P. v. Garay

Filed 5/15/06 P. v. Garay CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Ruffo Espinosa, Judge. Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

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Marcos Garay appeals from the judgment entered after a jury convicted him on two felony counts for transportation of cocaine and cocaine base and one misdemeanor count for driving without a license. He contends the trial court committed prejudicial instructional error. Because we conclude any error was harmless, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of September 24, 2004 Los Angeles police officers stopped Garay for two traffic violations. After Garay was unable to produce a driver's license, the officers conducted a pat search for weapons and transported Garay to the police station where he was placed in a holding cell with his hands secured behind his back. Officer Jorge Trejo walked by the cell and noticed Garay bending over, attempting to reach for something at his side. At Trejo's request, Garay lifted his shirt revealing a clear plastic bag protruding from his waistband. Trejo removed the bag. Inside it were two bindles, one containing wafers resembling rock cocaine and the other containing â€