P v. HERNANDEZ,

Filed 5/5/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Meredith C. Taylor, Judge. Reversed.

Janice Wellborn, 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, Marc E. Turchin and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

Florentino G. Hernandez appeals from judgment entered following a jury trial in which he was convicted of possession of cocaine for sale (Health & Saf. Code, § 11351); possession of marijuana for sale (§ 11359); transportation of cocaine (§ 11352, subd. (a)); and transportation of marijuana (§ 11360, subd. (a)). He admitted that he had three prior convictions within the meaning of Penal Code section 1203, subdivision (e)(4) and Health and Safety Code section 11370.2, subdivision (a), and had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Sentenced to prison for a total of nine years, he contends the judgment of conviction must be reversed because the trial court's denial of his request to discharge his retained counsel prior to trial resulted in a denial of his state and constitutional rights to counsel and due process of law. For reasons explained in the opinion, we reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

As appellant does not challenge the sufficiency of evidence to support his convictions, it will suffice to observe that on August 31, 2004, Los Angeles police officers stopped a van in which appellant was the front seat passenger. In the van and within arm's reach of appellant and the van's other occupants, the officers found a large bag containing two large bricks of marijuana and a large amount of cocaine. Also recovered was $2,030 in cash.

Following advisement and waiver of his Miranda[1] rights, appellant stated he had asked his brother, the driver of the van, to drive him to the vicinity of Arleta and San Jose streets to meet with codefendant Olivares,[2] the van's third occupant. Olivares was to provide appellant with marijuana and cocaine in exchange for the $2,000 he had with him. Appellant stated he had saved this money from working, but he also admitted he was unemployed. Appellant stated he intended to sell the marijuana and cocaine.

It was stipulated that 27.91 grams of cocaine and 9.5 pounds of marijuana were recovered from the van and that the person or persons who possessed the drugs possessed them for purposes of sale.

DISCUSSION

Appellant contends the denial of his request to discharge retained counsel prior to trial resulted in the denial of his state and constitutional rights to counsel and due process of law. We agree.

On January 4, 2005, on day â€