay-owe sheets, or money–contradicts the officer’s conclusion that he “was a drug dealer.” Finally, defendant claims that Detective Lucero was not an “unbiased expert,” but a police officer who had “previously arrested” him for possession of cocaine base for sale.

While defendant did present some evidence that may have conflicted with Detective Lucero’s testimony, in our restricted role as reviewing court we can resolve “ ‘neither credibility issues nor evidentiary conflicts.’ [Citation.]” (People v. Mejia (2007) 155 Cal.App.4th 86, 93.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403; see also People v. Lewis (2001) 26 Cal.4th 334, 361; People v. Franz (2001) 88 Cal.App.4th 1426, 1447.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young, supra, 34 Cal.4th 1149, 1181; see also People v. Panah (2005) 35 Cal.4th 395, 489; People v. Jackson (1992) 10 Cal.App.4th 13, 21.) “ ‘ “To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.” . . . “ ‘Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. . . . To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. . . .’ ” ’ ” (People v. Franz, supra, at p. 1447, quoting from People v. Mayberry (1975) 15 Cal.3d 143, 150.)

We find no indication in the record that Detective Lucero’s prior experience with defendant made him a biased expert witness, and his opinion testimony is hardly so inconsistent with the facts or unsupported that it is subject to repudiation or impossibility of belief. (People v. Cantrell (1992) 7 Cal.App.4th 523, 538.) In his testimony, Detective Lucero specifically mentioned the absence of sales paraphernalia in defendant’s room. He explained that street level dealers of rock cocaine normally do not have in their possession any packaging materials, scales, or “pay-owe sheets,” and often keep cash in another location in case “they are stopped” or “approached by somebody who is out to rob them.” The officer further testified that his opinion was not changed “in this particular instance” by any evidence that defendant had adequate funds to purchase “large quantities of crack” for personal use, or the fact that user paraphernalia such as smoking instruments were inexpensive enough to be frequently thrown away. Detective Lucero’s opinion is also corroborated by Sergeant Park’s observation of a “hand-to-hand” motion by defendant that immediately preceded the seizure of the packages of rock cocaine, and defendant’s prior conviction of possession for sale of cocaine base, which is probative of intent to sell the drugs on this occasion. (See People v. Ellers (1980) 108 Cal.App.3d 943, 953; People v. Pijal (1973) 33 Cal.App.3d 682, 691.) Detective Lucero’s expert opinion testimony, which we find credible, along with the corroborating evidence of intent to sell, is sufficient to support the conviction for a violation of Health and Safety Code section 11351.5. (People v. Harris, supra, 83 Cal.App.4th 371, 374–375; People v. Parra, supra, 70 Cal.App.4th 222, 227.)

He testified that in his experience crack pipes or other smoking instruments are “very important” to drug users, and “they keep their tools.”

Accordingly, the judgment is affirmed.

We concur: Marchiano, P. J., Margulies, J.


Summaries of

People v. Perry

California Court of Appeals, First District, First Division
Mar 27, 2008
No. A117278 (Cal. Ct. App. Mar. 27, 2008)
Case details for

People v. Perry

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID MICHAEL PERRY, Defendant…

Court:California Court of Appeals, First District, First Division

Date published: Mar 27, 2008

Citations

No. A117278 (Cal. Ct. App. Mar. 27, 2008)