People v. Singleton

• Decision Date: 23 July 2015
• Docket Number: B257405
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. STEVIE MARK SINGLETON, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. STEVIE MARK SINGLETON, Defendant and Appellant.

B257405

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

July 23, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. KA102861)

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Douglas Sortino, Judge. Affirmed.

Greg Demirchyan, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, Wyatt E. Bloomfield, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant and appellant Stevie Singleton (defendant) guilty of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) (count 1) and possession for sale of a controlled substance (Health & Saf. Code, § 11351) (count 2).¹ On appeal, defendant contends that insufficient evidence supports his convictions for sale of a controlled substance and possession for sale of a controlled substance. Defendant also asserts that the trial court erred prejudicially by admitting expert narcotics-jargon testimony without qualifying the testifying witness as an expert. If we conclude that his challenge to the admission of expert testimony was forfeited by defense counsel's failure to object in the trial court, then defendant contends that he received ineffective assistance of counsel. We affirm.

FACTUAL BACKGROUND

On August 16, 2013, City of Pomona Police Department Officer Jesus Cardenas was working on a special two-week assignment to the U.S. Marshal Service. The assignment entailed conducting undercover narcotics purchases as part of a task force. An 11-year veteran of the Pomona Police Department, Officer Cardenas had been a police officer for 16 years. Officer Cardenas had attended two 40-hour training courses covering drug abuse recognition and narcotics sales, packaging, use, and influence. He also had experience working in the major narcotics unit, had conducted 28 undercover narcotics purchases, and had authored two narcotics search warrants resulting in home confiscations. During his tenure with the Pomona Police Department, Officer Cardenas had conducted thousands of narcotics sales as an undercover police officer.

About 4:07 p.m. on August 16, 2013, Officer Cardenas, dressed in civilian attire, drove his undercover vehicle into the parking lot of the 99 Cent Store on Holt Boulevard near Paloma Drive in Pomona to purchase narcotics. There were five individuals in the area around his truck when he arrived. Two of them subsequently approached him.Based on his training and experience with undercover operations, Officer Cardenas concluded that the individuals who did not approach appeared to be acting as lookouts. Officer Cardenas explained that narcotics sales were often conducted through a "team approach" because those selling narcotics "try not to keep multiple items [i.e., narcotics and money] on their person."

Defendant was one of two individuals who approached Officer Cardenas and initiated the following conversation:

"[Defendant]: What's up?

"[Officer Cardenas]: I'm looking for a dub.²

"[Defendant]: What you want?

"[Officer Cardenas]: Rock.³"

Defendant responded to this conversation by using his cell phone to initiate what Officer Cardenas assumed was a possible transaction. Subsequently, defendant approached co-defendant Johnson, who was among the men standing outside the 99 Cent Store. Defendant and Johnson had approximately a five second conversation before walking over to a minivan parked outside the store. Johnson entered the van and closed the door, but defendant remained outside. Officer Cardenas, who did not see anyone else inside the van or approach the van, concluded that defendant was acting as a lookout.

When Johnson opened the minivan's door, defendant walked over to Johnson, and Officer Cardenas observed a hand-to-hand transaction between defendant and Johnson. Officer Cardenas described the transaction: "Johnson's right clenched fist met with [defendant's] open palm and a handshake or similar to a handshake occurred and Johnson released. He had an open hand now and [defendant] had the clenched fist."

Following the transaction, defendant, keeping his arm close to his body, walked back to Officer Cardenas and opened his palm, producing $20 worth of narcotics. OfficerCardenas handed defendant a $20 bill that the U.S. Marshal Service had given him, and defendant handed the officer the narcotics. The narcotics were two "off-white colored rocks," each in a separate package of cellophane, with each rock about the size of a pencil eraser. Officer Cardenas believed the rocks were consistent with two "dimes," or $10-sized rocks, of cocaine. According to Officer Cardenas, the cocaine rocks he received were "typical use amounts" for personal use. He opined that each rock could be "hit a few times," meaning that each rock could be used a few times.

Officer Cardenas estimated that about four minutes elapsed from when he specified that he wanted rock cocaine to when defendant handed him the narcotics. After placing the narcotics on the front seat, Officer Cardenas drove away, called Officers Edgard Padilla and Brad Paulson to notify them that a transaction had occurred, and described the van and the men to be taken into custody. After Officers Paulson and Padilla took into custody individuals matching the men Officer Cardenas described, Officer Cardenas slowly drove by the scene in his undercover vehicle to confirm visually the identification of the detained individuals. Officer Padilla searched defendant after detaining him and found no money. When the arresting officers searched Johnson, however, they recovered $541 in U.S. currency, including some $20 bills. Because Officer Cardenas continued on with his U.S. Marshal Service detail after identifying the men in custody and did not return to the scene, he did not know what happened to the $20 bill that he used to purchase the narcotics from defendant.

Officer Cardenas suggested, based on his experience conducting undercover operations and narcotics investigations, that defendant likely would not have maintained possession of the $20 from the transaction with Officer Cardenas so defendant could claim that any drugs found on his person were for personal use rather than for sale. Officer Cardenas conceded that a search of an individual that resulted in recovery of both money and narcotics would solidify the prosecution's case for possession for sale.

Robert Takeshita, a senior criminalist with 31 years of experience working for the Los Angeles County Sherriff's Department Crime Lab, had qualified as a controlled substances expert in municipal, superior, and federal courts, and had tested substances fornarcotics on a daily basis during the last 20 years of his tenure with the crime lab. Takeshita analyzed the substances Officer Cardenas purchased from defendant. He testified that the crime lab received two items of sealed evidence, each of which contained a solid substance that weighed 0.09 grams. Takeshita conducted two separate chemical tests on each of the two solids: a preliminary cobalt spot test to determine the type of chemical compound of each solid, and a confirmatory infrared spectrum test to determine the chemical structure of each compound. Both solid substances tested positive for cocaine base.

DISCUSSION

I. Sufficiency of Evidence

Defendant contends that his convictions for sale of a controlled substance and possession for sale of a controlled substance each require a finding that he possessed a usable amount, and that insufficient evidence supports the jury's finding of a usable amount. Assuming, without deciding, that both counts require possession of a usable amount, sufficient evidence supports the jury's finding and defendant's convictions.

A. Standard of Review

"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' (People v. Lindberg (2008) 45 Cal.4th 1, 27 [82 Cal.Rptr.3d 323, 190 P.3d 664].) We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the triercould reasonably deduce from the evidence.' (People v. Kraft (2000) 23 Cal.4th 978, 1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].)" (People v. Edwards (2013) 57 Cal.4th 658, 715.)

B. Application of Relevant Principles

To sustain a conviction under Health and Safety Code section 11351 - possession of a controlled substance for sale - the prosecution must prove that "1. The defendant possessed a controlled substance; [¶] 2. [t]he defendant knew of its presence; [¶] 3. [t]he defendant knew of the substance's nature as a controlled substance; [¶] 4. [w]hen the defendant possessed the controlled substance, he intended to sell it; [¶] 5. [t]he controlled substance was [cocaine]; [¶] AND [¶] 6. [t]he controlled substance was in a usable amount." (CALCRIM No. 2302; People v. Montero (2007) 155 Cal.App.4th...