(Super.Ct.No. RIF148680) OPINION APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed.
The opinion of the court was delivered by: Richli J.
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant and appellant Antoine Reed guilty of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). In a bifurcated proceeding, the trial court found true that defendant had suffered two prior serious and violent felony convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)) and four prior prison terms (Pen. Code, § 667.5, subd. (b)). As a result, defendant was sentenced to a total term of 29 years to life as follows: an indeterminate term of 25 years to life for the substantive offense plus one-year terms for each of the four prior prison terms.
On appeal, defendant contends (1) the trial court prejudicially erred by failing to sua sponte instruct the jury that its rejection of the entrapment defense had to be unanimous; (2) the trial court erred in failing to consider his eligibility for sentencing under Penal Code section 1210.1*fn1 (Proposition 36); and (3) the trial court abused its discretion when it denied his motion to dismiss one or more of his prior strike convictions. We reject these contentions and affirm the judgment.
Detective Brian Dodson of the Riverside Police Department assisted the West County Task Force with a sting operation whereby they took over the house of a known drug dealer following his arrest. Detective Dodson was asked to pose as the arrested drug dealer. The perimeter of the house was staffed with other undercover police officers and was equipped with audio and video equipment where the drug transactions occurred.
On February 11, 2009, Detective Dodson spent six to seven hours posing as a drug dealer. Two undercover officers acted as "spotters" at the front of the house and driveway. They would make eye contact with potential drug buyers and then "some type of gesture," such as "putting both hands in the air, raising their eyebrows," but "not actually saying, hey, come and buy dope, but, you know, I got what you need." The spotters would then direct the potential buyers to Detective Dodson. After Detective Dodson made the drug sale, he would signal the other officers, who would arrest the buyers. Detective Dodson sold rock cocaine to 19 or 20 buyers. Defendant was one of these.
Defendant knew the occupant of the house as "Doc" and had previously bought rock cocaine from Doc. After an undercover officer had directed defendant to Detective Dodson, defendant approached the detective and asked, "What's up?" Defendant then asked, "Is Doc and them here?" Detective Dodson replied in the negative and inquired, "So what can I do for you?" Defendant replied, "Well, give me a dub," meaning $20 worth of rock cocaine. Detective Dodson gave defendant a baggie containing about 0.4 grams of rock cocaine; in exchange, defendant gave the detective $20. Detective Dodson then signaled the other officers, who emerged from hiding and arrested defendant.*fn2
Defendant presented an entrapment defense. He claimed that he and Doc had been friends for about two years and that he did not go to Doc's house to buy drugs that day. He asserted that a man with a beanie had motioned him to come over to Doc's house and that he went because he wanted to know what had happened to Doc. It was when Officer Dodson asked him, "What's up?" that he had decided to purchase drugs. Officer Dobson asked defendant what he wanted. Defendant stated that he wanted a "dub." Officer Dobson then gave him the rock cocaine. As defendant neared his car, he saw several officers approaching him. At that point, he realized that he had been set up and tossed the baggie containing the rock cocaine behind him. Defendant maintained that he had no intention of buying cocaine that day. He explained that it was the officers' act of waving him to the back of the house and Officer Dodson asking him "What's up" that caused him to buy the drugs.