P. v. Lugo

Filed 11/30/07 P. v. Lugo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm, Jr., Judge. Affirmed.

Ann Krausz, under appointment by the Court of Appeal, and Rusty Lugo, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

___________________

INTRODUCTION

Defendant Rusty Lugo appeals from a judgment of conviction following a jury trial. Defendant was convicted of the sale of a controlled substance, cocaine base, in violation of Health and Safety Code section 11352, subdivision (a), (count 1) and possession for sale of cocaine base, in violation of Health and Safety Code section 11351.5 (count 2). The trial court found true the allegation of defendants prior conviction. (Health & Saf. Code,  11370.2.) The trial court sentenced defendant to state prison for a total term of seven years, that is, the mid-term of four years as to count 1, plus three years pursuant to Health and Safety Code section 11370.2, and as to count 2, the mid-term of four years, to be served concurrently with the sentence for count 1.

FACTS

On the afternoon of July 26, 2006, City of Los Angeles Detective Chris Luna and Police Officers John Armando, Eliana Tapia and Thomas Brown, together with federal Drug Enforcement Administration agents, were conducting an undercover narcotics investigation in downtown Los Angeles near the intersection of Seventh and Main Streets. Detective Luna was manning an observation outpost in an undisclosed location on an upper story of a building on Main Street. Using binoculars, he saw defendant standing on the sidewalk on the opposite side of Main Street. He observed defendant open his right palm and move around several off-white objects resembling cocaine base, also called rock cocaine.

Detective Luna saw Michael Trujillo (Trujillo) approach defendant and hand defendant a $5 bill. The detective observed defendant open his right hand, pick up one of the off-white objects and hand it to Trujillo. Detective Luna communicated Trujillos description and location to the arrest team and asked the team to detain him. The arrest team approached Trujillo, and he dropped an off-white object to the ground as they were apprehending him. Officer Armando noticed and retrieved the object.

As Trujillo was being arrested, defendant started walking in the opposite direction. Detective Luna informed another arrest team of defendants description and asked the team to detain defendant. As Officer Tapia, Officer Brown and DEA agents were approaching defendant to apprehend him, Officers Tapia and Brown observed defendant release five or six off-white objects from his hand toward the ground. Officer Tapia promptly retrieved the objects. Officer Brown searched defendant and found currency in defendants pants pocket, all in $5 bills and $1 bills.

Officers Armando, Tapia and Brown gave Detective Luna the items recovered, and later he booked them into evidence. The off-white objects were analyzed and found to contain cocaine in the form of cocaine base.

Detective Luna testified that, based on his training and experience, rock cocaine in the downtown area is generally sold in $5 increments consistent with the size of the recovered off-white objects. In his opinion, defendant possessed the objects for sale and defendant was selling them while Detective Luna was observing him.

DISCUSSION

We appointed counsel to represent defendant on appeal. After examining the record, counsel filed a request for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

By written notice dated June 12, 2007, we advised defendant that he had 30 days within which to submit personally by brief or letter any grounds of appeal, contentions or arguments that he wanted us to consider. Defendant submitted a letter dated July 13, 2007, requesting an extension of the time to file a supplemental brief. On July 24, 2007, we advised defendant that his request for extension of time to file a supplementary brief was granted and that the brief was due September 5, 2007. To date, we have received no response from defendant.

Defendants July 13 letter, however, identified the following matters as issues: no co-defendant - Trujillo Michael, no U.S. currency, Officer Brown dont recovered $50.00, John Armando violationed my constitution right when he tackled me and injured [m]e, and no witness but Chris Luna.[1] The letter also notes that [i]n the police report: Medical treatment[,] defendant Trujillo was treated for pre[-]existing medical conditions by Dr. Singh at Jail Dispensary. The letter concludes with the statement that Rusty Lugo constitution right was violationed.

Although defendant provided only brief statements identified as issues, with no further explanations or legal arguments, we will address each of his issues briefly on the basis of the primary inference we draw from them. As to the co-defendant issue, there is no requirement that all persons involved in a crime be tried jointly. (See People v. Fonseca (2003) 105 Cal.App.4th 543, 548.)

As to the currency issue, testimony from Detective Luna and Officer Brown provides substantial evidence to support a finding that defendant received currency from Trujillo in exchange for the rock cocaine, the currency recovered during the search of defendant was United States currency, and it was in $5 bills and $1 bills. Whether the total dollar amount was $50 is irrelevant, in that such amount was unnecessary to establish an element of the crimes with which defendant was charged. The probative value of the currency was not its total amount, but rather that it was in $5 bills and $1 bills, which was consistent with Detective Lunas testimony that the customary practice of street sale of rock cocaine in the central downtown area is in $5 increments. (See Evid. Code,  600, subd. (b); People v. Goldstein (1956) 139 Cal.App.2d 146, 152.) It tended to corroborate Detective Lunas stated observations and opinions, that is, to show that defendant was in possession of the cocaine base for sale and that he had completed a sale. (Health & Saf. Code,  11352, subd. (a), 11351.5.)

Regarding the allegation that Officer Armando violated defendants constitutional rights by tackling defendant and injuring him, we found no mention in the record of such action by Officer Armando. In preparation for trial, defendant brought a Pitchess[2]motion in which he apparently alleged that Officers Brown and Tapia had used excessive force, in that they tackled him, injuring him. The trial court granted defendants Pitchess motion. At trial, however, defendant did not address the tackling allegations or present any evidence regarding them. Even if we assume that, in his July 13 letter, defendant mistakenly named Officer Armando rather than the other two officers, matters outside the record ordinarily will not be considered on appeal. (Cal. Rules of Court, rule 8.204(a)(2)(C); People v. Gardner (1969) 71 Cal.2d 843, 849.) Further, the issue is not relevant to proving the essential elements of the criminal violations for which defendant was being tried. It does not present an arguable issue in the instant appeal.

Lastly, defendant contends that his rights were violated, in that the People presented no witness but Chris Luna. Absent physical impossibility or inherent improbability, however, the eyewitness testimony of one witness is sufficient to support a conviction. (Evid. Code,  411; People v. Allen (1985) 165 Cal.App.3d 616, 623.) Likewise, the same rule applies when the witness is giving expert testimony. (People v. Smith (1995) 31 Cal.App.4th 1185, 1190.) As to credibility issues, it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Detective Luna had extensive training and experience in regard to identifying cocaine base and the methods by which it is sold on the street, including in $5 increments. Detective Luna personally observed the sales transaction between defendant and Trujillo. There was ample corroborating evidence, including the recovery from defendants possession of cocaine base and $5 bills and $1 bills consistent with multiple $5 sales. Thus, the record sets forth substantial evidence regarding the credibility of Detective Luna and the truth of the facts on which he formed the opinion that defendant was in possession of cocaine base for sale and engaged in sale of the cocaine base.[3] (Ibid.) In sum, we conclude that there is no arguable issue as to the sufficiency of the evidence, in that the record supports a determination that a rational trier of fact could have found the essential elements of the alleged criminal violations beyond a reasonable doubt. (People v. Cunningham (2001) 25 Cal.4th 926, 1010.)

We have examined the entire record and are satisfied that defendants counsel has complied fully with her responsibilities. No arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J. *

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] The quotations from the letter herein are given as they appear in the letter, without indication of misspellings and grammatical errors.

[2]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

[3] Defendants letter also alleges, but does not identify as an issue, that the police report indicates that, at the jail dispensary, Trujillo was treated for a pre-existing medical condition. Any evidence regarding Trujillos medical treatment is irrelevant to prove defendant was or was not guilty as charged.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.