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THE PEOPLE v. KRISTINA ANN LEWIS

November 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KRISTINA ANN LEWIS, DEFENDANT AND APPELLANT.



Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge; Thomas Goethals, Judge. Affirmed in part and reversed in part. (Super. Ct. No. 08SF0007)

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

P. v Lewis CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

A jury convicted defendant Kristina Ann Lewis of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and a syringe (Bus. & Prof. Code, § 4140). Defendant admitted she suffered a prior conviction for which she served a prison term. (Pen. Code, § 667.5, subd. (b).) The court suspended imposition of sentence and placed defendant on probation for three years. On appeal defendant contends the prosecutor committed misconduct and the court improperly found true the prior conviction allegation. Defendant is correct on this latter contention; we reverse the true finding of a prior conviction and remand the matter to the trial court. In all other respects, we affirm the judgment.

FACTS

On the morning of December 31, 2007, Deputy Lawrence Hahn responded to a report of a structure fire at a house. In the garage, he spoke to Michael Brown and Leisol Garcilazo. Garcilazo appeared to be under the influence of a stimulant like methamphetamine or cocaine.

Hahn entered the house, which was still smoky, and saw defendant. He asked her if she had any identification. Defendant said it was in an upstairs bedroom. Unlike Garcilazo, defendant did not appear to be under the influence of a stimulant. When Hahn asked defendant if she lived in the house, she replied she had stayed there off and on for about one year with Brown and Garcilazo.

Hahn and defendant went upstairs to a bedroom defendant said she shared with Garcilazo. On the floor was an orange cap Hahn recognized as belonging to a hypodermic needle. The body of a needle was plainly visible on a nightstand. A plunger was found in a laundry basket.

Hahn asked defendant if there were any more needles in the house. She replied there might be, but they were old and belonged to her, and she "was trying to clean up."

A Jack and Jill bathroom adjoined the subject bedroom and another bedroom. In a bathroom drawer was a baggie containing one gram of methamphetamine (a useable amount) and some makeup, toothbrushes, and feminine napkins. Defendant stated the methamphetamine belonged to her and Garcilazo and they had both used it the previous night.

Hahn arrested defendant and Garcilazo and took them to the police station. After being advised of her rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant said she had tried to ingest the methamphetamine by mixing it in coffee or juice when she and Garcilazo used it the previous night, and Garcilazo had smoked methamphetamine in the bathroom that morning. She said she did not want Garcilazo "to get in trouble for methamphetamine."

Hahn did not record the conversation because he lacked an accessible recording device. He did not state in his police report that defendant admitted to possessing methamphetamine. But Hahn's police report did include defendant's statements made at the police station about having tried to ingest the methamphetamine when she and Garcilazo had ...


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