Opinion
E052442
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. JAIME LUIS ZAMORA, Defendant and Appellant.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FSB1001636)
OPINION
APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
On September 17, 2010, an amended information charged defendant and appellant Jaime Luis Zamora (defendant) with possession for sale of a controlled substance under Health and Safety Code section 11351 (count 1); and transportation of a controlled substance under section 11352, subdivision (a) (count 2). As to both counts, the information also alleged that defendant had a prison conviction for transportation of a controlled substance under section 11352, subdivision (a), within the meaning of section 11370.2, subdivision (a).
All statutory references are to the Health and Safety Code unless otherwise specified.
On September 22, 2010, a jury trial commenced. On October 1, 2010, the jury was unable to reach a verdict in count 1, but found defendant guilty in count 2. The trial court declared a mistrial on count 1 and dismissed the charge on the prosecutor's motion. On October 14, 2010, defendant waived a jury trial on the prior conviction allegation and the trial court found the prior conviction true.
On November 22, 2010, the trial court imposed fines and fees, and sentenced defendant to a total term of six years in prison on count 2, consisting of the low term of three years, plus three years for the prior conviction. Defendant was awarded presentence credits of 364 days.
On December 6, 2010, defendant filed a timely notice of appeal.
STATEMENT OF FACTS
In the morning of March 24, 2010, officers Johnathan Manly and Kevin Silbaugh of the San Bernardino Police Department were on patrol near La Plaza Park in the City of San Bernardino. Officers Manly and Silbaugh consider La Plaza Park to be a location where narcotics frequently are sold.
About 8:30 a.m., the officers saw defendant leaning against a car parked in a lot across the street from the park. Initially, Officer Silbaugh did not notice anything unusual. However, after defendant saw the marked police cruiser, he got into the passenger side of the car he was leaning against and the driver drove away. The officers followed the car in their police cruiser and stopped it about three blocks from where they had first seen it.
Defendant and two others were in the car. Officer Manly approached the passenger side and asked defendant to exit the car and sit on the curb. Similarly, Officer Silbaugh asked the driver and rear-seat passenger to exit the car. When the driver was asked if he had any contraband on his person, he produced a prescription bottle containing 20 oxycodone and hydrocodone pills. Next, Officer Silbaugh searched the car and found a small tin container under the front seat. Inside the container were two small bags; one of the small bags contained 10 or 11 individually wrapped and small pieces of heroin. The other bag contained a single larger piece of heroin.
Heroin dealers often keep larger pieces unbroken, so they do not show too many pieces "available for sale," and can thus claim that they are possessing heroin for personal use rather than for sale. However, Officer Silbaugh found no additional papers for wrapping smaller pieces.
Officer Silbaugh then searched defendant's wallet; it contained six $100 bills, one $10 bill, and thirteen $1 bills.
After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant admitted that the heroin was his and that he had hidden it under the front seat. Defendant stated that although he was unemployed, he had worked as a truck driver, and the cash in his wallet was from a recently-cashed tax refund check. Defendant also told Officer Silbaugh that he had purchased the heroin prior to reaching La Plaza Park. However, defendant then changed his story and told the officer that he and his friends had driven to the park to purchase the heroin.
Defendant told the officers that he had been a heroin addict for years and was using his tax refund to buy heroin for himself and his friends. While Officer Silbaugh was questioning defendant, defendant's cell phone kept ringing. Defendant told Officer Silbaugh that the caller was a friend who had asked defendant to buy $10 worth of heroin for him.
Defendant told Officer Silbaugh that he was in possession of about three grams of heroin worth between $50 and $60 per gram. Officer Silbaugh opined that the individually-wrapped pieces would typically sell for $10 each, appeared packaged for sale, and would yield a per gram price of about $100.
Officer Silbaugh opined that heroin addicts typically purchase only as much as they need, and that they buy more as needed. The officer was unwilling to admit that an addict may buy in bulk, because doing so could lead to an overdose or death. The officer believed that heroin addicts, nearly without exception, purchased only one dose at a time despite the inconvenience of having to make a purchase every six hours.
Officer Silbaugh opined that defendant possessed heroin for sale because (1) the weight of a typical dose is 0.1 grams and defendant possessed a number of typical doses of heroin; (2) defendant possessed the heroin in the area of La Plaza Park; (3) defendant possessed another chunk of heroin; (4) defendant had a large amount of cash; and (5) defendant did not possess needles or drug paraphernalia.
Officer Silbaugh, however, admitted that heroin users might ingest their heroin at home rather than in a car, and therefore would not have drug paraphernalia in their car. Also, the officer admitted that he found no additional packaging materials, any pay/owe sheets, or a scale during the search of defendant or the car.
Defendant's trial was only the second time in which Officer Silbaugh testified as an expert on the sale and use of heroin. The first time was during defendant's preliminary hearing.
The defense offered no evidence, moved for a dismissal under Penal Code section 1118.1, and argued that the prosecutor failed to prove the elements of the charged offenses beyond a reasonable doubt. The motion for dismissal was denied.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Ramirez
P.J.
Miller
J.