Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F02403
ROBIE, J.
A jury found defendant Deandre Smith guilty of possessing cocaine base for sale. The court suspended imposition of sentence and placed him on five years’ probation.
On appeal, defendant contends: (1) there was insufficient evidence of intent to sell; (2) the court erred in instructing with a now-superseded version of CALCRIM No. 358; and (3) the court erred in handling the jury’s request for a readback of testimony. Disagreeing with these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was enrolled in the Sacramento County sheriff’s work project program. In March 2008, defendant violated the terms of the program by failing to show up three times. Because of the violations, defendant was subject to arrest. To get defendant to come in the work project office, Sacramento County Sheriff Deputy Randal Wolter told defendant he needed to come into the office to be reinstated in the program.
Defendant came to the work project office in the afternoon on March 26, 2008, and was arrested by Deputy Wolter, Deputy Joe Studer, and Deputy Andris Chaparro. Deputy Studer “did a quick pat-down search” and shackled defendant’s ankle to a bench that was bolted to the floor of the holding room. The deputies then left defendant unattended for about 10 minutes.
When the deputies returned, defendant was still shackled but lying on the floor. Deputies Wolter and Chaparro put him back on the bench. Just as they were about to do a more thorough search of defendant prior to taking him to jail, Deputy Wolter saw a small plastic bag adjacent to the bench and behind what was once a closed door. Deputy Wolter asked Deputy Chaparro, “What is that?” Defendant immediately responded, “It wasn’t his.” Inside the bag were eight individually-wrapped rocks of cocaine base ranging in weight from.07 grams to.18 grams that weighed a total of 1.14 grams.
According to Sacramento County Sheriff Detective Jon Eubanks, an 18-year law enforcement veteran whom the court qualified as an expert in narcotics, the cocaine base was possessed for sale. Factors he considers when determining whether cocaine base is possessed for sale include the amount of drug present, the packaging, the existence of drug paraphernalia, money, and text messages on the suspect’s cell phone. Here, Detective Eubanks based his opinion the cocaine base was possessed for sale on the fact there were eight individually-packaged rocks, the total amount was more than one user would consume in a day, and there was no device to ingest the cocaine base.
DISCUSSION
I
There Was Sufficient Evidence Of Intent To Sell
Defendant contends there was insufficient evidence of intent to sell. He takes issue with Detective Eubanks, who he claims did not have “significant training or experience in the sale of drugs” and based his expert opinion on the “operating principle... that if it’s more than two rocks individually packaged then it must be for sale.” Defendant’s argument regarding Detective Eubanks’s qualifications is forfeited. His argument regarding the insufficiency of evidence based on the detective’s alleged “operating principle” is not supported by the facts.
In possession for sale cases, “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.]” (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862.) To the extent defendant challenges Detective Eubank’s qualifications as an expert to make this determination, he has forfeited the contention by failing to raise it in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 356-357.)
As to defendant’s argument regarding the insufficiency of evidence, Detective Eubanks never testified he had an “operating principle” that if a suspect possessed more than two individually-packaged rocks of cocaine base, the cocaine must be possessed for sale. His opinion that the cocaine base here was possessed for sale was based on the fact there were eight individually-packaged rocks, the total amount was more than one user would consume in a day, and there was no device to ingest the cocaine base. On this record, defendant’s insufficiency-of-evidence argument fails.
II
The Court Did Not Err In Instructing Pursuant To CALCRIM No. 358
Defendant contends the court violated his “right to a fair trial and due process” by instructing the jury pursuant to a now-superseded version of CALCRIM No. 358, which stated the jury “must consider with caution evidence of a defendant’s oral statement, unless it was written or otherwise recorded.” The current version of CALCRIM No. 358 states, “[Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]” The Bench Notes state, “the court has a sua sponte duty to give the bracketed cautionary instruction when there is evidence of an incriminating out-of-court oral statement made by the defendant.”
Defendant’s argument based on giving the now-superseded version of CALCRIM No. 358 fails. The only out-of-court statement to which the instruction applied was his statement the plastic bag “wasn’t his.” This statement was incriminating. (See People v. Osslo (1958) 50 Cal.2d 75, 93 [a defendant’s false statements concerning matters within the defendant’s own knowledge are admissions of guilt]; People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669-1670 [a suspect’s false disavowal of ownership of an item intended to ward off suspicion indicated the suspect’s consciousness of guilt].) As such, the instruction told the jury to view defendant’s incriminating statement with caution, which benefited him. On this record, defendant’s argument the instruction violated his constitutional rights fails.
We reject as unreasonable defendant’s suggestion the jury could have interpreted this instruction to apply to his not guilty plea. The jury was instructed defendant was “presumed to be innocent” and “[t]his presumption require[d] that the People prove the defendant guilty beyond a reasonable doubt.”
III
The Court Did Not Err In Its Handling Of The Jury’s Request For Readback Of Testimony
Defendant contends the court erred in handling the jury’s request for a readback of Deputy Wolter’s testimony. To put defendant’s contention in context, we provide background on the jury’s request and the court’s response below.
The court instructed the jury “[i]f there [wa]s a disagreement about the testimony... [it] may ask that the court reporter’s record be read to [it].” “If [it] ha[d] questions, [the court] w[ould] talk to the attorneys before [the court] answer[ed] them, so it may take some time.... [The court] w[ould] answer any questions in writing or orally here in open court.”
The jury began deliberating at 11:05 a.m. on the same day, and thereafter, the court and attorneys had the following exchange:
“THE COURT: When I do get an inquiry from the jurors in writing, I’ll take a look at it. I’ll see if I can write a response to it. Then I’ll have the clerk call each of you on the telephone, read you their inquiry, read you the Court’s proposed response. [¶] If you both agree to that, let the clerk know, and she’ll just make a minute order indicating the question, proposed answer, both counsel agree[] they will use it, type it out, send it into the jury. If we don’t agree, we’ll just come on in here in open court and discuss it. Is that process agreeable with the People?”
“[THE PROSECUTOR]: Yes, Your Honor.
“THE COURT: Defense?
“[DEFENSE COUNSEL]: Yes.”
The clerk’s minutes of that day reflect the following additional action in the case:
“At 12:00 p.m., communication was received from the jury requesting readback of Deputy Wolter’s testimony. With no objection of counsel, the court reporter entered the deliberation room and read back the requested testimony.
“At 2:02 p.m., communication was received from the jury requesting read back of Sergeant Marchese’s testimony.
“At the conclusion of readback of Officer Wolter’s testimony, the jury notified the Court that they [sic] wished to withdraw their [sic] request for readback of Sergeant Marchese’s testimony.”
On appeal, defendant argues “the court committed reversible error and denied [him] effective assistance of counsel when it failed to notify and seek trial counsel’s input regarding the jury’s requested readback of specific portions of Wolter’s testimony.”
The record we have just recounted belies defendant’s argument. According to the minutes, after “communication was received from the jury requesting readback of Deputy Wolter’s testimony,” there was “no objection of counsel,” and “the court reporter entered the deliberation room and read back the requested testimony.” This entry demonstrates defense counsel was notified about the readback and had no objection to it. Defendant is therefore wrong when he argues “counsel was not allowed to participate in the decision or to vocalize any objections to the court’s intended course of action.” On this record, there is no error.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., RAYE, J.