P. v. Fluker
Filed 6/21/07 P. v. Fluker CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. MOSES FLUKER, Defendant and Appellant. | B189938 (Los Angeles County Super. Ct. No. NA068319) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph E. Diloreto, Judge. Affirmed.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Kenneth J. Kao, Deputy Attorneys General, for Plaintiff and Respondent.
Moses Fluker appeals from judgment entered following a jury trial in which he was convicted of selling a controlled substance, cocaine, in violation of Health and Safety Code section 11352, subdivision (a)) and a court trial wherein he was found to have suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)). Appellants prior conviction was stricken pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and he was sentenced to the middle term of four years. He contends there was insufficient evidence that he sold cocaine. For reasons stated in the opinion we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On December 4, 2005, at approximately 9:40 p.m. in the City of Long Beach, appellant sold rock cocaine packaged in a plastic bindle to a reliable confidential informant for $20. Following his arrest and waiver of his Miranda rights[1]appellant admitted he had exchanged rock cocaine for money with the informant and then walked away from the location. During a search of appellant at the police station, rock cocaine was found inside the brim of appellants hat.
Gregory Gossage, a criminalist for the City of Long Beach assigned to the police department, analyzed the substances and determined one item weighed .35 gram and that it contained cocaine base. The second item weighed .06 gram and contained cocaine base.
DISCUSSION
Appellant contends the offense charged in count 1 was the sale of cocaine and the evidence established that the substance in this case was cocaine base. Respondent asserts the evidence presented established appellant violated Health and Safety Code section 11352.[2]
Health and Safety Code section 11352 provides in pertinent part: (a) Except as otherwise provided in this division, every person who . . . sells . . . (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years.
Health and Safety Code section 11054 lists substances that are included in Schedule 1. Paragraph (1) of subdivision (f) of Health and Safety Code section 11054 specifies cocaine base. Health and Safety Code section 11055 lists substances that are included in Schedule II. Paragraph (6) of subdivision (b) specifies cocaine except specified in Section 11054, meaning that cocaine base is a Schedule I substance and cocaine which does not amount to cocaine base is a Schedule II substance.
Appellant cites People v. Adams (1990) 220 Cal.App.3d 680, 685-686, to support his claim that cocaine and cocaine base are two separate drugs and that his conviction is not supported by substantial evidence. In Adams, however, defendant possessed cocaine but was convicted of violating Health and Safety Code section 11351.5, which proscribes possession for sale of cocaine base only.
In the present case, appellant was charged and convicted of violating Health and Safety Code section 11352, subdivision (a), the sale of a controlled substance. Controlled substance includes many substances, including both cocaine and cocaine base. Health and Safety Code section 11352 proscribes the sale of both cocaine and cocaine base and substantial evidence supports appellants conviction. (See People v. Howington (1991) 233 Cal.App.3d 1052, 1058.) Further, despite the difference between the substances, cocaine base is still cocaine. (See People v. Howell (1990) 226 Cal.App.3d 254, 261.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.
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[1]Miranda v. Arizona (1966) 384 U.S. 436.
[2] The information alleged, inter alia, On or about December 4, 2005, in the County of Los Angeles, the crime of sale/transportation/offer to sell controlled substance, in violation of Health & Safety Code section 11352(a), a Felony, was committed by Moses Fluker, who did unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, cocaine.
