P. v. Plascencia

Filed 1/19/07  P. v. Plascencia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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.  Graham Anderson Cribbs, Judge.  Affirmed.

            Harry Zimmerman, 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, Meagan J. Beale and Raquel M. Gonzalez, Supervising Deputy Attorneys General, and Deana Bohenek, Deputy Attorney General, for Plaintiff and Respondent.

            A jury convicted defendant and appellant Armando Plascencia of one count of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1) and one count of possession of a hypodermic needle and syringe (Bus. & Prof. Code, §  4140, count 2).  Furthermore, the trial court found that defendant was in violation of his probation.  The court sentenced defendant to the upper term of three years in state prison on count 1 and to a concurrent term of six months on count 2.  The court also sentenced defendant to three consecutive terms of eight months each on three matters involving the probation violations.

            On appeal, defendant contends that:  1) the trial court abused its discretion in admitting evidence of his prior possession of methamphetamine under Evidence Code section 1101, subdivision (b); 2) there was insufficient evidence to prove that he had knowledge of the presence of the methamphetamine and syringes, or that he possessed them; and 3) the court erred in imposing the upper term and consecutive terms, pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely).  We affirm.

FACTUAL BACKGROUND

            On the night of September 1, 2004, defendant's mother called the police, and Officer Mario Martinez responded to the call.  Defendant's mother told him that she and defendant had a disagreement about a wallet that she found inside his pants.  Defendant's mother found the pants in the washroom inside her home and was going to wash them.  She pulled out the wallet from the pants.  The wallet contained defendant's identification, some photographs, and some drugs.  Defendant's mother told Officer Martinez that defendant wanted the wallet back because it contained drugs.

            Officer Alfredo Verduzco arrived after Officer Martinez.  Defendant's mother similarly told him that she and her son had an argument, and that she found the wallet in his pants.  She told Officer Verduzco that she found defendant's pants on the floor near the couch where defendant normally slept.  Defendant's mother told Officer Verduzco that the items she found inside the wallet included a photograph, an identification card, and a package that resembled salt.  She also told Officer Verduzco that she found syringes inside defendant's pants pocket.  The police later determined that the wallet contained a usable quantity of methamphetamine.

            At trial, defendant's mother recanted her earlier report to the officers and testified that she found an empty small black bag (the black wallet), two syringes, and a little bindle, next to a pair of men's pants, in her front yard.  She said she did not recognize the pants.  Defendant's mother said that defendant's identification was in her home, so she put his identification, a picture of his kids, and the bindle inside the black wallet.  That evening, she called the police, and when they arrived, she showed them the wallet.  Defendant's mother said she put everything in the wallet because she wanted defendant to be arrested.  Defendant lived with his mother, and she wanted to go to Mexico but did not trust him to stay in her home alone; thus, she said she wanted him to be arrested and put in jail for a couple of weeks.

            Additionally, at trial, the prosecution moved to admit evidence of defendant's prior possession of methamphetamine, under Evidence Code section 1101, subdivision (b),^[1] in order to show that defendant had knowledge that the substance in the instant case was methamphetamine.  The prosecution called witness Officer Michael Smothermon, who testified that, on June 22, 2002, he was patrolling an area, when he saw a truck that was stuck on the side of the roadway.  Defendant was standing next to the truck.  Officer Smothermon asked defendant if he had any narcotics or weapons, and defendant said he had a little in his pockets.  The officer searched him and found a plastic baggie containing methamphetamine and a pipe.

ANALYSIS

I.  The Trial Court Properly Admitted Evidence of Defendant's Prior Possession of Methamphetamine Under Section 1101

            Defendant argues that the court erred in admitting evidence of his prior possession of methamphetamine to prove the element that he had knowledge of the narcotic nature of the drugs in the instant offense.  He claims that it was error because the evidence was more prejudicial than probative and because he offered to stipulate to that element.  We find no error.

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