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THE PEOPLE v. FRANCISCO TABORA

November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FRANCISCO TABORA, DEFENDANT AND APPELLANT.



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

P. v. Tabora

CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Francisco Tabora (appellant) appeals his conviction by jury trial of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.)*fn1 He contends his trial counsel rendered ineffective assistance of counsel in failing to renew his suppression motion in the trial court. He also contends the court erred in imposing various fines, fees and assessments. We affirm.

BACKGROUND

On the afternoon of July 26, 2008, San Francisco Police Officer Cota and two other officers were on patrol in plain clothes and an unmarked car in San Francisco's Tenderloin neighborhood. Cota wore a police star on a chain around his chest, but could not recall whether it was "in" or "out" at that time. As they passed by the Brown Jug, a neighborhood bar associated with underage drinking, Cota saw appellant sitting at a table near the bar's door. Cota suspected that appellant might be under age 21,*fn2 decided to investigate, and told San Francisco Police Officer Watts, who was driving, to stop the patrol car.

Cota walked into the bar. When Cota was about 10 feet away, appellant looked up, saw Cota, grabbed the jacket he was holding on his lap and threw it on a chair about four feet away from him. Cota walked over to the jacket and picked it up by the collar. The jacket felt heavy, and when Cota looked down, he noticed a 20-ounce water bottle next to two baggies of suspected crack cocaine in the jacket's right pocket. Appellant was then placed under arrest. The baggies were later found to contain a total of 9.03 grams of cocaine base.

San Francisco Police Officer Guerrero, testifying as an expert in possession of cocaine base for sale, opined the cocaine rocks seized were packaged for possession for sale. The water bottle was consistent with cocaine sales because often individuals keep the plastic-wrapped cocaine in their mouths and use the water to swallow the wrapped rocks if approached by the police. He said the two baggies contained cocaine rocks of different sizes and contained more than a usable quantity. Some rocks appeared to be "$20 shots" and others "[$10] shots." One baggie had 18 of the larger rocks, with a total value of about $360. The baggie with the smaller rocks contained about 20 rocks, with a total value of about $200. Guerrero also opined that, based on the quantity of the rocks and the absence of a crack pipe or other means of ingestion, the cocaine was possessed for sale.

The Defense

Appellant testified he went to the Brown Jug to meet some friends. When he arrived, he sat down next to one of his friends at the friend's table. Appellant said the jacket with the cocaine and water bottle did not belong to him; it was already on the chair next to him when he sat down. Appellant said he did not remember touching the jacket when Cota entered the bar.

DISCUSSION

I. Trial Counsel Was Not Ineffective in Failing to Renew the Suppression Motion

Appellant contends he was denied the effective assistance of counsel because his defense counsel failed to renew his suppression motion in the trial court. He argues the warrantless search of his jacket was unconstitutional because the contents of the jacket pocket were not in plain view and he did not discard or abandon the jacket by placing it on a nearby chair within his reach. He appears to argue that Cota's handling of the jacket was an unjustified, warrantless ...


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