P. v. Petway

Filed 7/7/06 P. v. Petway CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus and Frederick N. Wapner, Judges. Modified and affirmed.

Marilee Marshall & Associates and Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Herbert S. Tetef and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Acosta Petway appeals his conviction for sale of cocaine base and possession of cocaine base for sale. He claims he was denied a fair trial by the denial of his motion to compel disclosure of the observation post from which the officers allegedly watched him engage in a drug transaction. We find no error in this ruling. He also claims the court should have stricken rather than stayed his Health and Safety Code prior conviction. We agree, and order the abstract of judgment modified accordingly.

FACTUAL AND PROCEDURAL SUMMARY

On June 1, 2004, Los Angeles Police Officers Fabiola Ledesma and Eliena Tapia were conducting a narcotics investigation from an observation post inside a building in downtown Los Angeles. Using binoculars to look out the window, the officers saw defendant walk southbound on Main Street towards 7th Street. Defendant made contact with Matthew Tapia, who was walking northbound on Main. The two men had a brief conversation, then Tapia handed defendant some paper currency. Defendant exposed a clear plastic bindle that contained off-white solids. Defendant opened the bindle, removed several off-white solids, and gave them to Tapia.

The men walked together toward 7th Street. Tapia headed eastbound, and defendant remained on the corner. Officers on the ground detained Tapia for a narcotics violation. Defendant walked quickly in a northbound direction on Main Street. He began to run, and tossed the bindle over a construction wall. Police officers took defendant into custody. The officers discovered $300 in defendant's pocket, and recovered the bindle from behind the wall. The off-white solids found on Tapia and in the bindle were tested and determined to be cocaine in the form of cocaine base.

Defendant was charged with one count of sale, transportation, or offer to sell cocaine base and one count of possession of cocaine base for sale. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5; all statutory references are to this code unless otherwise indicated.) It was alleged he suffered four prior prison terms and one strike prior, and that he was previously convicted of two Health & Safety Code violations within the meaning of section 11370.2, subdivision (a). Defendant admitted the priors and waived jury trial. The court found him guilty on both counts. Defendant was sentenced to the midterm of four years on count 1, which was doubled pursuant to the Three Strikes law. The court struck the prior prison term enhancements, and stayed sentence on the Health and Safety Code prior. This is a timely appeal from the judgment of conviction.

DISCUSSION

I

Officer Ledesma testified at the preliminary hearing, but did not disclose the precise location of her observation post. Defendant sought discovery of this information. Officer Tapia, who was at the observation post with Officer Ledesma on the day of the incident, testified at the hearing on the discovery motion that she saw defendant engage in the narcotics transaction at 7th and Main. When asked to disclose the location of the observation post, she asserted privilege pursuant to Evidence Code section 1040. Following an in camera hearing, the court denied defendant's motion to compel disclosure.

Under Evidence Code section 1040, a public entity has a privilege to refuse to disclose official information acquired in confidence by a public employee in the course of his or her duty, if â€