P. v. Moore

Filed 2/13/07  P. v. Moore 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            A jury convicted defendant Gregory Moore of one felony count of possessing a controlled substance, methamphetamine, (Health & Saf. Code, § 11377, subd. (a)) and one misdemeanor count of possessing drug paraphernalia (Health & Saf. Code, §  11364, subd. (a)).  Right before the trial commenced, defendant made a Marsden[1] motion to discharge appointed counsel.  After a hearing, the court denied the motion.  At trial, defendant admitted he had one prior serious felony conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12) and had served a prior prison term (Pen. Code, § 667.5, subd. (b)).

            The trial court sentenced defendant to four years in prison on the felony count (twice the mid-term because of the strike prior) and a concurrent term of six months on the misdemeanor count.  The court struck the additional punishment for the prior prison term.

            Defendant contends the trial court erred in denying his Marsden motion.  We affirm.

Evidence at Trial

Prosecution Case

            Around midnight on March 28, 2005, San Jose Police Officer Sean Pierce stopped a man on Monterey Highway who was under the influence of methamphetamine.  The man told Officer Pierce defendant had a felony warrant for his arrest and was using methamphetamine in room 258 of a local motel.

            Officer Pierce and other officers went to room 258 of the motel and knocked on the door.  Christopher Jones answered the door.  Through the partially open door, Officer Pierce saw a glass narcotics pipe on the bed.  Officer Pierce asked Jones if defendant was there and Jones said he was.  Officer Pierce pushed the door open a little wider and saw defendant, Stephanie Noel, and Kenneth Hocutt in the room.  

            The officers arrested defendant pursuant to the outstanding warrant.  During the search incident to defendant's arrest, the officers found an empty syringe in his pocket, a cell phone, a wallet, a small scale, a package of small baggies, and a knife hidden in his waistband.  Before they searched defendant, the officers found a syringe containing .2 milliliters of methamphetamine on the nightstand.

            At the preprocessing center, defendant told Officer Pierce the drugs on the nightstand were his.  He said he had prepared two needles, one for himself and one for Hocutt.  Hocutt had injected his drugs, but defendant had not yet injected his drugs when the officers arrived.

            Officer Pierce testified that the amount of methamphetamine in the syringe was a usable amount.  Criminalist Leanne Hopper testified that the substance in the syringe tested positive for methamphetamine.

Defense Case

            Defendant testified at trial.  Defendant, a drug addict, knew about the arrest warrant.  He planned to turn himself in, but wanted to party and use methamphetamine one more time before doing so.

            Defendant was at the motel with Hocutt, Noel, Jones, and Mike Haberman.  About 20 to 30 minutes before the police arrived, Haberman got mad at defendant and left.  Defendant and his friends all smoked methamphetamine that night.  The methamphetamine belonged to all of them.  Haberman complained that smoking the drug would not get him high and said he wanted to â€