People v. Zamudio CA2/8

Filed 8/20/14 P. v. Zamudio CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B247216

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA093920)
v.

CAESAR ZAMUDIO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Tomson T. Ong, Judge. Affirmed.

Susan Morrow Maxwell, under appointment by the Court of Appeal, for
Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
 INTRODUCTION
Defendant Caesar Zamudio appeals following his conviction of possession for sale
of cocaine base and possession for sale of methamphetamine. Defendant asserts on
appeal: (1) there was insufficient evidence to support a conviction of possession for sale
of methamphetamine; (2) the trial court abused its discretion in denying defendant’s
motion to strike a prior conviction; (3) the trial court imposed an excessive sentence as
punishment for defendant’s demand for a jury trial, in violation of his state and federal
due process rights; and (4) the trial court erred in imposing two sentence enhancements
under Health and Safety Code 11370.2.1 We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On November 8, 2012, Detective Robert Riske, a narcotics officer, conducted an
investigation in response to complaints about drug sales in Wilmington. Detective Riske
circled the area and came upon defendant standing with others on a street corner. Riske
parked his car at a distance and observed defendant through binoculars. Two men
approached defendant; one handed defendant an unknown object. Defendant walked a
short distance away. While walking, he reached into his pants and removed a clear
plastic bindle from his buttocks area.2 Defendant reached into the bindle, took something
out, then hid the bindle behind the wrought iron security screen of a window. Defendant
walked back to the two men, handed one of the men the object from the bindle, then the
two walked away.
Concluding he had witnessed a hand-to-hand drug transaction, Detective Riske
called in two backup officers and waited for their arrival. Before backup arrived, Riske
saw another man approach defendant. The second man handed defendant an unknown
item. Defendant walked to the window, retrieved the bindle, opened it and removed

1
Unless otherwise stated all statutory references are to the Health and Safety Code.
2
Riske defined a “bindle” as: “[E]ither a baggie or ripped-off section of a sandwich
bag. Usually they put the narcotics in a sandwich bag, tip it on its edge so it all goes into
the corner, then they rip off the corner and tie it so they have all the narcotics in one
spot.”
2
something, replaced the bindle behind the wrought iron screen, then walked back and
handed what he had taken out of the bindle to the second man. The man promptly left
after the interaction.
When backup officers arrived, they detained defendant and recovered “a clear
plastic baggie containing an off-white, rock-like solid resembling cocaine and a black
baggie containing what appeared to be methamphetamine.” Testing indicated the clear
bindle contained .19 grams of cocaine base and the black bindle contained .06 grams of
methamphetamine. Defendant had $66 in cash in his pocket: two $20 bills, two $10 bills,
one $5 bill, and one dollar bill. Defendant had no drug paraphernalia on his person.
Officers did not detain either of the apparent buyers.
At trial, Riske testified he had been a law enforcement officer for almost 23 years,
and had been assigned to a narcotics division for 10 years. He received training from
several entities regarding possession and sales of narcotics. He had personally conducted
surveillances, viewed surveillance videos, and observed hand-to-hand drug transactions
in person. He had also purchased narcotics while working undercover, and he had talked
to senior officers who trained him in narcotics. Riske had participated in over 100 arrests
in connection with the investigation of narcotics for sale. In addition to testifying about
what he observed before defendant was arrested, Riske also opined that defendant was
selling narcotics. Riske explained: “I watched [defendant] do two sales where he went to
the bindle and removed items consistent with – I mean, I can’t tell what the item was but
the bindle itself contained narcotics. So my opinion was he was selling narcotics from
that bindle.”3
The prosecutor subsequently asked Riske: “So as far as your expertise after
observing the defendant’s actions on November 8, 2012, do you have an opinion if the
defendant possessed meth and crack cocaine for the purpose[] of sales? . . . . What is your
opinion?” Riske answered: “Based on the observations that it was possessed for

3 On cross-examination, Riske again testified he could see that defendant took out a
bindle, but Riske could not see what defendant was retrieving from the bindle, and could
not see the color of what defendant was retrieving from the bindle.
3
sales. . . . I saw him retrieve a bindle from his buttocks. I saw the bindle in his hand.
I saw him retrieve an item from the bindle and hand it off to two separate buyers.” Riske
also explained that the money recovered from defendant factored into his opinion: “As I
described earlier he retrieves the bindle from his buttocks. The money was recovered
forward up in his pocket and the denomination of the money is consistent with narcotics
sales.” He testified a usable amount of either rock cocaine or methamphetamine is 0.02
grams.
A jury found defendant guilty of violating section 11351.5, possession for sale of
cocaine base, and section 11378, possession for sale of methamphetamine. The court
found defendant had suffered a prior strike and, applying other enhancements, sentenced
defendant to a total prison term of 20 years and 4 months.
DISCUSSION
I. Substantial Evidence Supported the Conviction of Possession for Sale of
Methamphetamine
Defendant contends his conviction of possession for sale of methamphetamine is
not supported by substantial evidence.4 We disagree.
“The standard of appellate review of the sufficiency of the evidence to support a
jury verdict is settled. ‘In assessing a claim of insufficiency of evidence, the reviewing
court’s task is to review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citation.] . . . The standard of review is the same in
cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]
“ ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and the other
innocence [citations], it is the jury, not the appellate court[,] which must be convinced of
the defendant’s guilt beyond a reasonable doubt. “ ‘If the circumstances reasonably
4
Defendant does not challenge the sufficiency of the evidence supporting the
conviction for possession for sale of cocaine base.
4
justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.’ ” [Citations.]’ ” [Citation.]’ [Citation.]” (People v.
Story (2009) 45 Cal.4th 1282, 1296.)
Defendant argues there was insufficient evidence to support a finding that he
possessed a “sufficient amount of methamphetamine to be used for sale” or that
defendant had the specific intent to sell the methamphetamine. We address these
contentions in turn.
A. There was sufficient evidence that defendant possessed a usable amount of
methamphetamine
To secure a conviction of a violation of possession for sale of a controlled
substance, the prosecution must prove beyond a reasonable doubt that the defendant
possessed a controlled substance in an amount sufficient to be used “for sale or
consumption as a controlled substance,” and that defendant had the specific intent to sell
it. (People v. Parra (1999) 70 Cal.App.4th 222, 225-226 (Parra).)5 On appeal,
defendant contends the People failed to prove he possessed a sufficient amount of
methamphetamine for sale, ignoring that the standard is an amount for sale or
consumption.6

5
Parra, supra, set forth all of the elements the prosecution must prove beyond a
reasonable doubt to secure a conviction for the unlawful possession for sale of a
controlled substance: “(1) the defendant exercised dominion and control over the
controlled substance, (2) the defendant was aware that he 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.” (Parra, supra, 70 Cal.App.4th at p. 226.)
Defendant does not challenge the sufficiency of the evidence as to the first three
elements.
6
Indeed, defendant inaccurately quotes the jury instruction given in this case.
Defendant quotes the court as instructing the jury: “In order to prove this crime, each of
the following must be proved . . . . The substance was in an amount sufficient to be used
for sale as a controlled substance. . . .” In fact, consistent with CALJIC 12.01, the court
5
 To establish the defendant possessed a sufficient amount of a controlled substance
for sale or consumption, the prosecution must prove only that the substance was in a
usable form or quantity. (People v. Rubacalba (1993) 6 Cal.4th 62, 66 (Rubacalba)
[affirming conviction for possession of cocaine based on an item containing cocaine and
weighing one-tenth of a gram].) The prosecution need not prove the purity or potential
narcotic effect of the drug. (Ibid.) The “usable-quantity rule prohibits conviction only
when the substance possessed simply cannot be used, such as when it is a blackened
residue or a useless trace. It does not extend to a substance containing contraband . . . if
the substance is in a form or quantity that can be used.” (Ibid. citing People v. Leal
(1966) 64 Cal.2d 504.)
Detective Riske’s expert testimony was that .06 grams of methamphetamine was a
“usable amount.” He testified that a single dose of methamphetamine could be as small
as .02 grams, suggesting the jury could find defendant possessed three doses. While
Riske also indicated many drug users have a higher tolerance and therefore require more
than one dose of a drug to achieve a high, our Supreme Court has held that the potential
narcotic effect of a small amount of a controlled substance is not a relevant factor for
possession. (Rubacalba, supra, 6 Cal.4th at p. 66.) In addition, while Riske testified he
did not recall a case in which .06 grams of methamphetamine were sold, this did not
invalidate his testimony that defendant possessed an amount of methamphetamine that
could be consumed.7 The drug found in the black bindle was not a “residue or useless

instructed: “In order to prove this crime, each of the following elements must be
proved . . . . The substance was in an amount sufficient to be used for sale or
consumption as a controlled substance. . . .”
7  On cross-examination, defense counsel and Riske had the following colloquy:
“Q: Is .06 [of methamphetamine] an amount that is normally sold on the street?
A: I couldn’t tell you what was normally sold on the street.
Q: Have you ever arrested someone for selling methamphetamine who was selling .06
grams?
A: I don’t know.
Q: Is there any name that a buyer might use to refer to an amount of .06 grams?
A: I really don’t know.
6
trace.” (Ibid.) It was in a usable, white crystalline form. We conclude there was
substantial evidence that defendant possessed a usable amount of methamphetamine.
The jury was not required to separately find defendant possessed a “sufficient amount to
be used for sale.”
B. There was sufficient evidence that defendant possessed the
methamphetamine with the intent to sell.
We further conclude the evidence was sufficient to support the jury’s finding that
defendant possessed the methamphetamine with the intent to sell. We note that
“ ‘[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts
and circumstances surrounding the offense.’ [Citation.] ‘Evidence of a defendant’s state
of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as
direct evidence to support a conviction.’ [Citation.]” (People v. Rios (2013) 222
Cal.App.4th 542, 567-568; People v. Harris (2000) 83 Cal.App.4th 371, 374 [intent to
sell controlled substance may be established by circumstantial evidence].)
The evidence at trial was that Riske observed defendant engaged in what appeared
to be two hand-to-hand drug transactions. When the first buyer approached, defendant
took a clear bindle—either a plastic sandwich bag, or a corner of a sandwich bag—from
the back of his pants. He opened the clear bindle and took something out. Riske could
not see what was inside the bindle, but he saw defendant hide the bindle behind a window
screen. After completing the first transaction, another buyer approached, and defendant
returned to where he had hidden the bindle, opened it, took something out, replaced the
bindle, then handed what he had taken out to the buyer. Moments later when additional
officers arrived, they found a clear bindle and a black bindle behind the window screen.
Defendant had no drug paraphernalia with him.

Q: Can you recall even one case where you’ve seen .06 grams sold?
A: Sold? No.”

7
 Defendant does not argue the evidence was insufficient to support the conviction
for possession of cocaine base for sale. However, he asserts there was insufficient
evidence to support a finding that he had the intent to sell the methamphetamine found
with the cocaine base because of the smaller amount, and because Riske did not observe
defendant with the black bindle. Defendant contends Riske’s opinion that defendant
possessed methamphetamine for sale was “entirely premised” on Riske’s observation of
defendant retrieving and selling an item from the clear plastic bindle. Since Riske did not
see the black bindle, defendant asserts “the most likely conclusion is that [both buyers]
purchased cocaine base.”
Although this may have been one permissible conclusion, we disagree that it was
the only conclusion supported by the evidence. The facts as established at trial permitted
a reasonable inference that the black bindle belonged to defendant, and, like the cocaine
base he hid in the same place, the methamphetamine in the black bindle was part of his
available inventory for sale that day. Even without an eyewitness observation that
defendant was also selling items from the black bindle, the jury could reasonably
conclude defendant intended to sell methamphetamine that was packaged in a fashion
similar to the packaging of the cocaine base, and was hidden in the same place as the
cocaine base.
Defendant contends that since Riske never observed the black bindle he had no
basis to opine that defendant possessed the methamphetamine to sell it. However, the
jury was not required to construe Riske’s testimony so narrowly. As a whole, Riske’s
testimony indicated he based his opinion on the totality of his observations, the
circumstances, and his experience. Riske did not see the black bindle. He could not see
what defendant was getting out of the clear plastic bindle. But he did see defendant
engaging in conduct that Riske, based on his training and experience, opined was
indicative of illegal drug sales. Riske also testified that defendant’s behavior was
inconsistent with that of the typical drug buyer. He opined that in his experience, it was
not typical for buyers to “stash [or] stockpile their newly acquired dope 20, 30 feet away
in a ledge or window area.” His testimony also indicated that, while the amount of

8
methamphetamine was small, it was the equivalent of as much as three doses. Riske’s
inability to see exactly what defendant was selling, and the absence of an observation of
defendant handling the black bindle, did not prevent the jury from reasonably inferring,
based on the evidence, that defendant possessed the methamphetamine with the intent to
sell it.
Although defendant’s argument on appeal focuses on the alleged invalidity of
Riske’s opinion that defendant intended to sell the methamphetamine, we find that even
without that opinion there was substantial evidence for the jury to conclude defendant
possessed the requisite intent. Riske’s testimony included not only his opinion about
defendant’s intent to sell the methamphetamine, but also Riske’s direct observations,
description of the circumstances of the arrest, and other opinions regarding narcotics
sales and purchases that were properly based on his experience and training. As
explained above, these other portions of his testimony were relevant and substantial
evidence, and were consistent with his ultimate conclusion that defendant intended to sell
the methamphetamine. Although convictions of possession for purpose of sale have been
upheld on the basis of an experienced officer’s testimony opining on the defendant’s
intent, (see People v. Harris, supra, 83 Cal.App.4th at pp. 374-375), the conviction need
not be upheld on that basis alone in this case. (People v. Dowl (2013) 57 Cal.4th 1079,
1089-1090.)
We acknowledge that, “[b]y definition, ‘substantial evidence’ requires evidence
and not mere speculation. In any given case, one ‘may speculate about any number of
scenarios that may have occurred. . . . A reasonable inference, however, “may not be
based on suspicion alone, or on imagination, speculation, supposition, surmise,
conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from
evidence rather than . . . a mere speculation as to probabilities without evidence.” ’
[Citations.]” (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.) And, indeed, “a jury
may not rely upon unreasonable inferences . . . ‘[a]n inference is not reasonable if it is
based only on speculation.’ [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 365
(Hughes).)

9
 But here, the jury did not have to speculate or rely on suspicion alone. The jury
could draw a reasonable inference from the evidence that defendant possessed the
methamphetamine with the intent to sell. Defendant engaged in a hand-to-hand drug
transaction in which he pulled an item out of his pants, appeared to open it and sell some
of the contents, hid the item, then opened it again to retrieve an item for a second sale.
In the place where he had hidden drugs he was selling, police found cocaine base and
methamphetamine, packaged similarly, but in different colored bags. The
methamphetamine was in a usable amount of multiple doses. Nothing in the evidence
suggested defendant possessed the methamphetamine for his personal use. (See People v.
Fitzwater (1968) 260 Cal.App.2d 478, 490 [inference that narcotics were for sale rather
than personal use supported in part by fact that drugs were kept in a storage place rather
than residence].) “In order to conclude that the evidence was legally sufficient, we need
not determine that the evidence was strong. . . .” (Hughes, supra, 27 Cal.4th at p. 365.)
And, while the jury must acquit the defendant if it finds circumstantial evidence is
susceptible of two interpretations, one of which suggests innocence, our role is different.
“ ‘ “ ‘ “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.’ ” [Citations.]’ ”
[Citation.]’ [Citation.]” (People v. Watkins (2012) 55 Cal.4th 999, 1020, italics omitted.)
We conclude the evidence was sufficient to permit a reasonable jury to infer, and find
beyond a reasonable doubt, that defendant possessed the methamphetamine with the
intent to sell.8

8
Our dissenting colleague suggests that we view the evidence in the light most
favorable to defendant, or that we favor inferences against the judgment, rather than
indulging all reasonable inferences in support of the jury’s conclusions. This novel
application of the substantial evidence rule is at odds with the settled standard of
appellate review of the sufficiency of the evidence.

10
II. The Trial Court Did Not Abuse its Discretion in Denying Defendant’s Romero
Motion
Defendant contends the trial court abused its discretion under Penal Code section
1385 in denying his motion to strike a prior conviction under the Three Strikes Law.
Defendant argues the present offense was not violent or serious and the amount of drugs
found was minimal. He points out that his 1991 robbery conviction was not violent and
therefore is not within the spirit of the Three Strikes Law. Because the trial court used
proper discretion, we reject defendant’s contention.
A. Standard of Review
“[T]he Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts’ discretion in sentencing repeat offenders.” (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 528.) It is thus presumed any prior
conviction under the Three Strikes Law applies to the present conviction and that a prior
conviction establishes a sentencing requirement that must be followed. (People v.
Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) A trial court can, either of its own
motion or upon the application of the prosecuting attorney, and in the furtherance of
justice, dismiss a strike under Penal Code section 1385. (Romero, at p. 504.) A trial
court’s decision to refuse to dismiss a prior conviction under the Three Strikes Law is
reviewable for abuse of discretion. (Carmony, at p. 376.) The reviewing court may only
find abuse of discretion if the decision “is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at p. 377.)
B. Analysis
The trial court explained its ruling to deny defendant’s Romero motion as follows:
“I have considered whether I should strike that strike and I decline. I decline because
[defendant] has not led a crime-free life during the period of time that he committed the
strike all the way [until] today’s date. He has committed several offenses. For him to
disingenuously now beg for a drug program is very creative. He has committed how
many drug cases in between the time of the strike and today? And did not avail himself
of a drug program or if he did they certainly did not work. So what makes me think

11
today that another drug program would work. He throughout this case stood by his
request for a drug program, but then again, if he did not take advantage of the drug
program in the past. He has not accepted responsibility and he did and we gave him one
and it didn’t work. Sometimes time in custody is very reflective of somebody [with a]
drug problem[]. The Romero motion based [on] the numerosity of the prior convictions,
based upon his life that did not remain crime-free from the time of the robbery all the
way to today’s date is the basis for this court not granting the Romero motion.”
Defendant argues his prior robbery conviction was not violent and should be
disregarded because it occurred over 20 years ago. Although the age of a strike is a
factor that the court may consider, it is not dispositive. The trial court also reasonably
based its discretion on defendant’s many prison terms. The record indicates defendant
has been sentenced to prison on five separate occasions in the 23 years since his robbery
conviction totaling over 16 years of prison time. Based on defendant’s continuous
violations of the law in the time since his first strike, the trial court reasonably found
defendant was not outside the spirit of the Three Strikes law. We find no abuse of
discretion.
III. Defendant was Not Punished for Exercising His Right to a Jury Trial
Defendant contends his federal and state due process rights were violated by his
20 year, 4 month sentence. The sentence was computed as follows: the upper term of
five years on count 1, doubled pursuant to the Three Strikes law to ten years, plus three
years for defendant’s prior drug conviction (§ 11370.2, subd. (a)), plus three years for
prior prison terms (Pen. Code § 667.5, subd. (b)), plus, as to count 2, one third the
midterm (eight months) doubled pursuant to the Three Strikes Law to 1 year, 4 months,
plus three years for the prior drug conviction (§ 11370.2, subd (c)).
Defendant claims the sentence is excessive and was imposed as punishment for
exercising his right to a jury trial. Respondent argues defendant waived his right to
appeal this issue by not objecting during sentencing. We exercise our discretion to
review this contention on its merits (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6)
but find no evidence the sentence was imposed as punishment.

12
 It is beyond debate that a defendant cannot receive a harsher sentence as
punishment for exercising his right to a jury trial. (In re Lewallen (1979) 23 Cal.3d 274,
278; see also Bordenkircher v. Hayes (1978) 434 U.S. 357, 363.) But simply because a
court imposes a longer sentence than might have been earlier discussed by the court and
counsel, does not mean defendant is being punished for electing to go to trial. Courts
regularly choose among the lower, mid and upper terms by balancing the presence or
absence of aggravating or mitigating factors, often imposing required or discretionary
enhancements. (People v. Scott (1994) 9 Cal.4th 331, 351.) Criminal proceedings are
fluid in nature and what might seem to be a reasonable sentence at one point in time may
be unacceptable later on. In order to claim a sentence violated the defendant’s due
process rights, “[t]here must be some showing, properly before the appellate court, that
the higher sentence was imposed as punishment for exercise of the right.” (People v.
Angus (1980) 114 Cal.App.3d 973, 989-990.) Defendant has not met this burden.
Defendant fails to reference any direct evidence from the transcript showing the
trial court explicitly punished defendant for exercising his right to a jury trial. Our
independent review of the record similarly comes up empty. Instead, defendant contends
two factors demonstrate the trial court imposed a sentence to punish him for choosing to
go to trial: (1) the increase between the plea deal offered before trial and the final
sentence imposed; and (2) the court’s reliance on decade-old convictions to increase the
sentence. Neither of these arguments meet defendant’s burden.
A. Increase in sentence from plea offer
Defendant was offered an eight year plea deal. The United States Supreme Court
has long accepted plea deals as a means to expedite the administration of justice by
allowing “a State [to] encourage a guilty plea by offering substantial benefits in return.”
(Corbitt v. New Jersey (1978) 439 U.S. 212, 218-219.) The defendant is not entitled, as a
matter of right, to the same sentence after trial as that offered as a pretrial plea deal.
(In re Lewallen, supra, 23 Cal.3d at p. 280.) If a defendant “could demand the same
sentence after standing trial that was offered in exchange for a guilty plea, all incentives
to plead guilty would disappear.” (United States v. Carter (9th Cir. 1986) 804 F.2d 508,

13
513.) That the trial court imposed a harsher sentence than what was offered earlier does
not by itself show the trial court imposed the sentence as punishment for defendant’s
exercise of his right to a jury trial.
B. Excessive sentence
Defendant also argues the “outrageous” length of the sentence inherently proves
defendant was punished for exercising his right to trial. We again disagree. The sentence
was within the confines of the law and the court’s discretion. As such, the length of the
sentence alone does not indicate the court imposed the sentence to punish defendant for
going to trial. The trial court gave the following reasons for the sentence it imposed.
As to Count 1, the trial court stated, “the court has considered the following
aggravating factors to justify the maximum term allowed by law: The manner in which
the crime was carried out indicated planning, sophistication and professionalism. The
Defendant insured minimum nexus between his physical self and the narcotics, secreting
the narcotics away from his body until he could sell the narcotics. The narcotics were
placed on a ledge in the building. When on his body the Defendant secreted the bag or
bags in his butt crack . . . . [T]he court finds that the aggravating factors substantially
outweigh any mitigating factors and the maximum term should be warranted and is
warranted.”
As to Count 2, the trial court correctly concluded that Penal Code section 654 did
not apply.9 The court explained, “the multiple array of drugs make the defendant a more
dangerous and marketable drug dealer . . . . [S]ection 654 does not apply when talking
about possession for sale of many different drugs and the defendant can be sentenced for
sale each of the individual drugs and consecutive terms are imposed herein.” (See, e.g.
People v. Barger (1974) 40 Cal.App.3d 662, 672.) The trial court proceeded to sentence
defendant to one-third the midterm, to be served consecutively. (Pen. Code, § 1170.1.)

9 Penal Code section 654 forbids punishment of the same act under multiple
provisions. Punishment for an act is limited to the sentencing provision that provides for
the longest potential imprisonment.
14
 The remainder of defendant’s sentence was comprised of required enhancements
pursuant to various statutes. The court explained the reasoning behind the sentencing
decision, and it applied enhancements according to their respective statutes. We find no
abuse of discretion and no violation of defendant’s rights.
IV. The Trial Court Properly Imposed Two Enhancements Under
Section 11370.2
Defendant was convicted of violating sections 11351.5 and 11378. The trial court
imposed two drug-related prior conviction enhancements, one under section 11370.2
subdivision (a), and one under section 11370.2, subdivision (c).10 Defendant contends
only one section 11370.2 enhancement may be applied and, thus, one must be stricken.
We disagree.
As defendant acknowledges, this issue was addressed in People v. Edwards (2011)
195 Cal.App.4th 1051 (Edwards). In Edwards, the defendant was charged with
transportation and possession for sale of methamphetamine (§§ 11379, subd. (a) &
11378), transportation of heroin (§ 11352, subd. (a)), and transportation of cocaine
(§ 11352, subd. (a)(5)). The information alleged the defendant had suffered three prior
drug related convictions. (Edwards, at p. 1054.) The information accordingly alleged

10
  Section 11370.2, subdivision (a) provides: “Any person convicted of a violation
of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in
addition to any other punishment authorized by law, including Section 667.5 of the Penal
Code, a full, separate, and consecutive three-year term for each prior felony conviction
of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5,
11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or
not the prior conviction resulted in a term of imprisonment.”
Section 11370.2, subdivision (c) similarly provides: “Any person convicted of a
violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any
substance containing a controlled substance specified in paragraph (1) or (2) of
subdivision (d) of Section 11055 shall receive, in addition to any other punishment
authorized by law, including Section 667.5 of the Penal Code, a full, separate, and
consecutive three-year term for each prior felony conviction of, or for each prior felony
conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5,
11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction
resulted in a term of imprisonment.”
15
three drug-related prior conviction enhancements to two counts pursuant to section
11370.2, subdivision (c), and as enhancements to two additional counts pursuant to
section 11370.2, subdivision (a). (Edwards, at p. 1056.) The trial court imposed three
enhancements each as to all four counts.11 On appeal, the defendant argued the section
11370.2 enhancements were status enhancements, thus an enhancement for each prior
drug-related conviction could only be imposed once, on the aggregate sentence.
(Edwards, at p. 1056.)
Although the appellate court agreed the section 11370.2 enhancements are “status
enhancements,” it also concluded “the Legislature intended that multiple enhancements
can be imposed for the same prior convictions, if there are current multiple counts of
conviction as to which different subdivisions of section 11370.2 apply.” (Edwards,
supra, at p. 1057.) The Edwards court came to this conclusion by considering the plain
language of the statute:
“Although the prior felonies listed in all three subdivisions are the same,
each subdivision applies to different current offenses: sections 11351,
11351.5 and 11352 (subd. (a)); sections 11378.5, 11379, 11379.5, 11379.6,
11380.5 and 11383 (subd. (b)); sections 11378 and 11379 with respect to
any substance containing a controlled substance specified in paragraph (1)
or (2) of subdivision (d) of section 11055 (subd. (c)). And each subdivision
mandates imposition of the enhancement upon conviction of a qualifying
offense, without limitation. The language of a statute is the most reliable
indicator of legislative intent. [Citation.] If the language is unambiguous,
we must apply it without resort to extrinsic sources to determine the
Legislature’s intent. [Citation.] In this respect, the language of section
11370.2 is unambiguous. Consequently, we conclude that the Legislature
intended each subdivision to apply independently of the others, meaning
that if a defendant is convicted of a violation of a qualifying offense under
subdivision (a) and is also convicted of a qualifying offense under either
subdivision (b) or subdivision (c), his or her sentence is to be enhanced
under both subdivisions.” (Edwards, supra, at pp. 1058-1059, fns.
omitted.)

11   The court stayed the enhancements on all but the principal count. (Edwards, at p.
1056.)
16
 We find this reasoning persuasive. In this case, defendant was convicted of a
violation of a qualifying offense under subdivision (a), and another qualifying offense
under subdivision (c). As such, the trial court properly enhanced his sentence under both
subdivisions. People v. Tillotson (2007) 157 Cal.App.4th 517 (Tillotson), does not
mandate a different result. In Tillotson, the defendant was convicted of two counts of
violating section 11378. He admitted one prior drug-related conviction. (Tillotson, at
p. 542.) The trial court imposed two three-year enhancements for drug-related prior
convictions under section 11370.2, subdivision (c). The defendant argued the
enhancement could only be imposed once to the aggregate sentence. (Tillotson, at
p. 542.) The People conceded the point. The appellate court agreed the section 11370.2,
subdivision (c) enhancement could only be imposed once to aggregate the sentence.
As the Edwards court noted, in Tillotson, the Attorney General conceded the
point, and the court did not analyze the contention presented in Edwards, or presented
here. In Tillotson, the trial court imposed a section 11370.2, subdivision (c) enhancement
twice. In this case, the trial court imposed only one section 11370.2, subdivision (c)
enhancement, and one separate enhancement under section 11370.2, subdivision (a).
We agree with the Edwards court that Tillotson does not address the issue of multiple
enhancements based on different subdivisions of section 11370.2.
We find no error in the trial court’s imposition of enhancements under section
11370.2, subdivisions (a) and (c).
DISPOSITION
The judgment is affirmed.

BIGELOW, P.J.
I concur:

GRIMES, J. .

17
RUBIN, J., CONCURRING AND DISSENTING-
I concur in Parts II, III and IV of the majority opinion but respectfully dissent from
Part I. I conclude that there is insufficient evidence of an intent to sell the
methamphetamine that formed the conviction in Count 2. Indeed, this may be one of
those rare cases where there is no evidence at all to support an element of an offense.

A.

For years, appellate courts have wrestled with the term substantial evidence, and,
in almost every case, “substantial” has won the match. There is, nevertheless, real
meaning to the word “substantial” in the formulation of our standard of review, and close
inspection in some cases may reveal that evidence thought to be substantial is in fact only
“some” or “any.” The majority correctly acknowledges that especially in cases like this
one, where evidence of intent must be proved circumstantially, the inferences from the
evidentiary circumstances must be reasonable and not speculative. (Maj. opn., at p. 9.)
But the analysis of substantiality, I suggest, must proceed beyond whether the
evidence is speculative. As our highest court has held, in criminal cases the substantial
evidence standard of review is founded on constitutional principles. (Jackson v. Virginia
(1979) 443 U.S. 307, 319.) At a constitutional minimum, appellate courts must ensure
that “ ‘considering the evidence in the light most favorable to the government, there is
substantial evidence from which a jury might reasonably find that an accused is guilty
beyond a reasonable doubt.’ ” (Id. at p. 319, fn. 12, original italics.) This teaches us that
the evidence must be found substantial contextually in light of the reasonable doubt
standard, not in the abstract: Was the evidence so substantial that a jury could
reasonably find guilt beyond a reasonable doubt?
Nearly 50 years ago, our state Supreme Court underscored the significance of the
word “substantial” in our standard of review in People v. Bassett (1968) 69 Cal.2d 122,
138 (Bassett). Justice Mosk’s unanimous opinion quoted from one of the court’s earlier
cases: “[W]e emphasized in Estate of Bristol (1943) 23 Cal.2d 221, 223 [143 P.2d 689,
690], that ‘The critical word in the definition is “substantial”; it is a door which can lead
as readily to abuse as to practical or enlightened justice.’ Seeking to determine the
meaning of ‘substantial’ in this connection, the court in Estate of Teed (1952)
112 Cal.App.2d 638, 644 [247 P.2d 54], canvassed dictionary and judicial definitions and
concluded that the term ‘clearly implies that such evidence must be of ponderable legal
significance. Obviously the word cannot be deemed synonymous with “any” evidence.
It must be reasonable in nature, credible, and of solid value; it must actually be
“substantial” proof of the essentials which the law requires in a particular case.’ ” (Ibid.)
This standard has been repeated in thousands of appellate decisions ever since. (See, e.g.,
Meyers v. Board of Administration etc. (2014) 224 Cal.App.4th 250, 260.)
Bassett also relied on its earlier decision in People v. Holt (1944) 25 Cal.2d 59, 70,
and described the appellate task thusly: “As the emphasized language indicates, our task
in this regard is twofold. First, we must resolve the issue in the light of the whole record
– i.e., the entire picture of the defendant put before the jury – and may not limit our
appraisal to isolated bits of evidence selected by the respondent. Second, we must judge
whether the evidence of each of the essential elements constituting the higher degree of
the crime is substantial; it is not enough for the respondent simply to point to ‘some’
evidence supporting the finding, for ‘Not every surface conflict of evidence remains
substantial in the light of other facts.’ ” (Bassett, supra, 69 Cal.2d at p. 137.)
At the time of the Bassett decision, the inquiry into the state of the evidence
necessary for affirmance was whether it was substantial. Or to state the converse, was it
insubstantial? In our criminal jurisprudence, it was either substantial or insubstantial.
More recently we have added another test to our standards of review in criminal cases:
some evidence. This standard was first adopted by our Supreme Court in In re
Rosenkrantz (2002) 29 Cal.4th 616, 625-626 for the review of a Governor’s decision to
grant or deny parole, and it remains the standard of review only in those cases. It is an
extremely hands-off standard: “The ‘some evidence’ standard is ‘more deferential than
substantial evidence review, and may be satisfied by a lesser evidentiary showing.’ . . .
‘[U]nder the “some evidence” standard, “[o]nly a modicum of evidence is required.” ’ ”
(In re Shaputis (2011) 53 Cal.4th 192, 210.)

2
 Appellate justices have now another standard with which to review evidence. As
we gain more experience with the “some” evidence standard, and continue the regular
affirmance of trial court decisions following criminal trials, there is a risk that the
distinction between “some” and “substantial” may be lost. As Justice Mosk told us, the
substantial evidence standard “is a door which can lead as readily to abuse as to practical
or enlightened justice.” (Bassett, supra, 69 Cal.2d at p. 138.) To avoid the door that
leads to injustice, appellate courts must faithfully and carefully consider, and rigorously
apply, the exacting components of the substantial evidence test that our Supreme Court
has repeatedly directed us to use: ponderable, reasonable in nature, credible, of solid
value, proof of the essential elements of the crime, and to distinguish this evidence from
that which is merely “some” evidence. Without such exactitude, appellate courts will
continue to be susceptible to a recent characterization that they administer justice in a
1
“culture of affirmance.”
Although my colleagues in the majority disagree, I suggest the evidence of intent
to sell methamphetamine here (in contrast to the intent to sell cocaine) at best can be
described as “some,” and fails to meet our Supreme Court criteria of substantiality. I will
turn to that evidence.

1
Last month, Professor Gerald Uelman used the expression “culture of affirmance”
in describing the context of Court of Appeal decision making. (Maura Dolan, State High
Court Nominee Learned Power of Law as a Child in Mexico, Los Angeles Times
(July 22, 2014) (online edition as of August 18, 2014).) In an earlier law review article,
he had argued that the institutionalized trend of appellate courts to defer to trial courts
was so strong that it produced the following effect: “The basic norms of appellate review
thus become norms of affirmance.” (Uelman, Review of the Death Penalty Judgments by
the Supreme Courts of California: A Tale of Two Courts, (1989) 23 Loy. L.A. L. Rev.
237 at p. 239.)
3
 B.

The evidence of defendant’s intent to sell methamphetamine was founded on the
testimony of Detective Riske of the Los Angeles Police Department. When asked on
direct examination if he had “an opinion if the defendant possessed [methamphetamine]
and crack cocaine for the purposes of sales,” Detective Riske said he did. He then
2
testified his opinion was “Based on the observations that it was possessed for sales.”
Experienced officers, of course, “may give their opinion that narcotics are held for
purposes of sale based upon such matters as quantity, packaging and normal use of an
individual; [and] 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 by People v. Daniels (1975) 14 Cal.3d 857, 862; see People v. Dowl (2013)
57 Cal.4th 1079, 1082.) Defendant has not argued that Detective Riske lacked the
expertise to render an opinion on intent to sell, and it is clear that Riske properly qualified
as an expert. Rather, defendant contends there was an insufficient factual basis for
Riske’s opinion that the methamphetamine was possessed for sale.
In assessing the sufficiency of expert testimony, appellate courts are guided by the
familiar principal that an expert’s “opinion is only as good as the facts and reasons on
which is it based.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) As Justice Mosk
also wrote in Bassett: “ ‘Expert evidence is really an argument of an expert to the court,
and is valuable only in regard to the proof of the facts and the validity of the reasons
advanced for the conclusions.’ (Italics added.) (People v. Martin (1948) 87 Cal.App.2d
581, 584 [197 P.2d 379]).” (Bassett, supra, 69 Cal.2d at p. 141.)
As I read the record, these are the facts underlying Detective Riske’s opinion on
defendant’s intent:

2
Although Detective Riske used the word “it” rather than “they,” in light of the
question I understand his testimony as expressing the opinion that both the
methamphetamine and the cocaine base were possessed for sale. Later Riske confirmed
he was referring to both controlled substances.
4
  Riske’s opinion was based “primarily on my observations of [defendant]
conducting sales,” which he had seen before defendant was arrested. “So my
opinion was he was selling narcotics from that bindle.” By “that bindle” Riske
meant the clear bindle containing cocaine that Riske saw defendant retrieve from
his backside. The methamphetamine was, however, in a black bindle that Riske
never saw defendant handle. Officers discovered the black bindle only after they
arrested defendant and searched behind the window security screen where Riske
saw defendant hide the clear bindle. But, I suggest, inferring intent to sell (as
opposed to possession) from the black bindle’s proximity to the clear bindle is
speculative. Because police arrested neither purchaser, the police recovered no
evidence from a completed transaction that could bear on defendant’s intent to sell
methamphetamine, meaning there was no evidence of defendant taking anything
from the black bindle as part of any drug sale. In sum, Riske’s observation of
defendant’s cocaine sales from the clear bindle which defendant handled did not
by itself suggest an intent to sell methamphetamine from a different bindle that
3
Riske never saw defendant touch or retrieve.

 Turning from the location of the black bindle to its contents, Detective Riske
testified it was “possible” for .06 grams of methamphetamine to be sold. But we
know anything is possible, and a possibility does not constitute evidence. (People
v. Sanders (2010) 189 Cal.App.4th 543, 557; People v. Blinks (1958)
158 Cal.App.2d 264, 266.) Possible evidence cannot be “ponderable” evidence.
(Bassett, supra, 69 Cal.2d at p. 138.) More importantly, although Riske had been
a police officer for 23 years, and assigned to narcotics for the last 10, he did not

3
I do not mean to suggest that possession for sale cannot sometimes be inferred
from actual sales of narcotics close in time. However, prior sales have to be placed in
context with the narcotics still possessed. The prior sales of cocaine here have to be
considered in light of the small amount of methamphetamine found on defendant in
assessing whether it is reasonable to infer possession for sale of the methamphetamine
from the prior sales of cocaine.
5
 know of any instance in which .06 grams had, in fact, been sold. He also said that
he could not say what amount of methamphetamine was “normally sold on the
street.” There was evidence that in theory .06 grams could produce three doses
but Detective Riske also testified that street users would normally need more than
that amount due to users’ tolerance. That defendant possessed a small, but usable,
amount cannot automatically equate with intent to sell the specific amount in that
very bindle because the usable amount of the substance is one element of the
offense and the intent to sell is another. (People v. Montero (2007)
155 Cal.App.4th 1170, 1177; CALCRIM 2302.)

 Defendant was not found with drug paraphernalia, which suggested intent to sell
not personal use.

I look at this evidence through the lens of the standard of review discussed above.
To be sure, the evidence must be considered in the light most favorable to the judgment,
with all deductions drawn in support of the judgment. (See People v. Carpenter (1997)
15 Cal.4th 312, 387.) Appellate courts do not assess the credibility of witnesses. (Ibid.)
Under that standard, I distill Detective Riske’s testimony in support of his opinion that
defendant intended to sell the methamphetamine in the black bindle as follows:
Although in his decades as a police officer he had never seen an amount as small
as .06 grams of methamphetamine sold, (1) a dose can be as small as .02 grams;
(2) defendant sold cocaine that day, and the methamphetamine was found near it; and
(3) there was no drug paraphernalia found on defendant. In my view this evidence is
insufficient to establish intent to sell the actual amount left in the bindle. The issue is
whether this .06 grams was possessed for sale. Although a dose can be as small as .02
grams, Riske had no experience with sales of .02 grams or even .06 grams. Stated in a
manner that at first blush might seem startling, there is no evidence in this case that .06
grams of methamphetamine has ever been sold to anyone at any time. Perhaps some
other officer might have had experience with sales of small amounts of
6
methamphetamine but that officer was not called to testify here. That defendant may
have sold some different dose of methamphetamine some other time, possibly even from
the black bindle earlier in the day, does not permit a reasonable jury to conclude beyond a
reasonable doubt that he intended to sell the very .06 grams in the bindle.
Reported cases reversing a possession-for-sale conviction for insufficiency of a
narcotics officer’s expert testimony are rare, and the reasoning of those few cases is
tenuous in terms of the present case. (See, e.g., People v. Hunt (1971) 4 Cal.3d 231, 237
[officer’s expertise insufficient for opinion that prescription drug was possessed for sale
since his experience was with illegal drugs]; People v. Chakos (2007) 158 Cal.App.4th
357 [officer’s expertise insufficient to distinguish possession of marijuana for sale and
lawful possession of amount of marijuana for medical purposes].) The rarity
notwithstanding, there is a doctrinal line which the evidence must pass before it can be
said to be substantial. My review of the evidence compels me to conclude that the line
was not crossed here and the evidence was legally insufficient. I turn now to the
majority’s view of the evidence.

C.

As I read the opinion, it appears that the majority relies on the following to reach
its conclusion that there is substantial evidence of intent to sell.
First, defendant was engaged in selling cocaine and was observed by police
officers making two sales. That certainly is relevant evidence but it says very little about
whether defendant also had the intent to sell an extremely small amount of
methamphetamine in the black bindle.
Second, the jury could infer that the black bindle with the methamphetamine
belonged to defendant because it was found near and was packaged similarly to the clear
bindle from which defendant sold cocaine. This, too, is true, but it does not raise a
reasonable inference that the .06 grams was intended for sale. To emphasize the point, I
would certainly agree that if a significant amount of methamphetamine remained in the
black bindle, the evidence would be substantial that defendant intended to sell that

7
amount. The problem for me is not in the surrounding circumstances of what defendant
was doing – he is admittedly a drug seller from which a jury could reasonably infer that
he would have sold cocaine or methamphetamine that he had to a willing buyer – but here
there was just not enough methamphetamine to sell. Or at least, there was no evidence
that defendant or anyone else had ever conducted a sale of .06 grams.
Third, I also agree with the majority that the fact Detective Riske did not see the
black bindle is of no moment.
Fourth, as to Riske’s testimony that defendant did not appear to be a drug buyer, I
agree with that as well. But under the facts of this case, with the small amount of
methamphetamine, the fact that defendant was not a buyer did not reasonably suggest he
intended to sell the amount in question.
Fifth, I agree that Riske reasonably expressed the opinion that .06 grams could
produce three doses, but that does not suggest anyone was willing to buy a .02 - .06 gram
dosage, and Riske had no information that sales of that amount had ever taken place.
In sum, I find none of the majority’s factual arguments even address the plain fact
that there is no evidence that anyone has ever sold .06 grams of cocaine, and there is no
evidence that defendant had the intent to sell an amount that could not be sold.
As I discuss next, the weakness in the prosecution’s case on the methamphetamine
charge does not merely enliven a theoretical inquiry by the judiciary as to whether
evidence has reached the “substantial” threshold. The manner in which the trial court
sentenced defendant consecutively and by adding on several enhancements, also
consecutively, means that defendant will spend significantly more time in prison than he
would have if the majority had found the evidence on the methamphetamine count
insufficient.

D.

I agree with the point the majority makes that the sentence here was too long (Maj.
Opn., at p. 14), and indeed harsh (Maj. Opn., at p. 15). Although I do not conclude that
the trial court’s sentence constituted an abuse of discretion, it is as close as one can

8
imagine and is very hard to justify. I also observe that the process by which the sentence
was imposed raises serious questions about the fairness of the proceedings.
On November 29, 2012, the trial court (a different judge than the trial and
sentencing judge) called the case for preliminary hearing. At the time, the court had a
Early Disposition Report from the Probation Department. That report had all the
essentials of the crime that eventually were developed at the preliminary hearing and at
trial, and succinctly described the officers’ observations, the two separate sales, and
defendant’s possession of .19 grams of cocaine and .06 grams of methamphetamine.
Although the trial court expressed some skepticism about the People’s offer of eight
years, the court agreed to an eight-year term. The court then asked defendant:
COURT: “Do you want the 8 or not. You have all of five seconds to
decide right now.
“1, 2, 3, 4, 5.”
DEFENDANT: “Is that at half time?”
COURT: “I’ll take that as a ‘no.’ ”
After a pause in the proceedings, the court proceeded with the preliminary hearing.
No significant facts other than that summarized in the probation officer’s report
were developed either at the preliminary hearing or at trial.
After trial and prior to the sentencing hearing, the People filed a sentencing
memorandum asking for 22 years and 4 months. In addition to defendant’s very long
record which was known by the prosecutor and the court when the eight-year plea
disposition was offered, the sentencing memorandum also referenced a letter defendant
wrote to the District Attorney in which defendant admitted he was a drug user, and asked
for leniency and a drug program. The letter said that defendant’s “buddy” actually
committed the second degree robbery (the strike) in 1990 but defendant pled because he
was present and his face was recorded on the security camera. He received a two-year

9
 4
sentence for an unarmed robbery. At the sentencing hearing in the present case, the
prosecutor also argued that defendant “begins his letter by minimizing his actions in the
current case by stating ‘they found not even $20 worth of drugs.’ ” Far from minimizing
his actions, defendant was actually repeating exactly what Detective Riske said at trial –
that the amount of cocaine left in the clear bindle was worth $20.
In imposing its sentence, the trial court found the crimes indicated “planning,
sophistication and professionalism.” However, the only facts the trial court relied on was
that defendant at one time had kept the drugs away from his body on a window ledge and
then at another time had secreted the drugs on his body. These facts do not appear to
make these crimes anything more than typical street drug sales. There is little
sophistication in this type of crime, a crime which the courts see all too often.
The court then proceeded to sentence defendant to 20 years and 4 months, giving
him the maximum on the cocaine charge, doubled because of the strike, adding the
maximum one-third midterm for the methamphetamine charge, also doubled because of
the strike and to run consecutively, plus various drug and prison terms priors, all running
consecutively. The various enhancements totaled nine years.
Although I agree with the majority that the sentence was within the court’s
discretion, the three fold increase over the preliminary hearing offer, the manner in which
the original plea offer “expired” in five seconds, and the sheer length of the consecutive
sentence at least calls into question in my mind the appropriateness of the sentence, thus
giving tangible consequence to the majority’s analysis of the evidence.

RUBIN, J.

4
At the preliminary hearing for the 1990 robbery, the police officer testified to the
victim’s statements that defendant was one of three people who took beer from the cooler
of a mini mart. No weapon was used in the incident, and the fear necessary for robbery
appears to have been based solely on the presence of defendant and his cohorts and not
from any threats.
10