Opinion
B233830 No. NA088003
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVIN LAMARE WRIGHT, Defendant and Appellant.
Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur Jean, Jr., Judge. Affirmed.
Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Davin Lamare Wright was convicted by jury of possession of methamphetamine for the purpose of sale in violation of Health and Safety Code section 11378. The trial court found that defendant had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Defendant was sentenced to state prison for a term of four years. Defendant filed a timely notice of appeal.
This court appointed counsel to represent defendant on appeal. Appointed counsel filed a brief raising no issues, but requested this court to independently review the transcript of an in camera hearing held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. Counsel further asked this court to review the entire appellate record for arguable contentions under People v. Wende (1979) 25 Cal.3d 436.
This court advised defendant of his right to file a supplemental brief. Defendant filed a letter brief with this court, arguing he was questioned without receiving his Miranda rights and the evidence is insufficient to support the jury's finding that the methamphetamine he possessed was for the purpose of sale. We conclude defendant's contentions do not warrant reversal, there was no abuse of discretion in the ruling on defendant's Pitchess motion, and no other arguable contentions are found in the appellate record.
FACTS
Officer Timothy Hart responded to a disturbance call in Long Beach on February 4, 2011, where he came in contact with defendant. When asked if he had a weapon, defendant replied that he had a pipe. During a pat down search, the officer recovered a pipe used to smoke methamphetamine and a white baggie holding 3.3 grams of a substance containing methamphetamine. Defendant was in possession of a cell phone and six cents of currency.
Defendant was advised of his Miranda rights as he was driven to the police station for booking. Defendant agreed to talk and, in a 10- to 15-minute conversation, admitted the substance was methamphetamine. He said he had been "fronted" the methamphetamine by a male Hispanic in Hawaiian Gardens, it was about two grams, and was worth approximately $200. Defendant said he was homeless and sold chunks of the methamphetamine for $20. Defendant's speech pattern was normal, and his answers were responsive to questions.
Detective Christopher Bolt qualified as an expert and testified that, based on a hypothetical question tracking the prosecution evidence, the methamphetamine was possessed for the purpose of sale. His opinion was based on defendant's statement, which accurately reflected the street value of $20 per piece and an overall value of $200. Defendant's description of being "fronted" the drug was consistent with intent to sell, as the supplier would expect to be repaid in cash. Addicts frequently sell drugs to pay for their habit. It is not common for someone to front drugs to a moneyless, homeless person simply to be used, rather than to be paid back for the drugs. A cell phone can be used to facilitate drug sales.
Defendant testified that he had suffered two prior felony convictions, was addicted to methamphetamine for 20 years, and possessed the methamphetamine on the day of his arrest. Defendant was not warned of his Miranda rights before being questioned. Defendant did say he obtained the methamphetamine from a "Mexican gentleman" in Hawaiian Gardens, whom defendant refused to identify. Defendant told Officer Hart he possessed the drug to use, rather than to sell. Defendant sometimes works in construction or as a security guard, being paid under the table. Defendant did not use his cell phone to transact narcotic sales. Defendant has a residence, but due to a dispute with his wife, he was living on the streets.
DISCUSSION
Defendant argues in his letter brief that he did not receive his Miranda rights before being questioned. This issue was not raised in the trial court and it is therefore forfeited. (People v. Rundle (2008) 43 Cal.4th 76, 116, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22.)
Defendant also argues there is insufficient evidence to support the finding that he possessed the methamphetamine for the purpose of sale. '"In assessing the sufficiency of the evidence, 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.] Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citations.]' (People v. Bolin (1998) 18 Cal.4th 297, 331.)" (People v. Parra (1999) 70 Cal.App.4th 222, 225.) In order to prove that a controlled substance was possessed for the purpose of sale, "the prosecution must prove beyond a reasonable doubt that (1) defendant exercised dominion and control over the controlled substance, (2) defendant was aware that he was in possession of a controlled substance, (3) 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) defendant possessed a controlled substance with the specific intent to sell it. [Citations.]" (Id. at p. 225-226.) The testimony of qualified narcotics expert is sufficient to support a finding that a controlled substance was possessed with the intent to sell. (Id. at p. 227.)
We reject defendant's challenge to the sufficiency of the evidence. Detective Bolt's testimony is substantial evidence that defendant possessed the methamphetamine for the purpose of sale based on the circumstances of this case, including the amount possessed, defendant's admission that he was "fronted" the drug by someone he refused to identify, and his statement that he intended to sell the methamphetamine for $20 per chunk. The factors identified by defendant as weighing against a finding of possession for sale—the absence of scales or other measuring devices and the lack of evidence of a sale—were matters for the jury to resolve and do not establish that the evidence was insufficient as a matter of law.
We have conducted an independent review of the entire record, including the sealed transcript of the Pitchess hearing, and have found no arguable appellate contentions. The judgment is affirmed. (Smith v. Robbins (2000) 528 U.S. 259.)
KRIEGLER, J. We concur:
TURNER, P. J.
ARMSTRONG, J.
Miranda v. Arizona (1966) 384 U.S 436.