P. v. Moore

Filed 7/25/06 P. v. Moore 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge.

Sarah F. Pattison, 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, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On April 14, 2005, the Kings County District Attorney filed a first amended information in superior court charging appellant Matthew Clarence Moore and his wife, codefendant Andrea Jones,^[1] as follows: count I--unlawful transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) (both appellant and Ms. Jones); count II--unlawful possession of marijuana for purpose of sale (Health & Saf. Code, § 11359) (both appellant and Mrs. Jones); count III--misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)) (appellant only); and count IV--misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) (appellant only). The amended information further alleged as to counts I and II that appellant suffered a prior strike conviction sustained in the State of New Jersey (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d); N.J. Rev. Stat. § 2C:11-3(a)(3)).

On the same date, appellant having previously entered pleas of not guilty waived further formal arraignment.

On May 3, 2005, jury trial commenced.

On May 5, 2005, the jury returned verdicts finding appellant guilty of the substantive counts and finding the special allegation to be true.

On June 3, 2005, the court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 and denied appellant's request for new counsel. The court then conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of eight years in state prison. The court imposed the doubled upper term of eight years on count I, imposed and stayed the upper term of six years on count II, and imposed concurrent jail terms of six months and one year on counts III and IV, respectively. The court awarded 295 days of custody credits, imposed a $1,600 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45), and imposed a $165 laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)). The court further ordered appellant to submit to DNA profiling (Pen. Code, § 296, subd. (a)(1)) and suspended his driver's license for three years (Veh. Code, § 13202, subd. (c)).

On the same date, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

In November 2004, Mark Mason (Mason) worked as a product receiver at the Costco Distribution Center in Tracy, California. Mason's duties included the inspection of bills of lading from incoming truck drivers to ensure that Costco was receiving complete orders of merchandise. Mason said Costco has systems in place to prevent truck drivers from leaving its premises with items they are not authorized to take. On November 19, 2004, the Tracy distribution center received a shipment of 30 pallets of paper plates. The shipment included seven unmarked cases that were not identified on the corresponding bill of lading. The seven boxes were placed in the very back of the truck so that Costco personnel could not get to the paper plates actually identified on the bill of lading. Mason told a forklift driver to tell the truck driver to remove the boxes so that Costco personnel could remove the paper plates from the trailer. The boxes were removed, Costco personnel retrieved the pallets of paper plates, and the forklift driver put the unmarked boxes back into the trailer. Notations on Costco's paperwork indicated the seven unmarked boxes were present on the truck when it arrived in Tracy and did not come from Costco itself.

At 9:30 a.m. that same day, California Highway Patrol (CHP) Officer Michael Foss was on patrol when he received a dispatch about a possible reckless driver. The dispatcher said the speeding vehicle was a maroon big rig driven by a Black male. The dispatcher also reported the side of the truck bore the name â€