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People v. Wyrick

Court of Appeal of California
Jul 30, 2008
F052721 (Cal. Ct. App. Jul. 30, 2008)

Opinion

F052721

7-30-2008

THE PEOPLE, Plaintiff and Respondent, v. JOEL LAMAR WYRICK, Defendant and Appellant.

Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


OPINION

THE COURT

A jury found appellant Joel Lamar Wyrick guilty of the lesser included offense of Health and Safety Code section 11350, subdivision (a) (possession of cocaine base). The trial court found true allegations that appellant had suffered a prior serious and violent felony conviction (Pen. Code, §§ 187, subd. (a), 664, ) and prior prison terms (Pen. Code, § 667.5, subd. (b)). The court denied probation and sentenced appellant to the mid-term doubled of four years plus two years for the prior prison term enhancements for a total of six years.

On appeal, appellant contends: (1) there is insufficient evidence to show the police seized any substance from him or that the substance seized from him was the same substance that tested positive for cocaine base, and (2) the abstract of judgment should be corrected to reflect the crime for which he was convicted. We will order the abstract of judgment be amended, but in all other respects will affirm the judgment.

FACTS

On June 19, 2006, Officers Eric Lantz and Patrick Mara were on patrol in an area known for drugs and prostitution. The officers turned on their emergency lights and stopped a vehicle because its license plate light was out and there were objects hanging from the rear view mirror. As they were following the vehicle, Lantz noticed the driver lean forward to his left and could see him moving his shoulder as if he was either sticking something into the seat or retrieving something. The vehicle eventually pulled over, and the officers approached the car. Lantz recognized the driver, appellant, as an individual he knew was on parole, so he searched him. Mara pat searched the female passenger, Felisha Wallace, and searched the car, but found nothing. Mara walked Wallace about 30 to 40 feet away, and positioned her so she was facing away from Officer Lanz and appellant.

While Officer Lantz was searching appellant, he noticed that the elastic waistband on one side of appellants underwear was folded under and, based on his training and experience, Lantz believed appellant was hiding narcotics in his buttocks. Lantz told appellant of his suspicions, and appellant reached into the back of his pants and removed a plastic bag containing what appeared to be cocaine base. Lantz told appellant he would release him without filing charges if appellant informed him of other criminal activity in the area, so appellant was initially released. However, appellant failed to uphold his end of the bargain, and was eventually charged with possession of cocaine base for sale.

Lantz gave Mara the bagged substance he recovered from appellant. Mara placed the substance in a "k-pack" and locked it in the trunk of the police car. Later that night, Mara booked the evidence into the property room. The evidence was sent to the Kern County Regional Criminalistics Laboratory, where it tested positive for cocaine base.

DISCUSSION

I. Substantial Evidence

In considering appellants claim of insufficiency of the evidence, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (In re George T. (2004) 33 Cal.4th 620, 630-631.)

Appellant contends there is insufficient evidence to support the finding that the substance that tested positive for cocaine base was actually seized from his person. He notes that Officer Mara testified he did not see Officer Lantz seize the substance from appellant, and that Wallace testified that she watched Lantz search appellant and did not see Lantz seize anything from appellant. However, Lantz testified that he did seize the substance from appellant, and Wallace was facing away from Lantz and appellant during the search, so could not have seen the seizure. Considering the evidence in a light most favorable to the prosecution, there is sufficient evidence to uphold the jurys verdict, as a reasonable trier of fact could have relied on Lantzs and Maras testimony and found that appellant possessed the substance. Furthermore, any doubt appellant raised regarding potential evidence tampering was properly left for the jury to weigh. (People v. Riser (1956) 47 Cal.2d 566, 580-581)

Appellant also asserts there is insufficient evidence to support the finding that the substance Officer Lantz seized from him was the same substance that tested positive for cocaine base. He challenges the sufficiency of the evidence of the chain of custody of the substance from Officer Mara to the crime lab. He rests his assertion on the facts that there was no testimony the substance seized was delivered to the crime lab, that Mara and Lantz did not identify the substance in the crime lab as the same as that seized at the crime scene, that Lantz could not describe the size of the substance he seized, and that Mara, who transported the drugs from the scene to the property room, did not file a police report.

The existence of a chain of custody is an issue for the finder of fact. As People v. Catlin (2001) 26 Cal.4th 81, 134 explained:

"In a chain of custody claim, ` "[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." [Citations.] [Citations]"

Furthermore, direct testimony is not necessary to establish every link in the chain of custody to a reasonable certainty. (People v. Catlin, supra, 26 Cal.4th at pp. 134-135 [tissue samples labeled with identification numbers at time of autopsy sufficient to establish that tissue came from the body of the deceased].)

In the instant case the evidence establishing a chain of custody was sufficient. Officer Mara secured the substance in a "k-pack" and booked it into the property room. While there was no direct testimony that the same substance was moved from the property room to the crime lab, Gregory Laskowski, a supervising criminalist at Kern County Regional Criminalistics Laboratory, testified that all evidence must come to the crime lab in a sealed package with a photo of the contents taken by the submitting law enforcement agency. When the package arrives, an analyst compares the contents of the package with the photo to ensure they match up.

The exhibits submitted by the prosecution at trial demonstrated a chain of custody. Exhibit 3, the photo of the substance taken by the police, and exhibit 2, the photo of the substance taken by the crime lab, look substantially similar, and the package in each photo has the same crime lab number, DR06-01912-01. Exhibit 1, the crime lab report, also has the same crime lab number, lists appellant as the suspect, and has the same case number as exhibit 3, 06-126390. The crime lab report states that the description of the substance that arrived at the crime lab in a sealed envelope matches the description of the substance seized by Lantz.

Appellant attempts to analogize his case to several cases where the court found the evidence of chain of custody insufficient. (American Mutual Etc. Co. v. Industrial Acc. Com. (1947) 78 Cal.App.2d 493; People v. Smith (1921) 55 Cal.App. 324; McGowan v. Los Angeles (1950) 100 Cal.App.2d 386.) In these cases, the testimony given by the laboratory technicians was insufficient because there was no evidence tying the substance tested back to the scene of the crime. However, in this case, there was evidence the substance in question came from the crime scene, including the testimony of Officers Mara and Lantz, and the information from exhibits 1 through 3 identifying the substance in the laboratory as the same substance seized from appellant.

Appellant also attempts to distinguish his case from People v. Bailey (1991) 1 Cal.App.4th 459, where the defendants conviction for possession of cocaine was upheld. However, in Bailey the issue was whether the evidence showed that "rock cocaine" was "cocaine base." (Id. at pp. 462-463.) Bailey did not consider whether the evidence was sufficient to show that the substance seized from the defendant was the same substance tested in a crime lab, and therefore has no bearing on the instant case.

Appellant also contends the abstract of judgment incorrectly refers to his conviction for a violation of Health and Safety Code section 11350, subdivision (a), as possession of a controlled substance for sale. The people do not oppose appellants request that "for sale" be deleted.

DISPOSITION

The superior court shall prepare an amended abstract of judgment, replacing "Poss of a controlled substance for sale" with "Poss of a controlled substance" in box No. 1, and shall forward a certified copy of the same to the California Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed. --------------- Notes: Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.


Summaries of

People v. Wyrick

Court of Appeal of California
Jul 30, 2008
F052721 (Cal. Ct. App. Jul. 30, 2008)
Case details for

People v. Wyrick

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOEL LAMAR WYRICK, Defendant and…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

F052721 (Cal. Ct. App. Jul. 30, 2008)