THE PEOPLE v. FREDRICK BERRYHILL

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. FREDRICK BERRYHILL, Defendant and Appellant.

B214714

Decided: February 25, 2010

John G. Derrick, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Elaine F. Tumonis, Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Frederick Berryhill appeals from the judgment entered following a jury trial in which he was convicted of violating Health and Safety Code section 11352, subdivision (a) by selling cocaine.  (Unless otherwise specified, all statutory references pertain to the Health and Safety Code.) Defendant contends the evidence was insufficient to support his conviction because it showed that he sold cocaine base, not cocaine.   We affirm.

BACKGROUND

On the night of November 10, 2008, Los Angeles Police Department Officer Thomas Brown was working as part of a narcotics task force operation.   He observed hand-to-hand transactions by three people who then met and walked with defendant.   Defendant looked up and down the street as the others conducted hand-to-hand transactions.   Brown saw Shawn Joseph hand defendant money.   Defendant put the money in his front left trouser pocket and handed Joseph a clear plastic bag containing small while solids.   Uniformed officers detained defendant, Joseph, and the other three people.   Brown saw Joseph “toss” the baggie to the ground as the marked police cars pulled up.   Officers recovered the baggie containing the solids and $1,167, mostly in small bills, from defendant's person.   Defendant had $25 in his front left trouser pocket and the remainder was in his wallet in his rear trouser pocket.

A criminalist who tested the substance inside the recovered baggie determined “that it contained cocaine in the form of cocaine base.”   The five rocks in the baggie recovered by the police would commonly sell for a total of $25.

Defendant testified that he was walking home from McDonald's and ran into someone who paid him $20 he owed defendant for a bet on a Lakers' game.   Then the police pulled up.   Defendant explained that he was carrying all of his money so that workers who were going to be in his apartment would not steal the money.

The jury convicted defendant of violating section 11352, subdivision (a).   The court sentenced defendant to five years in prison.

DISCUSSION

The information alleged that defendant violated section 11352, subdivision (a) by selling “a controlled substance, to wit, cocaine.”   The trial court instructed the jury that in order to convict defendant of the charged offense it must find, among other elements, that defendant sold a controlled substance and “[t]he controlled substance was cocaine.”   The jury's signed verdict form stated that defendant was guilty “of selling a controlled substance, to wit cocaine, in violation of” section 11352, subdivision (a).

Defendant contends that the prosecution established that he sold cocaine base, cocaine base does not constitute cocaine, and the evidence was thus insufficient to support his conviction of selling cocaine.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt.   (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)

Section 11352, subdivision (a) provides, in pertinent part, “Except as otherwise provided in this division, every person who ․ sells ․ (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, ․ shall be punished by imprisonment in the state prison for three, four, or five years.”   The statute thus prohibits the sale of numerous controlled substances, including cocaine base (§ 11054, subd. (f)(1)) and cocaine other than cocaine base (§ 11055, subd. (b)(6)).

Defendant does not contest the sufficiency of the evidence establishing that he sold the baggie the police recovered.   The criminalist testified that the substance in the baggie “contained cocaine in the form of cocaine base.”   Defendant's argument is based upon an unsupported and unwarranted conclusion that “cocaine” necessarily means cocaine hydrochloride, rather than the more general category of various forms of cocaine including cocaine base and cocaine hydrochloride.  “There are two types of cocaine base and cocaine hydrochloride is an intermediary between the two forms of cocaine base․  Cocaine hydrochloride is a hydrochloride salt of cocaine and a water soluble form of cocaine which is normally ingested nasally․  Cocaine base or crack is simply cocaine hydrochloride after the hydrochloride is removed from the cocaine during the heating process․  [¶] Despite the difference between cocaine base, crack, or rock on one hand and cocaine hydrochloride on the other hand, both substances are still cocaine.   Both base and hydrochloride are different ‘isomers' of cocaine․  Cocaine has as many as eight different isomers or molecular structures․  [C]ocaine base is not cocaine hydrochloride although both substances are cocaine.”  (People v. Howell (1990) 226 Cal.App.3d 254, 260-261, citations omitted.)   The Legislature's choice of phrasing in section 11055, subdivision (b)(6) (“Cocaine, except as specified in Section 11054”) reflects a recognition that cocaine base is a form of cocaine.   Thus, substantial evidence established that defendant sold cocaine.   The cocaine happened to be in the form of cocaine base, but it was nonetheless cocaine.

Defendant relies heavily upon People v. Adams (1990) 220 Cal.App.3d 680, which reversed a conviction of violating section 11351.5 where the evidence failed to show that the defendant possessed cocaine base.   But unlike section 11352, subdivision (a), section 11351.5 applies only to cocaine base.   In order to convict a defendant under section 11351.5, there must be proof that the substance he or she possessed for sale or purchased for sale constituted cocaine base.   Any other form of cocaine would be insufficient for a violation of section 11351.5.   But section 11352, subdivision (a) may be violated by selling any form of cocaine, and the evidence in the present case showed that defendant sold a form of cocaine.   The evidence thus showed that defendant committed the charged offense, whereas the evidence in Adams did not.  Adams is inapposite.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

ROTHSCHILD, J. JOHNSON, J.

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