P. v. Stuart

Filed 7/19/06 P. v. Stuart CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, James B. Pierce, Judge. Reversed and remanded.

William L. McKinney for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Terry Stuart was convicted following a jury trial of possession of marijuana for sale in violation of Health and Safety Code section 11359. Following a jury waiver, the court found defendant had suffered a prior conviction for robbery within the meaning of Penal Code section 1170.12, subdivisions (a) through (d). Defendant was sentenced to four years in state prison. He appeals, arguing there is insufficient evidence to support his conviction and his discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 should have been granted. We agree with the latter contention and remand the matter to the trial court for further proceedings.

FACTS

Prosecution Evidence

Erik Shear, an officer with the Los Angeles Police Department, was assigned to an area of the city which includes the address of 738 East 108th Street. At the time of trial, he estimated he had worked in that area for the past year and a half, and recognized defendant from prior contacts there. He knew defendant was confined to a wheelchair.

Prior to the date of December 22, 2004, Officer Shear saw defendant at the address on 108th Street on at least 10 occasions, at times within the secured gated area where defendant would retrieve his car and leave the premises. On December 15, he saw defendant exit apartment number two of that address. On one day during the summer of 2004, defendant told Shear that he lived at the apartment complex with his girlfriend, Regina Robertson.

On December 22, 2004, Shear went to the apartment building with a warrant authorizing a search of apartment number two. While conducting surveillance outside of the location, he saw Ms. Robertson exit apartment two at about 7:40 a.m. He observed defendant exit the same apartment about 10 minutes later. Shear and other officers contacted defendant as he entered his vehicle. From defendant's car, Shear obtained the remote control which operated the main gate in front of the apartment building. A search of apartment two was conducted.

The apartment had two bedrooms. Inside a closet in one of the bedrooms, Shear found a nylon bag which contained a large quantity of marijuana and a box of sandwich baggies. Also in the closet were men's clothing hanging on the rod and men's shoes on the floor. There was no female clothing. Shear also saw what appeared to be medical supplies, such as gauze, tubing, and alcohol, which he believed one with a colostomy bag might use. Shear thought defendant's condition required that he use such a bag. On top of a nightstand, he found a baggie of marijuana and a box containing another baggie of the drug. Inside the nightstand, Shear found a traffic citation bearing defendant's name, a piece of mail addressed to defendant, and a phone book with the words â€