People v. Galloway CA2/6

Filed 8/27/15 P. v. Galloway CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B259885 (Super. Ct. No. NA096762) Plaintiff and Respondent, (Los Angeles County)

v.

JIMMY GALLOWAY,

Defendant and Appellant.

Jimmy Galloway appeals from the judgment following his conviction by jury of three counts of possession for sale of a controlled substance, in violation of Health and Safety Code, section 11351 (count 1, hydrocodone (vicodin); count 2, morphine; count 4, codeine); and one count of possession for sale of a controlled substance, in violation of Health and Safety Code, section 11375, subdivision (b)(1), (count 5, alprazolam (xanax)). The trial court sentenced him to three years in county jail. (Pen. Code, § 1170, subd. (h).) He contends there is not sufficient evidence to support his convictions because there is no evidence he intended to sell the controlled substances. We affirm. FACTUAL AND PROCEDURAL BACKGROUND On September 5, 2013, Long Beach Police Officer Bernardo Barajas entered appellant's home to execute a search warrant. Appellant was sitting on a couch.

There were empty pill bottles and a black bag on the floor near him. Appellant said that the bag and its contents, several pill bottles, belonged to him. His name was not on any of the bottles. One bottle contained 147 xanax pills. Its label indicated it contained prenatal tabs for Jasmine L. Galloway. A second bottle contained 117 codeine pills, 37 vicodin pills and 9 unidentified pills. A third bottle contained 43 morphine pills. The labels were torn from the second and third bottles. During the search, Barajas found a wallet and a cell phone next to appellant. The wallet contained his identification card and $223. Appellant said that the cell phone belonged to him. Barajas found four text messages with narcotic sales references in the phone. One message said, "50 Norcs or Vics." Barajas testified that "50 Vics" meant 50 vicodin pills. Another message asked for "50." Another message referred to "N's" which Barajas testified meant vicodin. Another text asked, "Are you far?" Although appellant initially said the pills belonged to him, he also made other statements about their ownership. He said not all of the pills were prescribed for him, and he got some from people "on the streets." He also said the pills belonged to his friend. Appellant said that he gave pills away to people he knew in exchange for cash or "other things." Officer Decarvalho searched appellant's car. It contained two empty pill bottles with the name "Mavis Stevenson" on their labels. Appellant said those bottles belonged to his friend. Barajas opined that appellant possessed the codeine, the vicodin, the xanax, and the morphine for the purpose of sale. He based his opinion on the quantity of the substances, their packaging, the amount of cash in appellant's wallet, the text messages in his phone, and his statements that he exchanged the pills for cash or other things. Appellant testified that the medications recovered by the police belonged to him and his wife. The "norco" and morphine belonged to his wife, who was alive at the time of the search. Appellant also testified that one of the bottles in his black bag belonged to his daughter, but the pills inside that bottle belonged to him. He had a large