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People v. Young

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Feb 23, 2012
A132311 (Cal. Ct. App. Feb. 23, 2012)

Opinion

A132311

02-23-2012

THE PEOPLE, Plaintiff and Respondent, v. STEVEN WAYNE YOUNG, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Mateo County Super. Ct. No. SC69876A)

Steven Wayne Young (appellant) appeals from a judgment entered after he was convicted of one count of possessing cocaine base for sale (Health & Saf. Code, § 11351.5) and four counts of and resisting, delaying or obstructing peace officers (Pen. Code, § 148, subd. (a)(1)). Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and filed three supplemental briefs. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.

F ACTUAL AND P ROCEDURAL B ACKGROUND

An amended information was filed December 30, 2010, charging appellant with one count of possessing cocaine base for sale (Health & Saf. Code, § 11351.5, count 1) and four counts of resisting, delaying or obstructing peace officers (Pen. Code, § 148, subd. (a)(1), counts 2-5). The information alleged as to count 1 that appellant had suffered multiple prior convictions, prior prison terms, and prior drug convictions. The amended information was filed after the trial court denied appellant's motion to discharge his court-appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 117 (Marsden motion) and granted his motion for self-representation pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta motion).

After granting appellant's Faretta motion, the trial court appointed advisory counsel, who was present during the proceedings to assist appellant in the event he had any legal questions.

On January 31, 2011, appellant filed a motion for return of personal property—$704 that was seized from him at the time of his arrest—and a motion to suppress all items seized pursuant to the search warrant. He also filed a motion to dismiss the information under Penal Code section 995 on the ground that there was no evidence of sales, e.g., marked money or drugs packaged and ready for sale. The trial court denied the motions.

Appellant waived his right to a trial by jury, and a bench trial was held after appellant unsuccessfully moved for a continuance. The prosecutor moved to strike an enhancement allegation and the trial court granted the motion. Several police officers testified at trial regarding an incident that occurred on November 2, 2009. On that day, Menlo Park Police Detective Christopher Sample and other officers went to an apartment in East Palo Alto to serve a search warrant and arrest appellant, who was a parolee at large. There were three individuals in the apartment but appellant was not there. One of the three individuals voluntarily, and without receiving any incentives or rewards, made a "pretext call" to appellant in order to "lur[e] [him] back to the apartment" by telling him to return because someone wanted to "buy a half of a little boy"—a half of a quarter ounce of cocaine base.

Approximately ten minutes later, appellant approached the apartment. Sample identified himself as police and told appellant to put his hands up. Appellant did not comply, and did not take his left hand out of his left pants pocket when ordered to do so. Sample grabbed appellant's hand and pushed him against the wall, and other officers gave various verbal instructions, including "stop resisting, get down, take your hands out of your pocket, put your hands behind your back." Appellant did not comply with any of the instructions and "put[] up quite a fight" by "thrashing around," "kicking his legs," and trying "to pull away from [the officers'] grasp." At some point during the "struggle," an officer deployed his pepper spray, and appellant was placed in handcuffs.

Two of the officers pried open appellant's left hand and found a clear plastic sandwich baggie tied with a knot and containing what appeared to be cocaine base. They found in appellant's right hand pocket a cell phone, four plastic baggies with torn corners, and $704 consisting of five $100 bills, one $50 bill, three $20 bills, six $10 bills, six $5 bills, and four $1 bills. In Sample's opinion, the denominations were consistent with amounts used in street level sales and larger purchases of narcotics. He also opined, based on his training and experience, that the torn corners on the baggies were significant because drug dealers put narcotics in the corner of baggies, twisted the baggies, and tied knots so that they could tear the drugs out of the baggies for sale. He believed the rock substance, which was 50 to 70 times the amount of a typical use, was possessed for sale. Appellant's cell phone call log showed a phone call that was consistent with the time the pretext call had been made. The parties stipulated that a crime lab criminalist tested the rock and found that it was 6.86 grams of cocaine base, a usable amount. Certified copies of multiple prior conviction packets were admitted into evidence.

The trial court found appellant guilty on all five counts and found all remaining enhancement allegations to be true. It sentenced appellant to the low term of three years on count 1 and imposed a one-year prior prison term enhancement and a three-year prior drug conviction enhancement, for a total of seven years in state prison. The court stayed nine other sentence enhancements, stating that the total sentence of seven years was sufficient in this case. It imposed six-month concurrent terms on counts 2 through 5, with credit for six months served. The court imposed standard fees and fines and awarded a total of 866 days of presentence credits consisting of 578 actual days and 288 conduct credits.

As appellant states, it appears the trial court did not award him "one day for each day of custody . . . because prior serious felonies were alleged and proved."
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DISCUSSION

Appellant raises five issues in his supplemental briefs. First, he asserts the search warrant the police officers executed on November 2, 2009, was invalid. We disagree. An affidavit in support of a warrant must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow a magistrate to make an independent evaluation of the matter. (Franks v. Delaware (1978) 438 U.S. 154, 165.) If an informant's tip is the source of information, the affidavit must recite " 'some of the underlying circumstances from which the informant concluded' that relevant evidence might be discovered, and 'some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was "credible" or his information "reliable." ' [Citation.]" (Ibid.)A defendant claiming that a warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging and proving the errors or omissions. (Id. at pp. 171-172.)

Here, Detective Sample submitted a search warrant affidavit in which he declared that a confidential informant had informed police that appellant was selling narcotics at the East Palo Alto apartment at which the arrest in this case took place. Thereafter, the police tested the validity of the information provided by the informant by having the informant participate in two "[c]ontrolled [drug] buy[s]" in which he or she successfully purchased drugs from appellant under police observation. Appellant complains that the warrant failed to disclose the "times, dates, [and] quantities of narcotics purchased." However, he has provided no authority in support of his position that specific facts relating to a controlled drug buy must be disclosed for a warrant to be deemed valid. Disclosure of such information would have tended to reveal the identity of the informant, and was also unnecessary because the affidavit set forth other, particular facts and circumstances from which a magistrate could determine there was probable cause to believe there would be narcotics on appellant and/or in the apartment.

Second, appellant asserts he was wrongfully convicted of "possession for sales with the intent to s[ell]" because "intent to s[ell] is not a . . . criminal act . . . without a transaction." As noted, appellant was convicted of a violation of Health and Safety Code section 11351.5, which provides that "every person who possesses for sale . . . cocaine base . . . shall be punished by imprisonment . . . ." There is no requirement that a transaction actually take place for a defendant to be convicted of a violation of the statute.

Third, appellant contends the police engaged in an illegal act when it used a pretext call to lure him back to the apartment. He notes the police already had an outstanding warrant for his arrest and did not need a pretext call "that would lead to me being implicated in more trouble than I was already in . . . ." He cites no authority for his position that the police were not authorized to allow the individual at the apartment to assist police in locating and arresting appellant by voluntarily making a pretext call.

Fourth, appellant contends the trial court erred in denying his motion for return of the $704 that was seized from him. It appears the proper avenue of redress was through a petition for a writ of mandate. (People v. Gershenhorn (1964) 225 Cal.App.2d 122, 126 [discretionary review by writ of mandate available for order denying release of property]; Buker v. Superior Court (1972) 25 Cal.App.3d 1085, 1088 [denial of non-statutory motion for return of property was challenged by way of a petition for a writ of mandate] (Buker).) In any event, appellant's contention would fail on the merits.

Appellant cited Buker below for the proposition that a trial court has the authority to order the return of property legally seized. However, the Court in Buker held that "good cause" must be shown for the property to be returned. (25 Cal.App.3d at p. 1089.) There, two defendants who faced several drug-related charges sought return of $6,424 that was seized during a search so that they could use the funds to retain an attorney. (Id. at p. 1087.) They had stipulated that the police had found and taken the money from the residence that was searched, which had "eliminated the need of any evidence to prove the stipulated fact." (Id. at pp. 1089-1090.) In contrast, here, appellant provided no reason for his request, made no argument in support of his motion at the hearing at which the trial court denied the motion, and otherwise made no good cause showing. Thus, he cannot show the trial court abused its discretion in denying the motion. (See id. at p. 1089 [abuse of discretion standard applies].)

Fifth, appellant asserts, without providing any examples, that the trial judge was "conned into believing something that's not true" and was not "fair and impartial." " ' "To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" . . . .' [Citation.]" (People v. Barnes (1986) 42 Cal.3d 284, 306.) There is nothing in the record indicating there existed a physical impossibility or an apparent falsity in the testimony given by the witnesses, and our review of the record reveals there was substantial evidence supporting the trial judge's findings, and no evidence the trial judge was not fair and impartial.

We further conclude the trial court did not err in denying appellant's Marsden motion and granting his Faretta motion. The court did not err in denying appellant's motion to suppress evidence, motion for dismissal of the information, and motion for a continuance of the trial. There was no sentencing error. There are no issues that require further briefing.

DISPOSITION

The judgment is affirmed.

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McGuiness, P.J.
We concur:

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Pollak, J.

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Siggins, J.


Summaries of

People v. Young

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Feb 23, 2012
A132311 (Cal. Ct. App. Feb. 23, 2012)
Case details for

People v. Young

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEVEN WAYNE YOUNG, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Feb 23, 2012

Citations

A132311 (Cal. Ct. App. Feb. 23, 2012)