P. v. Laverty CA2/3 ( 2013 )

Filed 6/12/13 P. v. Laverty CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B239965
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA089959)
v.
SEAN LAVERTY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur Jean, Judge. Modified and, as modified, affirmed with directions.
Jin H. Kim, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Kimberley J.
Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Sean Laverty appeals from the judgment entered following his
convictions by jury on count 3 – possession of heroin for sale (Health & Saf. Code,
§ 11351), count 4 – transportation of heroin (Health & Saf. Code, § 11352, subd. (a)),
count 5 – possession of hydrocone for sale (Health & Saf. Code, § 11351), count 6 –
possession of oxycodone for sale (Health & Saf. Code, § 11351), and count 7 –
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), with court
findings that he had suffered prior felony narcotics convictions (Health & Saf. Code,
§ 11370.2, subd. (a)) and prior prison terms (Pen. Code, § 667.5, subd. (b)). The court
sentenced appellant to prison for 10 years. We modify the judgment and, as modified,
affirm it with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence established that about 9:40 a.m. on September 1,
2011, Long Beach Police Officer Eric Barich was dispatched to a Walgreens store in
Long Beach to investigate a report that someone was intoxicated.1 Upon arrival, Barich
saw appellant asleep and sitting in the driver’s seat of a Ford SUV parked in front of the
store. Appellant was the sole occupant of the SUV. The key was in the ignition in the
accessory position, the radio was on, but the motor was not running. The SUV belonged
to Danielle Jewett, appellant’s codefendant.2 The store was open.
Police found two Ziploc baggies in appellant’s right lower rear pants pocket. One
baggy contained 8.42 grams of heroin and the other contained .451 grams of
methamphetamine. Two metal spoons and a cotton swab were in the SUV’s center
console. The spoons contained brown residue and the bottom of each spoon was charred.
The glove box contained two unused hypodermic needles, three cellphones, and a
1
Barich testified during cross-examination that the original call he had received
related to a female acting strangely. The female was ultimately discovered farther down
the street.
2
Jewett is not a party to this appeal.
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charger. There were items in the backseat, including pill bottles containing prescription
medication (i.e., hydrocodone, oxycodone, alprazolam, and amitriptyline), “several
unused handwritten prescription [notepads] or – the paperwork for prescriptions,” unused
hypodermic needles, and a small digital scale. The above mentioned notepads were also
on the floorboard. The scale was within arm’s reach of appellant.
At the scene, appellant told Barich the heroin belonged to appellant but everything
else Barich found in the SUV belonged to Jewett. Appellant said concerning the
prescriptions or paperwork in the SUV that Jewett’s friend worked at a medical group
and wrote prescriptions. Appellant said Jewett “goes and turns a prescription in and sells
them,” i.e., “[Jewett] gets the prescription filled and she sells the prescriptions.”
During the police investigation, Jewett walked towards Barich, saw police, then
quickly walked away. While Barich was transporting appellant to jail, Barich saw Jewett
about 20 blocks from the Walgreens store. Police arrested Jewett some distance from the
store.
A criminalist testified concerning the previously mentioned bottles as follows.
The bottles contained, inter alia, 150 hydrocodone bitartrate/acetaminophen pills, and
95 oxycodone pills. Two bottles were for Jewett. One bottle was for appellant. Other
bottles were for other persons.
Long Beach Police Detective Luis Rodriguez, assigned to the drug investigation
and major narcotics section, testified as follows. Heroin in the amount of 8.42 grams net
weight had a street value of about $680, was a significant amount of heroin for a person
to carry, and would supply a heroin user for 42 days. Hydrocodone and oxycodone were
opiates similar to heroin. Sometime before noon on September 1, 2011, Rodriguez saw
appellant in the booking area of the police station. Appellant appeared to be under the
influence of a controlled substance and his behavior was consistent with heroin use.
Rodriguez testified that on September 5, 2011, appellant told Rodriguez the
following. Appellant was a routine heroin user and sometimes smoked
methamphetamine. Appellant sold some of the heroin and prescription medication to
support his heroin habit. The heroin and methamphetamine that police found on
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appellant’s person, the scale that was near him in the SUV, and two of the three
recovered cell phones, belonged to appellant. Appellant was unaware of the lawful
medical purpose of the prescription medication and he had no medical problems. The
spoons, two of the pill bottles, and some of the syringes belonged to Jewett.
Appellant told Rodriguez that appellant lived in Laguna Niguel. The following
occurred during the prosecutor’s direct examination of Rodriguez: “Q Did [appellant]
tell you why he actually was in Long Beach? [¶] A Yes. [¶] Q What did he tell you?
[¶] A [Appellant] stated that he came to Long Beach because pharmacies in Orange
County do not sell syringes. They are more readily available in L.A. County, in this case
Long Beach. So he came across from Seal Beach to Long Beach to buy the syringes at
Walgreens in Long Beach.” Rodriguez testified appellant told Rodriguez “that a friend
obtained the prescriptions, gives them to [appellant] and [appellant] fills them out. . . .
[Appellant] then . . . has friends go inside the pharmacy and receive the medication for
him.”
Rodriguez examined appellant’s phones and saw messages in the inbox of one of
the phones. Rodriguez did not remember the exact number of subjects asking for
prescribed narcotics. Rodriguez, an expert in possession of drugs for sale, opined at trial
that appellant possessed for sale the heroin, oxycodone, and hydrocodone. The basis for
Rodriguez’s opinion included the following facts. Appellant had multiple prescriptions
filled out under various names and for the same medication. Rodriguez then testified,
“The medication that was recovered, you go to Walgreens. You get your medicine.” All
of the medications were obtained from the pharmacy between “August 27 and September
1.”
Moreover, appellant had two cellphones, and only one had messages in its inbox.
Drug dealers used two phones, one for drug dealing and the other for personal use. Drug
users knew how much they were going to use, and Rodriguez had never come across a
situation “where users [were] walking around with [8.42 grams of] . . . heroin and a scale
so he could weigh out his product.” However, Rodriguez “always [came] across that
when it is a drug dealer.”
4
The prosecutor asked Rodriguez for other bases for his opinion, and Rodriguez
later testified, “. . . I am basing – my opinion is he is coming from Laguna Niguel. The
syringes are not readily available in Orange County. So he is coming down here.”
Appellant admitted to Rodriguez that appellant was selling some of the heroin and selling
the prescription medications. During cross-examination, appellant asked Rodriguez if
Jewett had been seen inside Walgreens. Rodriguez replied, “I believe the call was
negated because a female, Miss Jewett, was coming in and out. And it appeared she was
intoxicated on drugs.” (Sic.) Appellant presented no defense evidence.
ISSUES
Appellant claims (1) there is insufficient evidence of transportation of heroin,
(2) Penal Code section 654 barred multiple punishment on his convictions for possession
of heroin for sale (count 3) and transportation of heroin (count 4), and (3) and this court
should review the sealed transcript of the in camera proceedings pertaining to appellant’s
Pitchess3 motion.
DISCUSSION
1. Sufficient Evidence Supported Appellant’s Conviction for Transporting Heroin (Count
4).
Appellant claims there is insufficient evidence supporting his conviction for
transporting heroin in violation of Health and Safety Code section 11352, subdivision (a)4
(count 4). We reject his claim. That subdivision provides, in relevant part, that “every
person who transports” heroin commits a felony. Appellant concedes he possessed the
heroin police found on his person on September 1, 2011, and disputes only the
sufficiency of the evidence that he “transport[ed]” that heroin.
3
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
4
Health and Safety Code section 11352, subdivision (a), provides, inter alia, that
“every person who transports . . . (1) any controlled substance specified in subdivision
. . . (c) . . . of Section 11054” commits a felony. Heroin is a controlled substance
specified in Health and Safety Code section 11054, subdivision (c)(11).
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A person “transports” a controlled substance within the meaning of Health and
Safety Code section 11352, subdivision (a) when a person moves the substance from one
place to another. (People v. Arndt (1999) 76 Cal.App.4th 387, 398; People v. Cortez
(1985) 166 Cal.App.3d 994, 998-999.) The transportation element does not quantify the
distance that must be traversed and does not require more than minimal movement.
(Cf. People v. Emmal (1998) 68 Cal.App.4th 1313, 1315-1316 [interpreting the
substantially similar Health & Saf. Code, § 11379, subd. (a)].) Where the movement
occurs in a vehicle the “evidence need only show that the vehicle was moved while under
the defendant’s control.” (Id. at p. 1318.) The offense can be established by
circumstantial evidence and any reasonable inferences drawn from that evidence.
(People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
In the present case, on September 1, 2011, Barich found appellant, the sole
occupant of the SUV, asleep and sitting in its driver’s seat with the key in the ignition in
the accessory position and the radio operating. The SUV was parked in front of the
Walgreens store. The jury reasonably could have concluded someone drove the SUV
there. We note Barich did not testify that he saw (1) someone other than appellant drive
or park the SUV or (2) appellant enter the SUV only after it was parked. Whether or not
appellant was in possession of the SUV, Barich did not testify he saw someone other than
appellant in possession of it. Barich did not testify that, before police found the heroin in
appellant’s rear pants pocket, Barich saw someone put the heroin there.
On September 5, 2011, appellant told Rodriguez that appellant lived in Laguna
Niguel. Appellant also told Rodriguez why appellant “actually was in Long Beach.”
Although Rodriguez did not explicitly testify appellant told him why appellant actually
was in Long Beach “on September 1, 2011,” there is no evidence appellant “actually was
in Long Beach” on any day other than September 1, 2011, i.e., the day appellant
possessed the heroin. Police arrested appellant for his narcotics possession on September
1, 2011, in Long Beach. Appellant’s statements to Rodriguez reflect that when appellant
referred to the fact that appellant “actually was in Long Beach,” appellant was referring
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to the fact that he was there on September 1, 2011, when Barich saw him. Appellant’s
statements betray no confusion on this issue.
Accordingly, appellant told Rodriguez that appellant “came across from Seal
Beach to Long Beach to buy the syringes at Walgreens in Long Beach.” On September
1, 2011, the SUV was parked in front of Walgreens in Long Beach. Appellant told
Rodriguez that appellant filled out prescriptions and had friends enter the pharmacy and
receive the medication for him. Rodriguez testified to the effect Jewett (to whom the
SUV belonged) was coming in and out of Walgreens on September 1, 2011.
In Rodriguez’s expert opinion, appellant possessed for sale heroin and other drugs,
and part of the basis for Rodriguez’s opinion was, “The medication that was recovered,
you go to Walgreens. You get your medicine.” (Italics added.) Rodriguez’s testimony
provided evidence appellant was a drug dealer, and Rodriguez testified to the effect
Rodriguez always had come across situations in which a drug dealer was “walking
around with [8.42 grams of] . . . heroin.” (Italics added.)
The prosecutor asked Rodriguez for other bases for his opinion, and Rodriguez
later testified, “. . . I am basing – my opinion is he is coming from Laguna Niguel. The
syringes are not readily available in Orange County. So he is coming down here.”
(Italics added.) The evidence suggested that on September 1, 2011, appellant and Jewett
travelled together in the SUV to Walgreens to implement an illegal scheme to obtain
drugs from Walgreens, i.e., the Walgreens in front of which the SUV was parked with
appellant in its driver’s seat.
In light of the previous discussed authorities and evidence, there was sufficient
evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant
transported heroin for purposes of Health and Safety Code section 11352, subdivision (a),
including sufficient evidence appellant moved the heroin from one place to another, with
the result appellant “transport[ed]” the heroin with the meaning of that subdivision.5
5
People v. Kilborn (1970) 7 Cal.App.3d 998, cited by appellant, does not compel a
contrary conclusion. That case held that the defendant’s mere possession of LSD in a
closed box inside his suitcase in his motel room did not constitute transportation of that
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2. Penal Code Section 654 Barred Multiple Punishment on Counts 3 and 4.
Appellant’s prison sentence of 10 years included a five-year upper term for
transportation of heroin (count 4) with a concurrent four-year upper term for possession
of heroin for sale (count 3). Appellant claims Penal Code section 654 barred multiple
punishment on counts 3 and 4. Respondent concedes the issue.
In light of part 1 of our Discussion, there was substantial evidence appellant
simultaneously possessed for sale, and transported, the heroin by driving the SUV to
Walgreens while possessing the heroin in his pocket. However, once appellant parked
outside Walgreens the transportation ceased and only the possession for sale continued.
Nonetheless, even if the possession for sale, and transportation, of the heroin were
multiple acts, it appears appellant had the same criminal objective when committing them
– to sell the heroin. (See People v. Bradley (2003) 111 Cal.App.4th 765, 769.)
Moreover, for all the record reflects, appellant was asleep (although apparently under the
influence of heroin) after the transportation of heroin ceased and during the subsequent
period within which he possessed the heroin for sale. That is, during that subsequent
period he was not selling drugs. The purpose of Penal Code section 654 is to insure that
a defendant’s punishment is commensurate with culpability. (People v. Latimer (1993)
5 Cal.4th 1203, 1211.) We accept respondent’s concession. (Cf. People v. Avalos (1996)
47 Cal.App.4th 1569, 1583.)
LSD. (Id. at pp. 1002-1003.) In Kilborn, police accompanied the defendant into his
motel room, searched his suitcase, and found inside a closed box containing the LSD.
The defendant in Kilborn denied knowledge of the box and the LSD. (Id. at p. 1001.)
Appellant’s argument that “[b]oth a motel room and an SUV are used in connection with
travel” (Rep/7) misses the mark because a motel room, unlike an SUV, is not capable of
movement. Moreover, appellant was already seated in the driver’s seat of the SUV when
Barich first saw him, appellant admitted the heroin belonged to appellant, and the present
case contains other evidence that was not present in Kilborn (e.g., appellant’s statements
to Rodriguez, and Rodriguez’s expert testimony, providing evidence appellant travelled
to the Walgreens in Long Beach).
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3. The Trial Court Fulfilled Its Responsibilities Under Pitchess.
The nonconfidential record reflects as follows. On November 28, 2011, appellant
filed a Pitchess motion, seeking various information in the personnel files of Barich and
Rodriguez. On December 23, 2011, the parties stipulated that the motion be granted in
part, i.e., “for false police reports” as to Rodriguez and “for false testimony” as to Barich.
The court granted the motion to that extent only.
On December 27, 2011, the court conducted an in camera Pitchess hearing and
ordered sealed the transcript of the hearing. Following that hearing, the court, in open
court, indicated there was one discoverable item as to Rodriguez. The trial court did not
indicate there was any other discoverable information.
Appellant claims this court should review the record pertaining to the Pitchess
motion to determine whether the trial court erred by ruling there was only one
discoverable item. Trial courts are granted wide discretion when ruling on motions to
discover police officer personnel records. (People v. Samayoa (1997) 15 Cal.4th 795,
827; People v. Memro (1995) 11 Cal.4th 786, 832.) We have reviewed the contents of
the sealed transcript of the December 27, 2011 in camera Pitchess hearing. The transcript
constitutes an adequate record of the trial court’s review of any document(s) provided to
the trial court during the in camera hearing, and said transcript fails to demonstrate that
the trial court abused its discretion by failing to disclose any additional information.
(Cf. Samayoa, at p. 827; see People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230, 1232.)
The trial court fulfilled its responsibilities under Pitchess.
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DISPOSITION
The judgment is modified by staying execution of sentence on appellant’s
conviction for possession of heroin for sale in violation of Health and Safety Code
section 11351 (count 3) pending completion of his sentence on his conviction for
transporting heroin in violation of Health and Safety Code section 11352, subdivision (a)
(count 4), such stay then to become permanent, and, as modified, the judgment is
affirmed. The trial court is directed to forward to the Department of Corrections an
amended abstract of judgment reflecting the above modification.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
ALDRICH, J.
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