P. v. Gaines
Defendant Rodney Louis Gaines appeals from a judgment of conviction entered after a jury convicted him of possession of cocaine base and possession of a smoking device. Appellant claims that the trial court erroneously denied his Pitchess motion, that the trial court erred in instructing the jury on simple possession as a lesser included offense of sale or transportation of cocaine base, that there was insufficient evidence to support the conviction of possession, and that the court abused its discretion in denying his motion for a continuance to allow him to review the presentence report. He further contends the court committed Cunningham error in selecting the upper term for the possession count, and abused its discretion in selecting the upper term and in denying his request to strike his prior felony convictions. Finally, appellant contends his sentence constituted cruel and/or unusual punishment under either the California or United States Constitutions. Court find the trial court erred in denying appellants Pitchess motion and remand for a limited hearing on that issue. In all other respects the judgment is affirmed.
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