P. v. Daley

Filed 7/5/06 P. v. Daley CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Leslie A. Swain, Judge. Affirmed.

Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

________

Defendant and appellant Pete Daley (defendant) appeals his conviction, following a jury trial, of possession of heroin (Health & Saf. Code, § 11350, subd. (a).) We appointed counsel to represent defendant in this appeal. After examination of the record, counsel filed an opening brief asking this court to review the record independently in accordance with People v. Wende (1979) 25 Cal.3d 436. On July 13, 2005, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days in which to submit by brief or letter any contentions or issues he wished this court to consider.

Defendant submitted a letter, filed on October 11, 2005, in which he contends that his conviction must be reversed because there was insufficient evidence that he had any knowledge of the presence of heroin in the hotel room where he was residing. Defendant argues that the evidence showed that the hotel room was registered both to him and another individual, and that the heroin could have belonged to the other registrant. Defendant further contends that the arresting officer's testimony that defendant appeared to be suffering from heroin withdrawal at the time of his arrest was inconsistent with the presence of narcotics in defendant's possession and control; that defendant suffered from a medical condition that the arresting officer mistook as a symptom of narcotics withdrawal; and that defendant would not be suffering from narcotics withdrawal if heroin was at his disposal.

Our independent review of the record, including the peace officer personnel records filed with this court under seal,[1] discloses no error, and we therefore affirm the judgment.

BACKGROUND

Defendant was arrested on May 20, 2004 after undercover police officers observed him engage in a suspected narcotics transaction near Sixth and Main Streets in downtown Los Angeles. Los Angeles Police Officers Eliana Tapia and Fabiola Ladesma testified at trial that they saw defendant walking northbound on Main Street. Defendant met a woman, and Officers Tapia and Ladesma saw defendant hand the woman what appeared to be a clear plastic bindle of rolled up balloons, and the woman in turn gave defendant what appeared to be paper currency. Officers Tapia and Ladesma arrested the woman, and recovered from her person $135 and a bindle of toy balloons that contained heroin. Officer Tapia radioed for assistance in arresting defendant. Detective Ronald Hodges, Detective Flynn and Officer Luna responded to Officer Tapia's radio call and subsequently arrested defendant. They recovered from defendant $40 in cash and a key to room 223 at the Cecil Hotel, which was located approximately one block away from the place of his arrest.

The officers transported defendant to the Cecil Hotel, where they learned that room 223 had been registered to defendant and another man named Ernest Salado since April 24th. In response to questions by the officers, defendant said that he was on parole, and consented to a search of room 223. Room 223 contained one bed, a nightstand, a dresser and a closet. No one else was present in the room when officers conducted the search. The officers recovered from a top dresser drawer three bindles containing numerous hand rolled balloons commonly used to package heroin, and two hypodermic needles. From a nightstand near the bed, officers recovered a 35 millimeter film canister containing another clear plastic bindle containing numerous hand rolled balloons. The contents of the balloons were subsequently analyzed and determined to contain heroin.

An information charged defendant with sale of heroin (Health & Saf. Code, § 11352, subd. (a), count 1); and possession of heroin for sale (Health & Saf. Code, § 11351, count 2.) The information further alleged, as to both counts, that defendant had suffered four prior strikes within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and that defendant had served three separate prison terms within the meaning of Penal Code section 667.5, subdivision (b). Defendant filed a Pitchess motion for discovery of personnel records of the officers involved in his arrest, which the trial court granted in part.

Defendant testified at trial that at the time of his arrest, he was under the influence of heroin and that he was a heavy user of heroin. He admitted that the two syringes recovered from room 223 of the Cecil Hotel belonged to him. Defendant said that on the date of his arrest, he was meeting a woman on Main Street for the purpose of delivering a cellular telephone to her; that he did not know of the presence of heroin in the hotel room he shared with Ernest Salado; and that the arresting officers lied about observing him engage in a narcotics transaction on Main Street. Defendant also presented the testimony of two witnesses, Patrick King and Lorenzo Solomon, who testified that they had been arrested and convicted for narcotics offenses as the result of false testimony by certain of the police officers involved in defendant's arrest.

A jury acquitted defendant of sale of heroin (count 1) and possession of heroin for sale (count 2), but found him guilty of the lesser included offense for count 2 of possession of heroin (Health & Saf. Code, § 11350, subd. (a).) The trial court granted the prosecution's motion to amend the information to conform to proof, adding as a count 3 the offense for which defendant was convicted, and to allege as to that count all of defendant's prior convictions and prior prison terms. Defendant admitted all of the alleged prior conviction and prior prison term allegations, but filed a Romero[2] motion to strike all of the prior convictions. In response, the prosecutor stated that the People did not oppose striking defendant's prior convictions with the exception of a 1984 conviction under section 245, subdivision (b). The trial court denied defendant's Romero motion and stated that it would sentence defendant for the current offense as a second strike.

The trial court sentenced defendant to the mid-term of eight months, doubled as a second strike to 16 months. The trial court noted that defendant had another recent conviction for possession of heroin in Los Angeles Superior Court case number VA080937, in which he had been sentenced to 32 months (the low term of 16 months, doubled as a second strike), but that defendant had not yet begun to serve that sentence. The trial court stated that pursuant to California Rules of Court, rule 4.452, it was required to aggregate defendant's sentence in the current case with the 32-month sentence imposed in the previous case and to impose a single aggregate term.[3] The trial court then said that it would treat the 32-month sentence imposed in the prior case as the principal term, aggregated the two sentences, and imposed a total term of 48 months. The trial court imposed an additional two-year term under section 667.5 for each of the alleged prior prison terms, for a total sentence of six years. Defendant was accorded 204 days of custody credit for case number VA080937, consisting of 136 days of actual custody and 68 days of conduct credit, and 235 days of custody credit in the instant case, consisting of 157 days of actual custody and 78 days of conduct credit. Defendant filed this appeal.

DISCUSSION

Defendant challenges the sufficiency of the evidence to support his conviction for possession of heroin. Specifically, he claims there was insufficient evidence that he had knowledge of the presence of heroin in the hotel room he shared with another individual. â€