P. v. Well

Filed 4/4/06 P. v. Wells CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Patrick T. Meyers, Judge. Affirmed.

Tara Selver, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Herbert Keith Wells appeals the judgment entered after his conviction by jury of possession of marijuana for sale. (Health & Saf. Code, § 11359.) The trial court found Wells had one prior conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667, subs. (b)-(i), 1170.12)^[1] and that Wells had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Wells to a term of five years in state prison.

We reject Wells's claims of selective prosecution, ineffective assistance of counsel and insufficiency of the evidence and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The prosecution's evidence.

On October 12, 2004, Cerritos College community service officer Jeremy Tolen went to the Student Center to wash mud from his pants. A male who had been standing at the door followed Tolen into the rest room and began speaking loudly. Tolen noticed a green leafy substance resembling marijuana on the floor of one of the stalls in the rest room. The stall was occupied by the only other individual in the rest room. The male who followed Tolen into the rest room exited approximately 10 seconds after Tolen. When Wells exited the rest room, Tolen recognized his shoes as the ones he had seen in the stall. Wells was carrying a black backpack with two water bottles on the side. Tolen radioed for assistance and continued to observe Wells who sat on a bench outside the Student Center and began to speak to a male who was later determined to be one Loadholt. When three Cerritos College police officers arrived, Loadholt walked toward the Student Center. Tolen spoke to Officers Castillo and Reyes, then entered the Student Center to look for the black backpack. Tolen saw a black backpack that resembled the one he was looking for, and returned to where the officers were detaining Wells to get Sergeant Reyes to assist Tolen. After determining that backpack was not the one they were looking for, Tolen noticed Loadholt inside the Student Center and asked what happened to the backpack. Loadholt said he did not know what Tolen was talking about. Tolen found the backpack Wells had been carrying in a cubicle. Sergeant Reyes removed the backpack from the Student Center.

Cerritos College Police Officer Angel Castillo testified that when Sergeant Reyes approached with the backpack, Wells â€