P. v. Benskin

Filed 4/4/06 P. v. Benskin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Robert Tafoya, Judge.

Matthew Alger, 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, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury found appellant guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and possession of paraphernalia for unlawfully injecting or smoking a controlled substance (Health & Saf. Code, § 11364). Special allegations of a prior felony conviction (Pen. Code, § 667, subds. (c)-(j); § 1170.12, subds. (a)-(e))^[1] for burglary (§ 460) and of four prior separate prison terms (§ 667.5, subd. (b)) were bifurcated, tried by the court without a jury, and found to be true. Appellant moved for a new trial on the ground of newly discovered evidence (§ 1181). The motion was denied. The court sentenced appellant to a prison term of 10 years. This consisted of the upper term of three years on the section 12021, subdivision (a)(1) conviction, doubled to six years pursuant to section 667, subdivision (e), plus one year for each of the four section 667.5, subdivision (b) prior separate prison term enhancements. Appellant was ordered to serve 180 days on the misdemeanor Health and Safety Code violation, to be served concurrently with the section 12021, subdivision (a)(1) term.

APPELLANT'S CONTENTIONS

Appellant contends (1) the court abused its discretion in denying his motion for a new trial, and (2) his upper term sentence on the section 12021, subdivision (a)(1) conviction violated his Sixth Amendment right to a jury trial as described in Blakely v. Washington (2004) 542 U.S. 296. As we shall explain, we find both of these contentions to be without merit.

FACTS

On January 11, 2005, Officer Todd Brown of the Bakersfield Police Department observed a white Volvo with expired registration in a restaurant parking lot. Appellant was the driver of the vehicle. Officer Brown issued a traffic citation to appellant for the expired registration, no proof of insurance, and for being an unlicensed driver. Officer Brown gave appellant one copy of the citation and released him. Appellant told the officer he lived at the Star-Liter Hotel in room 10. He also told the officer, before the vehicle was impounded, that everything he owned was in the Volvo. Officer Brown did not see appellant remove a backpack or duffel bag from the car.

On January 13, 2005, Officer Brown went to room 10 of the Star-Liter Hotel, accompanied by two other officers, looking for appellant.^[2] A woman opened the door and she told Officer Brown she was the only person in the room. However, the officer saw appellant standing in the bathroom. Brown handcuffed appellant and the officers searched the room. Brown determined that the woman's name was Ms. Somers.

A duffel bag was on the floor of the room and a backpack was sitting on top of the duffel bag. A denim jacket was on top of the backpack. Officer Brown recognized the jacket as the same one appellant was wearing two days earlier when Officer Brown issued the traffic citation to appellant. Inside the duffel bag Officer Brown found a .22-caliber revolver and men's clothing. Officer Diaz found a syringe and spoon in the backpack, along with a copy of the traffic citation that was issued to appellant on January 11. Appellant had clothes in room 10, and Officer Brown â€