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People v. Conerly

July 31, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT JEROME CONERLY, DEFENDANT AND APPELLANT.



(Alameda County Super. Ct. No. C154762A). Judge: Hon. Leopoldo E. Dorado.

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

On appeal from a conviction for selling cocaine, appellant Robert Jerome Conerly contends the trial court abused its discretion in denying his motion to sever his trial from that of his codefendant. He also challenges the sufficiency of the evidence supporting his conviction. We reject these challenges to the conviction but shall modify the judgment to strike certain sentence enhancements the trial court stayed following their imposition.

FACTUAL AND PROCEDURAL BACKGROUND

During the evening of February 2, 2007, a team of Oakland police officers was conducting a series of narcotic "buy-bust" operations in which certain officers would arrest drug dealers after undercover officers bought narcotics on the street. Two of the undercover officers, Francisco Martinez and Eric Barangan, were working together in the same car.

As Officer Martinez was driving in an area known for drug dealing, he saw four men standing in front of a liquor store. Officer Barangan had seen only two men in the vicinity of the liquor store, although he acknowledged it was possible there were additional people going in and out of the store during the buy-bust operation. Officer Martinez made eye contact with one of the men and waved at him. The man maintained eye contact, nodded his head up and down, and waved to the officer to come over. In court, Officer Martinez identified the man as appellant.

Officer Martinez pulled his car over to the side of the road, about 20 to 30 feet away from where appellant was standing. He exited the vehicle and approached appellant, who asked, "What do you want?" The officer replied that he wanted a "solid," which is a common street term for a $20 or $25 piece of rock cocaine.

Appellant then pointed to a man standing nearby, whom Officer Martinez identified at trial as Rakim Washington, also known as Jerry Palms. Appellant told Officer Martinez to follow Palms around the corner. Officer Martinez followed Palms around the corner and once they stopped, Palms told Officer Martinez to hold out his hand, then sprinkled small pieces and crumbs of an off-white, rock-like substance into the officer‟s hand. Officer Martinez gave Palms a single $20 of controlled currency, which is money that has been photocopied for identification purposes. The substance was later determined to be .34 grams of cocaine base. Officer Martinez gave an "arrest signal" to Officer Barangan as he was walking back to the car.

After seeing the arrest signal from Officer Martinez, Officer Barangan contacted the other members of the arrest team by radio. They arrived within seconds and handcuffed appellant and Palms. The arresting officers did not find the controlled currency on Palms, nor did they find a stash of narcotics in the area. Officers Barangan and Martinez identified appellant and Palms to the other officers as the men with whom Officer Martinez had dealt. Officer Barangan had kept appellant in his sight throughout the entire incident.

The Alameda County District Attorney filed an information charging appellant and Palms with the sale of cocaine. (Health & Saf. Code, § 11352, subd. (a).) The district attorney also alleged that appellant had seven prior felony convictions. The first prior conviction was alleged as a prior narcotics conviction under Health and Safety Code section 11370, subdivisions (a) and (c). The second prior conviction was likewise alleged as a prior narcotics conviction (Health & Saf. Code, § 11352, subd. (a)), and was further alleged to come within the purview of Penal Code section 1203.07, subdivision (a)(11), and Health and Safety Code section 11370.2, subdivision (a). The third prior conviction was alleged under Penal Code section 4532, subdivision (a)(1), as an escape from custody while misdemeanor charges were pending. The last four prior conviction allegations were made under Penal Code section 667.5, subdivision (b), as one-year enhancements for separate prior prison terms served for a felony conviction. In addition, the fifth prior conviction was alleged as a strike. (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The information also contained four prior conviction allegations against Palms.

Appellant and Palms were jointly tried before a jury. At trial, Officers Barangan and Martinez each made an in-court identification of appellant as the person whom Officer Martinez first contacted during the drug sales transaction. Officer Martinez identified appellant with 100 percent certainty.

An expert witness testified that some drug transactions involve two players. One player, identified as the "director," initially interacts with the prospective customer and directs him to the other player, who actually sells the drugs. When the expert witness was given a hypothetical based on Officer Martinez‟s testimony describing the interaction with appellant and Palms, he stated that he would consider the person asking, "what do you want," to be a director.

The jury found appellant guilty of selling cocaine. The court dismissed the first and third prior conviction allegations on the prosecutor‟s motion. The court found true the allegations of the remaining prior prison term and prior conviction allegations, including the allegation that appellant had suffered a prior strike.

The court imposed the mid-term of four years for selling cocaine and doubled it because of the prior strike. The court also imposed a term of three years for the prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)), and imposed but stayed the one-year terms for each of the four remaining prior prison term enhancements alleged under Penal Code section 667.5, subdivision (b). The total unstayed prison term was 11 years. Appellant filed a timely notice of appeal.

DISCUSSION

I. Motion to Sever

Appellant contends the court erred in denying his motion to sever his case from that of his codefendant, Palms. He asserts that Palms would have testified in his favor had such a motion been granted, assuming that the trial of Palms were conducted first. For the reasons that follow, we conclude there was no abuse of discretion in denying appellant‟s request to sever.

A. Facts

Before trial, the prosecutor had offered that both appellant and Palms could plead guilty and each receive a three-year sentence. The offer was a "package deal" that had to be accepted by both defendants. Palms was ...


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