Filed 6/8/06 P. v. Bautista CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JUAN GERONIMO BAUTISTA, Defendant and Appellant. |
F047159
(Super. Ct. No. SCR004768)
OPINION |
APPEAL from a judgment of the Superior Court of Madera County. Jennifer R. S. Detjen, Judge.
Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Juan Geronimo Bautista was convicted of possessing methamphetamine and resisting a peace officer. On appeal, he contends that (1) the trial court committed Blakely[1] error by imposing the upper term; (2) the trial court abused its discretion by imposing the upper term; (3) the trial court abused its discretion by failing to strike the misdemeanor conviction that disqualified him from Proposition 36's drug diversion, and defense counsel was ineffective for failing to move to strike that disqualifying conviction; and (4) the trial court abused its discretion by denying probation. We affirm.
PROCEDURAL AND FACTUAL HISTORIES
On October 5, 2004, appellant was charged with possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1) and misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a);[2] count 2). The information further alleged with respect to count 1 that appellant had served a prior prison term (§ 667.5, subd. (b)). A jury found appellant guilty on both counts and found the prior-prison-term allegation true. The court imposed a four-year prison term: the upper term of three years for possession of methamphetamine (Health & Saf. Code, § 11377), plus a one-year prior-prison-term enhancement (§ 667.5, subd. (b)). The court denied probation on count 2 and imposed 136 days in county jail.
On August 28, 2004, appellant approached the entrance kiosk of Millerton Lake State Recreation Area in a white Dodge Caravan. Appellant was at all times alone in the vehicle. He told the kiosk worker he had no money to pay the $7 fee, but his wife was in the park and he would get the money from her and return to pay the fee. The worker gave appellant a 15-minute courtesy pass for that purpose.
After about 30 minutes, appellant walked to the kiosk and told the worker he was out of gas and could not drive back to the kiosk. He said he was looking for his wife but needed more time. The worker told him to come back as soon as he could. About 30 to 45 minutes later, appellant drove up to the kiosk to leave the park. He told the worker someone had given him gas and he was leaving because he could not find his wife. He said he was going to the gas station below the dam to buy some gas. The worker told him if he had the money to buy gas, he was required to pay the fee since he was in the park for more than 15 minutes. Appellant said his wife was going to the gas station to give him money to bring to the kiosk. At that point, the worker called his supervisor, the ranger. Appellant pulled over in the small parking lot, which had six or seven spaces and was near the kiosk.
The ranger, a trained peace officer, wore a uniform and badge and drove a marked patrol vehicle with a light bar. When he received the call, he drove to the kiosk and arrived in three to five minutes. He spoke to the kiosk worker for about two minutes. The worker directed him to appellant in the lot. Appellant was standing eight to 10 feet from the Dodge Caravan. The only other vehicle in the lot belonged to the kiosk worker.
After the ranger arrived, appellant turned his back and started walking away from the parking area toward the park exit. The ranger watched as appellant walked away and could not see appellant's hands at all times. The ranger left the kiosk, walked in appellant's direction, and called to him. He told him he wanted to talk to him and asked him to come back to his location. Appellant was about 45 to 50 feet from his vehicle. He turned around and acknowledged the ranger. The ranger told him he had not paid the $7 park fee. Appellant said he entered the park on a courtesy pass, ran out of gas, and could not return to the kiosk in time.
As they stood talking about three feet from each other, the ranger noticed a black sunglasses bag lying on the asphalt about five feet away. Appellant had walked past that exact area when the ranger called him back. The ranger picked up the bag and, thinking appellant had dropped it, asked appellant if it belonged to him. Appellant said it did not. The ranger felt the bag and realized it did not contain sunglasses. He opened it and saw a plastic wrapper typical of those used to hold methamphetamine. He pulled it out and found a 1.84-gram rock of methamphetamine. He asked appellant if it was his and appellant said it was not. They conversed in English without any difficulty understanding each other.
The ranger continued looking in the sunglasses bag and found a cigarette lighter and a certificate of title to the Dodge Caravan in the name of Irma Bautista. (It was later discovered that Irma Bautista was appellant's wife.) The ranger began reading the title to appellant and pointed out that appellant was driving a Dodge. At that moment, appellant turned and ran. The ranger ran after him for 40 or 50 feet, ordered him to stop, and told him he was under arrest. Realizing he had no backup for what had become a felony drug possession arrest, the ranger stopped his pursuit and radioed dispatch. Appellant continued running toward the park exit. The ranger lost sight of appellant, but resumed his pursuit in the patrol vehicle.
After the ranger was notified that appellant had been spotted, he reached the area and saw appellant running. The ranger used his loud speaker to command appellant to stop, then cut him off with his vehicle. Appellant changed direction and the ranger again ordered him to stop. When the ranger cut appellant off the second time, he sprayed appellant with pepper spray and apprehended him. When the ranger arrested him, appellant's pockets contained two other lighters, one shaped as a pistol and the other as a phallus.
Defense evidence
Appellant testified that he was not given a pass into the park; he was allowed to enter because he had run out of gas. He stated that the ranger approached him, yelled obscenities at him, and lunged at him. Appellant was afraid for his safety so he ran. He did not own any sunglasses and he had never seen the sunglasses bag.
On cross-examination, appellant stated that he did not speak any English. He said he did not see a badge on the ranger. He came to the park alone. His wife, Irma, was not in the park. Before he ran from the ranger, he did not speak to the ranger at all. The ranger never showed him the baggie of methamphetamine. Appellant had never seen the certificate of title to the Dodge Caravan. He had never seen the pistol and phallus lighters; they were not in his pockets when he was arrested. The ranger did not speak to him, but simply lunged at him for no reason, and he ran. Appellant did not know what methamphetamine was but had heard of it because he had â€