Fear Not Law Articles: P. v. Elliott

P. v. Elliott

Filed 2/14/07 P. v. Elliott CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

LATRECE ELLIOTT,

Defendant and Appellant.

E039467

(Super.Ct.No. RIF124941)

OPINION

APPEAL from the Superior Court of Riverside County. James A. Edwards, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Marvin E. Mizell, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant LaTrece Elliott not guilty of possession of cocaine base for sale (Health & Saf. Code, § 11351.5)^{^[1]} but guilty of the lesser included offense of simple possession of cocaine base (§ 11350, subd. (a)), and being under the influence of a controlled substance (§ 11550). Defendant filed a motion for sentencing pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). (Pen. Code, § 1210 et seq.) Although the jury did not find that the cocaine base was for sale, the trial court found that the cocaine base was for sale, and not for personal use. On that ground, the court ruled that defendant was ineligible for probation and treatment under Proposition 36, and instead sentenced her to four years in state prison.

On appeal, defendant contends that the trial court erred in denying her Proposition 36 probation, since she was eligible under the plain language of Penal Code section 1210.1, subdivision (a). The judgment is affirmed.

FACTUAL BACKGROUND

On July 19, 2005, at approximately 1:55 a.m., Officer Amy Munoz was patrolling a drug trafficking area when she observed a parked car with its headlights on. She approached the car. Defendant was in the driver's seat, and there was a person in the passenger seat. Defendant told the officer that she was â€

Description	A jury found defendant not guilty of possession of cocaine base for sale (Health & Saf. Code, S 11351.5) but guilty of the lesser included offense of simple possession of cocaine base S 11350, subd. (a)), and being under the influence of a controlled substance ( s 11550). Defendant filed a motion for sentencing pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). (Pen. Code, S 1210 et seq.) Although the jury did not find that the cocaine base was for sale, the trial court found that the cocaine base was for sale, and not for personal use. On that ground, the court ruled that defendant was ineligible for probation and treatment under Proposition 36, and instead sentenced her to four years in state prison. On appeal, defendant contends that the trial court erred in denying her Proposition 36 probation, since she was eligible under the plain language of Penal Code section 1210.1, subdivision (a). The judgment is affirmed.
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