P. v. Barrios

Filed 7/28/08 P. v. Barrios CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Juan Barrios appeals his conviction by jury trial of simple possession of marijuana (Health & Saf. Code,  11357, subd. (b))^[1](count 1)^[2]and sale or transportation of marijuana ( 11360, subd. (a)) (count 2). Defendant was sentenced to five years probation, with imposition of sentence suspended, and a 90-day jail term. Defendants counsel advises this court that her examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel has advised her client in writing that a Wende brief was filed and that defendant had the right to file a supplemental brief in this case within 30 days. No such brief was filed.

BACKGROUND

Around 4:00 or 5:00 p.m. on January 12, 2007, Oakland police officers, including Coleman and Joshi, were participating in an undercover buy/walk program in West Oakland, attempting to purchase narcotics. Coleman and Joshi parked their unmarked patrol car in the Taco Bell parking lot in the 500 block of West Grand Avenue, an area where narcotics are sold. Thereafter, a car pulled into the Taco Bell lot and parked two stalls away from the officers. Defendant got out of the car, walked toward Telegraph Avenue and for a few minutes appeared to engage in a conversation with a couple of men that were there.

Defendant then walked back toward his parked car. As he passed the officers, Joshi asked him, Whats up, man? Defendant walked up to the officers car and said he had a watch for sale. Coleman asked to see the watch, defendant showed it to him and Coleman declined the offer. Joshi then asked defendant where he could get some mota, a street term used to describe marijuana. Defendant asked Joshi how much he wanted, and Joshi said he wanted a couple of ounces. Defendant said he had a connection in San Francisco if he wanted to buy that much marijuana. Joshi asked defendant for his phone number and said, Maybe I could call you. We could do some business. Defendant asked Joshi for Joshis phone number. Joshi wrote his personal cell phone number and the initial J on a piece of paper, gave the paper to defendant, told defendant his name was Jay, and that defendant should Give me a call and lets do business.

Defendant then said, Hey, you know what? Ive got an ounce . . . in my car if youre interested. Joshi responded, Yeah, Im interested, and asked to see it. Defendant told Joshi to wait in Joshis car, because defendants grandfather was in his car and he didnt want his grandfather to see him pull out marijuana. Defendant went to his car, came back to Joshis patrol car, and got inside and sat down on the back seat directly behind Joshi. As defendant got into the patrol car, Joshi smelled fresh marijuana. Defendant produced a clear bag containing what appeared to be a little less than an ounce of suspected marijuana. Joshi reached into the bag, touched the contents and defendant said, Thats purple. Give me [$]250 for it.^[3] Joshi did not have $250 in controlled currency, and offered defendant $100. When defendant said he could not sell it for $100, Joshi told defendant to call him later and he would be interested in buying a larger quantity of marijuana. Defendant said he would call Joshi later and got out of the patrol car. As defendant started walking to his car, an arrest team of officers arrived in a semi-marked police car and defendant took off running.

Police officers chased defendant and he was taken into custody about 150 yards from the Taco Bell parking lot. A search of defendants person turned up 20.47 grams of marijuana in a plastic bag and $710 in cash. On the ground where defendant was detained, police retrieved the piece of paper with Joshis phone number and initial.

The Defense

Defendant testified that on the day of the incident, his friend drove him, his family members, and his girlfriend, to Oakland to purchase a hat for his grandfather and to purchase defendants medication from the cannabis club. They stopped at the Taco Bell parking lot so his grandfather and aunt could use the restroom. Defendant said he had tried to take his grandfather to Sears to use the restroom, but Sears was closed. As defendant returned to his friends car, he passed by the officers car and the two men inside asked defendant if he had any heroin, crack or weed. Defendant became angry and believed the men were trying to get him in trouble. At that point, numerous police cars appeared and he was detained by officers who proceeded to hit and kick him, and threw him against a patrol car. When the officers searched him they found his medical marijuana, cannabis club card, and money he had received from his boss. Defendant denied ever trying to sell anyone marijuana.

Rebuttal

In rebuttal, Carolyn Taylor, an employee of the downtown Oakland Sears store testified that the store was open on the day of the incident. Although some entry way doors were closed, there were arrows pointing to the doors that were open.

Procedural Facts

The case proceeded to trial on August 13, 2007. On August 16, defendant made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) on the ground that he was not communicating well with his lawyer, Zak Malkinson, as Malkinson had not given him copies of some papers and said he was satisfied with the prospective jurors. Malkinson explained his numerous efforts in attempting to contact defendant. He said that although he and defendant had had some disagreements, there was no breakdown in communication that impeded his ability to represent defendant. He pledged to get defendant the subject paperwork and explained his tactics regarding jury composition. The court properly denied the Marsden motion.

On September 5, 2007, at the end of the defense case, Malkinson requested a closed session for a hearing akin to a Marsden motion. Malkinson stated that defendant was upset because Malkinson was unwilling to call defendants girlfriend as a witness. Defendant said his girlfriend was a percipient witness and was also abused by police at the time of his arrest. Malkinson said after interviewing the girlfriend, he determined it would not be in defendants best interest to call her as a witness. The court properly found Malkinsons tactical decision reasonable.

The jury was properly instructed on the law. The court properly suspended imposition of sentence and sentenced defendant to five years probation subject to standard conditions and a 90-day county jail term. (Pen. Code,  1203.1, subd. (a).) Although the presentence report stated that defendant served 33 days in custody, and the sentencing court stated that defendant was entitled to 33 days credit for time served, the courts minute order improperly stated that defendant spent 32 actual days in custody. Thus, it erroneously awarded defendant 48 days of custody and good time/work time credit, rather than 49 days. (Pen. Code,  2900.5.) However, the court properly imposed a $200 restitution fine (Pen. Code,  1202.4, subd. (b)); and a $200 probation violation fine (Pen. Code,  1202.44), which it suspended. The court also properly imposed, subject to defendants ability to pay, a $100 drug program fee ( 11372.7), a $50 criminal laboratory fee ( 11372.5), a $30 court security fee (Pen. Code,  1465.8, subd. (a)(1)), a $187.50 probation investigation fee (Pen. Code,  1203.1b) and a $20 probation supervision fee (Pen. Code,  1203.1b).

Defendant was represented by counsel at every stage of the proceeding, and appeared at every hearing. With the exception of the calculation of custody credits, there are no arguable issues.

DISPOSITION

Defendant is entitled to one additional day of custody credit. The matter is remanded with directions to the trial court to prepare an amended abstract of judgment and forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

REARDON, J.^*

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^[1] All undesignated section references are to the Health and Safety Code.

^[2] The count 1 conviction was for a lesser included offense of possession of marijuana for sale, as originally charged.

^[3] According to Joshi, purple is a street term describing high grade marijuana.

^* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.