P. v. Stewart
Filed 2/9/07 P. v. Stewart 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THE PEOPLE, Plaintiff and Respondent, v. KENNETH C. STEWART, Defendant and Appellant. | E040121 (Super.Ct.No. INF 48905) OPINION |
APPEAL from the Superior Court of Riverside County. Thomas N. Douglass, Jr., Judge. Affirmed.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Under Penal Code section 1237, subdivision (a), defendant appeals his conviction of one count of violation of Health and Safety Code section 11379.6, subdivision (a), manufacturing a controlled substance, for which he was sentenced to the midterm of five years, plus a three-year consecutive term for a previous conviction for Health and Safety Code section 11370.2, and a one-year consecutive term for the prior prison term, totaling nine years in prison.
Defendant's counsel has filed a brief under Anders v. State of California (1967) 386 U.S. 738 (87 S. Ct. 1396, 18 L. Ed. 2d 493) and People v. Wende (1979) 25 Cal.3d 436 requesting this court's independent review of the record. Defendant was given an opportunity to file a personal brief but has not done so.
FACTS AND PROCEDURAL HISTORY
On November 1, 2004, DeAnna Bearman, was driving defendant Stewart, a friend of hers, to another friend's trailer in Cathedral City with whom Stewart lived. Before reaching the trailer, Bearman and Stewart stopped at Longs Drugs where she claimed each of them purchased three boxes of Sudafed to be used later to manufacture methamphetamine. The surveillance tapes at Longs Drugs confirmed the presence of the two of them and of their purchase.
When Bearman and Stewart reached the trailer park they saw police activity at their friend's trailer and his shed behind the trailer. Bearman later testified the three of them had manufactured methamphetamine at the trailer and shed. When they saw the police, Bearman backed up the car and Stewart left the car, keeping the Sudafed they had purchased. Bearman was arrested and thereafter testified in court that the three of them had used the trailer and shed to manufacture methamphetamine. Stewart was later arrested in July 2005 but denied knowledge of the use of the trailer or the shed to manufacture methamphetamine.
In the trial, Longs Drugs confirmed the Sudafed purchases by defendant and Bearman. The People also introduced copies of telephone calls made by defendant from the prison in which he acknowledged his purchase of Sudafed from Longs.
DISCUSSION
Counsel for defendant raises five issues he suggests this court consider in its review of defendant's appeal. The first issue is whether there was evidence that Stewart was in the process of making methamphetamine either in the trailer or in the shed behind the trailer. There was no evidence that there was active processing or preparation of methamphetamine either in the trailer or in the shed behind the trailer at the time of the examination of the premises by the police. Stewart denied cooking methamphetamine and purchasing Sudafed from Longs, despite the testimony of the Longs Drugs employee. Although there was sufficient evidence of processing methamphetamine in the location, there was no evidence other than the testimony of Ms. Bearman that Stewart participated in the process.
Counsel argued that the trial court should have granted defendant's mistrial motion because one of the officers violated the court's order not to tell the jury that the trailer location was the object of an earlier police surveillance. We do not find the error was prejudicial particularly in light of the trial court's instruction to the jury striking the questioned testimony.
The defendant asserts that the trial court erred in instructing that Stewart's flight from the trailer on the date of the inspection of the trailer and shed was evidence of his guilt. Stewart's counsel agreed with the trial court's modification of the instruction to provide that the jury should determine whether the evidence of flight showed a consciousness of guilt. Counsel for Stewart also argued that the trial court erred when it instructed the jury with CALCRIM No. 357, pertaining to the People's claim that Stewart's responses to the officer who arrested him constituted an adoptive admission. We find there was sufficient evidence to support the trial court's decision to submit the instruction. For the reasons stated above, we find no error in the instructions given by the trial court.
Finally, defendant asserts that the trial court violated his right of privacy when it admitted the testimony of his audiotaped telephone conversation with a friend while he was in police custody. Penal Code section 636, precluding recording of the conversation of a prisoner with a third person, applies only to the prisoner's attorney, religious advisor, or licensed physician. (People v. Loyd (2002) 27 Cal.4th 997.) The Loyd court, however, concluded that police officers may monitor other conversations from jail inmates. Since Stewart does not assert that the telephone conversation involved an attorney, religious advisor, or licensed physician, the trial court did not err in admitting the telephone conversation.
DISPOSITION
After considering the brief of counsel and the entire record, we find no arguable issue.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/McKinster
Acting P. J.
s/Richli
J.
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