P. v. Brown

Filed 2/15/08 P. v. Brown CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:

It is ordered that the opinion filed herein on January 16, 2008, be modified as follows:

On pages 10 and 11 of our opinion, commencing with the second full paragraph on page 10, beginning with In his reply brief, . . .  we strike that paragraph and the following one. In lieu thereof, we substitute the following text:

Appellant makes the further arguments that because appellant would have had to drop his pants in order to gain access to the cocaine base and because Officer Jackson agreed that the quantity of cocaine base he had on his person could be possessed for personal use, the trial evidence is insufficient to support the jurys conclusions of an intent to sell. Appellant cannot prevail with his initial argument because the inconvenience of retrieving the cocaine base may not have deterred appellant from attempting to sell cocaine base to passersby. Also, a rock of cocaine base is so small that before he was booked, appellant may have successfully discarded or swallowed any rock he was holding in his mouth that he intended to sell to the officer.

Further, the circumstantial evidence rule that appellant invokes does not apply to an appellate court. Such a rule constitutes only guidance for the jury. It is settled that even though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendants innocence, this alone does not warrant interference with the determination of the jury. [Citations.] Whether the evidence presented at trial is direct or circumstantial . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Towler (1982) 31 Cal.3d 105, 118-119; accord, People v. Abilez (2007) 41 Cal.4th 472, 504; People v. Bean (1988) 46 Cal.3d 919, 932.)

Thus, it does not matter that Officer Jackson agreed during his trial testimony that the quantity of controlled substance in appellants possession arguably indicates personal use. Officer Jackson also gave his opinion that the cocaine in appellants possession constituted a quantity of base cocaine commonly sold in that area. That evidence, along with the other trial evidence, discloses sufficient evidence to support the jurys conclusion of an intent to sell.

There is no change in the judgment.

The petition for rehearing is denied.

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