P. v. Sandefur

Filed 6/26/07 P. v. Sandefur CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Counsel appointed for defendant Rico Sandefur has asked this court to independently examine the record in accordance with People v. Wende(1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but he did not do so. We have conducted our review, conclude there are no arguable issues, and affirm.

Our examination reveals that in September 2005, the Vallejo police department was conducting a buy/walk program, in which an undercover officer attempts to purchase narcotics from street-level dealers. If there is a successful transaction, the suspected dealer is not arrested at the time of the deal in order to protect the cover and safety of the undercover officer. Rather, after the deal is made, close-cover officers in plain clothes will observe the suspected dealer for some time, and after sufficient time has passed to put distance between the deal and the stop, uniformed officers will be called in to stop and search the suspect for marked bills that the undercover officer used to purchase the narcotics. The bills are not taken when the suspected dealer is stopped, however, so that the suspect is unaware of what is going on and does not connect the undercover officer to the stop. The suspected dealer is then arrested at a later date.

On September 28, 2005, Vallejo Police Detective William Badour was the case officer on the buy/walk program, with Berkeley Police Detective Lionel Dozier assisting the Vallejo police department as the undercover officer. Detective Fabio Rodriguez was one of the officers assigned as a close-cover officer, while Detective Kevin McCarthy, Detective Jerome Bautista, and Corporal John Miller were assigned as uniformed stop officers.

Dozier was outfitted with a hidden digital video recorder in his left breast pocket, with the camera lens aimed forward at about chest level, and a separate audio transmitter that allowed other officers who were out of view to monitor Doziers conversations. Badour provided Dozier at least five paper bills that had been photocopied and marked, with their serial numbers noted. Badour also instructed Dozier that if he was successful in purchasing narcotics, he was to give the following verbal signal, Bust, bust, bust, followed by a description of the suspect. The description would then be used by the close-cover officers watching the transaction or in the area so they could get a visual of the suspect and keep him or her under surveillance.

On the day in question, at approximately 5:30 p.m., Batour, Dozier and the close‑cover and stop officers began their operation in the vicinity of York and Sacramento in Vallejo. Dozier set off alone on foot and walked for quite a ways before reaching the intersection of Pennsylvania and Marin, where he made contact with a group of five or six men standing on the corner. Dozier approached them and asked one particular individuallater identified as defendantYou got some weed? He responded, No. During this exchange, the video recorder showed only two of the men, one of whom was wearing a white t-shirt and had dreadlocks, with defendant standing off to the right side, out of the shot except for a portion of his black t-shirt. Dozier turned and was walking away when someone called out, Hey. When he turned around, defendant, who was walking towards a red car with a brown paper bag in his hand, told him to come back, so Dozier walked back in defendants direction. Defendant then reached into the bag, took out two baggies of marijuana, and threw the paper bag back on the ground like it was trash. Dozier gave defendant a $20 bill, in exchange for which defendant gave him two baggies of marijuana. Dozier then started walking back in the direction from which he had come in order to meet back up with Badour. While he was walking, he gave the following bust signal: Bust, bust, bust, bust, Black male, blue jeans, dreadlocks, black T-shirt.

After hearing the bust signal, Rodriguez observed defendant, who matched the description given by Dozier, for a time and then called in other officers to make a stop, referring to defendant by name because he recognized him from past encounters. McCarthy responded, but by the time he reached defendant, defendant and two other individuals had already been detained by Bautista and Miller. Miller searched defendant, retrieving from one of his pockets a $20 bill that had been marked as part of the buy money, while Bautista photographed the three men. Meanwhile, McCarthy retrieved the brown paper bag defendant had thrown on the sidewalk and found approximately four baggies of marijuana inside.[1]

Later that day, Dozier was shown the photograph of defendant taken by Bautista and identified defendant as the individual who sold him the marijuana. In the photograph, defendant was wearing a baseball cap, although Dozier did not mention a cap when giving the bust signal and describing the dealer. When he filled out his report later that evening, Dozier did indicate that defendant was wearing a baseball cap. At trial, Dozier identified defendant as the individual who sold him the marijuana.

On February 9, 2006, a complaint was filed charging defendant with possession of marijuana for sale in violation of Health and Safety Code section 11359 (count 1) and sale or transportation of marijuana in violation of Health and Safety Code section 11360, subdivision (a) (count 2).

A jury trial commenced on May 30, 2006, and on June 1, 2006, the jury returned guilty verdicts on both counts.

On June 29, 2006, the court sentenced defendant to the three-year midterm on count 2 and stayed the sentence on count 1. The court then suspended imposition of the three-year sentence, placing defendant on formal probation for three years. Defendant was also ordered to serve 180 days in county jail, with credit for 49 days time served, and to pay numerous administrative fees.

This timely appeal followed.

Defendant was represented by competent counsel who zealously guarded his rights and interests.

The trial court did not abuse its discretion in making evidentiary rulings during trial.

The jury was properly instructed.

The jurys verdict was supported by substantial evidence.

The sentence imposed is authorized by law.

Our independent review having found no arguable issues that require briefing, the judgment of conviction is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Haerle, J.

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[1] At trial, Anna Jackowski of the Contra Costa Sheriffs Department Criminalistics Laboratory identified the substances sold to Dozier and contained in the paper bag as marijuana. She testified that the paper bag in fact contained five baggies of marijuana.