P. v. Barner

Filed 8/28/06 P. v. Barner CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H029089

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. BB406774)

KEVIN ANTHONY BARNER,

Defendant and Appellant.

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On November 30, 2004, a jury convicted defendant Kevin Anthony Barner of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and possession of drug paraphernalia (Health & Saf. Code, § 11364). Defendant admitted a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)), and the trial court sentenced defendant to double the mitigated term of 16 months for the felony count of possession and to two concurrent six-month jail terms for the remaining two counts. In his appeal, defendant contends the trial court erred in failing to hold a Marsden[1] hearing prior to sentencing. We find no error and affirm the judgment.

I. Factual Background

On March 24, 2004, defendant was sitting in the passenger seat of a car double-parked in front of a Palo Alto courthouse. The car was blocking traffic and two sheriff's deputies approached to investigate. The car's engine was running and defendant was either asleep or passed out. When he finally awoke, he appeared agitated and displayed symptoms of drug use. One deputy performed field sobriety tests and concluded that defendant was under the influence of a controlled substance. The deputy also found a homemade â€