Summary
finding no error in reliance on proof of cocaine base to satisfy cocaine possession charge under statute subjecting possession of either to the same penalty
Summary of this case from United States v. Vega-OrtizOpinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Daniel J. Buckley, Judge, Los Angeles County Super. Ct. No. KA 073206
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Clay Bryant appeals from the judgment entered following a jury trial that resulted in his conviction of one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) with true findings that he had suffered a prior “strike” conviction (Pen. Code, §§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)) and had served a prior prison term pursuant to Penal Code section 667.5, subdivision (b). Bryant contends that the prosecution offered insufficient evidence to prove that he possessed cocaine. He also requests that we independently review the transcript of the trial court’s in camera hearing on Bryant’s Pitchess motion for discovery of evidence of misconduct by the arresting police officers (Pitchess v. Superior Court (1974) 11 Cal.3d 531), and that we reverse and remand if the record shows that he was improperly denied discoverable documents. Bryant and the Attorney General agree that if we affirm the judgment, additional trial surcharges and penalties must be imposed pursuant to People v. Chavez (2007) 149 Cal.App.4th 1340.
All undesignated statutory references are to the Health and Safety Code.
We impose additional fees and surcharges pursuant to Penal Code section 1464 and Government Code sections 70372, subdivision (a) and 76000. In all other respects, we affirm the judgment.
BACKGROUND
At around 6:00 p.m. on November 29, 2005, police officers Sergeant Jerry Wright, Corporal Robert Devee, and Richard Aguiar were on duty and driving together in an area known for narcotics and prostitution activity. They came upon Bryant, who was pushing his bicycle across the street in violation of Vehicle Code section 21954 (jaywalking), forcing Devee, the driver, to stop abruptly. Devee turned on the patrol car’s emergency lights and honked the horn, while Aguiar got out of the car. Bryant then jumped on his bicycle and rode away in a “panicked” manner. Aguiar chased him on foot, while Devee drove after Bryant.
At a street intersection, Bryant reached into his jacket with his left hand, tossed away a clear plastic baggie, and continued riding. Devee headed off Bryant and stopped in front of him, while Aguiar caught up from behind. The officers detained Bryant while Aguiar retrieved the plastic baggie. It contained seven or eight off-white rocks.
The Los Angeles County District Attorney filed an information charging Bryant with violating section 11350, subdivision (a)—felony possession of a controlled substance, “to wit, cocaine.” The information further alleged that Bryant had suffered two prior serious or violent felony convictions along with various lesser convictions, had served prior prison terms for three of his earlier convictions pursuant to Penal Code section 667.5, subdivision (b), and had not remained free of prison custody for five years after the conclusion of those prison terms. In a jury trial, the arresting officers testified regarding the events of November 29, 2005, and the parties stipulated to a police criminalist’s findings that the rocks weighed 2.07 grams and contained cocaine base.
The jury found Bryant guilty of possessing cocaine. Bryant waived a jury trial of the prior convictions and the prison special allegations. The court found that Bryant had suffered one serious or violent felony conviction or adjudication pursuant to Penal Code sections 1170.12, subdivisions (a)-(d) and 667, subdivisions (b)-(i) and one earlier conviction for which he served a prison sentence (for violating section 11350, subdivision (a) in 2002) pursuant to Penal Code section 667.5, subdivision (b). The court sentenced Bryant to the middle term of two years, doubled to a total of four years pursuant to the Three Strikes law, plus a one-year term imposed but stayed pursuant to Penal Code section 667.5, subdivision (b). The court awarded Bryant credit for 452 days of presentence custody and required him to pay various statutorily mandated fines, fees, and penalties. Bryant timely appealed.
DISCUSSION
A
Defendant contends the evidence was insufficient to support his conviction because the prosecution presented evidence that he possessed cocaine base, not cocaine as charged in the information. We disagree.
Defendant was charged with, and convicted of, possession of “a controlled substance, to wit, cocaine, ” in violation of section 11350, subdivision (a)(1). That statute prohibits the possession of a wide array of controlled substances that are listed in sections 11054 and 11055, among other sections. The prohibited substances include cocaine base (section 11054, subdivision (f)(1)) and cocaine other than cocaine base. (Section 11055, subdivision (b).) Section 11350, subdivision (a) thus covers both cocaine and cocaine base and treats them identically—possession of either constitutes a violation of section 11350, subject to the same penalty. Where, as here, the prosecution charged (and proved) possession of a substance controlled pursuant to section 11350, the information would have been sufficient without any specification of the particular controlled substance, “and nothing beyond that is required in the absence of a special demurrer.” (People v. Gelardi (1946) 77 Cal.App.2d 467, 471-472, disapproved on a different point in People v. Perez (1965) 62 Cal.2d 769, 776, fn. 2; accord, People v. Howington (1991) 233 Cal.App.3d 1052, 1059.) Thus, there was sufficient evidence that Bryant possessed a controlled substance in violation of section 11350, subdivision (a).
Bryant cites People v. Adams (1990) 220 Cal.App.3d 680, a case in which the appellate court reversed the defendant’s conviction of violating section 11351.5—possession of cocaine base for sale—based on insufficient evidence because the evidence showed only that the defendant possessed cocaine for sale, not cocaine base. (Id. at pp. 685-688.) The Adams court held that possession of cocaine under section 11350 is a lesser included offense of possession of cocaine for sale under section 11351, and that possession of cocaine base under section 11350 is a lesser included offense of possession of cocaine base for sale under section 11351.5, but that possession of cocaine under section 11350 and possession of cocaine for sale under section 11351 are not lesser included offenses of possession of cocaine base for sale under section 11351.5. (Id. at pp. 689-691.) Thus Adams does not aid Bryant in this case, which involves only a charge under section 11350.
Bryant contends that cocaine and cocaine base are two different substances, and that in stipulating that the baggie’s contents were cocaine base, “the parties stipulated that the substance found was not cocaine.” In People v. Howell (1990) 226 Cal.App.3d 254, however, the court explained that although “cocaine base is not cocaine hydrochloride [cocaine powder, the more traditional form of the drug]” (id. at p. 260), nevertheless, “[d]espite the difference between cocaine base, crack, or rock on one hand and cocaine hydrochloride on the other hand, both substances are still cocaine.” (Id. at p. 261.) Under Howell, the showing that Bryant possessed cocaine base constituted sufficient evidence that he possessed cocaine.
We note that the reference in section 11055, subdivision (b)(6) to “Cocaine, except as specified in Section 11054” [referring to the listing of “Cocaine base” in section 11054, subdivision (f)(1)] shows that the Legislature tacitly recognized that cocaine base is also cocaine, albeit in an altered form that justifies distinctions under some statutes, but not under section 11350. The grouping of listed controlled substances into Schedules I, II, and beyond in sections 11054, 11055, and elsewhere may, of course, have relevance regarding other statutes that cross-reference these lists and schedules, but not regarding section 11350, and Bryant makes no argument compelling any different conclusion.
B
Bryant requests that we independently review the record of the in camera hearing on his Pitchess motion regarding any complaints or allegations of misconduct by Officer Aguiar. A defendant is entitled to discovery of a police officer’s confidential personnel records that contain information relevant to his defense. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) If a defendant shows good cause for the discovery, the trial court must conduct in camera review of the records and allow discovery of relevant material. (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316; Evid. Code, § 1045, subd. (a).) When requested to do so by an appellant, an appellate court can and should independently review the record of the trial court’s in camera Pitchess hearing to determine whether the trial court ordered all relevant complaints disclosed. (See People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We review the trial court’s ruling on a Pitchess motion for abuse of discretion. (Id. at p. 1228.)
We have reviewed the transcript of the in camera proceedings. We see no error or abuse of discretion in the trial court’s ruling on disclosure.
C
On the authority of People v. Chavez (2007) 150 Cal.App.4th 1288, the Attorney General maintains, Bryant concedes, and we agree that in addition to the various other fees and assessments it imposed, the trial court also should have imposed additional fees and surcharges, and that the abstract of judgment should be corrected to reflect, in all, (1) a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b)(1) [already imposed]; (2) a $200 parole revocation restitution fine, imposed but stayed pursuant to Penal Code section 1202.45 [already imposed]; (3) a $50 lab analysis fee pursuant to section 11372.5 [already imposed]; (4) a $20 court security fee pursuant to Penal Code section 1465.8, subd. (a)(1) [already imposed]; (5) a $50 penalty assessment on the $50 laboratory fee pursuant to Penal Code section 1464 [apparently already imposed]; (6) a $35 penalty assessment on the $50 laboratory fee pursuant to Government Code section 76000 [apparently already imposed]; (7) a $10 surcharge on the laboratory analysis fee pursuant to Penal Code section 1465.7; (8) a $25 state construction penalty on the laboratory analysis fee pursuant to Government Code section 70372, subdivision (a); (9) a $17.50 state construction penalty on the $35 Government Code section 76000 penalty assessment, pursuant to Government Code section 70372, subdivision (a); (10) a $100 state construction penalty on the $200 restitution fine, pursuant to Government Code section 70372, subdivision (a); and (11) a $100 state construction penalty, to be imposed and stayed, on the $200 parole revocation fine, pursuant to Government Code section 70372, subdivision (a).
DISPOSITION
The judgment is modified to impose the additional fees, penalties, and surcharges described in the immediately preceding paragraph. The case is remanded to the trial court to prepare an amended abstract of judgment reflecting these additional fees, penalties, and surcharges and to forward a copy to the Department of Corrections. As modified, the judgment is affirmed.
We concur: MALLANO, Acting, P. J. VOGEL, J.