P. v. Mosley

Filed 6/12/06 P. v. Mosley 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Paul E. Zellerbach, Judge. Affirmed.

Donald W. Jordan for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Ivy Fitzpatrick and Robert M. Foster, Deputy Attorneys General for Plaintiff and Respondent.

A jury found defendant and appellant Lamar Timothy Mosley guilty of conspiracy to possess marijuana for sale (Pen. Code, § 182, subd. (a)(1) and Health & Saf. Code,

§ 11359, count 1),^[1] possession of marijuana for sale (§ 11359, count 2), maintaining a place for the sale and distribution of a controlled substance (§ 11366.5, count 5), and resisting or delaying a police officer in the performance of his duties. (Pen. Code, § 148, subd. (a)(1), count 7.)^[2] As to counts 1 and 2, the jury found true the allegation that defendant participated as a principal knowing that another principal was armed with a firearm. (Pen. Code, § 12022, subd. (d).) As to count 5, the jury found true the allegation that defendant was personally armed with a firearm (Pen. Code, § 12022, subd. (c).) The trial court sentenced defendant to a total state prison term of five years four months.

On appeal, defendant argues that: 1) the prosecution committed prejudicial misconduct during its closing argument; 2) the failure of defense counsel to object to the instances of prosecutorial misconduct constituted ineffective assistance of counsel; and 3) the cumulative prejudicial effect of the instances of misconduct warrant reversal. We disagree and affirm.

FACTUAL BACKGROUND

On October 29, 2003, Deputy Lance Colmer conducted a traffic stop on Quintena Green and discovered that she had an outstanding felony warrant. He arrested her and called her mother, Sylvia Smith, to come to the scene to pick up the two children (Green's son and little brother) who were riding in Green's car. Smith arrived at the scene, along with defendant. Defendant ran up to the patrol car where Green was detained. Deputy Colmer instructed him several times to get away from the patrol car, but defendant ignored him. Defendant was angry and stated that Green was his girlfriend and that he could talk to her if he wanted to because it was a free country. Defendant kept trying to go around the deputy and talk to Green. Deputy Colmer tried to calm defendant down, and he finally pointed a can of pepper spray at defendant. Deputy Colmer informed defendant that he was under arrest and repeatedly told him to turn around and put his hands behind his back. Instead of complying, defendant took off his jacket and reached into his pocket. Believing that defendant was retrieving a weapon, Deputy Colmer and two back-up officers grabbed defendant's hands. Defendant produced a wallet and tossed it to Smith. The officers handcuffed defendant and transported him and Green to the police station.

During a police interview, defendant admitted that he ignored Deputy Colmer's commands because he was angry and he wanted to talk to Green. He also acknowledged that his actions placed everyone at the scene at risk. Defendant told the deputy that he lived in Moreno Valley at 24864 Eucalyptus, apartment 4 (the apartment). Defendant lived at the apartment with Green, Smith, Deedre Green (Green's sister-in-law), and the two children.

Deputy Colmer and Deputy Terry Jones went to the apartment. Smith, who was on parole, answered the door and gave them permission to search the apartment. Defendant and Green slept in the southeast bedroom. Deputy Colmer searched the southeast bedroom and found a loaded shotgun leaning up against the wall, a gun case with a loaded semiautomatic handgun on the floor, a loaded handgun under the bed, an electronic scale, a piece of mail addressed to defendant, and a shoe box containing a large amount of marijuana packaged in several sandwich bags, as well as defendant's pay stub, a gravity scale, and ammunition. In the dresser, the deputy found a sandwich baggie containing marijuana, a loaded handgun, and another electronic scale. The handgun found in the dresser was registered to defendant. The police also found several pieces of men's clothing in the closet, including pants, shirts, and the jacket that defendant was wearing when he was arrested.

Deputy Colmer recovered over 60 grams of marijuana, which would yield about 120 joints. Most of the marijuana found was a type called â€