By Cheyenne Galloway
WOODLAND, CA – Deputy Public Defender Peter Borruso argued here in a Yolo County Superior Court preliminary hearing last week that his client could not be charged with possession for sale of a controlled substance and transporting a controlled substance because there was not enough evidence to support the accusation.
However, Judge Sonia Corteś decided to hold the accused on both counts because the “testimony provided evidence that circumstantially there could be the intent to sell.”
Judge Corteś held the accused on Count One, “a felony violation of Health and Safety Code section 11378 possession for sale of a controlled substance,” and Count Two, “felony violation of California Health and Safety Code section 11379 transporting a controlled substance,” after hearing testimony from West Sacramento Police Dept. officers Mitchell Williams and Nazaree Yakimchuk.
DPD Borruso argued a lack of evidence to support the claim that the accused attempted to sell drugs.
Borruso objected to speculation in terms of what constitutes a drug sale, including, “Having cash is indicative of sales, not having cash is indicative of sale. You shouldn’t carry a large quantity because you could get robbed.”
When questioned about the large amounts of paraphernalia and the lack of money the accused had on him, the accused said he gives it [the drug] away to friends, and Borruso contends the statement, “I have given [some] away to my friends,” doesn’t fit the definitions of sections 379 and 378.
The accused, the defense maintained, never had the intent to sell. “You have to possess it with the intent to sell not with the intent to give away or furnish; that isn’t the definition,” said Borruso, adding “The court would have to be speculating or guessing in terms of what (the accused’s) intent was, and intent is a big factor.”
The prosecutor believed there was enough evidence, arguing the large quantity of meth, and the accused’s willingness to gift meth to his friends are not necessarily indicative of the accused not selling.
“When it comes to using a defendant’s statements, I’m weary about using that in a lot of cases because out of anyone related to this case, they have the most incentive to not be truthful. And so the fact that he said he gives it away to his friends, I don’t really think that that’s necessarily indicative of him not selling,” said the prosecutor.
Although the intent of the accused is not clear, according to the defense, the prosecutor suggests the contents of the accused’s car and the quantity of the controlled substance are enough to determine the intent to sell.
Police Officer Williams said he spotted a blue Honda driving with no headlights on, which prompted Williams to conduct a traffic enforcement stop, noting the accused was on searchable probation in Sacramento County for narcotics and stolen property offenses, leading to a probation search of the vehicle.
Williams testified discovering a clear plastic bottle labeled morphine. And with the vehicle search, the officer found a cell phone, several clear plastic baggies, roughly three plastic baggies with a white, crystalline substance, and what appeared to be a glass methamphetamine pipe.
Williams confirmed on the stand both tests he ran returned presumptive positive for methamphetamine. After conducting the narcotics test, Williams said the net weight was approximately 27 grams each.
Upon finding these objects in the car, officer William conducted an interview, where the accused explained that “he was just coming back from a friend’s house that he was visiting, and that the products in the vehicle were not for sale,” but rather personal use to help him go to sleep.
The accused then informed Williams that he bought methamphetamine in Sacramento for roughly $150 and used about a gram per day.
Officer Williams said he asked the accused if they sold methamphetamine, and they said no, only gifting it to friends.
Officer Yakimchuk, a detective with the Special Operations Unit for the West Sacramento Police Dept., said she believed the accused was selling drugs “because that looks to me like it’s pre-packaged as approximately one ounce each for the 27 approximate grams and then a quarter ounce for the one in the center console; that’s seven grams or approximately seven grams.”
Yakimchuk explained the weights in the meth selling and buying community range from an ounce, a quarter ounce, a half ounce, and an eighth. Pharmaceutical doses average around 0.1 grams; Yakimchuk and his crew often see around one to three grams in searches.
However, Yakimchuk later admitted in his testimony that he doesn’t typically investigate individual users or sellers, but rather the primary distributor.
“If this hypothetical person told that officer that he used meth, and when he did that, he used approximately a gram at a time. Would that statement change your opinion at all about whether or not this person possessed that for sale?” asked the prosecutor.
“No sir, because I’ve never encountered, in the last six years of my life, someone containing two ounces and a quarter ounce of meth as they smoke a gram of meth a day. That’s typically between people who sell narcotics, from what I’ve dealt with,” the officer responded.
The prosecution honed in on the detective’s experience, asking the officer, “Do people who only possess meth for personal use, do they generally buy in bulk?” To that Yakimchuk explained, “Not that I’ve seen, no sir, because one, they can’t control themselves, they try to keep a smaller amount because they don’t want to be robbed by their friends if they have too much. But there are many reasons why an addict would keep more than what they need.”
Yakimchuk continued, “I heard he had some cash on him, which I don’t know the exact amount that he had, but it wasn’t significant. But I’ve seen people that don’t carry cash either. Like I said if he had weights already set up and he was headed to sell them…I mean, people are worried about being robbed at all times, so why would you bring cash?”
Because, the judge said, of the low standard of evidence needed in preliminary hearings and the “testimony provided evidence that circumstantially there could be the intent to sell element established,” Judge Corteś decided to hold the defendant on Count One, possession for sale of a controlled substance, and Count Two, transporting a controlled substance.