P. v. Fogg

Filed 6/26/06 P. v. Fogg 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Tehama)

----

In a consolidated case, defendant Steve Elton Fogg, Jr., was charged with eight offenses on two different dates. As to January 23, 2005, defendant was accused of making criminal threats (count I; Pen. Code, § 422; undesignated section references are to the Penal Code); possession of methamphetamine (count II; Health & Saf. Code, § 11377, subd. (a)); misdemeanor possession of a smoking device (count III; Health & Saf. Code, § 11364; and possession for sale of methamphetamine (count IV; Health & Saf. Code, § 11378). As to February 22, 2005, defendant was accused of possession of methamphetamine (count V; Health & Saf. Code, § 11377, subd. (a)); transportation of methamphetamine (count VI; Health & Saf. Code, § 11379, subd. (a)); unlawful possession of a deadly weapon, a billy (count VII; § 12020, subd. (a)(1)); and possession of a device for ingesting a controlled substance (count VIII; Health & Saf. Code, § 11364). As to counts IV and VI, defendant was alleged to have a prior conviction for possession of a controlled substance. As to counts V through VII, defendant was alleged to have committed the offenses while on bail.

Defendant admitted the prior conviction before jury trial. After trial, the court dismissed count VIII on the prosecutor's motion. The jury convicted defendant on all remaining counts and allegations, except for count I, on which the court declared a mistrial. Before sentencing, the court granted the prosecutor's motions to dismiss counts I, II, IV, and V.

The trial court sentenced defendant to seven years eight months in state prison, consisting of two years (the lower term) on count VI (transportation of methamphetamine), enhanced by two years for defendant's on-bail status and by three years for defendant's prior conviction, plus eight months on count VII (possession of deadly weapon), all run consecutively.

Defendant contends: (1) His conviction on count VI must be reversed because there is insufficient evidence he transported a controlled substance in a usable amount. (2) The trial court erred by sentencing defendant to a consecutive term on count VII on a ground not found true by the jury. (3) The court erred by refusing to discharge defendant's appointed counsel and appoint new counsel. (4) The court did not properly determine defendant's competence to represent himself or obtain a proper waiver of his right to counsel. We shall affirm.

FACTS

On the night of January 23, 2005, Red Bluff police officers came to defendant's home to conduct a welfare check on his son. Defendant's wife Sarah answered the door, with defendant standing behind her. Defendant, who appeared to be under the influence of a controlled substance, refused to step outside the house. Sarah yelled that defendant had a gun and had threatened to kill her. The officers detained and handcuffed defendant.

Searching defendant's person, the officers found a BB gun, a digital scale, a wallet containing $1,189 in cash (which defendant claimed was from a tax refund), a pocket knife, a glass smoking device, and a pill bottle that held a substance weighing 6.5 grams. Sarah told the officers that during the last two weeks she had been living with defendant he was selling drugs.^[1] Defendant's son testified that prior to January 23, 2005, defendant regularly used and sold drugs.

Red Bluff Police Sergeant Eric Magrini, who participated in defendant's arrest, had received Department of Justice (DOJ) training in the testing of suspected controlled substances. He tested the substance recovered from defendant that night with a DOJ drug screening kit and determined it to be positive for methamphetamine.

At 3:21 a.m. on February 22, 2005, Magrini was on patrol when a vehicle passed him with its headlights off. Magrini stopped the vehicle, driven by defendant. Appearing to be under the influence of a controlled substance, defendant refused consent to search him or the vehicle, which he said was owned by Abraham Berg, one of the passengers. Berg gave consent to search.

Magrini saw a 15-inch-long pipe with a cap on one end, which could be used as a billy club, on the floor between the door and the driver's seat. Defendant said he was carrying it because people were â€