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December 1, 2010


P.v.Ramos CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant, Jose Guadalupe Ramos, of possessing a controlled substance for sale. (The jury also convicted co-defendant Heriberto Talavera of possessing and transporting a controlled substance, but he is not a party to this appeal.) Defendant then admitted three recidivist allegations. The trial court sentenced him to state prison.

On appeal, defendant contends the trial court prejudicially erred in failing to sustain a hearsay objection to testimony that could connect him with methamphetamine seized at a cabin where he was staying. He also argues there was insufficient evidence that he possessed the methamphetamine. Finally, he includes an argument that the January 2010 amendments to Penal Code section 4019 entitle him to additional conduct credits. We shall affirm the judgment as modified.


Defendant does not contest the sufficiency of the evidence that the methamphetamine was possessed for sale. We limit our account of the evidence accordingly.

A narcotics agent was working with a reliable confidential informant. In May 2009, the informant directed the agent to a cabin connected with three people whom the informant believed were involved in selling methamphetamine. He knew them as "Jose," "Primo," and "George Lopez." The informant later identified the latter as defendant, and "Primo" as co-defendant Talavera. Although the informant spoke on the phone with defendant a few times (who had also come to the home of the informant "maybe" three times), he did not know for sure where defendant lived. He knew only where "Jose" lived.

About a month later, the agent arranged for the informant to conduct a controlled buy at the informant's home from the people associated with the cabin. After the buy, a truck left the informant's residence and the agents stopped it. The passenger was the co-defendant. A search of the truck revealed a flashlight containing five bags of methamphetamine, stuffed between the center console and the passenger seat. The driver gave consent to search the cabin and provided a key, claiming he had been staying there only three days.*fn1 Agents knocked on the door of the cabin and waited an extended period of time. One of them then caught the shirtless defendant in the act of climbing out of a back window. (He had apparently been engaging or about to engage in sexual relations with a woman who was visiting the cabin for that purpose.)

The agents searched the cabin. They found a carpeted car speaker box with a Plexiglas top and two ports. Based on his suspicion that the ports provided a convenient hiding place, one of the agents reached inside and found a sock that felt like it had a crunchy substance inside. The sock had not been visible. It contained a baggie with over 200 grams of methamphetamine.

The speaker housing with the methamphetamine was in a room on the east side of the house, which also had a television and an air mattress in it. The room from which defendant had been emerging (and in which the agents had detained him) was on the west side, and had a couch with sleeping bags and blankets on the floor. There were documents in the name of the co-defendant, Talavera, in the west room. A wallet with identification in defendant's name was in the east room (although the agent was not able to recall its exact placement in the room). Defendant's cell phone was on a refrigerator in the kitchen. Defendant told the agents that he had been staying at the cabin for three days, but did not live there. He also said that there was a garbage bag containing his clothes "in the other room" (i.e., the east room).



We begin with the particular exchange in which the trial court made the evidentiary ruling defendant challenges on appeal. However, we will also include other portions of the record related to our analysis of defendant's argument.

At trial, the prosecutor asked, "[W]hat information did you receive from [the informant] regarding someone he knew as George Lopez?" The agent answered, "He told me he knew a subject who was selling methamphetamine . . . named George Lopez. He told me that he believed that this person . . . was also selling methamphetamine with two other people. And that of the three people, George Lopez --." At this point, defense counsel made an objection on the ground of hearsay. The court overruled the objection on that ground, but ruled sua sponte that the response was "in the narrative." The prosecutor continued to attempt to ask the agent what the informant had said about the other two people involved with "Lopez." The trial court twice sustained the hearsay objections of co-defendant's attorney. When hearsay objections continued to arise, the court finally admonished the jury that it "may only consider what any [sic] statements were made to this witness to explain why he did something, and you may not consider whether the statements were true or not. [They serve only] to explain why this witness took certain action." Later, during his cross-examination of the agent, defense counsel asked what the informant had told the agent. The agent answered, "He advised me of three people that were selling ...

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