P. v. Newsom
Filed 8/24/07 P. v. Newsom CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND NEWSOM, Defendant and Appellant. | D050191 (Super. Ct. No. SCD202149) |
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed.
A jury convicted Raymond Newsom of selling, transporting, and possessing cocaine base for sale. (Health & Saf. Code, 11352, subd. (a), 11351.) In a bifurcated hearing, Newsom admitted three prior convictions of selling or transporting a controlled substance and three prior convictions of possessing a controlled substance for sale (Health & Saf. Code, 11370.2, subd. (a)), a strike (Pen. Code, 667 subds. (b)-(i), 1170.12, 668) and serving five prior prison terms (Pen. Code, 667.5, subd. (b), 668). The court denied a motion to dismiss the strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced him to prison for 17 years: double the four-year middle term for selling cocaine base enhanced by three three-year terms for the prior drug convictions. The court stayed sentence on the remaining Health and Safety Code section 11370.2 findings and struck the prior prison term enhancements.
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. On October 11, 2006, near 17th and Island Streets, an undercover San Diego police officer approached Paula Shine and Wayne Bryce. Using street language, the officer asked if they had cocaine base for sale. Shine responded, asking the officer to sit down and wait, explaining that someone with cocaine base would be right back. After several minutes the officer and Shine got up and began to walk. After a few more minutes a Cadillac arrived. Newsom was driving; Kathy Parker was a passenger. Newsom yelled, "Hey, do you still want that 40?" (meaning $40 worth of cocaine base). The officer responded in the affirmative. When he began to step into the street, Shine asked him for the money. He handed her four marked $5 bills. With the money in her hand, Shine approached the driver's side of the car and spoke with Newsom. Shine and Newsom made an apparent hand-to-hand transaction but the officer was not able to see what was exchanged. Shine returned to the officer. When they reached the sidewalk, Shine opened her hand and showed the officer two cocaine rocks. Shine handed the officer one rock and retained one. The officer gave the arrest sign. San Diego police officers responded. Parker and Shine each had two of the marked bills. Newsom did not have any additional drugs.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to these possible but not arguable issues: (1) whether the convictions are supported by sufficient evidence; (2) whether the trial court abused its discretion by denying the motion to dismiss the strike; (3) whether the trial court erred by instructing the jury on aiding and abetting; and (4) whether the trial court properly imposed the section 11370.2 enhancements.
We granted Newsom permission to file a brief on his own behalf. He has responded. Newsom contends the evidence was insufficient to support the conviction of sales, transportation, and possession for sale of cocaine base, and the prosecutor used speculation, hearsay, and leading of witnesses to secure the conviction. Newsom also contends defense counsel was ineffective because he failed to request an Evidence Code section 402 hearing and move to suppress and exclude Newsom's alleged a statement, "Hey, do you still want that 40?" and Bryce's statement, "Come get what you need from Newsom." Newsom asserts the admission of Bryce's statement violated his right to confront witnesses. Newsom requests an evidentiary hearing on these issues.
The convictions.
We are required to view the record in the light most favorable to the judgment below. (People v. Johnson, supra, 26 Cal.3d at p. 576.) So viewed, the facts set forth above show that Newsome sold, transported, and possessed cocaine base for sale. The record does not reveal any improper speculation, hearsay, or leading of witnesses.
Newsom's and Bryce's statements.
Newsom's attorney requested that any statements by Bryce be excluded. Furthermore, the statement, "Come get what you need from Newsom" was not repeated in the jury's presence. The undercover officer's testimony regarding Newsom's statement was admissible. (Evid. Code, 1220.)
Newsom's request for an evidentiary hearing is denied. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Newsom on this appeal.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
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