Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super.Ct.No. SWF018417. Bernard Schwartz, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
A jury found appellant and defendant Perry Lamar Sterling guilty of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count 1), and possession of methamphetamine for sale (§ 11378, count 2). Defendant admitted the enhancement allegations that he had previously suffered two narcotics-related convictions within the meaning of section 11370.2, subdivision (a) and had served four prior prison terms. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced him to a total term of 11 years in state prison.
All further statutory references will be to the Health and Safety Code unless otherwise noted.
On appeal, defendant contends that 1) there was insufficient evidence to support the conviction for possession of methamphetamine for sale in count 2, and 2) the court committed prejudicial error regarding the late disclosure of a prosecution expert witness. We affirm.
FACTUAL BACKGROUND
On October 4, 2006, Officer Phillip Rice was on patrol and observed a traffic violation. He conducted a traffic stop and noticed that the car had a cracked windshield and no rear or front license plates. There were two occupants in the car. Taheemah Sweeney was the driver and defendant was the passenger. Officer Rice requested a backup unit for assistance and waited on the passenger’s side of the car. Officers Sam Morovich and Jason Trudeau arrived, and Officer Rice walked to the back of the car to brief them about the situation. While Officer Rice was briefing them, Officer Trudeau observed defendant “making movements with the left side of his body and his left hand.” Officer Trudeau did not see any movement of defendant’s right hand, and he did not recall if defendant was wearing a seat belt at that point. Officer Trudeau testified at trial that he also did not recall seeing a seat belt “come into or go out of view at all.” Officer Morovich took defendant out of the car and had him walk to the back of the car. As defendant exited the car, Officer Trudeau stood by observing defendant’s hands, since he “was concerned about the area where [defendant] was making that movement with the left side of his body and his left hand.” There was nothing in defendant’s hand, so Officer Trudeau assumed he left something behind, possibly a weapon. He glanced at defendant and then looked back in the car and saw Sweeney “lifting an object from the area where [defendant] was making movements.” Officer Trudeau ordered Sweeney to drop the object. Officer Trudeau testified that only a “millisecond” elapsed between the time defendant exited the car and Sweeney lifted the object from its position on the car seat. He said it “was basically simultaneous.”
After Sweeney exited the car, Officer Trudeau retrieved the object, which was a six- or seven-inch long, shiny metal cylinder. The cylinder contained a substance later determined to be 8.92 grams of methamphetamine. Based on their training and experience, Officers Trudeau and Rice opined that the amount of methamphetamine in the cylinder was too much for personal use and was, thus, possessed for sale. Officer Rice testified that a typical dose of methamphetamine would be 0.1 grams.
Officer Rice searched Sweeney and found a cigarette pack wrapped in cellophane in her purse. Inside the cellophane was a small baggie containing a substance later identified as 0.4 grams of methamphetamine.
Meanwhile, Officer Morovich searched defendant and found a clear “Tic Tac box” in his pants pocket that contained a white, crystal substance which was determined to be methamphetamine. (rt 69, 140-141} Officer Morovich opined that because the amount found in the box was small, the methamphetamine was possessed for personal use. Officer Morovich also found a spoon containing a residue of crystalline substance on defendant. Officer Rice opined that the spoon would have been useful for scooping small amounts of methamphetamine out of the metal cylinder for personal use or for sale. In contrast, Officer Morovich opined that the spoon would not fit in the cylinder.
Neither defendant nor Sweeney appeared to be under the influence of methamphetamine. The police did not find any scales, pay/owe sheets, or large amounts of cash on defendant or Sweeney.
Expert witness Detective Marc Bender testified at trial that small-scale methamphetamine dealers, or those who sell in quantities such as single or half grams, are mostly users who sell to support their drug habits. He further testified that small-scale dealers generally work in teams.
ANALYSIS
I. There Was Sufficient Evidence to Support the Conviction in Count 2
Defendant contends there was insufficient evidence that he possessed methamphetamine for sale. He argues that the metal cylinder was found in Sweeney’s car, and there was no substantial evidence he ever possessed it. In addition, defendant claims the evidence did not show that he possessed the methamphetamine for sale. We disagree.
A. Standard of Review
In reviewing a criminal conviction challenged as lacking evidentiary support, “we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that 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. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).) The same standard of review applies in cases where the People rely primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
“Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (Bolin, supra, 18 Cal.4th at p. 331.) Furthermore, “[i]n deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) It is the jury, not the reviewing court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Accordingly, 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. (Ibid.)
B. The Evidence Was Sufficient
“In order to sustain a conviction of possession of narcotics or a dangerous drug for sale, the prosecution must show that the accused had control over the contraband with knowledge of its character, and that such possession was for the purpose of sale. [Citations.] On review, the sole question is whether there is substantial evidence to sustain the implied finding that each of the foregoing elements has been established. [Citations.] It is established that possession for the purpose of sale may be established by circumstantial evidence, and that the quality and value of the contraband held, particularly when viewed in the light of expert testimony, are factors which may indicate that the contraband was held for the purpose of sale rather than individual use. [Citations.]” (People v. Shipstead (1971) 19 Cal.App.3d 58, 77.)
As defendant acknowledges, possession of a controlled substance for the purpose of sale may be constructive, and this element of the offense may be proved by circumstantial evidence. Here, Officer Trudeau testified that he saw defendant “making movements with the left side of his body and his left hand.” When defendant exited the car, there was nothing in his hand, so Officer Trudeau assumed defendant left something behind. Then, according to Officer Trudeau, about a “millisecond” later, Sweeney lifted the metal cylinder containing nearly nine grams of methamphetamine “from the area where [defendant] was making movements.” These circumstances reasonably justify the jury’s finding that defendant had possession of the cylinder of methamphetamine, at least at one point.
Defendant argues that “[n]o one ever saw [him] in possession of the cylinder,” since Officer Trudeau first saw the cylinder in Sweeney’s hand. He further contends that although he was seen moving his left hand, he “very well could have been unlatching his seatbelt.” As discussed above, there was ample circumstantial evidence that defendant was in possession of the cylinder at one point, and that he dropped it before exiting the car with the officer. Moreover, the contention that he “could have been unlatching his seatbelt” is simply speculation, since there was no evidence to support that theory.
Defendant also avers that “the fact the cylinder was found in Sweeney’s car, which she was driving, is evidence that she, not appellant, was its sole possessor.” He adds that the fact that Sweeney pled guilty to the charge of possession of methamphetamine for sale shows she was the sole possessor of the metal cylinder. We disagree. “It is necessary to a finding of either actual or constructive possession that the accused had the right to exercise dominion and control over the contraband or at least that he had the right to exercise dominion and control over the place where it was found. [Citation.] Conviction is not precluded, however, if the defendant’s right to exercise dominion and control over the place where the contraband was located is shared with another. [Citations.] Additionally, even though there is no evidence that he, himself, had possession, a defendant may be convicted of possession of marijuana as a principal if he aided and abetted the possession of another. [Citations.]” (People v. Valerio (1970) 13 Cal.App.3d 912, 921.) The jury could have reasonably inferred from the circumstantial evidence that defendant possessed the metal cylinder containing the methamphetamine, and then “ditched” it by dropping it on the seat. Sweeney immediately picked the cylinder up, and then the police spotted it in her hand. Thus, defendant exercised dominion and control over the contraband, or at least shared dominion and control over it with Sweeney.
Finally, defendant claims the evidence did not show he possessed methamphetamine for sale, since there was no “sales indicia, such as scales, pay/owe sheets, or large sums of money” found. Nonetheless, there was more than enough evidence that defendant possessed the methamphetamine for sale. The “testimony of a single witness is sufficient to support a conviction.” (Young, supra, 34 Cal.4th at p. 1181.) Based on their training and experience, Detective Bender, Officer Trudeau, and Officer Rice all opined that the amount of methamphetamine in the cylinder was possessed for sale.
Viewing the evidence in the light most favorable to the judgment, as we must, we conclude there was sufficient evidence to support defendant’s conviction for possession of methamphetamine for sale.
II. The Trial Court Did Not Abuse Its Discretion in Its Response to the People’s Alleged Late Discovery
Defendant contends that the court erred in denying his motion for a mistrial or continuance and his request that the jury be instructed on late discovery as a remedy for the prosecution’s untimely disclosure of expert witness Detective Bender. Defendant claims Detective Bender testified that low-level methamphetamine dealers “always” work in teams, and that such testimony was severely prejudicial to him since his defense was that Sweeney alone possessed the metal cylinder containing the nearly nine grams of methamphetamine. We conclude the court properly denied defendant’s motions, since Detective Bender did not testify that methamphetamine dealers always work in teams.
A. Procedural Background
Both parties announced they were ready for trial on the afternoon of Tuesday, June 5, 2007. Jury selection took place the next day. Testimony commenced on Thursday, June 7, 2007. By that afternoon, Officers Rice, Trudeau, and Morovich had completed their testimonies.
Then, out of the presence of the jury, the prosecutor informed the court that Detective Bender would be testifying the following day. Defense counsel sought to exclude his testimony as cumulative, arguing that Bender would be the third witness to offer an expert opinion that the drugs found in Sweeney’s car were possessed for sale. The prosecutor responded that Detective Bender was uniquely qualified to testify regarding how methamphetamine is trafficked, whether or not a certain amount is held for sales at a certain level, whether a person would be considered a pure dealer, user/dealer, or user, and whether or not drugs were sold by people who worked in teams. The prosecutor explained that these issues were critical to the People’s theory.
The parties revisited the issue of Detective Bender’s testimony later that day. Defense counsel asked for a late discovery instruction. The court stated that the defense may be entitled to a late discovery instruction and possibly a continuance; however, it questioned whether a continuance was necessary since defense counsel indicated he had heard Detective Bender testify numerous times before. Defense counsel responded that he had never heard anything about “the team theory of methamphetamine sales.” The prosecutor interjected that although he believed the “team theory” would be relevant to counter the defense theory that one person was the seller and one person was a buyer, he was not sure Detective Bender would present such testimony. The court stated the defense was entitled to know the content of the proposed expert testimony, and suggested that the prosecutor disclose such information to defense counsel that evening or the next day. The court said it could address any problems after that, and also suggested that defense counsel draft a proposed late discovery instruction.
The next day, defense counsel informed the court that he had received an e-mail with a long list of “things [the prosecutor would] like to get in” from Detective Bender; he objected to them all. Defense counsel focused on the proposed area of testimony regarding Sweeney being a female dealer. The prosecutor stated he thought Detective Bender would be able to render an opinion on the hypothetical of whether a woman carrying nine grams of methamphetamine for sale, with no visible self-protection, would likely sell the methamphetamine alone, given the value of the drugs, the danger of drugs, and “the overall trafficking pattern.” Defense counsel objected to Detective Bender giving an opinion, since defense counsel had never heard of this gender issue and thought it was ridiculous and offensive. Defense counsel first asked for a mistrial, or in the alternative, a continuance; if he were not granted either of those, he asked for a late discovery instruction. The court denied the motion for mistrial. As to the continuance, the court asked, “what is the time going to give you to be able to do as it relates to these particular limited issues?” Defense counsel responded that whenever he knew Detective Bender was going to testify, he prepared differently. Defense counsel wanted to go through “sources of transcripts that [he had].” The court asked when defense counsel first learned Detective Bender was going to be testifying, and defense counsel said on the day the trial started, or Tuesday. The prosecutor remarked that he did not hear the defense theory he was calling Detective Bender to refute until defendant’s opening statement. The court then asked defense counsel what he would do if given until Monday to prepare for Bender’s testimony. Defense counsel replied he would review past transcripts and “try to find something to refute this—the issue I’m most concerned about is the issue of the special treatment of women . . . .” The prosecutor offered to just ask Detective Bender “a gender neutral, two individuals in a car” fact pattern. The court said that would be fine. Defense counsel replied, “Well, my objection is not as strong in that case.” He then explained his concern that the jury had sexist notions and would think the man was the aggressor, and the woman was the junior seller; thus, if Detective Bender said that “no woman in her [right mind] would be in a car with nine grams of methamphetamine . . . .” The court stated, “So we eliminate the gender issue from it . . . .”
The court asked defense counsel what other issues he would need to research in order to prepare for Bender’s testimony. Defense counsel responded with, “That was the only issue that jumped up at me as extraordinarily offensive as a subject matter.” The court ruled that due to the late disclosure of the witness, it would preclude the prosecution from discussing the issue of gender in its hypothetical fact patterns. Defense counsel responded, “I appreciate that. That sounds fair.” He informed the court he had a late discovery instruction. The court stated it would review the instruction with the rest of the instructions, and if appropriate, give it at the end of the case. Defense counsel requested it be read before Detective Bender testified, but the court denied the request, explaining that if it read the instruction at the end of the case, defense counsel could argue it was late discovery. The court said there would be no prejudice to defendant, and defense counsel said, “Okay.”
Detective Bender proceeded to testify. On direct examination, he testified that small-scale dealers dealt with a lot of people who were addicted to drugs and were desperate and unpredictable. In those circumstances, there was a lot of violence and theft, so small-scale dealers generally made sure they had some “muscle” around, or a look-out. Detective Bender stated it was “very unusual to deal one-on-one with a small-scale dealer,” and that there were usually two or three people around. Detective Bender further testified that someone found with methamphetamine in the amount of approximately nine grams would typically be a small-scale dealer-user. The prosecutor also posed a gender-neutral hypothetical based on the facts of this case and asked Detective Bender if he had an opinion as to whether or not either or both of the people possessed the methamphetamine for sale. Detective Bender responded that both people in the hypothetical would be engaged in the sale of methamphetamine.
On cross-examination, defense counsel asked Detective Bender if it was his opinion that low-level dealers worked in teams. Detective Bender said, “They don’t have to, but they always do.” Defense counsel then asked, “You’ll never find somebody selling methamphetamine, carrying $120 worth of drugs, say, and not selling without what you call the muscle?” Detective Bender responded, “I wouldn’t say you would never find that. I can’t remember the last time I encountered that, but I wouldn’t say you would never find it.” Defense reiterated the question by saying low-level dealers “wouldn’t sell by themselves; right?” Detective Bender responded, “They just generally don’t.”
On Monday, June 11, 2007, defense counsel moved for a continuance, or in the alternative, to strike Detective Bender’s testimony, or to declare a mistrial. Defense counsel asserted that Detective Bender’s testimony was essentially that “people invariably sell methamphetamine in teams, they don’t sell it by themselves.” He then claimed that this testimony appeared “handcrafted to try to get a conviction in this case, because we have a situation here where we have one person who has pled guilty to selling, there are two people in the car, and this theory seems on its face like a way to get a conviction for [defendant] and kill two birds with one stone.” Defense counsel stated his perspective, based on his experience, was that the testimony at issue was “simply not true.” Defense counsel asked for a continuance, stating that he only found out Detective Bender was going to testify on the day of trial. He wanted a continuance to find an expert witness to contradict Bender’s testimony. In the alternative, defense counsel asked for the court to strike the portion of Bender’s testimony that “dealt with people invariably selling methamphetamine in teams, because it’s simply not credible.” As a last alternative, defense counsel asked for a mistrial.
The trial court recalled that Detective Bender did not testify that in every situation there would be two people selling, but he had merely opined that sellers often have a “weapon or muscle or a lookout” when they engaged in sales. The prosecutor concurred and argued that despite the alleged late disclosure of the witness, defense counsel had made no effort to procure an expert witness since learning Detective Bender would be testifying. The court denied the motion to strike the testimony, as well as the motion for mistrial. The court also denied the motion for a continuance, recalling it had earlier suggested that the prosecutor let defense counsel know exactly what Detective Bender’s testimony would consist of, and they would discuss any problems with the court the previous Friday. The court further recalled that defense counsel had previously asked for a continuance, but then after the court said it would exclude any reference to gender, defense counsel “felt confident and able to move forward.” The court reiterated that defense counsel had not attempted to get an expert witness. The court concluded that a continuance at that point, or a mistrial, would be inappropriate, especially since Detective Bender testified on cross-examination that people selling methamphetamine do not always sell in teams.
The defense later requested a late discovery instruction, which generally stated that the failure of the parties to disclose their evidence within the legal time limits “may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial.” The proposed instructed further stated: “The People failed to disclose that they intended to call Expert Witness Marc Bender, the qualifications of Marc Bender, his resume, training and experience, . . . the contents of Bender’s proposed expert [w]itness testimony, including the subject matter, the range of topics, the rationale underlying his analysis, . . . [A]ll of these things were not disclosed to defense within the legal time period. [¶] In evaluating the weight and significance of that evidence, you may consider the effect if any of that late disclosure.” In considering whether or not to give the instruction, the court noted that Detective Bender was named on the witness list as a potential witness, and was going to be called, depending on what the defense said. The court decided to deny the requested instruction as being irrelevant, since 1) Detective Bender’s testimony only became relevant as the trial started, and the prosecution provided the defense with the contents of Bender’s testimony at that time and thereby gave the defense sufficient time to prepare, and 2) the court could not imagine the jury basing its verdict on whether or not the prosecution disclosed Detective Bender’s testimony 30 days in advance or five days in advance, or during the course of the trial. The court denied the proposed instruction.
A. Standard of Review
Penal Code section 1054 et seq. requires the prosecution to disclose to the defense the names and addresses of persons it intends to call as witnesses at trial if this information is in the possession of the prosecuting attorney. Penal Code section 1054.7 provides that “[i]f the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred.”
“We generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard. [Citation.] In particular, ‘a trial court may, in the exercise of its discretion, “consider a wide range of sanctions” in response to the prosecution’s violation of a discovery order.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 299; see also People v. Lamb (2006) 136 Cal.App.4th 575, 581.)
B. The Court Properly Denied Defendant’s Motions
Defendant essentially argues that the court failed to properly remedy the prosecution’s late disclosure that Detective Bender would be testifying. To the contrary, when defense counsel first raised the issue, the court directed the prosecutor to disclose to defense counsel the content of the proposed expert testimony. After the prosecutor gave the defense an exhaustive list of items about which Detective Bender would testify, the only objection defense counsel raised was to Bender’s opinion regarding women selling methamphetamine. The court ruled that due to the late disclosure of the witness, it would preclude the prosecution from discussing the issue of gender in its hypothetical fact patterns. Defense counsel responded, “I appreciate that. That sounds fair.”
Then, after Detective Bender testified, defendant again requested a continuance and moved for a mistrial or to strike a portion of Detective Bender’s testimony. The crux of those requests, as well as defendant’s contention on appeal, was that Detective Bender’s alleged testimony “that low-level dealers ‘always’ work in teams” was severely prejudicial to defendant, since his defense was that Sweeney alone possessed and transported the metal cylinder containing the methamphetamine. The problem with defendant’s argument is that it is based on a faulty premise. Just as the trial court recalled, Detective Bender did not testify that low-level methamphetamine dealers always work in teams. When defense counsel first asked him whether it was his opinion that low-level dealers worked in teams, Detective Bender said, “They don’t have to, but they always do.” However, when defense counsel asked, “You’ll never find somebody selling methamphetamine, carrying $120 worth of drugs, say, and not selling without what you call the muscle?,” Detective Bender responded, “I wouldn’t say you would never find that. I can’t remember the last time I encountered that, but I wouldn’t say you would never find it.” (Italics added.) Then, when defense counsel reiterated the question by saying low-level dealers “wouldn’t sell by themselves, right?,” Detective Bender responded, “They just generally don’t.” (Italics added.)
Moreover, the court properly denied defendant’s request for a continuance, because defense counsel had made no effort to procure an expert witness since learning that Detective Bender would be testifying. The court also properly denied defendant’s requests to strike the alleged portion of Detective Bender’s testimony that “dealt with people invariably selling methamphetamine in teams,” and for a mistrial. Defense counsel’s only reason for those requests was that Detective Bender’s alleged testimony was “simply not credible.” However, Detective Bender never testified that people “invariably” sell methamphetamine in teams. Furthermore, it was the exclusive province of the trier of fact to determine the credibility of the witness. (People v. Maury (2003) 30 Cal.4th 342, 403.)
Finally, the court properly denied defendant’s requested late discovery instruction. The court remarked that the jury instruction was irrelevant since Detective Bender’s testimony only became relevant as the trial started. As the prosecutor explained, he did not hear the defense theory he was calling Detective Bender to refute until defendant’s opening statement. Moreover, as noted by the court, Detective Bender’s name was on the list of potential witnesses. Therefore, as soon as the defense came forward with the idea that defendant was buying as opposed to selling methamphetamine, the prosecutor decided to have Detective Bender testify to counter that theory. Furthermore, as the court remarked, the jury’s verdict was not based on whether or not the defense received 30 days notice of Detective Bender’s testimony. Since the jury apparently found Detective Bender to be credible, denial of the late discovery instruction did not prejudice defendant.
In sum, we cannot say the trial court abused its discretion in its response to the prosecution’s late disclosure of Detective Bender’s testimony.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.