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People v. Martin

December 24, 2008

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DEMOND ANTHONY MARTIN, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Richard Romero, Judge. Affirmed. (Los Angeles County Super. Ct. No. NA075140).

The opinion of the court was delivered by: Flier, J.

CERTIFIED FOR PUBLICATION

Following appellant Demond Anthony Martin's arrest for unrelated reasons, cocaine base was found on his person during a prebooking search. He was convicted of possession of a controlled substance, in violation of section 11350, subdivision (a) of the Health and Safety Code (section 11350(a)).*fn1 His sentence was two years in prison, doubled for one prior strike conviction. He contends:

(1) As the charge and the evidence concerned possession of cocaine base, but the jury found him guilty of possession of cocaine, there is insufficient evidence to support his conviction.

(2) Review is required of the in camera proceedings held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We reject appellant's first issue for several reasons, including that there was sufficient evidence that he possessed a controlled substance, he waived any problem over the distinction between cocaine and cocaine base, and he suffered no prejudice from that distinction. We further find no error in the Pitchess proceedings. We therefore affirm appellant's conviction.

DISCUSSION

1. The Conflicting References to Cocaine and Cocaine Base

A. The Record

At the preliminary hearing, a police officer testified that during a prebooking search, a plastic bindle was recovered between the two socks that appellant was wearing on his left foot. "Within the bindle there were white rocks, [containing] what [the officer] believed was rock cocaine." Chemical analysis showed that the substance was "1.17 grams of cocaine base."

The felony information clearly named cocaine base as the controlled substance in question. It alleged: "On or about July 28, 2007, in the County of Los Angeles, the crime of POSSESSION OF A CONTROLLED SUBSTANCE in violation of HEALTH & SAFETY CODE SECTION 11350(a), a Felony, was committed by DEMOND ANTHONY MARTIN, who did unlawfully possess a controlled substance, to wit, cocaine (base)."*fn2

At various points during the trial, the substance was referred to both as cocaine base and cocaine.

In opening statement, the prosecutor said chemical tests would show that the substance was "rock cocaine, sometimes called crack cocaine or cocaine base." In contrast, defense counsel asserted in opening statement that the evidence would show appellant "did not possess cocaine" on the day in question.

The witnesses at the trial consistently referred to the substance as cocaine base or rock cocaine, and not cocaine. Thus, the jail booking officer who found the substance in appellant's socks testified that he thought the substance was "methaphetamine or rock cocaine." Tests performed at the crime lab showed that the substance had a "net weight of 1.17 grams" and "contained cocaine base." A police officer with expertise "in the area of the use of cocaine base" testified that "1.17 grams of cocaine base [was] a useable quantity of cocaine base."

When the court discussed the instructions with counsel, however, it referred to the substance as "cocaine" and not "cocaine base." The court looked at CALCRIM No. 2304, which contains the elements of the crime of possession of a controlled substance. The instruction form has blanks that must be filled in to specify the substance. The court said it was modifying the instruction "to insert, 'cocaine,' of course, into the blank where it talks about ...


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