P. v. Perez
Filed 12/3/09 P. v. Perez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. YOLANDA MARIE PEREZ, Defendant and Appellant. | G041870 (Super. Ct. No. 08WF0386) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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1. Introduction
Yolanda Marie Perez filed a notice of appeal after a jury found her guilty of committing one count of possession of methamphetamine for sale (Health & Saf. Code, 11378). The trial court suspended imposition of sentence and placed Perez on three years of supervised probation, conditioned on serving 180 days in jail, with credit for seven days.
We appointed counsel to represent Perez on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel suggested we consider two issues: (1) whether admission of statements made by Perez to a police officer violated the Fifth and Sixth Amendments to the United States Constitution and (2) whether substantial evidence supported the jury verdict.
Perez was given 30 days to file written arguments in her own behalf. We have received nothing from her.
We have examined the entire record and counsels Wende/Anders brief and find no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
2. Facts and Proceedings in the Trial Court
On October 12, 2007, police officers executed a search warrant at Perezs home. In a room rented to a boarder, a police officer found a vinyl pouch with a California Angels logo containing three Ziploc baggies and a small plastic Tupperware container. The three baggies contained, respectively, 3.2 grams, 3.4 grams, and .4 grams of methamphetamine. Inside the Tupperware container were .4 grams of methamphetamine and a spoon made from a plastic straw. The police officer also found unused plastic baggies, a small digital scale, and a glass pipe of the type used for smoking methamphetamine. The pipe had burn marks indicating it had been used.
During the search, Police Officer Lyn Espinoza asked to speak with Perez. They walked outside and Espinoza asked Perez if there was anything illegal inside the house. Perez answered, stuff thats my business. The conversation ended. Within an hour, Perez walked outside the house and asked to speak with Espinoza. Perez told Espinoza that everything in [the] home was hers. Espinoza asked, what are you referring to? and what do you think we found? Perez answered, the Angel bag. Espinoza did not ask any other questions.
After an Evidence Code section 402 hearing, the trial court ruled that Perezs statement made during the first encounter with Espinoza was inadmissible because this was an interrogation. The court ruled Perezs statements everything in [the] home was hers and the Angel bag, made during the second encounter with Espinoza, were admissible under an exception to Miranda v. Arizona (1966) 384 U.S. 436 because Perez had initiated the conversation.
Police Detective Tom Carney testified that in his opinion the seized methamphetamine was possessed for sale. His opinion was based on the quantity of methamphetamine seized, the fact the methamphetamine was divided and packaged in separate baggies, the unused baggies, the digital scales, and the envelope and sheet of paper with writing on them, which, he testified, were pay/owe sheets.
Perezs expert witness, Steven Strong, testified a large quantity of methamphetamine did not necessarily mean possession for sale because users often pool their money to buy larger quantities at a lower price. The fact the methamphetamine was found in different baggies could mean each was purchased from a different seller. He testified the envelope and sheet of paper looked like a list of expenses rather than a pay/owe sheet. The scales found in Perezs house did not mean she sold methamphetamine because users often buy scales to prevent being cheated by sellers. In Strongs opinion, the facts of the case were consistent with possession of methamphetamine for personal use.
3. Analysis of Suggested Issues in Counsels Wende/Anders Brief
Appointed counsel suggests two potential issues: (1) Did the admission of Ms. Perezs statements made to Officer Espinoza outside the residence violate the Fifth and Sixth [Amendments]? and (2) Was there substantial evidence to support the jurys verdict that Ms. Perez possessed the methamphetamine for sale, particularly in light of evidence of collective buying rather than selling? Neither suggested potential issue has merit.
a. Suggested Issue No. 1
An exception to Miranda v. Arizona, supra, 384 U.S. 436 arises when the defendant initiates further communication with the police. (Edwards v. Arizona (1981) 451 U.S. 477, 485; People v. Waidla (2000) 22 Cal.4th 690, 727.) The defendant initiates further communication by talking or engaging in conduct that can be fairly said to represent a desire on his part to open up a more generalized discussion relating directly or indirectly to the investigation. (People v. Mickey (1991) 54 Cal.3d 612, 648‑649, quoting Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045 (plur. opn. of Rehnquist, J.).)
Espinoza testified Perez asked to speak with her while they were outside the residence. Perez told Espinoza that everything in [the] home was hers. Espinoza asked, what are you referring to? and what do you think we found? Perez answered, the Angel bag. Espinoza did not ask any other questions. Perezs statements were admissible because she initiated this encounter with Espinoza.
b. Suggested Issue No. 2
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.) Strong testified methamphetamine users often pool their money to buy methamphetamine in bulk at a lower price, and therefore possession of a large quantity of methamphetamine is consistent with possession for use. Carney testified the methamphetamine seized was possessed for sale based on several factors, including the quantity found. We resolve the conflict in testimony in favor of the verdict.
Disposition
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
SILLS, P. J.
BEDSWORTH, J.
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