By Sophia Barberini
SACRAMENTO – Judge Kara K. Ueda of Sacramento County Superior Court denied Assistant Public Defender Ariana Hernandez Alejandre’s argument last Friday to not have her client held on possession of methamphetamine with the intent to sell, and set a trial for April.
It may have been because Kevin Day was found with “345 doses” of meth.
Day, facing charges of possessing methamphetamine with the intent to sell, driving under the influence of a drug, attempting to “defraud a person by passing a fraudulent check,” and driving on a suspended license, was arrested April 2, 2020, after he was found blocking the roadway “slumped over the wheel” of his vehicle.
The preliminary hearing began with Deputy District Attorney Toni Linarez disclosing that toxicology results demonstrated a presence of methamphetamine in the defendant’s blood. Additionally, a test on a “white crystal substance” found on the defendant during his arrest was determined to be 34.5 grams of methamphetamine.
Arresting officer Greg White said he arrived at Antelope and Walerga Roads after he was notified “of a vehicle blocking the roadway” with “the driver of that vehicle slumped over the wheel.” He said he was told by fire personnel “it took them awhile to get the driver to respond to their presence.”
After removing the vehicle from the roadway, White asked Day if he knew where he was, and the defendant told him that “he was on Sunset at Hazel,” though their location was at Antelope and Walerga.
In his analysis of the situation, White said he “observed objective signs of intoxication,” and noted the defendant was “ mumbling, he was lethargic, [and] he was sweating profusely, which are indicators to [him] of possible impairment.”
Additionally, Officer White testified he “observed a fresh puncture wound, or a track puncture wound, on [the defendant’s] arm as well as some scarring from old tracks on his hands.” He said the defendant failed all four field sobriety tests.
Because of Day’s poor performance on the field sobriety tests and the lack of alcohol in his system, Officer White “formed the opinion that [the defendant] was under the influence of a controlled substance.” A record check showed Day’s “license had been suspended as well as he was on (probation) for violations of sales of a controlled substance.”
During his search, Officer White “located in [the defendant’s] right front pant pocket, a clear baggy containing a white crystal substance which [Officer White] believed to be methamphetamine.” A drug recognition expert later ran further tests, ultimately determining Day was “under the influence.”
Officer White, after bringing Day to jail, took inventory of Day’s items, placing his currency in a machine, but “the machine rejected the currency, stating that it was fictitious.”
Public Defender Alejandre attempted to show Officer White’s lack of evidence regarding Day’s intent to sell the methamphetamine he possessed.
Alejandre inquired whether or not Officer White found indicators of an intent to sell, such as a scale, individual packaging, multiple denominations of cash, and weapons.
Officer White conceded that he did not find any of these indicators when searching the defendant.
DDA Linarez then called Officer Aaron Kacalek as a witness and established him as an “expert in the field of possession and sales of methamphetamine,” and he testified that the 34.5 grams of methamphetamine would provide “about 345 [doses], which is easily a usable amount, but the average… that would be 172 [doses].”
When DDA Linarez inquired whether or not 34.5 grams would be “more than the average user [would] possess at any one time for personal use,” Officer Kacalek confidently claimed, “Without question, that would not be just for personal use.”
When questioning Officer Kacalek, PD Alejandre inquired whether or not Officer Kacalek searched for other “indicia of selling,” besides quantity, when determining if a person has the intent to sell, as none of those indicators were present in this case.
Officer Kacalek acknowledged that quantity is not the only factor he considers when determining if a person has the intent to sell.
In her redirect, DDA Linarez inquired, “Would the absence of additional indicia of sales, such as a scale or multiple denominations of cash, change your opinion as to whether or not an amount such as 34.5 grams was possessed for sale?”
Officer Kacalek confirmed, “Absolutely not. The only thing that would do, if those things were present, would strengthen my belief.”
PD Alejandre challenged, “Anytime that someone possesses more than one dose of methamphetamine, they are possessing it for sale?”
Officer Kacalek refuted, “No, not one dose, but in this case, this could be as high as 345 doses… even 172 for someone that uses frequently.”
In closing, PD Alejandre conceded, “Clearly [the defendant] is driving under the influence and, clearly, he is a user of methamphetamine.”
However, she declared, “It is mere speculation that Mr. Day possessed it for sale, There is no indicia for sales. There is no scale, no individual packaging, there are no firearms, not even cash in multiple denominations. The only officer who testified, that was actually on the scene, made the conclusion that Mr. Day was selling based on his history, and that is just insufficient.”
In her rebuttal, DDA Linarez countered, “Based on the testimony of the expert and the very high amount of methamphetamine… there is sufficient evidence to prove that the methamphetamine was possessed for purpose of sale.”
Judge Ueda ruled, “It does appear to the court that the offenses that are charged have been committed and are true. So I do find that there is sufficient cause to believe that the defendant is guilty.”
Day will stand trial on April 5.
Sophia Barberini, from San Mateo, CA, is a fourth-year student at UC Berkeley. She is double majoring in Political Science and Legal Studies and hopes to pursue a career in law.
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