Opinion
A102349.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. QUINCY CULPEPPER, Defendant and Appellant.
Quincy Culpepper appeals from the revocation of his probation and his commitment to state prison. Appellants court-appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
In December 2001, the court suspended imposition of sentence, placing appellant on probation for a period of five years for assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and an enhancement for the personal use of a firearm during the commission of the offense (§ 12022.5).
In September 2002, the court summarily revoked appellants probation based on the allegation that appellant committed a new offense, the sale of marijuana (Health & Saf. Code, § 11360).
At the conclusion of an evidentiary hearing, the court found appellant in violation of the terms of his probation as alleged.
The court sentenced appellant to the mitigated term of two years in state prison for assault with a firearm (§ 245, subd. (a)(2)) and enhanced the term by the mitigated term of three years for the personal use of a firearm during the commission of the offense (§ 12022.5). Thus, the aggregate term totaled five years in state prison. The court granted appellant 454 days total presentence credit and ordered him to pay a $200 restitution fine.
Prosecution Case
On September 15, 2002, Oakland Housing Authority Police Officer Brandon Vidaurri was conducting undercover surveillance of the area of 1465 Seminary in Oakland. The Housing Authority previously had received numerous complaints of drug trafficking near their property at that address. At approximately 7:54 p.m., Vidaurris attention was drawn to a Black male wearing a gray sweatshirt and blue jeans, later identified as appellant, who was "hanging out" by himself in the parking lot next to 1465 Seminary.
A few minutes after first noticing appellant, the officer observed a burgundy red Plymouth pull into the area and noted the cars license number. The Plymouth parked at the intersection of Seminary, Park and 16th. Appellant walked up to the car and, while standing in the street, engaged in a brief conversation with the driver of the vehicle. The driver gave appellant some folded currency, and appellant handed the driver an unknown object in return. The red Plymouth then drove away.
Vidaurri followed the red car while broadcasting to backup units that he had just witnessed a suspected drug sale and wanted the other officers to detain the driver of the Plymouth. About three minutes after witnessing the suspected drug transaction, Vidaurri saw the red Plymouth stopped by a marked patrol unit. He radioed to the other officers that they had detained the right vehicle and then returned to the area where he had been conducting his surveillance.
Upon his return, Vidaurri saw that appellant was still in the area. A few minutes later, the officer saw a brown Chevy pickup drive into the area and park. The male driver got out of his vehicle and walked up to appellant who was again standing outside 1465 Seminary. The two men engaged in a brief conversation, and then the driver of the pickup handed appellant some currency. Appellant reached into his sweatshirt pocket and handed the driver a small object. The driver then got back in his truck and drove away.
Again Vidaurri followed the vehicle he believed had been involved in a drug sale and radioed other units to detain the vehicle. Vidaurri soon observed the brown Chevy truck being stopped by a backup Housing Authority police officer.
When Vidaurri once more returned to his observation post, officers involved in the detention of both the Plymouth and the Chevy truck radioed that they each had recovered narcotics. Vidaurri then notified members of his arrest team to detain appellant. He observed the other police units moving in and later identified appellant as the person he saw apparently selling some kind of drug.
Housing Authority Police Officer Samuel Tith participated in the detention of the red Plymouth and identified the sole occupant of the vehicle as Tiffany Smith. Smith consented to a search of her belongings, and from her purse, the officer recovered a piece of paper that was wrapped around suspected marijuana.
Housing Authority Police Officer Shalene Weber detained the brown Chevy truck and identified the driver as Craig Morgan. Weber asked Morgan if he had any marijuana in the truck, and when he responded that he did, she recovered two zip lock baggies containing suspected marijuana from his front shirt pocket.
It was stipulated that a criminalist from the Oakland Police Department tested the green leafy substance from one of the baggies recovered from Morgan and found that it weighed 1.90 grams and was marijuana. The same criminalist tested the substance recovered from Smith and found it to weigh 5.62 grams and to be marijuana.
Defense Case
For about an hour and a half before appellant was arrested, Rushie Cotton was outside enjoying the warm evening with appellant, Jacobi Harris and her cousin Ruvone. The group was beside a parking lot between the Housing Authority building at 1465 Seminary and the authoritys apartment complex on East 16th Street where Cotton used to live. Cotton saw Smith pull up in her red Plymouth and heard her ask to speak to Harris. When Harris could not be found, Smith spoke briefly to appellant and then drove away. Cotton did not see anything exchanged between appellant and Smith and only saw appellants arm inside Smiths car when appellant reached in to tap her on the shoulder.
Smith stated that a friend had given her the marijuana recovered by the Housing Authority two weeks before the night of the incident. Smith admitted that she smokes marijuana every day, but said she had not used that found in her purse because it contained too many stems and seeds. Smith denied that appellant had anything to do with the marijuana she possessed.
Substantial evidence supports the courts finding that appellant violated the terms of his probation.
Appellant was represented by counsel throughout the proceedings.
Appellants probation revocation hearing comported with the due process requirements of People v. Vickers (1972) 8 Cal.3d 451.
There was no sentencing error that would accrue to the benefit of appellant.
There are no legal issues that require further briefing.
The judgment is affirmed.
We concur: Simons, J., and Gemello, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise indicated.