P. v. Nunez

Filed 1/19/10 P. v. Nunez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Hector Fernando Cisneros Nunez of possessing methamphetamine for sale (Health & Saf. Code 11378), and the court sentenced him to serve the statutory two-year midterm sentence. On appeal, Nunez contends the prosecution produced insufficient evidence of his intent to sell the methamphetamine he admittedly possessed, and that the prosecutor committed misconduct by improperly vouching for the credibility of one prosecution witness. We find no merit in either contention and affirm the judgment.

I

FACTS

We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142-143.)

Sometime around noon on May 30, 2008, Anaheim Police Officer Phillip Vargas, an investigator with the Anaheim Police Departments Crime Task Force,[1] received information that Nunezs Dodge Dakota truck was involved in narcotics trafficking. Vargas, who was dressed in street clothes and driving an undercover police car, drove to a particular restaurant in Anaheim looking for the truck. When he spotted Nunezs truck parked behind the restaurant, Vargas notified other Task Force members. Six other Task Force members arrived shortly thereafter, and the seven officers started watching Nunezs truck.

Approximately two and one-half hours later, a pickup truck pulled into a parking stall in front of the restaurant. Nunez came out of the front door and walked to the passenger side of the truck. He leaned into the open passenger window, but Task Force members were unable to if anything changed hands inside the truck. After about a minute, Nunez walked away from the truck and back into the restaurant.

At approximately 3:00 p.m., the officers entered the restaurant. Nunez was seated at a table in the bar of the restaurant. From this position, Nunez could see outside the restaurant and into the parking lot. Vargas arrested Nunez and placed him in handcuffs. He asked Nunez if he owned the Dakota truck in the parking lot Nunez responded that he did and for permission to search the truck. Nunez consented to the search and Vargas retrieved the keys from Nunezs pocket.

Vargas handed the keys to another officer, Sergeant Michael Helmick, and Helmick searched Nunezs truck. Meanwhile, Vargas conducted a patdown search of Nunez. The patdown search yielded a cell phone and $830 dollars in cash in the following denominations: four-$100 bills, 21-$20 bills, one-$5 bill and five-$1 bills. Helmick found a coffee mug in the cab of the truck. The coffee mug had a hidden compartment, which contained 1.43 grams of an off-white crystal powder inside a clear plastic wrapper.

Vargas drove Nunez to the Anaheim Police Department and escorted him into an interview room. He advised Nunez of his Miranda[2] rights. Vargas asked Nunez if he wanted to talk, and Nunez responded that he did. Nunez told Vargas that he laid carpet for a living and that he had fallen on hard times. Nunez explained that he decided to sell crystal, a street name for methamphetamine, as a way to make money, and that this was his first day selling the drug. Nunez also stated that he had contacted his friends and told them that if they wanted to purchase [methamphetamine], he would be located at the restaurant where we contacted him . . . . He admitted completing five drug transactions that day, including one with the individuals in the pickup truck. Nunez claimed that $100 of the $830 found on his person was proceeds from the five sales.

At one point, Vargas informed Nunez that he was about to be booked into the detention facility and he asked Nunez if he had any more narcotics on his person. Nunez replied, Im not going to lie to you, and he told Vargas that he had some methamphetamine in a folded $1 bill in his pants pocket. Vargas retrieved a folded dollar bill, which contained approximately .2 grams of methamphetamine, from Nunezs pocket. When Vargas asked Nunez if he intended to sell this amount for $20, Vargas replied that such a small amount would actually sell for only $10. Nunez also told Vargas that he planned to use some of the methamphetamine in his truck and sell the rest.

At trial, Vargas testified as an expert witness, and he opined that Nunez possessed methamphetamine for the purpose of sales. He based this opinion on his experience and training in the area of narcotic [sic] enforcement, and specifically dealing with this defendant based on his admission to me that he possessed the methamphetamine with the intent to sell. Vargas acknowledged the amount of methamphetamine Nunez possessed could be consistent with personal use. However, he believed the fact that Nunez had a large amount of cash and possessed a cell phone indicated Nunezs intent to sell the drug.

Defense Evidence

Nunezs girlfriend, Alma Rubio, testified that she drove Nunez to the restaurant and dropped him off at approximately 1:00 p.m. on May 30. She left to visit family. When she returned about 45 minutes later, Nunez was gone.

Nunez testified that he went to the restaurant to purchase methamphetamine. He purchased the methamphetamine in the folded dollar bill from one of the occupants of the pickup truck. He claimed the officers searched his truck without his permission. He denied telling Vargas that he sold drugs to supplement the income he received from his carpet business, and he claimed Vargas did not advise him of his Miranda rights prior to the interview. He admitted purchasing methamphetamine for personal use, but he denied selling the drug. Nunez testified that the $830 dollars in cash was from his carpet business, not proceeds from drug sales.

II

DISCUSSION

Sufficiency of the evidence

Nunez challenges the sufficiency of the evidence to support his conviction of possession for sale of methamphetamine. Our role in such challenges is quite limited: To determine the sufficiency of the evidence to support a conviction, an appellate court reviews 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 defendant guilty beyond a reasonable doubt. (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

Although independent evidence of Nunezs intent to sell methamphetamine is not overwhelming, the jury was free to accept Vargas testimony about Nunezs multiple admissions during his interview. Further, Nunez and the officers testified that the area around the restaurant is known for drug trafficking. A member of the Task Force had driven to this area in search of Nunezs truck based on information that it was involved in drug trafficking. While they conducted a surveillance of the truck, Nunez came outside the restaurant, stood by his truck for a couple of minutes and then walked back into the restaurant. Later, Nunez came outside the restaurant and talked to the occupants of a pickup truck. He leaned into the passenger window of the pickup and conducted a brief conversation with the occupant. Although the officers admitted that they could not see Nunezs hands during this conversation, the officers believed there was a reasonable probability Nunez had conducted a drug transaction.

After Nunezs arrest, the officers searched his truck and found over a gram of methamphetamine hidden inside a modified coffee mug, and he possessed over $800 dollars in various denomintaions of cash and a cell phone at the time of the arrest. Considering the amount of cash Nunez was carrying, the amount of drugs he possessed, and his actions, it was reasonable to believe Nunez engaged in drug trafficking that day, even without considering his multiple admissions to the crime. Although Nunez testified that he was not a seller and had earned the money from carpet business, the jury was free to disregard his trial testimony. Consequently, we conclude substantial evidence supports the jurys verdict.

Alleged Prosecutorial Misconduct

During closing argument, defense counsel objected when the prosecutor stated that Vargas had been honest with the jury. She argued that Vargas had been honest when he testified that Nunez was a low-level drug dealer, stating, You also heard investigator Vargas. He was honest with you. [H]e didnt tell you that this was some high-level seller. He told you [Nunez] is a low-level street seller. In response to defense counsels observation that Nunez found himself in the unenviable position of having his word against that of an officer, the prosecutor stated, [Defense counsel] wants you to believe that investigator Vargas, after his 13 years of experience, is going to get up and lie? For what? For 1.3 grams of meth? This statement also drew a defense objection on ground of improper vouching. The trial court overruled both objections.

On appeal, Nunez contends the prosecutors repeated references to the officers credibility constituted an implied reference to matters outside the record . . . . We disagree. Impermissible vouching may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witnesss veracity or suggests that information not presented to the jury supports the witnesss testimony. (People v. Fierro (1991) 1 Cal.4th 173, 211.) However, it is not improper when the prosecutor limits her remarks to facts contained in the record, namely, the years of experience of the officers involved[,] and inferences reasonably drawn from those facts. (People v. Anderson (1990) 52 Cal.3d 453, 479 (Anderson). Here, as in Anderson, the prosecutors statements were based facts adduced at trial and reasonable inferences. (Id. at p. 479.) A prosecutor is permitted to argue the credibility of an officer based upon his or hers years of experience. (Ibid.) Thus, the prosecutors argument was proper.

III

DISPOSITION

The judgment is affirmed.

SILLS, P. J.

WE CONCUR:

BEDSWORTH, J.

IKOLA, J.

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[1] The Crime Task force is an undercover surveillance and investigation unit within the Anaheim Police Department. Vargas testified, The function of the Crime Task Force is to find and capture, so to say, suspects involved in violent crimes, or career type criminals who are not actively pursuing those types of individuals. [] We will patrol the streets in the City of Anaheim in an undercover capacity, driving unmarked police vehicles, looking for people involved in crimes in progress.

[2]Miranda v. Arizona (1966) 384 U.S. 436