P. v. Figueroa

Filed 5/19/08 P. v. Figueroa CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge. Affirmed.

A jury convicted Carlos Figueroa of possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)), possession of heroin (id.,  11350, subd. (a)) and possession of cocaine (ibid.). The jury acquitted Figueroa on the charge of possession of methamphetamine for sale. The trial court sentenced Figueroa to three years in prison.

Figueroa appeals, contending that his convictions and sentence are invalid. He argues that his convictions must be reversed because the trial court erroneously instructed the jurors that they could consider a defendant's prior felony conviction in evaluating witness credibility despite the fact that Figueroa did not testify and no evidence was presented of his criminal record. Figueroa also contends that his sentence is invalid because the trial court imposed an upper term sentence based on facts found by the trial court and not the jury, violating his constitutional rights under the Sixth Amendment. We conclude that Figueroa's contentions are without merit and affirm.

FACTS

On October 28, 2005, Figueroa contacted Drug Enforcement Agency (DEA) informant M. Estrada to discuss a potential methamphetamine transaction. Estrada agreed to purchase drugs from Figueroa and the two arranged to meet, along with a third person, Angel Lopez, at a taco shop in San Diego. The three men met and discussed the drug transaction and agreed upon a purchase price of $7,500 per pound of methamphetamine.

Later that day, Estrada called Figueroa and the two men agreed to meet at a Home Depot parking lot to complete the drug transaction. Prior to the meeting, an agent conducting surveillance at Figueroa's residence observed Figueroa remove packages of what appeared to be drugs from a blue van on his property and place them into a green pickup truck.

Soon thereafter, Figueroa and Lopez drove to the parking lot of the Home Depot where Lopez got out and delivered a shoebox-sized package to Estrada, containing nearly one pound of methamphetamine. DEA agents then arrested Lopez and Figueroa.

Figueroa consented to a search of his residence and acknowledged that there were drugs in a shed on his property. Drugs were not located in the shed, but a search of the blue van on the property revealed a 12‑gauge shotgun, a loaded 9‑millimeter Beretta handgun, as well as ammunition. In addition, the agents found 83.5 grams of methamphetamine, 5.0 grams of cocaine and a small amount of heroin in the van. Identification cards bearing Figueroa's name and photograph were also recovered from the van.^[1]

DISCUSSION

I

The Trial Court's Misstatement in Instructing the Jury Does Not Require Reversal

Figueroa contends that his constitutional right to due process was violated when the trial court gave "an erroneous jury instruction that improperly informed the jury that [he] had a prior felony conviction involving moral turpitude." We evaluate this contention after setting forth the pertinent procedural history.

A. Procedural History

In its instructions to the jury, the trial court included a list of "factors that [the jury] may consider" in evaluating the credibility of the witnesses who had testified at trial. The judge's instruction, which tracked the standard jury instruction (Judicial Council of Cal. Crim. Jury Instns. (2007-2008), CALCRIM No. 105), included the following factors: