Filed 12/20/05

CERTIFIED FOR PARTIAL PUBLICATION^*

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

 

 

 

THE PEOPLE,   Plaintiff and Respondent,   v.   TASAUNA DANIELLE MURPHY,   Defendant and Appellant.

C046923   (Super. Ct. No. 03F10757)

 

 

 

 

APPEAL from a judgment of the Superior Court of Sacramento County, Tani S. Cantil-Sakauye, Judge. Affirmed.

 

Dale Dombkowski, 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, Janis Shank McLean and Marcia A. Faye, Deputy Attorneys General, for Plaintiff and Respondent.

 

A jury convicted defendant Tasauna Danielle Murphy of single counts of selling cocaine base, possessing cocaine base for sale, and evading a pursuing police officer. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5; Veh. Code, § 2800.2, subd. (a).)

On appeal, defendant contends a prior conviction for possessing cocaine base for sale should have been excluded, her Marsden motion was erroneously denied, the possession conviction cannot stand because it was part of the sale, her counsel was ineffective, and her upper term violates Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. We disagree with these contentions and affirm the judgment. In the published portion of the opinion, we conclude that possession of cocaine base for sale is not a necessarily included offense of the crime of selling cocaine base.

Background

On December 10, 2003, Sacramento police officers conducted a narcotic â€