THE PEOPLE v. TERRELL GEROLD CARR (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury found defendant Terrell Gerold Carr guilty of possession of cocaine base for sale (Health & Saf.Code, § 11351.5) and transportation of a controlled substance (Health & Saf.Code, § 11352, subd. (a)).  Carr admitted suffering several prior convictions.

Appellant contends that the trial court committed reversible error in summarily denying his request to retain his own counsel in violation of his constitutional rights.   Appellant also contends insufficient evidence supports the jury's finding of possession of cocaine base with intent to sell.   We affirm as modified.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Arrest

On December 13, 2009, at 2:45 a.m., Los Angeles Police Officers Christopher Courtney and Richard Rivera were on patrol near the intersection of Washington and Crenshaw Boulevard.   Officer Courtney was driving a marked patrol police car on Washington Boulevard, two to three car lengths behind appellant's black Mercedes.   Appellant changed lanes without signaling from the middle lane to the right lane, the same lane as the patrol car.   Subsequently, appellant made a right turn without using his indicator lights in violation of Vehicle Code section 22107.

Officers Courtney and Rivera turned on their police lights and initiated a traffic stop.   As the officers exited the patrol car to approach appellant's car, appellant put his arm outside of the window and threw a plastic baggie towards the patrol car, which landed between appellant's car and the patrol car.   Officer Rivera recovered the plastic baggie appellant had discarded from his vehicle.   The baggie contained approximately 15 white solid pieces of a substance resembling cocaine base, along with other crumbled portions of the substance.   The officers, with their guns drawn, ordered appellant out of his car and placed him under arrest.

II. The Trial

A criminalist employed by the Los Angeles Police Department (LAPD) testified that the analysis of the substance contained within the plastic baggie had determined that it consisted of cocaine base and had a net weight of 2.94 grams.

Both of the arresting officers testified that at the time of arrest appellant had $35 in his hand and a cellular telephone inside of the vehicle.   The search of appellant and his vehicle did not turn up any drug paraphernalia such as a lighter, a pipe or any other devices associated with use of cocaine base.   Officer Courtney also testified that each of the pieces could be sold for $5, $10 or $20 on the street.   Courtney estimated the value of the baggie's contents as more than $200.   He concluded on the basis of his background, experience and training that appellant “was in possession of [cocaine base] for sale,” because of the amount of the narcotics, appellant's lack of paraphernalia associated with personal use of cocaine base, the fact that appellant was not under the influence of cocaine, and appellant's possession of currency and a cellular telephone.   Courtney later observed that the area in which appellant was arrested was known as a high narcotics area.

III. The Sentence

On June 29, 2010, the trial court sentenced appellant to an aggregate state prison term of seven years:  a three-year term on count 1, doubled pursuant to the Three Strikes Law, and a consecutive one-year prior prison term enhancement.   The trial court imposed an identical concurrent term of seven years on count 2.

Appellant filed a timely notice of appeal from the judgment.

DISCUSSION

I. Substantial evidence supports the jury's finding Carr possessed cocaine base for

purposes of sale.

A. Standard of Review

To assess a claim of insufficient evidence in a criminal case, including whether substantial evidence supports a charge of possession with intent to sell, “ ‘ “the court must 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.” ’   The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence, ․ An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.”  (Citations omitted.)  (People v. Maury (2003) 30 Cal.4th 342, 396.)

“Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.   We resolve neither credibility issues nor evidentiary conflicts;  we look for substantial evidence.”  (Citation omitted.)  (People v. Maury, supra, 30 Cal.4th at p. 403.)

“A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury's verdict.”  (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

“Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt.”  (People v. Kraft (2000) 23 Cal.4th 978, 1053–1054.)   Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal.  (Ibid.)

B. Sufficient Evidence of Possession with Intent to Sell

Appellant contends that the evidence does not support the sale aspect of the charges.  “Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.”  (People v. Meza (1995) 38 Cal.App.4th 1741, 1745–1746.)   Intent to sell may be established by circumstantial evidence.  (People v. Glass (1975) 44 Cal.App.3d 772, 774.)

“In order to secure a conviction of a violation of Health and Safety Code section 11351, the prosecution must prove beyond a reasonable doubt that (1) the defendant exercised dominion and control over the controlled substance, (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it.”   (People v. Parra (1999) 70 Cal.App.4th 222, 225–226;  CALJIC No. 12.01.)

Defendant contends that there was insufficient evidence for the jury to convict him of possession of a controlled substance with intent to sell it because there was no evidence of intent to sell the cocaine;  rather it was merely for personal use.   He argues that the evidence presented by the prosecution shows that there was nothing more than possession of the cocaine.   In the instant case, sufficient circumstantial evidence existed from which the jury could infer appellant possessed the drugs and had knowledge of their presence, for the plastic baggie containing the drugs was recovered by Officers Courtney and Rivera and prior to the traffic stop, was immediately accessible to him and subject to his exclusive or joint dominion and control.  (See People v. Francis (1969) 71 Cal.2d 66, 71.)

On December 13, 2010, appellant was pulled over for a traffic violation.   Subsequent investigation and the ensuing search of the area after a clear plastic baggie had been thrown out of the car revealed that the baggie contained approximately 15 white solid pieces of cocaine base.

Officer Courtney testified that, based on his training and experiences, the amount of cocaine recovered from appellant, as well as the absence of any drug paraphernalia in the car and the fact that appellant did not appear to be under the influence of narcotics, indicated that the cocaine was possessed with an intent to sell.   During trial, Officer Courtney opined that the cocaine base had a total street value of over $200, and that a usable amount of substance was a $5 rock or even less than that.   He further explained that cocaine base is usually sold in $5, $10 or $20 cocaine rocks.   Moreover, appellant was not in possession of a smoking device or any other paraphernalia associated with personal use at the time of his arrest.   Appellant was also not under the influence of any controlled substance and his fingers lacked burn marks associated with individuals who smoke cocaine base.

Thus, there was sufficient evidence to support appellant's conviction for possession with an intent to sell.   Officer Courtney, an experienced narcotics interdiction officer, testified that, based on the quantity of the controlled substance seized and lack of drug paraphernalia in the car, appellant possessed the cocaine base with the specific intent to sell.   It is well settled that “experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use of an individual;  on the basis of such testimony convictions of possession for purpose of sale have been upheld.”  (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. Aguilar (1965) 232 Cal.App.2d 173, 178 disapproved on another point in Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634, fn. 5.)

II. The trial court did not abuse its discretion in denying appellant's belated request

to retain private counsel.

On May 26, 2010, appellant's case was assigned for trial.   After jury selection proceedings had commenced, outside the presence of prospective jurors, the court asked defense counsel whether appellant intended to accept the prosecution's final plea offer.   Defense counsel stated that appellant was thinking about the matter.   Shortly thereafter, the trial judge urged appellant to make a decision regarding the plea offer and defense counsel stated, “He's now saying he wants his family to hire him a private lawyer.”   The trial judge denied the request as being untimely and the trial proceedings continued.

The instant record shows that appellant was granted a continuance of nearly two months between March 2010 and commencement of trial on May 26, 2010, and was present several times in court with the opportunity to request to hire private counsel of his own choice.

This court must decide whether the trial court's failure to grant a continuance constituted an abuse of discretion in the face of appellant's statement requesting to be represented by private counsel.   Appellant's contention on appeal is that the trial court committed structural error by denying substitution of counsel without making a factual inquiry into the matter and without knowledge of the reasons why he requested the substitution of trial counsel.   A review of the underlying facts here demonstrates that the trial court was well within its discretion in denying appellant's motion for continuance.   Appellant failed to retain private counsel or notify the court of his desire to do so for almost four months prior to the start of the trial.

A. Standard of Review

The grant or denial of a motion for a continuance rests within the sound discretion of the trial judge.  (People v. Valladares (1984) 162 Cal.App.3d 312, 318–319.)   The trial court's decision whether or not to grant the continuance will not be disturbed on appeal in the absence of a clear abuse of discretion.  (People v. Duck Wong (1976) 18 Cal.3d 178, 189.)   Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered.  (People v. Giminez (1975) 14 Cal.3d 68, 72.)

B. Appellant's Request Was Untimely And Premised upon Speculation

The right to effective assistance of counsel, “encompasses the right to retain counsel of one's own choosing.”  (People v. Holland (1978) 23 Cal.3d 77, 86 disapproved on another point in People v. Mendez (1999) 19 Cal.4th 1084, 1097–1098.)   Underlying this right is the premise that “chosen representation is the preferred representation.   Defendant's confidence in his lawyer is vital to his defense.   His right to decide for himself who best can conduct the case must be respected wherever feasible.”  (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 615 disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Protection of this right furthers other values important to our criminal justice system.   The right to employ counsel of one's own choosing “is based on a value additional to that insuring reliability of the guilt-determining process.   Here we are concerned not only with the state's duty to insure ‘fairness' in the trial, but also with the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.”  (People v. Crovedi (1966) 65 Cal.2d 199, 206.)

However, the right of a defendant to appear and defend with counsel of his own choice is not absolute but must be carefully weighed against other values of substantial importance such as those seeking “the orderly and expeditious functioning of judicial administration.”  (People v. Kaiser (1980) 113 Cal.App.3d 754, 760.)   A defendant is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory.  (People v. Blake (1980) 105 Cal.App.3d 619, 623.)   The trial court may in its discretion deny a motion for continuance to secure new counsel if the motion is made during trial.  (People v. Kaiser, supra, 113 Cal.App.3d at p. 761;  People v. Molina (1977) 74 Cal.App.3d 544, 548.)

In view of the importance of these rights and the severe consequences which flow from their violation, the trial courts are required to “make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.”  (People v. Crovedi, supra, 65 Cal.2d at p. 207.)   To this end, “the state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources.”  (Id. at p. 208.)

Any limitations on the right to counsel of one's choosing are carefully circumscribed.   Thus, the right “can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.”  (Italics added.)  (People v. Crovedi, supra, 65 Cal.2d at p. 208;  Maxwell v. Superior Court, supra, 30 Cal.3d at pp. 613–614.)   A continuance may be denied if the accused is “unjustifiably dilatory” in obtaining counsel, or “if he arbitrarily chooses to substitute counsel at the time of trial.”  (People v. Byoune (1966) 65 Cal.2d 345, 346.)

However, “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.”  (Ungar v. Sarafite (1964) 376 U.S. 575, 589.)   For this reason, trial courts should accommodate such requests – when they are linked to an assertion of the right to retained counsel – “to the fullest extent consistent with effective judicial administration.”  (People v. Crovedi, supra, 65 Cal.2d at p. 209.)

The burden is on appellant to establish an abuse of judicial discretion in the denial of his request for continuance to secure new counsel.  (See People v. Kaiser, supra, 113 Cal.App.3d at p. 761.)   In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, “ ‘particularly in the reasons presented to the trial judge at the time the request is denied.’ ”  (Ungar v. Sarafite, supra, 376 U.S. at p. 589.)

In the instant case, the trial court found appellant's request for continuance was untimely.   Appellant has the burden to show “an abuse of judicial discretion in the denial of his request for continuance to secure new counsel.”  (People v. Rhines (1982) 131 Cal.App.3d 498, 506.)   Appellant has not met his burden.

Nothing in the record suggests that appellant made a good faith, diligent effort to obtain retained counsel before the scheduled trial date.   It appears that appellant's request for continuance was merely a reaction to the prosecutor's rejection of appellant's counteroffer to plead guilty in exchange for a lesser prison term and the prosecution's last plea was set to expire prior to start of trial.   Where a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary.   While the trial judge should have inquired further into the reasons why appellant was requesting continuance, there was no logical explanation given for appellant's waiting until the day of trial before attempting to obtain substitute counsel.   A defendant in a criminal case who desires to retain counsel is required to act with some degree of promptness and diligence.

Consequently, the trial court acted within its discretion in denying appellant's motion for a continuance, given the untimeliness of his request and the adverse effect of the open-ended and vague request on the orderly administration of justice.   Because the trial court did not abuse its discretion in denying appellant's request for a continuance to seek to have his family retain counsel on his behalf, appellant's constitutional rights to counsel of his choice and due process were not violated.

III. Penal Code section 654

The court sentenced appellant to a total of seven years on count 1 (possession of cocaine base for sale) and a concurrent term of seven years on count 2 (transportation of cocaine base).   Respondent concedes the sentence on count 2 should be stayed pursuant to Penal Code section 654 as there did not appear to be a divisible course of conduct between appellant's act of transporting cocaine base and possessing that substance with the intent to sell.  (People v. Deloza (1998) 18 Cal.4th 585, 592;  People v. Liu (1996) 46 Cal.App.4th 1119, 1135–1136.)

IV. Pitchess Review

Appellant requested this court review the Pitchess material made available to the trial court to determine if a full and complete disclosure was made to him.

“A trial court's decision on the discoverability of material in police files is reviewable under an abuse of discretion standard.”  (People v. Jackson (1996) 13 Cal.4th 1164, 1220.)   We independently review the sealed transcript.  (See People v. Hughes (2002) 27 Cal.4th 287, 330.)

The court found appellant had met his burden on the issue of false reporting.   At the in camera hearing, the court ordered the LAPD to turn over two complaints – one for false arrest, unauthorized search and lost property and one for false report and failure to book property.   The court conducted a proper review of the personnel files and made a record of its findings;  thus, it did not abuse its discretion.  (Compare People v. Mooc (2001) 26 Cal.4th 1216, 1228.)

DISPOSITION

The superior court is directed to modify the judgment and correct the abstract of judgment to reflect the sentence on count 2 is stayed pursuant to Penal Code section 654.   The superior court is ordered to prepare and file with the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting that change.   In all other respects, the judgment is affirmed.

We concur:

ZELON, J. JACKSON, J.