P. v. Dumas
Filed 6/18/13 P. v. Dumas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOHN DUMAS,
Defendant
and Appellant.
E056979
(Super.Ct.No. RIF1103905)
OPINION
APPEAL
from the Superior Court
of
County. Gary B.
Tranbarger, Judge. Affirmed.
David
L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
On
April 2, 2012, an
information charged defendant and appellant John Dumas with a single count of
possession of marijuana in a penal institution.
(Pen. Code,
§ 4573.6.) The information
also alleged that defendant (1) suffered six prior qualifying strike
convictions (Pen.
Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)); and (2)
served five prior prison terms (Pen. Code, § 667.5, subd. (b)).
The
jury found defendant guilty of count 1 on July 5, 2012.
Thereafter, defendant admitted the prior strike convictions and prior
prison term allegations. On August 24,
2012, the trial court denied defendant’s motion to dismiss the strikes under
imposed an indeterminate sentence of 25 years to life in state prison and a
determinate sentence of five years in state
prison. That same day, a
Thereafter,
on October 19, 2012, the
trial court vacated defendant’s sentence, and granted defendant’s
the six prior strike convictions.
Defendant was then sentenced to a term of nine years in state prison,
consisting of the low term of two years (doubled) on count 1, plus one year for
each of the five prior prison term allegations to run consecutive to count
1. A second notice of appeal was filed
on December 3, 2012.
Prosecution
On
July 17, 2011, around 12:00 p.m., Correctional Officer Butler and his
partner, Officer Gonzales, entered Dorm 303 of Facility C at the California
Rehabilitation Center
in Norco to conduct a random
security check. The dorm consisted of a
row of bunk beds on each side, with a center walkway between them. The bunk beds were numbered 1 through 25 on
the side to the right of the officers and 26 through 50 on the other side, with
a few bunk beds along the back wall at the end of the walkway. There were two inmates assigned to each bunk
bed—one to the upper bed and one to the lower bed. Between and at the foot of each bunk bed was
a locker assigned to an inmate to store his belongings. The space between bunk beds was known as the
“driveway.â€
When
Officer Butler entered the dorm, he noticed five or six inmates standing around
Bunks 33 and 34, about halfway down the walkway on the left side, approximately
35 feet away. As the officers
approached, the group dispersed. Officer
Butler stopped one of the inmates, searched him, and then let him go. The officer then turned his attention to the
area from which the inmates fled.
Defendant,
an inmate, was sitting on the lower bed of Bunk 34. He was facing the right side of the bunk,
when viewed from the walkway, with his feet in the driveway between Bunks 33
and 34. He was seated in the middle of
the bunk, closer to the locker on the wall than to the foot of the bed. Defendant was holding, what appeared to be, a
large, white object in his right hand.
As
Officer Butler approached, defendant turned to his left, away from the officer,
leaned over, and reached behind the locker in the driveway, which was assigned
to the inmate in the lower bed of Bunk 33.
As
Officer Butler got closer, defendant sat up holding a piece of tissue
paper. Without any verbal prompting from
the officer, defendant showed the officer the paper and said, “‘This is what I
had in my hand.’†The officer directed
defendant to stand up. The officer then
patted down defendant for contraband. Next,
the officer searched defendant’s bunk and did not find anything. Finally, the officer looked behind the locker. Between the locker and the wall, sitting on a
pair of shoes, the officer found a white sock.
He immediately smelled a strong odor of marijuana coming from the sock. Officer Gonzales then handcuffed defendant,
and the officer escorted defendant to the prison program office.
In
the office, Officer Butler opened the sock.
It contained 26 individually wrapped bindles of marijuana. The total weight of the bindles was 15.6
grams. One bindle weighed 0.74
grams. In prison, half a gram, the
typical quantity trafficked among inmates, sold for about $100.
Defense
Defendant
testified on his own behalf. He stated
that the marijuana was not his, and he was not in possession of it. Defendant testified that he had been in
prison a long time, was due to be released in just a few months, had worked
hard to educate himself as an electrician in prison to make a living, and
lacked any motive or incentive to commit another crime. At the time of the incident, defendant was assigned
to the lower bed of Bunk 34. The sock
belonged to an inmate known as Smoker D, who was assigned to the upper bed of
Bunk 33. The night before the incident,
defendant saw Smoker D with the sock.
Smoker D offered to sell defendant marijuana; he declined the offer.
Defendant
testified that when the officers entered the dorm on the day of the incident,
defendant was sitting on his bed, facing the driveway to the left of it,
between Bunks 34 and 35, and not to the right between Bunks 33 and 34, as
Officer Butler claimed. He would not have
used the latter driveway. Defendant’s
locker was to the left of his bunk and, thus, his driveway was on that
side. The other driveway belonged to
other inmates, and it would have violated a prison rule of respect if he had
invaded that space. Defendant further
testified that he had just gotten out of the shower and was getting
dressed. Meanwhile, Smoker D and several
other inmates were standing around the foot of Bunk 33.
Defendant
testified that when the officers entered the dorm, inmates announced “‘man
walking’†to alert everyone of their presence.
In response, Smoker D walked down the driveway between Bunks 32 and 33,
reached across the lower bed of Bunk 33, and placed the sock behind the locker.
Meanwhile,
defendant had to blow his nose. He obtained a wad of toilet paper from his
locker to do so. Then, while still
holding the paper, he reached to turn off his fan in the window at the head of
his bed because he did not like the cool breeze on him. According to defendant, that was what Officer
Butler witnessed defendant doing.
Officer
Butler ordered defendant to stand up and asked him what he had in his
hand. Defendant showed him the wad of
toilet paper. The officer took the wad
from defendant, examined it, and then returned it to him. Officer Butler then searched defendant’s
locker and bed. Only afterwards, did
Officer Butler look behind the other locker in question and find the sock. The officer pulled the sock from behind the
locker and said, “‘Yeah. This is what I
like.’â€
Keith
Kleinman, the defense investigator, inspected the area in which the drugs were
found. He believed it would have been
impossible for defendant to have placed the drugs behind the locker as Officer
Butler claimed—from the middle of the bunk with his right hand—because of the
distance between that location and the back of the locker. Defendant would have had to have been 14
inches closer to the wall and, even then, would have had a difficult time
reaching that area.
After defendant appealed,
and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority
of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967)
386 U.S. 738, setting forth a statement of the case, a summary of the facts and
potential arguable issues, and requesting this court to undertake a review of
the entire record.
We
offered defendant an opportunity to file a personal
supplemental brief, but he has not done so.
Pursuant to the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of
the record and find no arguable issues.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P.J.
We concur:
KING
J.
CODRINGTON
J.
