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The People v. Zachary Edward Davis

October 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ZACHARY EDWARD DAVIS, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara R. Johnson, Judge. (Los Angeles County Super. Ct. No. BA367204)

The opinion of the court was delivered by: Epstein, P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

Appellant Zachary Edward Davis appeals his conviction for sale of a controlled substance and possession of a controlled substance. He argues there is insufficient evidence to support the jury's guilty verdict, and that the instructions provided to the jurors removed an element of the offense from their determination. We conclude there is sufficient evidence to support the conviction. We also conclude that, to the extent there was instructional error, that error was harmless. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On December 31, 2009, members of the Los Angeles Police Department (LAPD) Gang Narcotics Division Buy Team conducted an undercover operation at a rave party held at the Los Angeles Coliseum. One of the undercover officers, Romeo Rubalcava, attempted to purchase from appellant the drug methylenedioxymethamphetamine (MDMA), commonly known as Ecstasy. After their initial encounter, Officer Rubalcava saw appellant walk to meet with another individual, Jeffrey Kiralla. After a brief meeting, appellant then returned to Officer Rubalcava and handed him two blue pills from a plastic container. Officer Rubalcava gave appellant $20 in exchange.

Appellant was arrested. Kiralla also was arrested, and as officers approached him, he dropped a plastic bag containing 19 blue pills. The LAPD crime lab tested the two pills sold by appellant to Officer Rubalcava and a representative sample of the 19 pills recovered. The tests showed the pills contained MDMA. Appellant was charged with sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)),*fn1 in count 1; and possession for sale of a controlled substance (§ 11378), in count 2. He pleaded not guilty.

At trial, Wubayehu Tsega, a criminalist from the LAPD crime lab, testified that the pills tested positive for MDMA. Officer Rubalcava testified about the sale of the pills. He also testified that MDMA is a "raiser drug" and a "party drug," the effects of which can last up to 24 hours. The defense called no witnesses.

The jury found appellant guilty as charged on count 1, and guilty of the lesser included offense of possession of a controlled substance (§ 11377) on count 2. The court sentenced appellant on count 1 to 36 months formal probation with the condition that he serve 90 days in county jail. The sentence on count 2 was stayed pursuant to Penal Code section 654, subdivision (a). This appeal followed.

DISCUSSION

I

Appellant contends there is insufficient evidence to support the conviction. In reviewing the sufficiency of evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Mendez (2010) 188 Cal.App.4th 47, 56.)

Sections 11377 and 11379 prohibit the possession of "any controlled substance" specified in several statutes, including sections 11054 and 11055. MDMA is not listed explicitly as a controlled substance in any of these statutes.*fn2 However, section 11055, subdivision (d)(1) identifies "[a]mphetamine, its salts, optical isomers, and salts of its optical isomers." Section 11055, subdivision (d)(2) lists "[m]ethamphetamine, its salts, isomers, and salts of its isomers" as a controlled substance. More broadly, subdivision (d) of section 11055 provides that "any material, compound, mixture, or preparation" containing "any quantity" of several substances having a "stimulant effect on the central nervous system," including amphetamine and methamphetamine, is a controlled substance.

Section 11054, subdivision (d)(6) identifies "methylenedioxy amphetamine" (MDA) as a controlled substance, and subdivision (d) of section 11054 includes "any material, compound, mixture, or preparation" containing "any quantity" or any "salts, isomers, and salts ...


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