P. v. Hart

Filed 10/30/06 P. v. Hart CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary E. Daigh, Judge. Affirmed.

Nancy Gaynor, 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, Senior Assistant Attorney General, Lawrence M. Daniels, Ryan B. McCarroll and William Shin, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Corey Hart appeals from a judgment of conviction entered after a jury found him guilty of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), transportation of a controlled substance (id., § 11352, subd. (a)) and driving without a license (Veh. Code, § 12500, subd. (a)). Following his conviction, the trial court found true the allegations that defendant suffered a prior conviction of a serious or violent felony (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), five prior convictions for which he served prison terms (id., § 667.5, subd. (b)), and a prior conviction of a drug-related offense (Health & Saf. Code, § 11370.2). The trial court sentenced defendant to the upper term of 5 years for transportation of a controlled substance, doubled as a second strike to 10 years, with an additional 3 years for the prior conviction of a drug-related offense. It stayed sentence on the remaining charges and enhancements.

On appeal, defendant claims error in the admission of irrelevant and prejudicial evidence and in the imposition of the upper term sentence. We reject his claims of error and affirm the judgment.

FACTS

On the afternoon of April 21, 2005, Los Angeles County Sheriff’s Deputy Jefferson Chow was on patrol in Lynwood when he observed defendant driving a car which had no front license plate. As the deputy pulled defendant over, he saw defendant’s shoulder dipping down and defendant making motions toward the center console area of the car. Once he stopped defendant, Deputy Chow learned that defendant was in the process of registering the car and did not have a current driver’s license.

Deputy Chow also smelled the odor of marijuana coming from the car. Deputy Chow arrested defendant for driving with an expired license and placed him in the back seat of the patrol car. Deputy Chow looked at the center console of the car. He saw marijuana residue. He lifted up the driver’s side cup holder and found a plastic bag containing a rocklike substance which later was determined to contain 15.9 grams of cocaine. At a subsequent booking search, defendant was discovered to have $160 in his possession. He had no other contraband or narcotics paraphernalia.

According to Deputy Chow, the area in which he stopped defendant was known for narcotics activity. A usable quantity of cocaine was .01 gram, which would sell for about $5. The 15.9 grams of cocaine in defendant’s possession represented “quite a few uses.”

DISCUSSION

1. Admission of Irrelevant and Prejudicial Evidence

Defendant objected on relevancy grounds to the evidence that the area in which he was arrested was known for narcotics activity, as well as to the evidence concerning a usable quantity of cocaine and the number of uses that could be provided by the amount of cocaine found in defendant’s possession. The trial court overruled his objections. On appeal, he contends that the admission of this evidence suggested that he was a drug dealer, not merely a possessor. Inasmuch as he was charged with possession and transportation of drugs only, the evidence was irrelevant and prejudicial.

Assuming arguendo the evidence was irrelevant and therefore inadmissible (Evid. Code, §§ 210, 350), the question is whether it is reasonably probable defendant would have obtained a more favorable result had there been no error (id., § 353; People v. Earp (1999) 20 Cal.4th 826, 878). We conclude it is not.

Defendant did not testify in his own behalf, so there was no issue of his credibility which could have been affected by the admission of the evidence. There was no evidence admitted which would have undermined Deputy Chow’s credibility, so it is not reasonably probable the jury would have disbelieved Deputy Chow had the evidence not been admitted.

Defendant’s defense was that there was no evidence that he knew the cocaine was in the car, which he had recently purchased. His counsel argued that by pulling over immediately and not trying to dispose of the cocaine, defendant “didn’t act like he was a kingpin with vast quantities of cocaine,” hence, there was a reasonable doubt as to whether he knew the cocaine was in the car. The People’s argument was that defendant introduced no evidence supporting this theory, and it was unlikely a previous owner would have left that valuable a piece of cocaine in the car.

Inasmuch as both sides used the evidence to support their positions, and there was no question of the evidence affecting defendant’s credibility, it is not reasonably probable defendant would have been acquitted had the evidence concerning narcotics activity and the quantity of the cocaine been excluded. Reversal is therefore not required. (Evid. Code, § 353; People v. Earp, supra, 20 Cal.4th at p. 878.)

2. Imposition of the Upper Term Sentence

Defendant challenges the imposition of the upper term sentence on count 5, possession of an assault weapon, based on an aggravating factor not found by the jury. Defendant’s challenge is based on the holding of Blakely v. Washington (2004) 542 U.S 296, 303-304, that the maximum sentence a judge may impose is that permitted by the facts established by the jury verdict or admitted by the defendant. Defendant acknowledges that the California Supreme Court has held that Blakely does not preclude exercise of judicial discretion to impose the upper term sentence based on aggravating factors found by the court. (People v. Black (2005) 35 Cal.4th 1238, 1244.) We are bound by the California Supreme Court’s decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and must reject defendant’s contention.[1]

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

[1] On February 21, 2006, the United States Supreme Court granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501 [nonpub. opn.]) sub nom. Cunningham v. California (2006) ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47] to consider whether this state’s determinate sentencing law unconstitutionally permits trial courts to impose upper term sentences based on facts not found true by the jury.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.