IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
July 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES WILLIAM BONACCI, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F8884)
The opinion of the court was delivered by: Robie, J.
P. v. Bonacci
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant James William Bonacci guilty of possession of methamphetamine for sale and two misdemeanors--possession of narcotics paraphernalia and possession of a hypodermic syringe. Defendant admitted that he had two prior narcotics convictions and had served two prior prison terms. He was sentenced to state prison for 11 years. Defendant was awarded 31 days' custody credit and 30 days' conduct credit.*fn1
On appeal, defendant contends his conviction must be modified to simple possession of methamphetamine because there was insufficient evidence that his possession was for the purpose of sale. He argues that, although two prosecution experts were of the opinion that the possession was for sale, the two experts relied on different factors in reaching their opinions. We shall modify the judgment to award additional conduct credit and affirm the judgment as modified.
On June 20, 2008, at approximately 7:00 a.m., officers with the Shasta Interagency Narcotics Task Force executed a search warrant at a residence in Anderson.
Officer Casey Day was one of the first officers inside the residence. He had previously made between 200 and 300 narcotic arrests, had participated in the execution of 60 to 100 search warrants, and had qualified as an expert witness on the issue of possession of narcotics for sale 10 to 15 times.
Officer Day entered the residence and found defendant, who was seated in a reclining chair in the living room. Defendant appeared to be under the influence of a stimulant such as methamphetamine. He was sweating, coughing, and evidently sick enough to be close to vomiting.
While Officer Day was present, another investigator located a multi-colored cloth bag within five or six feet of defendant. The bag contained: (1) three baggies of methamphetamine; (2) additional "clean" unused baggies; (3) a digital gram scale coated with apparent methamphetamine residue; (4) a hypodermic needle and syringe; (5) a folded or bent piece of cardboard; (6) a glass smoking pipe with residue; and (7) a telephone address book. Additional glass smoking pipes coated with apparent methamphetamine residue were found on a coffee table.
Officer Day testified that the clean plastic packaging material found in the cloth bag was of the type typically used for packaging quantities of controlled substances. It was his opinion that the hypodermic needle was the sort typically used for ingesting methamphetamine. He further testified that the bent cardboard could be used to insert or remove methamphetamine powder from the baggies; the powder can be difficult to handle without spillage.
Officer Day interviewed defendant after he waived his constitutional rights. Defendant admitted that he had been smoking methamphetamine just before the officers entered the residence and that he had used one of the smoking pipes located on the coffee table. He also admitted ownership of the multi-colored cloth bag and its contents.
The parties stipulated that the three baggies contained methamphetamine weighing 0.4 grams, 0.66 grams, and 0.27 grams.
Officer Day testified that based on his training and experience as a narcotics officer, defendant possessed the methamphetamine found in the multi-colored bag for the purpose of sale. Day based his opinion on the following factors: (1) the methamphetamine was packaged in three separate containers, in quantities similar to what a trafficker would sell to a "street-level" user; (2) defendant was present at a house other than his own, and he brought with him three separate containers of methamphetamine as well as packaging materials, scales, and the cardboard "scooper" device; and (3) the quantities possessed were more than what a user would consume on one occasion and would suffice to get the user "high" on multiple occasions.
Officer Day acknowledged that the search did not yield cash or "pay-owe" notations. The absence of these items did not alter his opinion that the methamphetamine was possessed for sale. He testified that controlled substances can be "fronted" to a customer, i.e., provided in advance of any monetary or personal property exchange. Pay-owe notations are merely organizational tools; not all traffickers use them.
Officer Day said that the clean packaging materials in the multi-colored cloth bag suggested possession for sale because he had never seen a consumer repackage methamphetamine after buying it from a dealer. Moreover, dealers typically do not allow consumers to package their purchases in the first instance.
Officer Day said that it is common for users of methamphetamine to also sell the drug. It is also common for sellers to possess only small quantities of the drug when they are away from their residences because of the risks involved with larger quantities.
Officer Shawn McGinnis testified that he was a member of the task force that executed the June 20, 2008, search warrant. McGinnis is an experienced narcotics enforcement officer who has qualified as an expert on the subject of possession of narcotics for sale. McGinnis was the person who first located the multi-colored cloth bag.
Officer McGinnis testified that the methamphetamine in the bag was possessed for the purpose of sale. In forming his opinion, McGinnis relied on the following factors: (1) the "clean" packaging here was identical to the three packages of methamphetamine also found in the bag; (2) a mere user would have no reason to divide a large package of the drug into several smaller packages; (3) a mere user typically would not weigh purchases on the type of scale found in the search; instead, the user would know by sight whether he was obtaining a proper amount; and (4) the cardboard "dipping spoon" is an item characteristically carried only by dealers. McGinnis said that the amounts of methamphetamine found in the three baggies were consistent with the weights typically sold on the streets. McGinnis testified it would be "very unusual" for a drug user, who is not also a drug seller, to possess a scale. Rather, drug users typically would take the drug from the seller and "use it right away because they're addicted."
Defendant did not testify.
A former co-defendant, who was present in the house when the search warrant was executed, testified that he and defendant had been gambling at a casino the night before the police entry. They returned to the residence in the morning and were smoking methamphetamine when the police forcibly entered. Defendant had come to the house to return a stereo receiver that he had repaired.
The defense called a former deputy sheriff as an expert witness on the issue of whether the methamphetamine had been possessed for sale. The deputy testified that the methamphetamine "very likely" was possessed for personal use and not for sale. The witness relied on: (1) defendant's acknowledgments to officers that he was a long-time user and that he had used a half gram the previous night; (2) his having shown an officer an injection mark; (3) defendant's being discovered seated next to methamphetamine pipes; (4) his presence at the residence of a suspected drug dealer who was the target of the search warrant; (5) defendant's admission to the witness that he had repaired an amplifier in exchange for the methamphetamine; and (6) his evident lack of financial or material resources.
Substantial Evidence of Possession for Sale
Defendant contends his conviction of possession of methamphetamine for sale must be reversed because there was no substantial evidence of his intent to sell the drugs in his possession. He argues his conviction must be modified to the lesser included offense of simple possession, the prior narcotics conviction enhancement must be set aside for want of a qualifying felony, and the case must be remanded to the trial court with directions to consider whether he should be sentenced for a misdemeanor. None of these contentions has merit.
"On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]" (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
The jury was instructed that, in order to convict defendant of possession for sale, the prosecution had to prove that he knowingly possessed a useable amount of methamphetamine and that "he intended to sell it." As defendant acknowledges, the question of his intent was the only disputed issue in the case.
Defendant candidly admits that the prosecution presented two qualified expert witnesses to explain the same circumstantial evidence, and that both experts were of the opinion defendant intended to sell the methamphetamine.
Nevertheless, defendant argues the evidence, as a whole, is insubstantial because the two experts "disagreed on why, contradicting each other in the process." In defendant's view, Officer Day relied primarily on the fact that the "three bindles of methamphetamine contained more than [defendant] could consume in any one sitting." In contrast, Officer McGinnis "thought that the amount [defendant] possessed was clearly consistent with personal use," and "disagreed with Day's view of the drug business that a functioning dealer would have neither pay/owe sheets nor cash on him." Rather, Officer McGinnis "thought that the scale was significant [to show possession for sale] and [thought] that it was unlikely that [defendant] was carrying a scale to avoid being cheated in his drug purchases." These arguments overlook our standard of review.
"'"'To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.'"' [Citation.]" (People v. Friend (2009) 47 Cal.4th 1, 41, quoting People v. Barnes (1986) 42 Cal.3d 284, 306.)*fn2
In this case, Officers Day and McGinnis both expressed the opinion the methamphetamine was possessed for sale. By convicting defendant of that offense, the jury as trier of fact, obviously chose to believe the officers' opinions rather than the defense expert's opinion that the methamphetamine was possessed for personal use.
Defendant has not attempted to show any "physical impossibility" with respect to his intent to sell the methamphetamine. (People v. Friend, supra, 47 Cal.4th at p. 41.) Rather, defendant asks this court to infer or deduce that he did not intend to sell, simply because the two experts who reached the contrary conclusion did so by relying on different evidence. This we cannot do. (Ibid.)
We cannot dismiss either prosecution expert's opinion as lacking in "solid value" (People v. Boyer, supra, 38 Cal.4th at pp. 479-480) simply because the duo focused upon different items of evidence and, in defendant's words, "contradicted each other in key respects." It is only by application of the prohibited processes of inference or deduction that the "solid value" of either officer's opinion could be diminished by the mere existence of a competing opinion. (People v. Boyer, supra, at pp. 479-480.)
The jury was instructed on how to evaluate each expert's testimony. (CALCRIM No. 332.) The instruction imposed no duty to reject any opinion simply because it was shared by multiple experts who had reached it for different reasons. In any event, defendant has not shown that either prosecution expert's opinion lacks solid value when standing alone.
Defendant's possession for sale conviction is supported by sufficient evidence.
The judgment is modified to award defendant 31 days of presentence conduct credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: HULL , Acting P. J. MAURO, J.