P. v. Walker CA6

Filed 7/11/13 P. v. Walker CA6 Reposted to include signatures NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037230 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1080058)

v.

RAYMOND JEROME WALKER,

Defendant and Appellant.

Defendant Raymond Jerome Walker was sentenced to prison after a jury found him guilty of simple possession of cocaine base and transportation of cocaine base. On appeal he contends that the trial court erred in denying Proposition 36 treatment based upon a refusal to find that defendant did not possess the cocaine for personal use. Defendant contends in effect that such a finding was compelled by his acquittal on charges of possession for sale. We reject the contention, and will affirm. BACKGROUND On April 4, 2010, defendant drove his car into a ditch and was taken to a hospital by a paramedic. He denied to the paramedic that he had been using drugs or alcohol. However his “mental status” appeared “altered” and he was “act[ing] very bizarrely,” including talking constantly to himself in the ambulance.

At the hospital, while defendant was being prepared for surgery, a plastic bag containing a number of small white spheres was observed protruding from his rectum. This was retrieved and delivered to law enforcement officials. Also retrieved was a scorched glass pipe. The bag was found to contain 24 white objects of similar size and appearance. A criminalist tested two of them, and found that they consisted of .14 and .15 grams, respectively, of rock cocaine. Testifying as an expert, a police officer opined that defendant had possessed the cocaine base for sale because it was a relatively large quantity and the rocks were individually wrapped. On cross-examination, he acknowledged that a heavy user might purchase such a quantity for his own use, and that he might buy it individually wrapped if that was what the dealer had for sale. However a dealer would generally make more money—and inferentially a buyer would pay more— for “smaller chunks” than for cocaine sold “in bulk.” He also acknowledged that a dealer generally has additional accessories of sale—such as scales, cell phones, ledgers, and cash—whereas defendant was found with only cocaine and a pipe. He also acknowledged that he had never bought cocaine from a dealer who had, in his presence, “pulled it out of their bottom.” The defense presented evidence that defendant had recently relapsed from drug abstention and had been observed smoking a crack pipe, or under the apparent influence of drugs, on several occasions over the two or three days preceding the discovery of cocaine base on his person. Defendant was charged with possession of cocaine for sale (Health & Saf. Code, § 11351.5) and transportation or sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). The jury found him not guilty of the first charge, but guilty of the lesser offense of simple possession of cocaine base, and guilty of the second charge. The