People v. Webb CA4/2

Filed 12/12/13 P. v. Webb CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058727
v. (Super.Ct.No. FVA1201326)
ANTHONY CARL WEBB, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Affirmed.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
A jury found defendant and appellant Anthony Carl Webb guilty of possession of
a controlled substance for sale (Health & Saf. Code, § 11378). In a bifurcated
proceeding, the trial court found true that defendant had suffered a prior drug-related
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conviction within the meaning of Health and Safety Code section 11370.2,
subdivision (c). Defendant was sentenced to a total term of four years four months in
county prison with credit for time served. Defendant appeals from the judgment. We
find no error and will affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On August 17, 2012, Fontana police officer Kyle Slusser was on patrol in the city
of Fontana in an unmarked police vehicle when he saw defendant standing in front of his
apartment complex, an area known for high narcotics. Officer Slusser made contact with
defendant and asked him if he had anything illegal on him. Defendant then handed the
officer a methamphetamine pipe with white residue inside and charring on the outside.
Officer Slusser asked defendant if he had anything else on him, and defendant stated that
he had “some dope in his back pocket.” Defendant then handed the officer a magnet
Hide-A-Key box with a baggie of methamphetamine inside. The methamphetamine
weighed 2.1 grams with its packaging, and 1.5 grams without the packaging. Based on
his training and experience, the officer opined the amount was “beyond” a useable
quantity. The officer explained that a typical single use is 0.02 grams and that 1.5 grams
could yield over seven single uses.
During the course of the incident, defendant gave Officer Slusser permission to
search his apartment and bedroom. In defendant’s bedroom, the officer found a scale and
numerous unused small Ziploc baggies. Officer Slusser also seized defendant’s cellular
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telephone and $68 in cash in denominations of $1, $5, $10, and $20 bills from
defendant’s person. When the officer searched defendant’s telephone’s text messages,
Officer Slusser read several texts asking defendant if defendant had any drugs for sale.
Officer Slusser concluded that defendant possessed the methamphetamine for purposes of
sale and explained that it is common for sellers of drugs to also be users.
After waiving his constitutional rights, defendant informed Officer Slusser that he
had possessed the methamphetamine for personal use. Defendant also asserted that
because the officer did not see him physically selling drugs, the officer could not prove
that defendant was selling drugs.
On March 13, 2013, a jury found defendant guilty of possession of
methamphetamine for sale (Health & Saf. Code, § 11378). In a bifurcated proceeding, on
March 14, 2013, the trial court found true that defendant had suffered a prior drug-related
conviction within the meaning of Health and Safety Code section 11370.2,
subdivision (c).
On May 10, 2013, probation was denied and defendant was sentenced to the low
term of 16 months for the substantive charge, plus a consecutive term of three years for
the prior drug-related conviction. Defendant was awarded 96 days of actual presentence
custody credits, and 96 days for conduct credits, for a total of 192 days for time served.
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II
DISCUSSION
We appointed counsel to represent defendant on appeal. After examination of the
record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal. 3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a
summary of the facts and potential arguable issues, and requesting this court conduct an
independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. Defendant states that he was denied a fair trial, claiming there was
insufficient evidence to show that he had possessed the methamphetamine for purposes of
sale. Specifically, he argues that he did not have any intent to sell drugs, but to only use,
and that the officer’s testimony was all a fabrication. Defendant also appears to argue
that he was denied effective assistance of counsel because his counsel advised him not to
testify due to his prior drug conviction.
On a challenge to the sufficiency of the evidence, we “review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence – – that is, evidence which is reasonable, credible, and of solid
value – – such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal. 3d 557, 578 (Johnson).)
“The essential elements of possession of a controlled substance are ‘dominion and
control of the substance in a quantity usable for consumption or sale, with knowledge of
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its presence and of its restricted dangerous drug character. . . .’ [Citations.]” (People v.
Palaschak (1995) 9 Cal. 4th 1236, 1242 (Palaschak).) Intent to sell must also be shown
where possession for sale is alleged. (People v. Meza (1995) 38 Cal. App. 4th 1741, 1745-
1747.) The elements may be proven by circumstantial evidence and any reasonable
inferences drawn from such evidence. (Palaschak, supra, 9 Cal.4th at p. 1242.)
There is ample substantial evidence here that defendant possessed the
methamphetamine for purposes of sale. A successful sufficiency of the evidence
challenge requires there be no substantial evidence to support the jury’s finding, and that
is not the case here. (Johnson, supra, 26 Cal.3d at p. 562.) The testimony of an
experienced police officer constitutes substantial evidence when determining whether the
facts of a case indicate the possession of a controlled substance was for the purpose of
sale. (People v. Douglas (1987) 193 Cal. App. 3d 1691, 1695.) Previous cases rely on the
opinions of experienced officers regarding narcotics possession with the purpose of sale
based on quantity, packaging, and normal use, and we adhere to the precedent. (People v.
Newman (1971) 5 Cal. 3d 48, 53, disapproved on another point in People v. Daniels
(1975) 14 Cal. 3d 857, 862; People v. Parra (1999) 70 Cal. App. 4th 222, 227.)
Officer Slusser’s testimony falls within the scope of these prior decisions because
his opinion rested on the quantity of methamphetamine, the scale and packaging
materials found in defendant’s bedroom, the cash found on defendant’s person, and the
text messages received on defendant’s cellular telephone. Although defendant questions
Officer Slusser’s testimony, we defer to the trier of fact on credibility issues. (See People
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v. Ochoa (1993) 6 Cal. 4th 1199, 1206.) The jury could reasonably rely on Officer
Slusser’s experience and the physical evidence found; and, therefore, the officer’s
testimony regarding the possession of a controlled substance for the purposes of sale
constitutes substantial evidence.
We also reject defendant’s purported claim that he received ineffective assistance
of counsel. In order to demonstrate ineffective assistance of counsel, a defendant must
show that counsel’s performance was inadequate when measured against the standard of
a reasonably competent attorney, and that counsel’s performance prejudiced defendant's
case in such a manner that his representation “so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a just result.”
(Strickland v. Washington (1984) 466 U.S. 668, 686.)
“[T]he decision to place a defendant on the stand is ordinarily within the
competence and purview of trial counsel . . . . [Citation.]” (People v. Hayes (1991) 229
Cal. App. 3d 1226, 1231 (Hayes).) A defendant, however, has the right to testify, even if
testifying is contrary to counsel’s advice. (People v. Nakahara (2003) 30 Cal. 4th 705,
719.) “When the record fails to disclose a timely and adequate demand to testify, ‘a
defendant may not await the outcome of the trial and then seek reversal based on his
claim that despite expressing to counsel his desire to testify, he was deprived of that
opportunity.’” (People v. Alcala (1992) 4 Cal. 4th 742, 805-806.) The “right to testify
can be waived by conduct and does not require a personal and explicit waiver . . . .”
(Hayes, supra, 229 Cal.App.3d at p. 1234.)
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Here, defendant has failed to make a prima facie showing that he was denied the
right to testify; in fact, he agreed with his counsel to not testify. Defendant asserts, “I
was told not to testify because they could bring up my prior arrest [sic] and use them
against me so that’s what I did.” He further states, “I let my lawyer handle everything
like he advised.” In order to demonstrate a denial of the right to testify, a defendant’s
declaration must assert that he communicated his or her desire to testify to trial counsel.
(See Hayes, supra, 229 Cal.App.3d at p. 1235.) There is no such evidence here.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
CODRINGTON
J.
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