(Santa Clara County Super. Ct. No. CC651364). Trial Judge: Honorable Rodney Stafford.
The opinion of the court was delivered by: McAdams, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant of possessing methamphetamine for sale, a felony, and being under the influence of methamphetamine, a misdemeanor. (Health & Saf. Code, §§ 11378, 11550, sub. (a).) Defendant admitted that he had three prior convictions for being under the influence of, or using, a controlled substance. The court placed defendant on probation for three years.
On appeal, defendant contends: (1) the trial court had no jurisdiction to try him because the district attorney failed to file an information; (2) defense counsel rendered ineffective assistance of counsel for failing to object to evidence that defendant was unemployed and on welfare, and eliciting further evidence of his financial straits; and (3) the prosecutor committed misconduct by arguing that defendant placed the jacket in which the methamphetamine was found into his jail property. We affirm.
On the evening of December 13, 2006, three San Jose police officers went to 642 North 11th Street in San Jose to execute an arrest warrant on Jolene Scoggins and conduct a parole search of the premises. Scoggins was not there but defendant and two other persons were in the house. Defendant was wearing ―a dark blue mechanics coat‖ and was ―fidgety.‖
Officers Barreto and O'Neil, both experts in recognizing when someone is exhibiting symptoms of being under the influence of a controlled substance, concluded that defendant was under the influence of a stimulant. O'Neil searched defendant's coat pocket and found a large baggie of suspected methamphetamine. It was later determined that the baggie indeed contained 19.92 grams of methamphetamine.
Officer O'Neil advised of defendant of his Miranda*fn1 rights. Defendant indicated he understood them and spoke to the officer. Defendant told O'Neil that he had been at the residence for approximately 30 minutes before the police arrived. He said the jacket with the drugs in the pocket was not his; he had found the jacket in a junk pile in the backyard. Thinking it was a nice jacket, he put it on. He found the methamphetamine in the pocket and snorted a line of it. He admitted he was under the influence,*fn2 but said ―he wasn't dealing.‖ When O'Neil asked him if he had a job, defendant said, ―No, not at this time.‖
The officers confirmed that the backyard contained a junk pile of debris and construction materials. However, the other items of clothing in the junk pile were wet, whereas defendant's jacket was dry.
Officers Barreto and O'Neil transported defendant to the jail. Defendant wore the jacket through the preprocessing procedure, which includes fingerprinting, photographing, and urine analysis. Defendant never stated during preprocessing that the jacket was not his. He wore the jacket for his booking photograph. The jacket was included with his personal effects at the county jail.
Officers O'Neil and Delorenzo testified as experts on possession for sale versus simple possession of controlled substances. Based on the large quantity of methamphetamine found in the pocket of the jacket, both officers believed that the methamphetamine was possessed for sale. Officer O'Neil expressed the opinion that the quantity in the baggie was worth about $500 on the street.
Halle Weingarten, a licensed forensic toxicologist, testified as an expert on the ―symptoms of someone being under the influence of personal use of methamphetamine.‖ Ms. Weingarten testified that she ―d[id]n't think there's any such thing as an average user‖ of methamphetamine, because patterns of use varied from occasional or casual use to heavier or addicted use. She opined that the maximum amount of methamphetamine an addict may use without dying is five grams a day of the drug, assuming the addict has developed a high level of tolerance to the drug. She also opined that ...