P. v. Harris
Filed 6/8/06 P. v. Harris CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. ALAN CRAIG HARRIS, Defendant and Appellant. | B182915 (Los Angeles County Super. Ct. No. YA059438) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C. Taylor, Judge. Modified and affirmed.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
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Alan Craig Harris appeals from a judgment entered upon his conviction by jury of possession for sale of a controlled substance (Health & Saf. Code, § 11378).[1] The jury also found that appellant committed the offense within 1,000 feet of an elementary, vocational, junior high or high school within the meaning of section 11353.6, subdivision (b). Appellant admitted having suffered a prior prison term within the meaning of Penal Code section 667.5, subdivision (b) and a prior felony conviction within the meaning of section 11370.2, subdivision (c). The trial court sentenced him to an aggregate state prison term of 11 years. Appellant contends that (1) there was insufficient evidence to support the school enhancement under section 11353.6, subdivision (b), and (2) he is entitled to an additional two days of presentence custody credit. Respondent concedes both points.
The judgment is modified and affirmed.
FACTUAL BACKGROUND
The prosecution's case
On August 27, 2004, at approximately 8:00 a.m., Detectives Russ Shaver and Rehan Nazir went to appellant's apartment on Arlington Avenue, in the City of Torrance, in the County of Los Angeles, to conduct a search. The apartment was approximately 200 feet from Wood School. At the time of the search, students were present at the school.
Appellant was not home, and his mother directed the detectives to his bedroom. In the room, detectives found a gym bag on the floor next to appellant's nightstand, inside of which were used and unused glass pipes, clean syringes, unused small square plastic bags and a glass vial containing methamphetamine. New and used syringes were also found on the floor next to the gym bag. One hundred and nine dollars were also recovered. No pay/owe sheets were found.
Detective Shaver opined that the methamphetamine was possessed by appellant for sale based upon the presence of both clean and used syringes, plastic Ziploc baggies and pipes. The number of pipes suggests that appellant was selling the drugs because a user ordinarily only has one or two pipes for personal use.
When appellant returned home, detectives searched him and his car, but found no contraband, drug paraphernalia, scales, pay/owe sheets, or baggies. Appellant was in possession of $96.
The defense's case
Sometime after arriving at appellant's apartment, Detective Nazir observed appellant's mother attempting to hide something in the recliner on which she was sitting. The detective retrieved the item, which was a clear plastic baggie containing .09 grams of crystal methamphetamine. Appellant's mother said she was holding it for a friend.
DISCUSSION
I. There was insufficient evidence to support the school enhancement.
The jury found to be true the allegation that appellant possessed methamphetamine for sale within 1,000 feet of a school in session pursuant to section 11353.6, subdivision (b). The trial court sentenced him to an aggregate state prison term of 11 years, consisting of the upper term of three years for his possession for sale conviction, the midterm of four years for the school enhancement under section 11353.6, subdivision (b), three years for the prior drug sale conviction under section 11370.2, subdivision (c) and one year for the prior prison term under Penal Code section 667.5, subdivision (b).
Appellant contends that the possession for sale within 1,000 feet of a school finding was unsupported by sufficient evidence, thereby violating his right to due process under the federal and state Constitutions. Respondent agrees, as do we.
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