P. v. Barnes
Filed 7/13/06 P. v. Barnes CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
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| THE PEOPLE, Plaintiff and Respondent, v. BRYAN SCOTT BARNES, Defendant and Appellant. | C049658
(Super. Ct. No. CRF04275)
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A jury found defendant Bryan Scott Barnes guilty of transportation of methamphetamine. In bifurcated proceedings, defendant admitted a prior drug conviction and two prior prison term allegations. After a court trial, the trial judge found another prior prison term allegation to be true but determined defendant's previous admission to one of the prior prison term allegations was erroneously entered since he received concurrent time.
Sentenced to state prison for an aggregate term of nine years, defendant appeals, contending: (1) the trial court erroneously upheld a defense witness's claim of the privilege against self-incrimination or, in the alternative, defense counsel rendered ineffective assistance in failing to object to the witness's claim of privilege; (2) the trial court failed to instruct sua sponte on the lesser offense of possession of methamphetamine; (3) the CLETS (California Law Enforcement Telecommunications System) printout was inadmissible evidence to prove the 1991 prior prison term, specifically, the element that he had not been free of felonious conduct for five years, and the remaining evidence was insufficient to support the trial court's finding; and (4) the trial court erroneously relied upon dual facts to support the upper term for the underlying offense and trial counsel's failure to object constituted ineffective assistance. We will affirm.
FACTS
On April 9, 2004, Marysville Police Officer Joshua Hendrickson stopped a car after observing that the front seat passenger, defendant, was not wearing a seat belt. Stephanie Harness was the driver. Officer Hendrickson put defendant in the back seat of the patrol car and searched the stopped car, finding a pouch on top of a wallet inside Harness's closed purse. As Officer Hendrickson searched the car, defendant yelled, â€
