People v. Crockett
| Citation | 271 Cal.Rptr. 500,222 Cal.App.3d 258 |
| Decision Date | 20 July 1990 |
| Docket Number | No. B041364,B041364 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Darren L. CROCKETT, Defendant and Appellant. |
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., William T. Harter and Donald E. De Nicola, Supervising Deputy Attys. Gen., for plaintiff and respondent.
Darren L. Crockett appeals from the judgment entered following his conviction by jury of possession of cocaine (Health & Saf.Code, § 11350, subd. (a)), findings by the court that he had suffered prior narcotics convictions (Health & Saf.Code § 11370, subds. (a) and (c)) and a finding that he had suffered a prior conviction for which he served a prison term within the meaning of Penal Code section 667.5, subdivision (b). We affirm.
The record of the trial reflects that about 9:15 p.m. on December 8, 1988, Pasadena Police Sergeant Keith Jones, while on patrol in a marked vehicle, saw a Cadillac with two men inside parked at the curb in one of Pasadena's "hot spots," a known location where narcotics are sold. Sergeant Jones pulled alongside the car and asked the driver, who was appellant's father, what he was doing. Appellant's father replied that he was waiting for someone and pointed to a house that was a known location for drug sales. The sergeant, suspicious the two men might be buying cocaine, drove to a location where he could watch the car. A minute later, the Cadillac drove away and the sergeant, noticing the car's right rear taillight and brake light were not working, stopped it for a Vehicle Code violation.
Appellant, who had not been in the car earlier, was sitting in the front passenger seat. The sergeant asked the driver for his license and registration but the driver gave him identification papers rather than the license. Sergeant Jones then called for another police unit for safety purposes as he was alone and might have to search the car. Appellant, the driver, and the third man remained in the car. A minute or two later, after investigator Burgner and Officer Rapagna arrived, Sergeant Jones asked appellant if he would mind exiting the car. Appellant replied he would not and alighted. The sergeant then asked him if he possessed narcotics. Appellant said he did not and, upon request, gave the sergeant permission to search his person. As the sergeant started to reach into appellant's pockets, the sergeant realized appellant's voice sounded "rather funny," and appellant was talking as though something was in his mouth. The sergeant asked appellant to open his mouth and, as appellant did so, he tilted his head back so the sergeant could see the roof of his mouth. The sergeant then placed his hand in appellant's jawbone area and told appellant to lower his mouth. The sergeant did not have to use force to pull appellant's head down as appellant was complying with the request.
The sergeant saw two small off-white rock-like objects resembling cocaine on the tip of his tongue. The officer lowered his hand to appellant's throat and, after putting his other hand on appellant's head to tilt it forward, told appellant to spit them out. The sergeant, feeling a muscle contraction, gently squeezed the sides of appellant's throat for about 20 seconds to keep appellant from swallowing the rocks. There was no struggle and appellant did not cough or gag. Appellant appeared cooperative and made several spitting motions. The sergeant recovered two rocks from the ground nearby. The rocks weighed a total of .08 gram and contained cocaine. The sergeant then gave a ticket to the driver for the taillight violation.
In defense, appellant denied possessing any cocaine on the night in question. Appellant testified that he voluntarily consented to Sergeant Jones' searching him and, after the sergeant gently placed his hand on appellant's neck, another officer put a fist in his back and told appellant to spit the dope out. Appellant suggested that both officers then choked appellant for a minute or so until he eventually was spitting After the jury returned its verdict, the court found appellant had suffered prior drug convictions rendering him ineligible for probation. (Health & Saf.Code, § 11370, subds. (a) and (c).) The court also found appellant had served a prior prison term for previously violating Health and Safety Code section 11350 within the meaning of Penal Code section 667.5, subdivision (b), and imposed a one-year enhancement of appellant's prison sentence. In support of the prior conviction allegations, the prosecution submitted certified copies of the clerk's file entries. The trial court also took judicial notice of the court's files which showed (1) that in 1986 appellant pleaded guilty to selling cocaine and was placed on probation for five years (Case No. A570608); (2) that in 1987 appellant pleaded guilty to possession of cocaine and was sentenced to state prison for two years on June 5, 1987 (Case No. A573460); and (3) that upon appellant's plea in Case Number A573460, the court revoked his probation in Case Number A570608 and sentenced him to state prison for a concurrent three-year sentence.
blood. Later, Sergeant Jones produced narcotics from the police car. Appellant denied it belonged to him.
Appellant contends: Appellant does not contest the finding that he had suffered prior narcotic convictions pursuant to Health and Safety Code section 11370, subdivisions (a) and (c), the effect of which was to deny probation.
Appellant's contention that he was denied the effective assistance of counsel when his counsel failed to litigate a suppression motion is meritless. The record does not establish that counsel's failure to make a suppression motion resulted from ignorance of the facts or the law, nor can it be said that appellant was prejudiced by counsel's failure to bring the suppression motion. 1 (People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233 Cal.Rptr. 404, 729 P.2d 839; People v. Shope (1982) 128 Cal.App.3d 816, 824-825, 180 Cal.Rptr. 567; People v. Shelburne (1980) 104 Cal.App.3d 737, 743-744, 163 Cal.Rptr. 767.)
III
The court found, pursuant to Penal Code section 667.5, that appellant had previously served a prior prison term in a 1987 felony matter, Case No. A573460. Based upon this finding, appellant's sentence was enhanced. Appellant contends the evidence was insufficient to support the finding. Specifically, appellant contends there was insufficient evidence to prove he completed and served the prior sentence. Appellant's contention is not persuasive.
We hold, in agreement with People v. Castillo (1990) 217 Cal.App.3d 1020, 1024, 266 Cal.Rptr. 271, that in an appropriate case an abstract of judgment, along with reasonable inferences from the facts, can provide substantial evidence sufficient to prove defendants served and completed prison terms. (People v. Young (1987) 192 Cal.App.3d 812, 818, 237 Cal.Rptr. 703; People v. Lizarraga (1974) 43 Cal.App.3d 815, 820, 118 Cal.Rptr. 208.) We disagree with the contrary holdings in People v. Jones (1988) 203 Cal.App.3d 456, 249 Cal.Rptr. 840, upon which appellant relies, and People v. Green (1982) 134 Cal.App.3d 587, 184 Cal.Rptr. 652.
Penal Code section 667.5 provides in pertinent part:
In interpreting section 667.5, many courts have discussed its language and its application to the usual, and not so usual, situation. Courts have deciphered the language of this provision to determine what is a "prior separate prison term." 3
The discussions in People v. Jones, supra, 203 Cal.App.3d 456, 249 Cal.Rptr. 840 and People v. Green, supra, 134 Cal.App.3d 587, 184 Cal.Rptr. 652 concentrated on whether the...
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