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The People v. Herbert Hale

August 28, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HERBERT HALE, SR., DEFENDANT AND APPELLANT.



(Super. Ct. No. 11F00299)

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

P. v. Hale

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Herbert Hale, Sr., guilty of transportation of heroin and deadlocked on a count of possession of heroin for sale. Defendant admitted having four prior narcotics convictions and having served five prior prison terms. The trial court granted the prosecution's request to dismiss all but two of the prior convictions. At sentencing, the trial court found the transportation was for sale and sentenced defendant to county jail for 11 years, consisting of the upper term of five years plus six years for the prior convictions, pursuant to Penal Code*fn1 section 1170, subdivision (h) (realignment). He was awarded 285 days' custody credit and 285 days' conduct credit.

On appeal, defendant contends: (1) his request for an instruction allowing the jury to determine whether his transportation of heroin was for personal use, rather than sales, was erroneously denied; and (2) the evidence is insufficient to support the trial court's determination that the transportation was for the purpose of sales. We affirm.

FACTUAL AND PROCEDDURAL BACKGROUND

I Trial

Sacramento's McClatchy Park is known for "fairly heavy" narcotics sales. In December 2006, at the park, defendant sold an undercover detective two plastic bindles that contained black tar heroin. Defendant pulled the bindles from a brown paper bag that contained additional individually wrapped bindles of heroin. When contacted by a uniformed officer, defendant stated he was on parole for a fraud conviction. In fact, defendant was on parole, but not for fraud. When arrested, defendant had currency on his person: five $20 bills and some $10 and $1 bills. The denominations were "[v]ery consistent with street-level narcotics sales." Police found no scales or pay-owe sheets.

Five years later, on a morning in January 2011, McGeorge School of Law security officer Gary Galbreath was parked near McClatchy Park. He saw four black male adults standing across the street in an area frequented by people who sold narcotics. The males looked nervously in all directions.

After several minutes, defendant arrived in a green car and parked. One of the males approached the car, opened the passenger door, stuck his hand inside the car, made an exchange with defendant's right hand, got out of the car, and returned to the group.

Galbreath telephoned Sacramento Police Officer Mark Callaghan and related the foregoing facts. Callaghan arrived and Galbreath pointed out defendant's car. Callaghan followed the car and, when it ran a stop sign, initiated a traffic stop. Defendant was alone in the car. He appeared nervous and his hands shook so much that, when he retrieved his wallet, his identification fell on the floor.

Officer Callaghan asked defendant if he was on probation or parole; as before, defendant claimed he was on parole for fraud. Callaghan later learned that defendant's parole was for felony transportation or possession of narcotics for sale. During a parole search, officers found $630 on defendant's person: 20 $20 bills, 9 $10 bills, 24 $5 bills, and 20 $1 bills. Defendant was handcuffed.

Officer Callaghan searched defendant's car. In the driver's map pocket, he found a clear plastic baggie containing 10 individually wrapped and identically sized bindles of black tar heroin. The heroin weighed 3.08 grams. Defendant showed no signs of being under the influence. Black tar heroin most commonly is injected with a syringe and needle. Heroin users commonly possess needles; spoons with residue or evidence of burning; a cooking container, such as a soda can; a filtering device; and a vein tie-down. Officer Callaghan found no such ...


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