People v. Bailey

1 Cal. App. 4th 459, 2 Cal. Rptr. 2d 204, 91 Daily Journal DAR 14657, 1991 Cal. App. LEXIS 1383

• Court: California Court of Appeal
• Decided: November 27, 1991
• Docket: F013735
• Status: Published

Opinions

Opinion

ARDAIZ, J.

Appellant Demeitrus Frank Bailey was charged by information and convicted by jury of possession of “rock cocaine” for sale (Health & Saf. Code,¹ § 11351.5). Appellant admitted two Penal Code section 667.5, subdivision (b) prior prison term allegations and was sentenced to six years in prison.

Relying on our recent decision in People v. Adams (1990) 220 Cal.App.3d 680 [269 Cal.Rptr. 479], appellant contends there is no substantial evidence the cocaine he possessed was base cocaine as required by section 11351.5. We affirm.

Facts

On November 9,1989, about 1 a.m., Bakersfield Police Officers Mills and Eakin observed three men, including appellant, apparently dealing narcotics in front of Nagi’s Liquor Store. The officers called for a backup unit and ordered the 3 men and 30 or 40 other individuals milling about in front of Nagi’s to sit down. Appellant and his two cohorts began walking away. As the police pursued them, appellant and another man discarded two baggies containing an off-white, chunky substance described by Officer Mills as “rock cocaine.” Criminalist Brenda Smith tested the substance in the baggies and found the first consisted of “chunky material weighing 7.65 grams containing] cocaine” and the second, “chunky material weighing 4.79 grams contain[ing] cocaine.” Smith was not asked and did not indicate whether the cocaine in evidence was rock cocaine or cocaine base.

Discussion

I

Is There Substantial Evidence Appellant Possessed Cocaine Base?

In evaluating the sufficiency of the evidence on appeal, we must view the whole record in the light most favorable to the judgment below and presume in support of the judgment every fact which the trier of fact could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) Before the judgment may be set aside for insufficiency of evidence, it must clearly be shown that upon no hypothesis whatever is there substantial evidence. (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321].) Substantial evidence is evidence that is reasonable, credible, of solid value and reasonably inspires confidence in the judgment. (People v. Green (1980) 27 Cal.3d 1, 55 [164 Cal.Rptr. 1, 609 P.2d 468].)

In the present case, Officer Mills was called as a witness by the prosecution. He testified he had taken narcotics classes, talked to other officers about rock cocaine, and had arrested at least 150 persons for possession of rock cocaine.

Mills testified he observed appellant engaging in what appeared to be a rock cocaine transaction similar to those he had made arrests for in the past. Officer Mills further testified that after appellant discarded something, Officer Eakin retrieved two packages of “rock cocaine.” Mills testified that “[r]ock cocaine is—it’s cocaine base.” When shown the two packages that criminalist Smith had identified as “chunky material containing] [cocaine],” Mills identified them as “[t]he two bags of narcotics that were seized by Officer Eakin. ...”

Relying on People v. Adams, supra, 220 Cal.App.3d 680, appellant argues the evidence is insufficient to support his conviction. In Adams we found insubstantial evidence to support the conviction of possession of cocaine base for sale because there was no evidence that the cocaine possessed by the defendant was cocaine base. We stated:

“It is true that Officer Clerico in his testimony used the terms ‘cocaine base,’ ‘rock cocaine,’ and ‘crack’ interchangeably and he also referred to the substance in the two baggies possessed by defendant as ‘what I believed to be rock cocaine.’ However, the officer was not qualified as an expert in the identification of cocaine or cocaine base, but rather as an expert in the possession of rock cocaine for sale. Moreover, Officer Clerico never testified regarding making any chemical tests or chemical analysis of the substance found in defendant’s possession. [Citations.]” (People v. Adams, supra, 220 Cal.App.3d at p. 687.)

In Adams, Officer Clerico never testified definitively and no evidence was introduced that expressly showed rock cocaine was cocaine base. Unlike Adams, here Officer Mills testified without objection that “rock cocaine” is “base cocaine.” Accordingly, Officer Mills’s testimony establishes that the substance in question was cocaine base.

Appellant nonetheless argues Officer Mills’s testimony may not be considered in evaluating the sufficiency of the evidence on appeal because no basis was provided for Mills’s conclusion that “rock cocaine” was cocaine base. Adoption of appellant’s argument would require us to construe Adams as holding that when inadmissible evidence is introduced without objection at trial it may not be considered in evaluating the sufficiency of evidence on appeal. We reject such a construction as contrary to well-settled rules of appellate review. As stated in Berry v. Chrome Crankshaft Co. (1958) 159 Cal.App.2d 549, 552 [324 P.2d 70]:

“It is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding. [Citations.] ‘Evidence technically incompetent admitted without objection must be given as much weight in the reviewing court in reviewing the sufficiency of the evidence as if it were competent. [Citations.]’ ”

Neither may Officer Mills’s testimony be rejected as inherently improbable. As our Supreme Court has explained, “[t]o warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.” (People v. Barnes (1986) 42 Cal.3d 284, 306 [228 Cal.Rptr. 228, 721 P.2d 110].)

Absent a resort to inferences and deductions not a part of this record, we cannot conclude it was physically impossible for the baggie to contain cocaine base. The record does not reflect the manner in which Officer Mills determined the substance in question was cocaine base. In order to reject his testimony we would have to infer there is no legitimate basis for his opinion. Because such an inference is impermissible, Officer Mills’ testimony may not be rejected as inherently improbable.

People v. Hunt (1971) 4 Cal.3d 231 [93 Cal.Rptr. 197, 481 P.2d 205], on which the dissent relies, clearly is distinguishable: there the record reflected affirmatively that there was no legitimate basis for the expert’s opinion. In Hunt, the defendant was charged with possession of dangerous drugs for sale. The vials which the defendant possessed had pharmacy labels and a “prescription number, defendant’s name, and the physician’s name . . . .” (Id. at p. 234.) Under these circumstances, the court concluded:

“In the absence of evidence of some circumstances not to be expected in connection with a patient lawfully using the drugs as medicine, an officer’s opinion that possession of lawfully prescribed drugs is for purposes of sale is worthy of little or no weight and should not constitute substantial evidence sufficient to sustain the conviction. No such special circumstances were shown here as to the methedrine in the blue and white travel case.” (Id. at p. 238.)

In People v. Newman (1971) 5 Cal.3d 48 [95 Cal.Rptr. 12, 484 P.2d 1356], the court rejected a defendant’s challenge to the sufficiency of the evidence that he possessed dangerous drugs for sale. As in Hunt, an officer testified that “the bindles ‘were in possession for sale,’ because of the quantity found in a single container.” (Id. at p. 52.) The court rejected the defendant’s challenge to the sufficiency of the evidence and distinguished Hunt on the grounds that “[i]n the instant case, there was no evidence that the drugs were in fact lawfully purchased by prescription.” (Id. at p. 53.)²

Unlike Hunt, nothing in the present record suggests Officer Mills’s testimony was not worthy of belief. The dissent’s position does not rely on the proposition that the testimony that the substance was base cocaine is untrue. Rattier, the dissent’s position is that there is nothing in the record that demonstrates the basis for Mills’s testimony. The answer is that the concerns expressed by the dissent would have been addressed by an objection. No member of this court is capable on this evidence of concluding that a substance testing positive for cocaine cannot be then identified by its form or other physical properties to be base cocaine or that Mills did not have any basis for his testimony supporting the conclusion that it was base cocaine. This is precisely the speculation the dissent indulges in.

The reality of this case is the issue raised on appeal concerning whether this was base cocaine was not even the focus of dispute in the trial court and that is most likely the reason there was no objection or other challenge to the evidence. The trial concerned itself with whether appellant was the perpetrator of the offense in question.

A trier of fact reasonably could rely on the testimony of a trained narcotics officer received without objection that the substance possessed was rock cocaine and that rock cocaine was base cocaine. Coupled with the criminalist’s testimony that the substance tested positive for cocaine, we conclude the evidence is substantial and supports the verdict. Although the evidence might have been inadmissible on a proper showing of insufficient foundation or hearsay, etc., no such challenge was made. Appellant would have us make his objection for him, sustain it and then refuse to consider the evidence in reviewing the sufficiency of evidence. To do so would violate the rule of Evidence Code section 353, that a verdict or finding may not be set aside by reason of the erroneous admission of evidence unless there is an objection at trial. “[A] contrary rule would deprive the party offering the evidence of any opportunity to cure the defect at trial and would permit the nonobjecting party to gamble that the error will provide grounds for reversal of the matter. [Citation.]” (People v. Coleman (1988) 46 Cal.3d 749, 777 [251 Cal.Rptr. 83, 759 P.2d 1260].)

In summary, we reject appellant’s argument that under Adams, the evidence is insufficient to support the verdict. Adams did not expressly address the issue presented in the case currently before this court. Moreover, Adams does not stand for the proposition that otherwise inadmissible evidence introduced without objection may not be considered in evaluating the sufficiency of the evidence on appeal. Officer Mills’s testimony, introduced without objection, that appellant possessed rock cocaine and that rock cocaine is cocaine base—combined with the criminalist’s testimony that the substance in question tested positive for cocaine—is sufficient to support the judgment.

n

Whether the Trial Court’s Failure to Give CALJIC No. 2.71 (Admissions) Sua Sponte was Error.

*

The judgment is affirmed.

Thaxter, J., concurred.

1 All statutory references are to the Health and Safety Code unless otherwise indicated.

2 Newman was disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862 [122 Cal.Rptr. 872, 537 P.2d 1232].

See footnote, ante, page 459.