P. v. Galvan

Filed 12/22/09 P. v. Galvan CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury convicted defendant of possessing methamphetamine for sale and possessing narcotics paraphernalia. (Health & Saf. Code 11378, 11364, subd. (a).) We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case but raises no specific issues. On September 1, 2009, we notified defendant by letter of his right to submit written argument in his own behalf within 30 days. He has not submitted an argument to this court. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, we will affirm.

STATEMENT OF THE CASE

Defendant was charged by amended complaint filed in the San Benito County Superior Court with felony possession of methamphetamine for sale, misdemeanor possession of paraphernalia for smoking a controlled substance, and two prior prison terms. (Health & Saf. Code 11378, 11364, subd. (a); Pen. Code 667.5, subd. (b).) He was convicted of both counts after a jury trial. Following a jury waiver, the court found true the allegations that defendant had served two prior prison terms. On March 11, 2009, defendant was sentenced to serve six years in state prison: four years for the felony offense, 180 days for the misdemeanor offense, to be served concurrently with the sentence on the felony count; and one year consecutive for each of two prior prison term enhancements, with credits of 231 days. Subsequently, the Department of Correction notified the court that its sentence contained errors. On August 19, 2009, the court resentenced defendant to three years for the felony offense, and one year for each of the two prior prison terms, for a total term of five years, and directed the clerk to prepare and amended abstract of judgment.

STATEMENT OF FACTS

On October 10, 2008, Agent Richard Uribe of the San Benito County Sheriffs Office went to 237 Line Street in Hollister to conduct a parole search of defendant and his residence. An elderly man and his female caretaker were inside the residence. At the rear of the residence Uribe located a locked bedroom door. He kicked open the door and saw the reflection of a male subject laying on the bed in a large mirror directly in front of him. Uribe called the subject (defendant) out of the room and took him into custody.

Inside the room was a live field surveillance camera monitor that was displaying live feed of the perimeter of the residence. There was also an audible beep being emitted from computer speakers; the sound was later determined to be coming from a sensor on the front door that went off anytime a person entered or exited the entire residence. Two cell phones were found in the room, on the desk next to the computer. The room was disheveled and had an exit door to the outside.

Outside, there were miscellaneous tools and equipment, including a lawn mower with a piece of plywood, and a tire on top of it. Uribe removed the tire, the plywood, and the grass bag, and observed a small black lunch box. Inside the lunch box, Uribe found multiple pieces of drug paraphernalia, suspected methamphetamine, a digital weigh scale, [and] baggies. The drug paraphernalia consisted of five meth pipes and a hypodermic needle.

Agent Mike Mull of the San Benito Sheriffs Office UNET task force[1] weighed the suspected methamphetamine at the UNET evidence room; it weighed 1.04 grams, gross weight.[2]

Agent Mull qualified as an expert in the use and possession of methamphetamine for sale. He testified that the sandwich baggies had their corners cut off. In his experience, people who usually sell meth, cocaine and whatnot, with using these baggies, they put it in the corner of the bag, they dip it in the corner and then they cut the bag. . . . And then they just tie it up like its done here. . . . [T]hese are pretty much a big indicator . . . that there is narcotic sales taking place. Possession of a digital pocket scale is also indicative of sales. Although possession of large sums of money is also a common indicator of sales, only a small amount of money was found in this case. That was not unusual for small street level sales of narcotics. And usually people who do them have a heavy habit with methamphetamine, . . . theyre usually just selling enough to support their habit. To Mull, it appeared that defendant was selling just enough to support his habit. To Mull, a photograph found with the other items depicting defendant holding a methamphetamine pipe indicated that defendant uses methamphetamine to support his habit. The messy appearance of defendants room also suggested that defendant was a chronic user of methamphetamine.

In Mulls opinion, the amount of methamphetamine possessed by a person who possesses it for his personal use would typically be anywhere from .05 grams to 2 grams. It could be possessed in many smaller $20 to $40 bags or one larger bag. The street value of one-tenth of a gram runs between $20 to $40, depending on its purity. The approximate street value of the amount of methamphetamine possessed by defendant was between $80 and $120. In the last few months, police had seen a new way to sell the drug: dealers burn .05 grams into a pipe and sell it that way. It was also common for dealers to allow the buyers to smoke the drug in the dealers residence. Given that defendant had five pipes, three of them used, along with the methamphetamine, defendant could have been putting the drug in the pipe for sale, or allowing buyers to smoke it at his house.

It is also common for drug dealers to have two cell phones. A lot of times one cell phone is for regular use and the other one is for making narcotics transactions. A dealer would have a live video of his residence [t]o see if the law enforcement is coming. A typical user who is not also a seller would not have such a sophisticated set up.

In Agent Mulls expert opinion, defendant possessed the methamphetamine for sale as well as use. His opinion was based on the other items of contraband we located, again, the numerous pipes, . . . the digital scale, again the cut baggies. [N]ormal people keep their plastic baggies in the kitchen, okay, not hidden in a lawn mower. And normal people dont just cut off the baggies on the corners. . . . Thats not typical of just a regular methamphetamine user. . . . [A]gain, the surveillance system. . . . And he had direct access from his bedroom again down to here, which was only about maybe 15 feet where the narcotics was [sic] located.

DISCUSSION

On September 1, 2009, appointed counsel filed a Wende brief in this court. This court sent a letter notifying defendant of his right to submit a written argument in his own behalf within 30 days. As noted earlier, defendant has not done so.

Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record on appeal. The jury was properly instructed. Substantial evidence supports the jurys verdict. The court gave adequate reasons for imposing the upper term. No uncorrected sentencing error appears. We conclude that there is no arguable issue on appeal. (People v. Kelly, supra, 40 Cal.4th at p. 124.)

DISPOSITION

The judgment is affirmed

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] UNET task force is multiple agencies combined together to defer [sic] drug sales, drug trafficking and drug cultivation.

[2] A senior criminalist from the Department of Justice crime lab weighed the crystals found at defendants residence, without the packaging, and analyzed them. The crystals weighed .72 grams and tested positive for methamphetamine.