P. v. Bowers

Filed 3/30/06 P. v. Bowers CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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In case No. 04F3579, based on the search of his residence on May 12, 2004, defendant Harold Lynn Bowers was charged with possession of cocaine base for the purpose of sale (Health & Saf. Code, § 11351.5; count 1), maintaining a place for the use or sale of controlled substances (Health & Saf. Code, § 11366; count 2), and attempting to destroy evidence (Pen. Code, §§ 135/664; count 3); the information also alleged a prior strike conviction. (Pen. Code, § 1170.12.)

A jury acquitted defendant of the charged offenses on counts 1 and 3, but convicted him on count 2; on count 1, the jury convicted defendant of the lesser included offense of being in possession of cocaine base (Health & Saf. Code, § 11350). The trial court thereafter found the strike allegation true.

In case No. 045721, based on a traffic stop made on May 8, 2004, defendant was charged with possession of cocaine base for the purpose of sale (Health & Saf. Code, § 11351.5; count 1), sale or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 2), and criminal threats (Pen. Code, § 422; count 3); the information also alleged the same prior strike conviction as in case No. 04F3579. The prosecutor dismissed count 3 before trial. The jury thereafter acquitted defendant on count 1 (and also on the lesser included offense of possession of cocaine base), but convicted him on count 2. The trial court found the strike allegation true.

In a joint sentencing proceeding, the trial court imposed an aggregate prison term of 11 years and four months, computed as follows: five years (the upper term) for transportation of a controlled substance in case No. 04F5721, plus eight months consecutive for possession of cocaine base in case No. 04F3579, all doubled pursuant to the Three Strikes law, with sentence stayed on defendant's conviction for maintaining a place for the use or sale of controlled substances in case No. 04F3579.

Defendant contends: (1) In case No. 04F5721, the trial court abused its discretion by denying defendant's Kellett motion (Kellett v. Superior Court (1966) 63 Cal.2d 822), which sought to dismiss the felony complaint because the prosecution had improperly failed to join it with a pending misdemeanor case. (2) In case No. 04F5721, the trial court erred by failing to instruct the jury that Lynda Jackson was an accomplice as a matter of law, and defendant's conviction for transporting a controlled substance must be reversed because Jackson's testimony was inadequately corroborated. (3) Insufficient evidence supported the trial court's finding as to both cases that defendant had suffered a prior strike conviction. (4) The trial court's imposition of the upper term in case No. 04F5721 violated defendant's constitutional rights to jury trial and due process. (5) The abstract of judgment and minute order must be corrected as to case No. 04F3579 to show the statute under which defendant was convicted. The People concede the last point.

We conclude defendant's claim of Kellett error (Kellett, supra, 63 Cal.2d 822) has merit, requiring the reversal of his conviction in case No. 04F5721. This conclusion moots defendant's second and fourth contentions. Defendant's third contention lacks merit. Accordingly, we shall reverse in part, affirm in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Case No. 04F5721

Because the charges in case No. 04F5721 arose first, even though the complaint was filed after that in case No. 04F3579, we begin with the trial evidence in case No. 04F5721.

At 11:50 a.m. on May 8, 2004, while conducting a traffic stop, Redding Police Officer Scott Hyatt saw defendant driving on Boulder Creek Drive. Knowing that defendant had a suspended driver's license, Hyatt got his partner to begin a stop of defendant. Hyatt joined his partner about 30 seconds later. By then, defendant was sitting in the front passenger seat and a woman (Lynda Jackson, defendant's then wife) was sitting in the driver's seat. Another passenger, Mattie Hill, was in the back seat.

After explaining the reason for the stop, Officer Hyatt asked Jackson to step out of the car. Concluding that she was under the influence of a controlled substance, Hyatt arrested and searched her; he found a â€