People v. White

Decision Date30 December 2021
Docket NumberC089037
CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. APONDO LATRAIL WHITE, JR., Defendant and Appellant.

NOT TO BE PUBLISHED

MAURO J.

Police stopped a vehicle in which defendant Apondo Latrail White Jr., was a passenger and discovered heroin, cocaine and a handgun. A jury convicted defendant of possession of cocaine and heroin while armed with a loaded firearm, transportation of cocaine and heroin, possession of cocaine and heroin for sale, and possession of a firearm by a felon. The trial court sentenced defendant to 10 years eight months in prison.

Defendant now challenges the police stop, the firearm-related charges and enhancements, and the admission of evidence of his prior convictions. We will modify the judgment to stay, under Penal Code section 654, [1] the sentence imposed on defendant for being a felon in possession of a firearm under section 29800 and affirm the judgment as modified.

BACKGROUND
A

A security guard working the graveyard shift at Capitol Yards an apartment complex in West Sacramento, was approached by a resident who said a Prius had parked in a space reserved for individuals with disabilities and four or five people had gotten out of the car. The guard checked on the car and saw that it did not have a disability placard or resident sticker. Per policy, the guard called to have the car towed away. When the tow truck arrived, the guard noticed some individuals in the courtyard by the swimming pool.

When the tow truck driver had loaded up the vehicle, the guard noticed the individuals were wandering around the complex. He called the police because the individuals were hanging out and did not appear to be residents. The police dispatcher asked for the license plate number of the towed car and the guard gave it to her.

Gregory Lang, a West Sacramento motorcycle officer, received a dispatch that a security guard from the Capitol Yards apartment complex reported that a car parked there was towed and the license plate came back as an armed and dangerous vehicle out of Stockton. When Officer Lang got there, a security guard walking out of the parking lot was pointing at two black males on the sidewalk. Officer Lang took the security guard to be the reporting party. Officer Lang saw a car drive out of a trailer park and stop at the curb. He watched the two males get into the car. One got in the front passenger seat and the other got in the backseat behind the driver. Officer Lang was radioing his observations to responding units. Another officer in a patrol car arrived with his lights activated. The officers conducted a traffic stop at gunpoint.

Both officers were yelling instructions to the occupants to remain stopped and show their hands, while other officers were arriving. Officer Lang noticed that the passenger in the back seat put his right hand above his head and dropped his left hand behind the driver's seat like he was trying to conceal something. He advised other officers arriving on the scene that the passenger in the back might be concealing something. This passenger -- J.O., a juvenile -- then slowly raised his left hand over his head.

Officers ordered the occupants out of the vehicle. Officer Lang looked to see if anything had been concealed by the passenger in the back and saw a handgun on the floorboard behind the right front passenger seat.

Detective Jerry Watson retrieved a silver/black Colt 1911-style nine-millimeter firearm that had been partially tucked under the front passenger seat. The magazine in the butt of the gun was loaded with seven rounds but the chamber was empty.

In the door well on the front passenger side, Detective Watson found a small bag containing a brown substance. It appeared to be tar heroin. In the glove box, there was a baggie containing a white substance that appeared to be cocaine. Behind that bag were numerous little baggies containing a brown substance that appeared to be tar heroin, as well as a box of sandwich baggies. The parties stipulated that the brown substance was heroin and the white substance was cocaine.

The driver of the car was Charmeya Petty. She was driving a four-door, gray Honda Civic that she owned. Petty drove from work to pick up defendant in downtown Stockton. She saw defendant outside with some people, but just defendant and another individual got into her car. Defendant said he needed Petty to take him to Sacramento.

Defendant told Petty to drop them off. About 15 minutes later, defendant called and asked her to pick them up. Petty went back and saw defendant and the other person walking towards her car. Defendant got in the passenger seat and the other person got in the back seat behind defendant. Petty was leaving when the police appeared with lights and sirens. The police were shouting to put their hands up and she did. Petty noticed that the person in the back was "shuffling, like he was looking for something on the floor . . . ." Defendant had his hands up. The police asked them to get out of the car. Defendant got out first followed by the individual in the back and then Petty. Petty testified she did not know how drugs or a gun had been placed in the car.

An officer searched defendant and found $160 in cash in his front and back pockets. There were three twenties, five tens, nine fives, and five ones.

Later, police officers drove the guard in a patrol car to the scene and asked if any of the individuals looked familiar. The guard testified that he recognized one of them from the apartment complex. An officer later testified that the guard identified two males.

B

The prosecution introduced evidence of three prior incidents involving defendant.

A Stockton police officer testified that in 2009 the officer was engaged in surveillance of an area known for drug dealing when he observed defendant. Defendant shook hands with a homeless person, who then put his hand in his pocket, indicating to the officer that illegal activity was occurring. The officer approached defendant who agreed to be searched. The officer asked defendant if he had anything in his mouth. When defendant lifted and lowered his tongue quickly, the officer saw a piece of plastic under his tongue. The officer asked defendant to open his mouth again and defendant tried to swallow baggies of narcotics. Defendant eventually spit out 14 baggies that the officer recognized as containing cocaine. Defendant stated that the drugs were his but later admitted that he was holding them for someone else. Defendant said he initially had 25 bags under his tongue. Defendant was 16 years old.

A Manteca police officer testified that in 2010 he stopped a car that defendant was driving because it did not have a front license plate. The officer searched the car and found a baggie of marijuana, a bag of pills that defendant admitted were Vicodin, and a Mentos container with six packages of rock cocaine. Pursuant to a search warrant, police searched defendant's residence and found a handgun, a hundred pills similar to those found in the traffic stop, and packages of cocaine. Defendant was arrested for sale of the pills and cocaine.

In 2014, another Manteca police officer testified that he stopped a car in which defendant was a passenger after it rolled through a red light. The officer recognized defendant and went back to the patrol car to determine if there were warrants for defendant's arrest. Defendant fled the car on foot. The officer pursued and saw defendant stop by some bushes. The officer found a handgun in the bushes and a magazine in some other bushes further on. Defendant was arrested for possession of a stolen firearm, possession of a loaded firearm in public, and being a felon in possession of a firearm.

C

Detective Gary Hallenbeck with the Yolo County Sheriff's Department testified as an expert on whether cocaine or heroin was possessed for sale or personal use and the methodology for selling those drugs. Detective Hallenbeck said drug dealers use juveniles to help sell drugs because they are impressionable and take direction, and if a juvenile is caught, the law is less strict than for an adult and a juvenile potentially will not go to prison for an extended period of time. Drug dealers commonly bring along another person as a bodyguard, who more than likely has a gun. A drug dealer involved in a transaction will know that his partner has a gun to protect him.

A phone that belonged to defendant had been seized and searched pursuant to a warrant. When shown a photograph taken from defendant's cell phone depicting handguns, Detective Hallenbeck testified that the photograph was consistent with someone selling drugs, as it served as a warning to others.

D

The jury convicted defendant of possession of cocaine and heroin while armed with a loaded firearm (counts 1 and 4, Health & Saf. Code, § 11370.1, subd. (a)), transportation of cocaine and heroin (counts 2 and 5, Health & Saf Code, § 11352, subd. (a)), possession of cocaine and heroin for sale (counts 3 and 6, Health & Saf. Code, § 11351), and possession of a firearm by a felon (count 7, § 29800, subd. (a)(1)). The jury found true allegations that defendant was personally armed with a firearm in the commission of the offenses charged in counts 2, 3, 5 and 6 (§ 12022, subdivision (c)).

The trial court sentenced defendant to an aggregate prison term of 10 years eight months, consisting of the following: the middle term of four years on count 2 plus four years for the firearm enhancement, and one-third the middle term of 16 months on count 5 plus 16 months for the firearm enhancement. The trial court imposed a two-year concurrent sentence on count 7 and stayed sentences on the other counts under...

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