People v. Romerosolano CA2/6

Filed 10/20/15 P. v. Romerosolano CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B258839 (Super. Ct. No. 1488216) Plaintiff and Respondent, (Santa Barbara County)

v.

NESTOR DANIEL ROMEROSOLANO,

Defendant and Appellant.

Nestor Daniel Romerosolano appeals his conviction, by jury, of possession for sale of methamphetamine (Health & Saf. Code, § 11378), receiving stolen property (Pen. Code, § 496,subd. (a))1, and possession of an injection or ingestion device (Health & Saf. Code, § 11364.1, subd. (a)), a misdemeanor. The trial court suspended imposition of sentence and granted appellant five years' probation. At trial, the defense called an expert witness on the question of whether appellant possessed methamphetamine for sale. The expert was impeached with evidence of his prior felony conviction for grand theft.

1 All statutory references are to the Penal Code unless otherwise stated. 1

Appellant contends that evidence should have been excluded under Evidence Code sections 788 and 352 because the conviction was 26 years old and because the felony was later reduced to a misdemeanor and expunged. He further contends his conviction for receiving stolen property is not supported by substantial evidence. We affirm. Facts A Lompoc police officer conducted a probation search of two backpacks in appellant's possession. The search disclosed several machetes and knives, two air soft guns, a gas mask and filter, a cell phone in its box, 27 amphetamine pills, a pipe for smoking methamphetamine, a digital scale and 13.5 grams of methamphetamine. Expert witnesses testified on the question of whether appellant possessed the methamphetamine for sale. The arresting officer, Lompoc police officer John Reyna, testified as an expert witness on narcotics observation and investigation, evaluating persons under the influence, and different types of drugs. He explained the typical behaviors of a person who is under the influence of methamphetamine and testified that, in his opinion, appellant did not exhibit any signs of methamphetamine intoxication when he was arrested. Officer Reyna testified that the difference between a seller and a user of methamphetamine is the quantity of drugs that person possesses. Possession of a scale also indicates intent to sell, in Officer Reyna's opinion, because the scale is used to measure the amount of drugs to be sold. Officer Reyna considered 13.5 grams of methamphetamine, the amount possessed by appellant, to be a large quantity. Appellant also possessed a scale. These two facts caused Officer Reyna to conclude that appellant possessed the methamphetamine for sale. On cross-examination, he conceded that appellant might have possessed the scale not to weigh drugs for sale, but to confirm that he actually received the amount of drugs he paid for. Andrew White, a narcotics detective employed by the Lompoc police department, also testified as an expert witness. In his opinion, users did not buy methamphetamine in bulk, for fear that it would be stolen or they would be arrested and charged with a more serious offense. White opined that a heavy user in Lompoc would