Opinion
A146262
03-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO HENDRIX, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51426766)
Antonio Hendrix appeals from a judgment following a jury trial. His court-appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) to determine whether there are any arguable issues on appeal. There are no issues requiring further review and we affirm.
BACKGROUND
Hendrix was indicted by a grand jury on charges of conspiracy, two counts of sale of a controlled substance, possession of a controlled substance for sale and possessing marijuana for sale, with each count enhanced for his alleged membership and participation in a criminal street gang. Additional sentencing allegations charged him with a prior serious felony, a prior term served in a state prison, and two prior controlled substance convictions.
Hendrix moved to dismiss three counts of the indictment on the basis that he was in federal custody at the time of the alleged criminal acts. The court granted the motion and dismissed the three counts. A prosecution motion to amend the indictment was denied, and so was Hendrix's motion to bifurcate trial of the conspiracy count from any gang enhancement allegations.
The case proceeded to jury trial on a count for conspiracy to sell a controlled substance in violation of Penal Code section 182, subdivision (a)(1) and Health and Safety Code sections 11352 and 11379; and a single count of sale of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a). Each count was enhanced for Hendrix's alleged participation in a criminal street gang under Penal Code section 186.22, subdivision (b)(1). The remaining enhancements were tried to the court.
Hendrix challenged the exclusion of an African-American from the jury venire due to an alleged violation of Batson/Wheeler. The court determined he had not made out a prima facie case of group bias, and it appeared there was some hostility between the dismissed juror and the prosecutor. The jury as finally selected included two African-American jurors.
The evidence showed that Hendrix was one of several men who sold drugs at a corner in North Richmond and operated out of a home on Chesley Street. On September 19, 2014, a man on video was observed appearing to buy drugs from Hendrix. Police stopped the man shortly thereafter and found him in possession of methamphetamine. The prosecution attempted to prove the drug sales were done by a criminal street gang that controlled territory in North Richmond. Hendrix rebutted the prosecution evidence with expert testimony.
The jury determined Hendrix was guilty of a single count of conspiracy and a single count of sale of a controlled substance. The allegations that he committed the crimes in association with or for the benefit of a criminal street gang were found untrue. The court found the remaining enhancements were proven. His motion for a new trial was denied.
Hendrix was sentenced to state prison for seven years. He was given a stayed three-year mid-term sentence for conspiracy, a three-year mid-term sentence for sale of a controlled substance with a one-year enhancement for his service of a prior term in state prison and a three-year enhancement for prior sale of a controlled substance. Fees and fines were imposed in lawful measure and he was awarded proper credits. His appeal is timely.
DISCUSSION
Hendrix's counsel has represented that he advised Hendrix of his intention to file a Wende brief in this case and of Hendrix's right to submit supplemental written argument on his own behalf. He has not done so. Hendrix has also been advised of his right to request that counsel be relieved.
There was no error, and our review of the entire record reveals no issue requiring further briefing.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Pollak, J.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.