P. v. Wilson

Filed 9/27/06 P. v. Wilson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, George G. Lomeli, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

INTRODUCTION

Defendant Lonnie Wilson appeals from the judgment entered after the trial court revoked his probation and imposed a previously suspended prison term. Defendant contends that the order revoking his probation should be reversed, in that the People failed to prove that he sold a controlled substance to an undercover officer. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2004, defendant pled guilty to a violation of Health and Safety Code section 11352, subdivision (a), which proscribes, among other things, the sale or transportation of a controlled substance. The trial court sentenced defendant to state prison for the upper term of five years, suspended execution of sentence and placed him on formal probation for three years with various terms and conditions.

On September 8, 2005, the People filed a motion requesting revocation of defendant’s probation. The People asserted that defendant had violated his probation by selling cocaine in violation of Health and Safety Code section 11352. The court summarily revoked defendant’s probation and scheduled a probation revocation hearing.

The evidence adduced at the probation revocation hearing disclosed the following: On September 6, 2005, Los Angeles Police Officer Jose Calderon was assigned to the Narcotics Division citywide “buy team” and was working undercover as a “buy officer.” He had been working in that particular capacity for two years.

Officer Calderon’s training and experience with respect to the recognition of dangerous drugs, including rock cocaine, consisted of 40 hours of narcotics training. During a three-week stint with a previous buy team, he received 120 hours of training in recognizing rock cocaine and other drugs. Officer Calderon had contact with rock cocaine more than 100 times, during which he had the opportunity to view it and smell it. Officer Calderon knew rock cocaine when he saw it.

Around 10:20 p.m., Officer Calderon approached defendant in the parking lot of the Internet Café and offered him money for cocaine. Defendant and Calderon walked between two cars where an exchange of drugs and money took place. Based upon his experience and training, the substances appeared to Officer Calderon to be rock cocaine.[1]

After the purchase was completed, Officer Calderon walked away and signaled to fellow officers that a drug transaction had been consummated. Defendant was arrested, and the money Officer Calderon used to purchase the cocaine was recovered. Officer Calderon booked the rock cocaine that he purchased from defendant into evidence.

Following the evidentiary portion of the hearing, defense counsel argued that there was no evidence that the substance defendant sold to Officer Calderon was rock cocaine and counsel urged the court to find that evidence presented was insufficient to establish a probation violation. The trial court rejected defense counsel’s argument stating: “[T]he burden of proof for a probation violation is preponderance of the evidence. . . . I think in the totality of the circumstances, the evidence that I’ve heard, the court is satisfied that that burden has been met. Not only did the officer testify that based on his training and experience that the substance that he received from the defendant was rock cocaine, but if you look at the defendant’s conduct, in that the officer testified that he approached him and asked for drugs, the defendant appeared to be accommodating him, took the buy money in exchange. The buy money was recovered by another officer. Even that circumstance is something the court will consider.” The court found defendant to be in violation of his probation and imposed the previously suspended five-year sentence.

DISCUSSION

Defendant contends that the order revoking his probation should be reversed, in that the People failed to prove that the substance he sold to the undercover police officer was a controlled substance. Specifically, defendant asserts that Officer Calderon’s testimony that defendant sold him what appeared to be rock cocaine was insufficient, even under the lessened preponderance of the evidence standard, to establish a probation violation. We disagree.

A trial court may revoke a defendant’s probation if it has “reason to believe” that the defendant has violated any condition of his probation and the interests of justice warrant revocation of probation. (Pen. Code, § 1203.2, subd. (a).) The court is “granted great discretion in determining whether to revoke probation.” (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Its exercise of discretion will not be disturbed unless an abuse of discretion is demonstrated. (Id. at p. 442.) The facts warranting the revocation of probation need only be established by a preponderance of the evidence. (Pen. Code, § 1203.2, subd. (a); Rodriguez, supra, at pp. 441, 446, 447; People v. Jackson (2005) 134 Cal.App.4th 929, 935.)

Any fact in a criminal case, including the nature of a substance, may be proved by circumstantial evidence. (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.) A police officer’s expert opinion as to what a particular substance appears to be is one form of circumstantial evidence. (Ibid.; People v. Marinos (1968) 260 Cal.App.2d 735, 738-739.)

In Officer Calderon’s expert view, the substance defendant sold him appeared to be rock cocaine. This opinion was based upon his extensive training, education and experience in the recognition of rock cocaine. In addition, Officer Calderon had been in direct contact with rock cocaine more than 100 times. Officer Calderon’s expert opinion, together with his testimony detailing the drug transaction, was more than sufficient to establish that defendant violated his probation, specifically the conditions that he obey all laws, that he not use or possess any narcotics or dangerous or restricted drugs (except with a valid prescription) and to stay away from places were users, buyers or sellers congregate and to refrain from associating with known drug users and sellers.

Defendant’s reliance on People v. Adams (1990) 220 Cal.App.3d 680 is misplaced. Adams was decided in the context of a criminal prosecution requiring the People to establish guilt beyond a reasonable doubt. Inasmuch as the facts warranting the revocation of probation in this case need only be established by a preponderance of the evidence (Pen. Code, § 1203.2, subd. (a); People v. Rodriguez, supra, 51 Cal.3d at pp. 446, 447; People v. Jackson, supra, 134 Cal.App.4th at p. 935), we conclude that the evidence was sufficient to establish a violation of defendant’s probation.

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

ROTHSCHILD, J.

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[1] Officer Calderon testified that the substance defendant sold him was rock cocaine. Defense counsel objected “in terms of [the officer] being able to identify it as rock cocaine.” The trial court sustained the objection and then inquired of Officer Calderon whether based upon his training and experience, the substance “appeared to be rock cocaine?” The officer answered in the affirmative. The court later noted for the record that it would keep the officer’s testimony “characterized as it appeared to be rock cocaine” and observed that “I’ve listened to his training and experience. And it really goes to the weight of the evidence . . . .”

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