P. v. Naya

Filed 7/24/06 P. v. Naya CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Carol Rehm, Judge. Reversed with directions.

Randy S. Kravis, 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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Horacio Naya, also known as Jose Carlos and Samuel Chegue, appeals from the judgment entered upon his conviction by jury of one count of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)). The trial court found to be true the allegations that appellant had suffered a prior conviction of a narcotics-related offense within the meaning of Health and Safety Code, section 11370.2, subdivision (a) and had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).[1] It sentenced appellant to the upper term of five years for selling cocaine, plus three years for the prior drug-related offense and one additional year for each of the three prior prison terms. Appellant contends that the trial court erred (1) in denying his Pitchess[2] motion, (2) in instructing the jury in accordance with CALJIC No. 2.06, and (3) in ordering appellant to pay attorney's fees in the absence of evidence of his ability to pay, and (4) further contends that imposition of the upper-term sentence based upon facts found by the trial court violated his right to a jury trial of those facts, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Appellant also requests us to review in camera proceedings to determine whether the trial court properly sustained police witnesses' assertion of the official information privilege contained in Evidence Code section 1040.

We reverse with directions.

FACTUAL BACKGROUND

On July 29, 2004, at approximately 9:00 p.m., Los Angeles Police Officer Damien Levesque and his partner, Officer Matthew Ziegler, went to the area of Seventh and South Carondelet Streets, in the City of Los Angeles, to set up a surveillance. The area is primarily residential, but 707 South Carondelet Street is a small liquor store. Numerous citizen complaints had been received of drug sales in that area, a known drug area, by members of the Marasalvatrucca criminal street gang, also known as the M.S. gang. Officer Levesque had had three prior contacts with appellant in the preceding weeks, the most recent just 15 minutes before setting up the surveillance. During the contacts appellant admitted being a longstanding member of the M.S. gang.

After setting up the surveillance, Officer Levesque observed appellant standing on the sidewalk, between 707 and 717 South Carondelet waving his hands at passing vehicles. Officer Levesque was positioned 150 to 175 feet from appellant and was using very strong binoculars.[3] His position was elevated and the focus of his observations was directly in front of him, not at an angle. He had â€