The opinion of the court was delivered by: Nicholson , Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 John Travis Bakker of using a false compartment with the intent to transport a controlled substance (Health & Saf. Code, § 11366.8, subd. (a); count one), possession of methamphetamine (id., § 11377, subd. (a); count two), transportation of methamphetamine (id., § 11379, subd. (a); count three), possession of marijuana, a misdemeanor (id., § 11357, subd. (b); count four), possession of a smoking device, a misdemeanor (id., § 11364; count five), and possession of methamphetamine for sale (id., § 11378; count six). The jury found that defendant committed count six while released from custody. (Pen. Code, § 12022.1.) In bifurcated proceedings, the court found allegations of a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)) and a prior prison term (Pen. Code, § 667.5, subd. (b)) to be true.
Sentenced to state prison, defendant appeals. He contends: (1) insufficient evidence supports his conviction for using a false compartment (count one), (2) the trial court erroneously admitted the testimony of the fingerprint expert, (3) the trial court failed to include the written instruction on expert witness testimony in the packet given to the jury, (4) the trial court prejudicially erred in instructing in the language of CALCRIM No. 375 concerning defendant's prior uncharged conduct, and (5) the trial court's failure to designate sentence on the misdemeanor counts (counts four and five) to be consecutive requires the same to be deemed concurrent and that presentence custody credit as to those counts must be awarded to the felony counts.
While the case was pending on appeal, the trial court vacated sentence on the misdemeanor counts, counts four and five, reimposed sentence, and awarded presentence custody credit, including additional credit under amendments to Penal Code section 4019 effective January 2010. We requested supplemental briefing on the trial court's action. The People respond that the trial court's action in resentencing on counts four and five was proper. Defendant claims, and we agree, that the trial court erred in part. The People claim that the trial court erroneously awarded additional credit pursuant to the amendments to Penal Code section 4019 effective January 2010. Defendant claims the trial court got the credits right. The Legislature again amended Penal Code section 4019, as well as Penal Code section 2933. We will modify the credits based on the current version of Penal Code section 2933.
We agree that insufficient evidence supports defendant's conviction for using a false compartment and will reverse count one. We reject defendant's other contentions except for his contention with respect to concurrent terms on counts four and five, with which we agree in part. We will modify the judgment and otherwise affirm.
About 10:00 a.m. on March 21, 2006, Elk Grove Police Officer Shane Glaser conducted a traffic stop on defendant's car for an unregistered license plate. Defendant was the driver and sole occupant of the car. A search of defendant's car revealed a blue OxiClean aerosol spray can on the floorboard behind the driver's seat. The can had a false bottom. Inside the can, the officer found a sunglass holder and a baggie containing 4.86 grams of marijuana. Inside the sunglass holder, the officer found a glass smoking pipe with residue and three baggies containing a total of 46.12 grams of methamphetamine. The officer found $299 in defendant's wallet.
A fingerprint of defendant's left pinkie finger was found on the glass pipe. No usable fingerprints were found on the can, license plate, baggies, or on defendant's cell phone.
On November 28, 2007, defendant and two other individuals left the residence of a parolee whom an officer planned to search. When approached by police, defendant ran, bent over and put something in the bushes, and then stood up, turned around, lit a cigarette and sat down. A search of the bushes revealed a nylon case containing a digital scale, packaging material, and two plastic baggies containing a total of 11.97 grams of methamphetamine. An officer found $193 on defendant's person.
An expert testified that the methamphetamine defendant possessed on November 28, 2007, was possessed for sale. The expert based his opinion on the amount of methamphetamine, the scale, the packaging material, and the denominations of the cash. The expert opined that containers similar to the OxiClean can found in defendant's car on March 21, 2006, are commonly used to conceal methamphetamine by sellers.
The prosecutor introduced evidence of defendant's prior conduct. On June 24, 2004, defendant was in the driver's seat of an overturned vehicle. An officer prevented defendant from giving his duffel bag, and then a nylon pouch, to a woman who arrived on the scene. The officer opened the bag and pouch and found over $3,500 in cash, two cell phones, numerous keys, 63 grams of marijuana, 56.9 grams of methamphetamine, a digital scale, numerous baggies, and two glass smoking pipes.
On behalf of defendant, Shawn Marion testified. He was defendant's lifelong friend. Marion claimed that he cleaned defendant's car in March 2006, had placed the OxiClean can in defendant's car, and that the drugs in the can belonged to him, not to defendant. Marion explained that he had taken the can from "[a] guy [who] owed [him] some money for working on his car." Marion knew the can had a false bottom and contained methamphetamine, marijuana, and the pipe. Marion stated that he smoked some of the methamphetamine, put the can in defendant's car while working on it, and got "so fucked up [he] left it in there."
Defendant first contends that insufficient evidence supports his conviction on count one, using a false compartment with the intent to transport a controlled substance. ...