P. v. Dase

Filed 3/30/06 P. v. Dase CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant appeals the judgments entered upon jury verdicts in two separate cases. In case No. 05-041120-7 (case No. 1120), a jury found him guilty of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and ammunition (Pen. Code, § 12316, subd. (b)(1)). The jury found true a special allegation that defendant had been personally armed with a firearm. (Pen. Code, § 12022, subd. (c).) In case No. 04-1139-8 (case No. 1139), a jury found defendant guilty of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)); unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)); and receiving stolen property (Pen. Code, § 496d). The trial court found true various allegations of prior convictions. (Pen. Code, § 667.5, subd. (b).) The court sentenced defendant to a total of 10 years in case No. 1120, and two years eight months in case No. 1139, to be served consecutively.

Defendant contends on appeal that the trial court erred in refusing to allow defense counsel to cross-examine a witness in case No. 1139 about criminal conduct with which she was charged, that the jury was wrongly instructed in case No. 1139 regarding possession of stolen property, and that the evidence in case No. 1120 was insufficient to prove possession of the narcotics and firearm. We affirm.

I. BACKGROUND

A. Case No. 1120

On May 4, 2002, Deputy Sheriff Melvin Chamblee and Officers Craig Jimenez and Laurie Bailey went to a home at 345 Market in North Richmond. They spoke outside with defendant and a woman named Woodard. As a result of the conversation, the officers searched the house. Under a bed in the rear bedroom they found five live rounds of ammunition. In a crawl space in the ceiling of the same bedroom, they found a loaded revolver and a baggie containing a chunky white material.[1] In the front bedroom, Jimenez found a telephone bill with defendant's number and a piece of mail addressed to defendant on the headboard of the bed. In a dresser drawer, he found a bag containing a rock and several pebbles of a white substance that he believed to be rock cocaine. He found granules, pebbles, and rocks of the same consistency on a dresser. He also found a two-way radio, and in the dresser drawers and under the bed, several dozen small ziploc bags. Such bags are commonly used in the illicit drug trade to pack individual quantities of drugs. When Chamblee arrested and searched defendant, he found approximately $1,117 cash in the pocket of his pants, in the form of ninety-seven $1 bills, twenty-four $5 bills, eleven $10 bills, twelve $20 bills, five $50 bills, and three $100 bills.

The white substances were later determined to weigh a total of more than 35 grams and to contain cocaine base. An expert on the possession of cocaine base for sale testified that the amount of cocaine found in the house, in combination with the number of small clean baggies, the gun and ammunition, the walkie-talkie, and the number and denominations of the bills found on defendant, would lead him to conclude that the cocaine was possessed for sale, rather than for personal use.

B. Case No. 1139

At approximately 5:00 o'clock in the morning of February 1, 2004, Jacqueline Sanchez Flores (Sanchez)[2] was in her vehicle at the Hilltop exit of Highway 80 with a flat tire. She called her boyfriend, and he came to help her. While they were working, defendant approached and asked if he could help. He did not have the tools they needed to fix the tire; and at the request of Sanchez and her boyfriend, defendant left. After Sanchez's boyfriend went to a store to buy supplies to fix the tire, defendant returned, opened the car door, pulled out a gun, and pointed it at Sanchez; he took her purse and several other items from the car and the trunk, including jewelry, cash, electronic equipment, and paperwork. Sanchez tried to flag cars down with a flashlight, but defendant told her that if she moved, he would â€