P. v. Garcia

Filed 7/5/06 P. v. Garcia CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from the judgment of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed.

Janice Wellborn, 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, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Johnny Garcia appeals from the judgment entered following a jury trial that resulted in his conviction of multiple counts of transportation and possession for sale of various controlled substances.^[1] He contends: (1) he was denied his Sixth Amendment right to confrontation as a result of the admission of hearsay evidence, and (2) the prosecutor's comments during closing argument constituted Griffin error.^[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Since defendant does not challenge the sufficiency of the evidence, we need not set forth a detailed recitation of the facts. It is sufficient to state that the three co-defendants were arrested on November 10, 2003, after narcotics officers had observed their movements for several hours. When detained by officers, co-defendant Castillo had 14 tightly tied balloons in his mouth; each balloon contained a useable amount of heroin, cocaine or methamphetamine. In a search of the car in which the three defendants had been driving, police found, among other things, a cell phone and a pager. Defendant admitted ownership of both. After the cell phone was taken into custody, Detective Helbert Moreno of the Los Angeles Police Department answered three calls in which the callers attempted to make arrangements to purchase various amounts of narcotics.^[3]

Defendant and his two co-defendants were jointly charged with multiple counts of transportation of a controlled substance (counts 1, 3, 5) and possession for sale of a controlled substance (counts 2, 4, 6). Various prior conviction enhancements were also alleged. At their joint jury trial none of the defendants presented any evidence or testified. Defendant was convicted of transportation and possession for sale of heroin, cocaine and methamphetamine. In a bifurcated proceeding, the trial court found true a prior drug conviction enhancement. Defendant was sentenced to eight years in prison.

Although trial counsel failed to file a timely notice of appeal, we granted relief from default.

DISCUSSION

1. Defendant Was Not Denied Due Process, a Fair Trial or the Right to

Confront Witnesses Against Him

Defendant contends he was denied due process, a fair trial and his Sixth Amendment right to confront witnesses against him as the result of the admission of statements made to Moreno by persons calling defendant's cell phone. He argues that the evidence was inadmissible hearsay. We find no error.

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