PEOPLE v.MONIZ

Filed 6/6/06

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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APPEAL from a judgment of the Superior Court of Yolo County, Michael W. Sweet, J. Affirmed.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, and Mathew Chan, Deputy Attorney General, for Plaintiff and Respondent.

Late one night, Deputy Dan Skaggs pulled over a car driven by Danielle Giampappas for sporting expired tags. The deputy ordered Giampappas and her passenger, defendant Stephen Michael Moniz, out of the car. A search of the car, to which Giampappas consented, unearthed marijuana cigarettes, methamphetamine, and heroin.

A jury found defendant guilty of transporting heroin, transporting methamphetamine, possession of heroin, possession of methamphetamine, possession of drug paraphernalia, unauthorized possession of a hypodermic needle, and destroying or concealing evidence. (Health & Saf. Code, §§ 11352, subd. (a), 11379, subd. (a), 11350, subd. (a), 11377, subd. (a), 11364; Bus. & Prof. Code, § 4140; Pen. Code, § 135.)^[1] Sentenced to seven years in state prison, defendant appeals, contending: (1) insufficient evidence supports his conviction for concealing evidence, (2) the court erred in instructing on concealing evidence, (3) ineffective assistance of counsel, (4) the court erred in finding his conviction for concealing evidence rendered him ineligible for Proposition 36 treatment, and (5) the court abused its discretion in denying his motion to dismiss under Penal Code section 1385. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant with seven counts: transporting heroin (count 1), transporting methamphetamine (count 2), possession of heroin (count 3), possession of methamphetamine (count 4), possession of drug paraphernalia (count 5), unauthorized possession of a hypodermic needle (count 6), and destroying or concealing evidence (count 7). In addition, the information alleged defendant had served five prior separate prison terms, each within the meaning of section 667.5, subdivision (b).

A jury trial followed. The court granted defendant's motion to bifurcate trial on the prior prison term allegations.

Yolo County Sheriff's Deputy Dan Skaggs testified about the events the night of the search. Shortly after midnight on October 21, 2003, Skaggs made a traffic stop of a car with an expired vehicle registration tag. When Skaggs approached the vehicle, he saw Giampappas in the driver's seat and defendant in the passenger seat. Skaggs asked Giampappas for identification, which she began looking for in the car. After Giampappas failed to produce identification, Skaggs asked her to step out of the car.

Giampappas and Skaggs stood at the rear of the car, where defendant could not be seen, and spoke for a couple of minutes. After Giampappas gave her name, Skaggs asked defendant the driver's name for verification. Defendant identified Giampappas as Danielle Chappa.

Skaggs then asked defendant for identification. Defendant responded that he had a credit card with his name on it and got out his wallet. As defendant looked through his wallet, Skaggs saw a plastic bag fall from his hand onto the car floor. The bag contained what Skaggs believed to be two marijuana cigarettes. Skaggs opened the door and asked defendant to get out of the car. As defendant got out, he used his foot to push the bag toward the seat. Skaggs handcuffed defendant and placed him in the patrol car.

After telling Giampappas about the marijuana, Skaggs obtained her permission to search the car. Skaggs placed Giampappas in the patrol car with defendant, leaving them alone for about 15 minutes. Skaggs's search of Giampappas's car revealed a crystalline-type substance spread on the passenger seat. Skaggs scooped up the substance into a plastic bag. Later tests showed the substance to weigh .21 gram and to contain methamphetamine. Skaggs testified that methamphetamine is generally transported in a container, not spread out on a seat.

Underneath the passenger seat, Skaggs found a glass smoking pipe similar to those used to smoke methamphetamine. Skaggs found a sunglasses case, an alcohol wipe, and a hypodermic syringe between the passenger seat and the center console. These items were not visible until Skaggs peeled back the edge of the seat.

The sunglasses case contained a piece of plastic with a hard brown substance inside. Subsequent tests established the substance to contain heroin weighing .38 gram. Skaggs found all the contraband around the passenger seat; he located no contraband around the driver's seat.

Skaggs asked Giampappas and defendant about the items; both denied any knowledge. Defendant told Skaggs he had not used illegal drugs for over a year and was currently participating in a methadone program. Skaggs placed both Giampappas and defendant under arrest and told them they would be tested for drugs. At that point, Giampappas claimed the drugs were hers.

Later drug tests revealed the presence of methamphetamine in defendant's blood. The absence of amphetamine in defendant's blood indicated he had recently used methamphetamine.

Giampappas testified she and defendant, a friend of several years, were driving to a casino when Skaggs pulled them over. Giampappas had picked up the car earlier that day from the police impound, where it had been taken after her husband's arrest for a parole violation.

Defendant appeared somewhat stressed when they were stopped. When Giampappas gave Skaggs permission to search the car, she had no reason to believe he would find anything since she kept her car clean. She had no prior knowledge of anything illegal in the car.

Giampappas recognized the substance retrieved from the passenger seat as methamphetamine, since she had been a drug user for many years. However, Giampappas did not recognize the other substance as heroin, since she had never used heroin. Giampappas denied ownership of the smoking pipe, syringe, or sunglasses case.

After Skaggs handcuffed her, Giampappas told him the drugs he found were hers. Giampappas testified she lied because defendant told her he had money, and if she took the blame he would post her bail. Defendant said he could not go to jail because he had to go to the methadone clinic the following morning. Defendant encouraged her to claim the drugs were hers, and told Giampappas he would drive her car home so it would not be impounded.

Giampappas followed defendant's advice because she did not want to go to jail. She was unaware both she and defendant could be arrested for the â€