P. v. Fulcher

Filed 2/20/08 P. v. Fulcher 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Yvonne Campos, Judge. Affirmed.

A jury convicted Nolan James Fulcher of possession of cocaine base and possession of cocaine (Health and Saf. Code,^[1] 11350, subd. (a); counts 1 and 2) and transportation of cocaine ( 11352, subd. (a); counts 3 and 4). In bifurcated proceedings, he admitted special allegations of three prior convictions, three prior prison terms, and a strike prior. ( 11370.2, subd. (a); Pen. Code, 667.5, subd. (b) and 667, subds. (b)-(i).)

The trial court sentenced him to 10 years in prison as follows: the 4-year middle term for count four; 3 years for the section 11370.2, subd. (a) enhancement; and 3 years for the prior prison term enhancement. The remaining terms were stayed under Penal Code section 654.

Fulcher contends the trial court erred in: (1) permitting the People to file a second amended information adding the transportation charges, and denying his motion to continue the trial and (2) denying his motion for acquittal on the transportation charges. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

At a preliminary hearing held on June 5, 2006, Chula Vista Police Officer Michael Varga testified as follows: On February 19, 2006, at approximately 11:00 p.m., he was at the Traveler's Inn Hotel located on Woodlawn Avenue, which is in a high crime area known to the police for narcotics, gangs and weapons. Fulcher drove past him. Approximately two minutes later, Varga was leaving the hotel and saw Fulcher's vehicle wrongly parked in a spot marked for handicapped drivers. Fulcher was standing outside the vehicle, which did not have license plates identifying the user as handicapped. Varga asked him about his parking, and Fulcher said he was picking up laundry from a nearby laundromat. Varga ascertained Fulcher was on probation and started to search him. Fulcher ran from Varga, who caught him ten yards away and arrested him. Varga found in Fulcher's pocket a baggie containing 39 rock-like substances and a baggie containing a white powdery substance; the contents of both bags later tested presumptively positive for cocaine base.

On August 14, 2006, trial proceedings began, and the People filed an amended information alleging one count of possession/purchase of cocaine base for sale and one count of possession for sale of a controlled substance. The next day, the prosecutor moved to file a second amended information adding two counts of transporting controlled substances under section 11352, subd. (a), and two additional enhancements under section 11370.2, subd. (a). The trial court granted the motion to amend the information, ruling, "Well, having reviewed the preliminary hearing transcript and having had reference to the earlier dosage units . . . certainly, the usable quantity element is met. . . . In connection with the driving, the testimony is that that is approximately two minutes.

. . . [] So in either event either the theory that the drugs were on his person and he ran away or under the theory that the drugs were on his person and he was driving in a car two minutes before the officer contacted him, as I read [CALCRIM 2300] the facts in support of the request for the amendment are contained within the nature of the facts that were testified to previously." Fulcher moved for a continuance, arguing, the addition of the transportation charge required a different strategy, and "we might want to seek out and find . . . additional witnesses" to prepare an adequate defense. The trial court denied the motion.

Varga's trial testimony was in accord with his preliminary hearing testimony. Fulcher testified as follows: "[E]arlier that evening . . . several of us had got together and put money together and I went and picked up some cocaine and we was all going to party." He bought an ounce and a quarter of powder and rock cocaine, and his siblings and his sister's boyfriend were going to join the party at his house. Before going home, he went to a laundromat to speak to Steven King, who was inside. He left the laundromat and walked to the parking lot towards his vehicle; he saw the police, who stopped him.

DISCUSSION

I.

We reject the contention the trial court abused its discretion in permitting the People to amend the information. "The general framework within which criminal pleadings are amended is statutorily derived and has remained constant since 1911. [Citation.] [Penal Code] [s]ection 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination. If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted. The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion. Moreover, a trial court correctly exercises its discretion by allowing an amendment of an information to properly state the offense at the conclusion of the trial. Similarly, where the amendment makes no substantial change in the offense charged and requires no additional preparation or evidence to meet the change, the denial of a continuance is justified and proper." (People v. Winters (1990) 221 Cal.App.3d 997, 1005.) " 'Continuances shall be granted only upon a showing of good cause,' " and the moving party must show that the evidence could be obtained within a reasonable time. (People v. Beeler (1995) 9 Cal.4th 953, 1003.)

"In determining whether a denial [of a continuance ] was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.] One factor to consider is whether a continuance would be useful." (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. (People v. Beames (2007) 40 Cal.4th 907, 920.)

Transporting a controlled substance in violation of section 11352 subdivision (a) occurs when a person moves contraband from one place to another. (People v. Arndt (1999) 76 Cal.App.4th 387, 398.) Varga's preliminary hearing testimony adduced sufficient facts supporting the transportation charges. He saw Fulcher drive past him; approximately two minutes later he saw Fulcher again, at a different location. Varga searched Fulcher and found the narcotics. The reasonable inference was that Fulcher had the narcotics on his person the entire time, and moved it from one location to another. the trial court did not err in permitting an amendment of the information. We further conclude the trial court did not abuse its discretion by denying Fulcher's request for a continuance, because he failed to demonstrate with any specificity what evidence he needed to defend against the additional charges, or that the evidence would be useful. He also failed to demonstrate that he could produce the evidence within a reasonable time.

II.

Fulcher contends the trial court erred in denying his motion for judgment of acquittal on the transportation charges made at the end of the prosecution's case. Penal Code section 1118.1 provides in relevant part: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."

" 'The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citation.] 'The purpose of a motion under [Penal Code] section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.' [Citations.] The question 'is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citations.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review." (People v. Stevens (2007) 41 Cal.4th 182, 200.)

"[T]o satisfy the element of 'transportation' required by . . . section 11379, the evidence need only show that the vehicle was moved while under the defendant's control." (People v. Emmal (1998) 68 Cal.App.4th 1313, 1318.) Here, the trial court denied the motion, stating, "there is evidence and the finder of fact should be the one to determine whether or not it is proof beyond a reasonable doubt." We agree and point to Varga's trial testimony, which was essentially the same as his preliminary hearing testimony that we discussed above. In light of this conclusion, we need not address the People's argument, based on People v. Ormiston (2003) 105 Cal.App.4th 676, 682-683, that Fulcher's running from the police provided an alternative basis for the transportation convictions.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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^[1] All further statutory references are to the Health and Safety Code unless otherwise stated.