P. v. Smith

Filed 11/19/09 P. v. Smith CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury found defendant Deandre Smith guilty of possessing cocaine base for sale. The court suspended imposition of sentence and placed him on five years probation.

On appeal, defendant contends: (1) there was insufficient evidence of intent to sell; (2) the court erred in instructing with a now-superseded version of CALCRIM No. 358; and (3) the court erred in handling the jurys request for a readback of testimony. Disagreeing with these contentions, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was enrolled in the Sacramento County sheriffs work project program. In March 2008, defendant violated the terms of the program by failing to show up three times. Because of the violations, defendant was subject to arrest. To get defendant to come in the work project office, Sacramento County Sheriff Deputy Randal Wolter told defendant he needed to come into the office to be reinstated in the program.

Defendant came to the work project office in the afternoon on March 26, 2008, and was arrested by Deputy Wolter, Deputy Joe Studer, and Deputy Andris Chaparro. Deputy Studer did a quick pat-down search and shackled defendants ankle to a bench that was bolted to the floor of the holding room. The deputies then left defendant unattended for about 10 minutes.

When the deputies returned, defendant was still shackled but lying on the floor. Deputies Wolter and Chaparro put him back on the bench. Just as they were about to do a more thorough search of defendant prior to taking him to jail, Deputy Wolter saw a small plastic bag adjacent to the bench and behind what was once a closed door. Deputy Wolter asked Deputy Chaparro, What is that? Defendant immediately responded, It wasnt his. Inside the bag were eight individually-wrapped rocks of cocaine base ranging in weight from .07 grams to .18 grams that weighed a total of 1.14 grams.

According to Sacramento County Sheriff Detective Jon Eubanks, an 18-year law enforcement veteran whom the court qualified as an expert in narcotics, the cocaine base was possessed for sale. Factors he considers when determining whether cocaine base is possessed for sale include the amount of drug present, the packaging, the existence of drug paraphernalia, money, and text messages on the suspects cell phone. Here, Detective Eubanks based his opinion the cocaine base was possessed for sale on the fact there were eight individually-packaged rocks, the total amount was more than one user would consume in a day, and there was no device to ingest the cocaine base.

DISCUSSION

I

There Was Sufficient Evidence Of Intent To Sell

Defendant contends there was insufficient evidence of intent to sell. He takes issue with Detective Eubanks, who he claims did not have significant training or experience in the sale of drugs and based his expert opinion on the operating principle . . . that if its more than two rocks individually packaged then it must be for sale. Defendants argument regarding Detective Eubankss qualifications is forfeited. His argument regarding the insufficiency of evidence based on the detectives alleged operating principle is not supported by the facts.

In possession for sale cases, experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld. [Citations.] (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862.) To the extent defendant challenges Detective Eubanks qualifications as an expert to make this determination, he has forfeited the contention by failing to raise it in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 356-357.)

As to defendants argument regarding the insufficiency of evidence, Detective Eubanks never testified he had an operating principle that if a suspect possessed more than two individually-packaged rocks of cocaine base, the cocaine must be possessed for sale. His opinion that the cocaine base here was possessed for sale was based on the fact there were eight individually-packaged rocks, the total amount was more than one user would consume in a day, and there was no device to ingest the cocaine base. On this record, defendants insufficiency-of-evidence argument fails.

II

The Court Did Not Err In Instructing Pursuant To CALCRIM No. 358

Defendant contends the court violated his right to a fair trial and due process by instructing the jury pursuant to a now-superseded version of CALCRIM No. 358, which stated the jury must consider with caution evidence of a defendants oral statement, unless it was written or otherwise recorded. The current version of CALCRIM No. 358 states, [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.] The Bench Notes state, the court has a sua sponte duty to give the bracketed cautionary instruction when there is evidence of an incriminating out-of-court oral statement made by the defendant.

Defendants argument based on giving the now-superseded version of CALCRIM No. 358 fails. The only out-of-court statement to which the instruction applied was his statement the plastic bag wasnt his.[1] This statement was incriminating. (See People v. Osslo (1958) 50 Cal.2d 75, 93 [a defendants false statements concerning matters within the defendants own knowledge are admissions of guilt]; People v. Carrillo (1995) 37 Cal.App.4th 1662, 1669-1670 [a suspects false disavowal of ownership of an item intended to ward off suspicion indicated the suspects consciousness of guilt].) As such, the instruction told the jury to view defendants incriminating statement with caution, which benefited him. On this record, defendants argument the instruction violated his constitutional rights fails.

III

The Court Did Not Err In Its Handling Of The

Jurys Request For Readback Of Testimony

Defendant contends the court erred in handling the jurys request for a readback of Deputy Wolters testimony. To put defendants contention in context, we provide background on the jurys request and the courts response below.

The court instructed the jury [i]f there [wa]s a disagreement about the testimony . . . [it] may ask that the court reporters record be read to [it]. If [it] ha[d] questions, [the court] w[ould] talk to the attorneys before [the court] answer[ed] them, so it may take some time. . . . [The court] w[ould] answer any questions in writing or orally here in open court.

The jury began deliberating at 11:05 a.m. on the same day, and thereafter, the court and attorneys had the following exchange:

THE COURT: When I do get an inquiry from the jurors in writing, Ill take a look at it. Ill see if I can write a response to it. Then Ill have the clerk call each of you on the telephone, read you their inquiry, read you the Courts proposed response. [] If you both agree to that, let the clerk know, and shell just make a minute order indicating the question, proposed answer, both counsel agree[] they will use it, type it out, send it into the jury. If we dont agree, well just come on in here in open court and discuss it. Is that process agreeable with the People?

[THE PROSECUTOR]: Yes, Your Honor.

THE COURT: Defense?

[DEFENSE COUNSEL]: Yes.

The clerks minutes of that day reflect the following additional action in the case:

At 12:00 p.m., communication was received from the jury requesting readback of Deputy Wolters testimony. With no objection of counsel, the court reporter entered the deliberation room and read back the requested testimony.

At 2:02 p.m., communication was received from the jury requesting read back of Sergeant Marcheses testimony.

At the conclusion of readback of Officer Wolters testimony, the jury notified the Court that they [sic] wished to withdraw their [sic] request for readback of Sergeant Marcheses testimony.

On appeal, defendant argues the court committed reversible error and denied [him] effective assistance of counsel when it failed to notify and seek trial counsels input regarding the jurys requested readback of specific portions of Wolters testimony.

The record we have just recounted belies defendants argument. According to the minutes, after communication was received from the jury requesting readback of Deputy Wolters testimony, there was no objection of counsel, and the court reporter entered the deliberation room and read back the requested testimony. This entry demonstrates defense counsel was notified about the readback and had no objection to it. Defendant is therefore wrong when he argues counsel was not allowed to participate in the decision or to vocalize any objections to the courts intended course of action. On this record, there is no error.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

NICHOLSON , Acting P. J.

RAYE , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] We reject as unreasonable defendants suggestion the jury could have interpreted this instruction to apply to his not guilty plea. The jury was instructed defendant was presumed to be innocent and [t]his presumption require[d] that the People prove the defendant guilty beyond a reasonable doubt.