P. v. Ham

Filed 3/20/06 P. v. Ham CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed in part; reversed in part, with directions.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Attorney General, Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted Dameon Ham of three counts of selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).) In bifurcated proceedings, the trial court found that Ham had suffered a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)), five priors for which he served prison terms (Pen. Code, § 667.5, subd. (b) and a strike prior (Pen. Code, § 667, subds. (c) & (e)). He was sentenced to prison for 21 years 4 months and appeals claiming evidence was improperly excluded, the jury was misinstructed, prosecutorial misconduct occurred and the trial court failed to find true the fifth prior. The parties agree that Ham's final contention is correct and we strike that finding and its sentence, while directing the trial court to appropriately amend the abstract of judgment and minutes of the sentencing hearing. We otherwise reject Ham's contentions and affirm.

Facts

On February 19, 2003, Ham asked an undercover police officer who was riding his bike through a laundromat parking lot what the latter needed. The officer responded that he wanted $20 worth of crack and handed Ham the money. Ham went into the laundromat, emerged and sat near a planter, putting something in it. Ham approached the officer, telling him not to complain about the amount of the drug and directing him to the planter, where he had left pieces of rock cocaine weighing .06 grams.

A little over a half hour later, two other undercover police officers were driving down a street near where the first transaction had taken place when they spotted Ham. One of them asked if they could purchase crack, and Ham eventually went to the passenger's side of the officer's car and agreed to do so. He got in their car and asked

them to drive to a place where he could obtain the crack. After they drove a short distance and parked, another individual approached the car and Ham asked him if he had crack. Ham asked the officers for and got a 40-ounce beer. One of the officers handed money to Ham, and the man gave Ham two pieces of crack, weighing .53 grams. Ham handed the money to the man and the crack to one of the officers. Ham asked for a dollar for helping facilitate the transaction, and the officers gave him one.

On February 28, 2003, Ham was walking down the street in the same area where the first and second transactions had taken place. Two undercover officers pulled over to the curb, and it was determined that Ham would get them some crack. Ham said he was looking for a black Cadillac that contained the drugs he intended to sell to the officers. He asked the officers to drive him around in search of the car. They did not find it. So, Ham had them drive him to an apartment complex, where, taking the officers' money with him, he went inside and later returned to the car with .27 grams of crack. Ham reached inside the officers' car to retrieve a bottle of beer from between one of the officers' legs, and he dropped the drug on the officer's lap.

An audio/video recording of all three transactions was shown to the jury.

Issues

1. Exclusion of Evidence and Instruction on Voluntary Intoxication

Ham testified that he was a crack addict. When asked how he obtained crack, he testified, â€