Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA030499. Lisa M. Chung, Judge.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Joseph Eric Senegel was convicted, following a jury trial, of one count of possession of cocaine for sale in violation of Health and Safety Code section 11351.5 and one count of resisting executive officers in the performance of their duties in violation of Penal Code section 69. The trial court sentenced appellant to the upper term of five years in state prison for the cocaine conviction and to a concurrent two-year term for the Penal Code section 69 conviction.
Appellant appealed from the judgment of conviction, contending that there is insufficient evidence to support his conviction for possession of cocaine for sale, and further contending that the trial court's imposition of the upper term violated his Sixth Amendment right to a jury trial. We affirmed the judgment of conviction.
Appellant filed a petition for review with the California Supreme Court, which was denied on August 16, 2006. Appellant then filed a petition for writ of certiorari with the United States Supreme Court. The court granted this petition and, on February 20, 2007, remanded the case to this court for further consideration in light of its opinion in Cunningham v. California (2007) 549 U.S. ___. At our request, the parties submitted letter briefs addressing the effect of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. Appellant maintains his contention that his sentence is constitutionally invalid and further contends that Black is wrongly decided. We affirm the judgment of conviction.
Facts
About 7:30 p.m. on December 8, 2004, Los Angeles County Deputy Sheriff Paul Zarris and partner Deputy Robinson were on patrol in Lancaster when deputy Zarris noticed appellant standing next to a parked Mazda on 13th Street West.
The deputies stopped their car and approached appellant to question him. Deputy Zarris noticed a strong odor of marijuana, conducted a pat-down search of appellant and recovered a pill bottle containing a substance later determined to be rock cocaine.
Deputy Zarris handcuffed appellant and began to walk him to the patrol car. Appellant broke free, kicked Deputy Zarris in the stomach, and began running away. The deputies followed appellant and eventually recaptured him.
A bag of marijuana was also recovered from appellant. No items were recovered that could be used to ingest cocaine. Appellant was not under the influence of cocaine at the time of his arrest.
Los Angeles County Deputy Sheriff Kerry Levenson testified as a narcotics expert. The pill bottle found on appellant contained five grams of cocaine, or a total of about 250 doses. The cocaine had been cut into 20 pieces, each worth about $20, for a total value of about $400. This was the size typically sold at street level. Officer Levenson had come across sellers who had pieces of pre-cut cocaine in a container, but the pieces were not individually wrapped. Officer Levenson also testified that a typical chronic user of cocaine would possess only one piece at a time and would use cocaine as fast as he could get it, typically using cocaine every two to four hours. A chronic user would typically be under the influence of cocaine for the entire day. Officer Levenson had never met a user who bought a large amount at one time for personal use.
It was Officer Levenson's opinion that appellant possessed the cocaine for purposes of sale.
Appellant testified in his own behalf that he possessed the cocaine for personal use. He denied selling cocaine.
A friend of appellant's testified that he observed appellant's arrest, but did not see appellant kick either of the deputies at any time.
Discussion
1. Sufficiency of the evidence
In his initial appeal, appellant contended that there was insufficient evidence to show that he possessed the cocaine with the specific intent to sell it. We found sufficient evidence, and affirmed the judgment of conviction. Nothing in Cunningham causes us to reconsider our holding on this issue on remand. There is sufficient evidence of appellant's specific intent.
In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics omitted.)
The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 514, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)
As appellant acknowledges, the intent to sell a controlled substance may be established by circumstantial evidence. (See People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on other grounds by People v. Daniels (1975) 14 Cal.3d 857, 862.)
Here, appellant possessed over five grams of cocaine, broken down into 20 pieces. Each piece was worth about $20. Appellant was not under the influence of cocaine when he was arrested, and police found no devices for ingesting cocaine. The prosecution presented the expert testimony of Officer Levenson that cocaine users rarely possess more than one piece of rock cocaine at a time and that a heavy user of cocaine would typically be under the influence the entire day, using cocaine every two to four hours. The expert also testified that the size and amount of cocaine possessed by appellant was consistent with "street level" sales. It is more than reasonable to infer from this evidence that appellant possessed the cocaine with the intent to sell it.
Appellant points out that the rocks were not individually packaged, and that police found no scales, pay-owe sheets or other paraphernalia associated with drug sales. He also points out that Officer Levenson testified that 20 pieces of cocaine was "not a high volume in terms of the average seller" and did not testify that 20 pieces of cocaine was more than an individual could use in a short period of time. Since we have found that the evidence supports a reasonable inference that appellant did intend to sell the cocaine, reversal is not warranted by the fact that the circumstances might also be reasonably reconciled with a finding that appellant did not intend to sell the cocaine. (See People v. Thomas, supra, 2 Cal.4th at p. 514.)
2. High term
Appellant maintains on remand that the imposition of the upper term is constitutionally invalid. We do not agree.
In Cunningham, supra, the U.S. Supreme Court held that California's procedure for selecting an upper term violated a defendant's Sixth and Fourteenth Amendment rights to jury trial because it gave the judge, not the jury, the authority to find facts that exposed a defendant to an elevated upper term sentence. The court explained that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].)
The California Supreme Court has explained the application of Cunningham to California's sentencing law: "Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California's current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court's exercise of its discretion in selecting the appropriate term from among those authorized for the defendant's offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (People v. Black, supra, 41 Cal.4th at pp. 815-816.)
Here the trial court sentenced appellant to the upper term because he was on probation at the time of the present offense and committed a violence-related offense as a juvenile, and because he could have been sentenced consecutively on the other count in this case but was not. The court found no factors in mitigation.
Even assuming that the first two factors given by the court were improper under Cunningham, the third was not. Appellant was convicted by a jury of the second count in this case, resisting arrest. That fact rendered him eligible for consecutive sentences. The fact that a defendant could have been sentenced consecutively, but was not, is a recognized aggravating factor under California law. (Cal. Rules of Court, rule 4.421(a)(7).)
The decision to sentence consecutively need not be based on facts found true by a jury. A jury's verdict finding the defendant guilty of two or more crimes authorizes a consecutive sentence. (People v. Black, supra, 41 Cal.4th at pp. 820-821.) Factual findings are not required under California law to support the imposition of consecutive sentences, and the trial court may consider the relationship between the two crimes and any circumstance in aggravation or mitigation. (Id. at pp. 822-823.) Appellant's juvenile record or probation status would qualify as a reason for consecutive sentences.
To preserve all his claims, appellant contends that the California Supreme Court erred in holding in Black that one constitutionally valid aggravating factor is sufficient to support the upper term under Cunningham. Appellant contends that Cunningham requires that all aggravating facts relied on by the trial court be found true by a jury, with the exception of the fact of a prior conviction. He further contends that the single factor rule violates California's Determinate Sentencing Law at the time he was sentenced. Appellant also contends that the court in Black reads the prior conviction exception too broadly. We are bound by the decision of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.