Summary
upholding conviction where "appellant had offered to sell either cocaine or heroin"
Summary of this case from United States v. Martinez-LopezOpinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Super. Ct. No. BA350161, Craig E. Veals, Judge
California Appellate Project, Jonathan B. Steiner, Executive Director, and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Claude Nugent appeals the judgment entered after a jury convicted him of offering to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)). In a bifurcated proceeding, appellant admitted suffering a prior strike conviction (Pen. Code, §§ 667, subds. (b) - (i), 1170.12, subds. (a) - (d)) and three prior narcotics convictions (§ 11370.2, subd. (a)), and serving two prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to eight years in state prison, consisting of the midterm of four years doubled for the strike prior. The other prior conviction and prior prison term allegations were dismissed in the interests of justice. Appellant contends the evidence is insufficient to support his conviction under subdivision (a) of section 11352. We affirm.
Further undesignated statutory references are to the Health and Safety Code.
STATEMENT OF FACTS
On the afternoon of December 9, 2008, Los Angeles Police Officer Romeo Rubalcava was working undercover in downtown Los Angeles in an area known for narcotics sales, particularly rock cocaine and heroin. Officer Rubalcava was standing on the southwest corner at the intersection of Sixth and San Pedro Streets when appellant called out, "Hey, hey." The officer turned and saw appellant sitting in front of the Midnight Mission and looking in his direction. Appellant asked, "you looking for something?" Officer Rubalcava's training led him to believe that appellant was asking if he was looking for narcotics. The officer approached appellant and asked "if he could do a 20, " which was understood on the street to mean $20 worth of narcotics. Appellant replied, "Yeah, I got it. Sit down and give me the money. You know, the police are rolling around here."
Officer Rubalcava sat down next to appellant and handed him a prerecorded $20 bill. Appellant told the officer to wait for him and said he was going across the street. Before appellant left, he told Officer Rubalcava that he was leaving his blanket as collateral.
Officer Rubalcava watched appellant cross the street and approach three separate people standing on the sidewalk about 15 to 20 feet apart from each other. Appellant made eye contact and appeared to engage in a brief conversation with each individual. Officer Rubalcava knew from his experience that rock cocaine sellers frequented the side of the street where the people appellant approached were located.
After appellant spoke to the third person, he walked north to Seventh Street and proceeded eastbound until Officer Rubalcava lost sight of him. Five to ten minutes later, the officer saw appellant cross the street in the area of Seventh and Towne Streets and continue walking back in the general direction of Sixth and San Pedro. When appellant reached the southwest corner of Seventh and San Pedro, he boarded a bus that left the area. Two other officers stopped the bus and arrested appellant. The prerecorded $20 bill was recovered from appellant's pocket, and no drugs were found.
DISCUSSION
Appellant contends the evidence is insufficient to support his conviction for offering to sell a controlled substance because there is no evidence from which the jury could have inferred that (1) he intended to sell drugs to Officer Rubalcava, and (2) he offered to sell either cocaine or heroin. We disagree.
In reviewing an insufficient evidence claim, we consider the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We presume the existence of every fact supporting the judgment that the jury reasonably could deduce from the evidence, and a judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) On review, we may not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
As the jury was instructed, in order to find appellant guilty of violating section 11352, subdivision (a), the prosecution had to prove beyond a reasonable doubt that he (1) offered to sell a controlled substance, namely, cocaine or heroin; and (2) made the offer with the specific intent to sell a controlled substance. (CALJIC No. 12.03.) The prosecution did not have to prove that appellant actually possessed a controlled substance. (Ibid.) "[N]either delivery of the drug, an exchange of money, nor a direct, unequivocal act toward a sale are necessary elements of the offense." (People v. Encerti (1982) 130 Cal.App.3d 791, 800-801.)
The amended information specified the controlled substance as cocaine base, while the jury instruction identified the substance as either cocaine or heroin. Appellant does not challenge the inclusion of heroin in the instruction, nor does he challenge the instruction's reference to cocaine instead of cocaine base.
The evidence establishes that appellant, while located on a street known for narcotics sales called out to an undercover narcotics officer and asked if he was "looking for something." The officer asked appellant for a "20, " and handed him a $20 bill. Although the officer did not specifically refer to a type of drug, he knew from his experience that the primary drugs sold in the area were rock cocaine and heroin. Appellant then approached three different individuals on the other side of the street, which was known to be frequented by drug dealers, and was seen speaking to each of them. Appellant told the officer he was leaving his blanket behind as collateral, which conveyed his understanding that he would be returning after purchasing the drugs. When appellant's attempts to complete the purchase were unsuccessful, he proceeded on the route where rock cocaine was predominantly sold. From these facts, the jury could reasonably infer that appellant made an offer to sell either rock cocaine or heroin with the specific intent to sell either drug, notwithstanding that he apparently abandoned that intent after his attempt to complete the sale was unsuccessful.
In arguing to the contrary, appellant purports to distinguish the facts in this case from those presented in People v. May (1964) 224 Cal.App.2d 436, a case in which the court found sufficient evidence to support a conviction for offering to sell marijuana in violation of section 11531. Although he correctly notes that the defendant in May referred to the specific drug he intended to sell to the undercover buyer and provided details regarding his plan to purchase the drugs, nothing in the opinion suggests that such facts are essential to a conviction for offering to sell marijuana under section 11531 or, by analogy, offering to sell a controlled substance under subdivision (a) of section 11352. A defendant's intent to sell a controlled substance need not be established by direct evidence, but rather "can be established by circumstantial evidence and any reasonable inferences drawn from that evidence." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) As we have explained, the circumstantial evidence presented at trial is sufficient to support the jury's positive finding in this regard.
Appellant's reliance on People v. Jackson (1963) 59 Cal.2d 468, is also unavailing. The holding upon which he relies did not involve a claim of insufficient evidence to support a conviction for offering to sell a controlled substance, but rather related to the trial court's error in failing to instruct the jury that specific intent to sell a controlled substance is an essential element of the charge. In deeming the error prejudicial, the Supreme Court reasoned that there was evidence from which the jury could have found the defendant merely intended to commit theft by fraud. (Id. at pp. 469-470.) Our task here is to decide whether the evidence is sufficient to support a conviction. In making that determination, it is irrelevant whether the same evidence could have led to an acquittal. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
We also note the jury effectively rejected the claim that appellant merely intended to commit theft by fraud by finding him not guilty of committing petty theft with a prior conviction, in violation of Penal Code sections 484, subdivision (a) and 666.
Faring no better is appellant's attack on the sufficiency of the evidence supporting the finding that he intended to sell either cocaine or heroin, as opposed to some other drug such as marijuana. The fact that neither appellant nor Officer Rubalcava specifically referred to either drug is not determinative. The circumstantial evidence, considered in conjunction with Officer Rubalcava's expert opinion testimony on the issue, is sufficient to support the finding that appellant had offered to sell either cocaine or heroin. The officer testified that in his 10 years as a police officer and 6 and a half years as an undercover narcotics officer, he had participated in thousands of drug-related investigations and had personally arrested over 450 individuals for narcotics offenses. Based on this experience, Officer Rubalcava knew that rock cocaine and heroin were the drugs that were primarily sold on the street where appellant contacted him. This information and appellant's actions led the officer to opine that appellant had offered to sell him either cocaine or heroin, and that he specifically intended to complete the sale of either drug when he approached three different people on the street and then proceeded to another area where rock cocaine was predominantly sold. Appellant forfeited the right to challenge this opinion by failing to contest it below. (See People v. Fields (1998) 61 Cal.App.4th 1063, 1071.) In any event, the officer's experience and observations gave him sufficient expertise to render his opinion regarding the nature of the substance appellant was offering to sell. (Ibid.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.