P. v. Wisneski
Filed 9/19/13 P. v. Wisneski CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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 CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD WISNESKI,
Defendant and Appellant.
C071083
(Super. Ct. No. 11F03557)
Defendant
Richard Wisneski entered a plea of no contest to transportation of cocaine from
one county to a noncontiguous county (Health & Saf. Code, § 11352, subd.
(b); undesignated section references are to this code; count one) and
possession of cocaine for sale (§ 11351; count two) and, in connection with
both counts, admitted that the amount of cocaine exceeded 20 kilograms by weight
(§ 11370.4, subd. (a)(4)). Defendant
entered his plea in exchange for a sentencing lid of 18 years. In entering his plea, defendant understood
that the trial court would consider a
“split†term, but not probation.
The court
sentenced defendant on count one to the low term of three years plus 15 years
for the quantity enhancement. The court
ordered a “split†sentence under realignment, that is, defendant serves 13 of
the 18 years in county jail and the remaining five years on
(Pen. Code, § 654).
title="">[1]
Defendant
appeals. The trial court granted
defendant’s request for a certificate of
probable cause (Pen. Code, § 1237.5).
Defendant contends the court erred in imposing the enhancement. We affirm the judgment.
FACTS
About 9:30 p.m. on May 16, 2011, an officer pulled a car over on Interstate
5. David Ciarelli was driving and
defendant was his front seat passenger.
The officer’s canine “showed interest†and a search of the trunk
revealed three zipped duffel bags containing a total of 35 kilos of cocaine
valued at $10,000 per kilo. Each kilo
was vacuum sealed in clear plastic.
Under the cocaine, officers found defendant’s shoes.
Defendant
claimed he did not know about the narcotics in the trunk. He claimed he was going to Oregon
to a skateboard competition. Officers
found a skateboard on the backseat.
Ciarelli said he was going to Oregon
to a skate park and asked defendant, a skateboarder, if he wanted to go with
him. Ciarelli asserted that he had been
instructed to pick up the car at the airport and to transport the bags to a
skate park in Oregon. A receipt showed Ciarelli rented the car
about 2:15 p.m. on May 16, 2011, at the Los
Angeles airport.
Ciarelli stated that he put the bags in the car. Ciarelli had transported bags to Oregon
two months earlier and had received $1,500.
Officers found $500 in an envelope in Ciarelli’s pants pocket.
Officers
discovered calls to and from “Gregg†or “GF†on defendant’s and Ciarelli’s cell
phones which were found in the passenger area of the car. Coded text messages regarding the cocaine to
and from Gregg were found on defendant’s phone.
Ciarelli’s cousin, Gregg Fraijo, had previously been married to
defendant’s mother.
DISCUSSION
I
Defendant
contends the trial court erred in imposing the quantity enhancement because it
was either uninformed as to the scope of its discretion under section 11370.4
to strike the enhancement or abused its discretion in failing to consider the
circumstances in mitigation which warranted striking the enhancement. We disagree.
Background
Prior to
sentencing, defendant submitted several reference letters attesting to his good
character. At sentencing, the court
indicated it had reviewed the probation report as well as defendant’s character
letters. The prosecutor estimated that
the cocaine’s street value was $3.5 million.
The prosecutor asserted that the quantity, packaging, and use of a
rental car reflected criminal sophistication and that all levels of
participation in a large-scale operation are required for the operation to
succeed. Defense counsel conceded that
defendant knew Ciarelli was transporting drugs but claimed defendant did not
know the exact quantity. Defense counsel
requested that defendant’s split sentence be more favorable to defendant than
to Ciarelli. Defense counsel claimed
that any sophistication was by persons other than defendant and Ciarelli. Defense counsel requested that the trial
court impose minimum fees and fines. The
prosecutor retorted that there was evidence that defendant knew they were
transporting drugs as shown by his text messages.
The court
acknowledged that defendant did not have a criminal history but agreed with the
prosecutor that all levels are required for a
enhancement and split the sentence as recommended by the probation
officer. Defendant did not asks the
court to strike the enhancement.
Analysis
Section
11370.4 gives the court discretion to either impose the full enhancement or to
strike the enhancement in its entirety.
v. Ruiz (1992) 3 Cal.App.4th 1251, 1254-1256; People v. Harvey (1991) 233 Cal.App.3d 1206, 1229-1231.) On a silent record, we presume that a trial
court was aware of its discretion to strike the enhancement and chose not to do
so. (Evid. Code, § 664; see
257, 261.) Moreover, the statute
expressly grants discretion to the court to strike. (§ 11370.4, subd. (e).)
Here, the
trial court was required to impose the full 15-year enhancement or to strike
it. There was no request that the
enhancement be stricken. The court was
aware of defendant’s lack of a criminal history and that his reference letters
attested to his good character.
Although defense counsel asserted that defendant was unaware of the
amount of cocaine in the trunk of the car, defendant, by his plea, admitted
knowledge of the nature and presence of the cocaine, that he was transporting
the same, and that the amount exceeded 20 kilograms (actual quantity was 35
kilograms, valued at $3.5 million). When
defendant was initially questioned, he denied knowing anything about the
cocaine in the trunk. But coded text
messages about the cocaine were found on his cell phone. Defendant has failed to demonstrate the court
did not read the statute or was unaware of its discretion or that it abused its
discretion in imposing the enhancement.
II
We note
errors in preparation of the abstract of judgment. Neither count one nor count two is properly
described. Count one, a violation of
section 11352, subdivision (b), is transportation between noncontiguous
counties, not possession for sale, and count two, a violation of section 11351,
is possession for sale, not just possession.
DISPOSITION
The trial
court is directed to prepare a corrected abstract of judgment, properly
describing counts one and two, and to forward a certified copy to the
appropriate authorities. The judgment is
affirmed.
NICHOLSON , J.
We concur:
BLEASE , Acting P. J.
BUTZ , J.
the same, entered a guilty plea on the same day, and received the same sentence
on the same day. This appeal does not
involve codefendant Ciarelli.
name="_ftn2" title="">[2] The facts are taken from the
reporter’s transcript of the preliminary hearing.
