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The People v. Heriberto Talavera

January 21, 2011


Super. Ct. No. NCR77432

The opinion of the court was delivered by: Robie,j.

P. v. Talavera 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Heriberto Talavera guilty of possessing methamphetamine for sale and transporting it. The trial court sentenced him to prison on the transportation count, staying execution of sentence on the count of possession for sale (Pen. Code,*fn1 § 654) because it assumed the jury based its verdict on the same methamphetamine as in the transportation count. It awarded 88 days of conduct credit for 176 days of actual custody.

On appeal, defendant contends the evidence is insufficient that he had knowledge of the presence and illicit character of the contraband. Our miscellaneous order No. 2010-002 (filed March 16, 2010) also deems him to have raised the issue of his entitlement to additional conduct credits pursuant to the January 2010 amendments to former section 4019 (Stats. 2009, 3d Ex. Sess., ch. 28, § 50 [former section 4019]).*fn2 We affirm the judgment as modified.


A Corning police officer was a member of a narcotics task force. A confidential informant contacted him with information that defendant (known to him as "Primo"), co-defendant Jose Ramos (known to him as "George Lopez")*fn3 and Manuel Gutierrez (known to him as "Jose")*fn4 were selling methamphetamine. The informant had been associating with "Jose" for about a month (in whose company he had met defendant and co-defendant Ramos), and all three had been to the informant's house multiple times. The informant had also spoken with both defendant and co-defendant Ramos by phone. The informant drove with the police officer in May 2009 to a cabin on State Route 99 that the informant identified as the place where he knew "Jose" was staying (although he was not sure where the other two men were living).

In late June, the Corning officer instructed the informant to arrange for the purchase of methamphetamine from "Jose" at the informant's home. The informant contacted "Jose" and set up the transaction for the following day. "Jose" arrived with two bags of methamphetamine. The informant did not know if anyone was accompanying "Jose." When the informant said he did not have money -- but a person with money would be arriving soon --"Jose" put the two bags in his back pocket and said he would return.

Members of the task force had observed "Jose" arrive at the informant's home in a pickup truck; defendant was a passenger. "Jose" went into the house by himself, then came back out. He got into the truck and drove off. The Corning officer followed; he attempted to initiate a traffic stop after the truck entered the interstate, but the truck disregarded the overhead lights, air horn, and siren. The Corning officer could observe "Jose" making "furtive" movements toward defendant with his upper body. The truck eventually pulled over near a highway rest area.

The Corning officer searched the truck with "Jose's" consent. He found five bags of methamphetamine inside a flashlight stuffed between the passenger seat and the center console. A member of the task force believed that it would have been difficult, but not impossible, for the driver to reach this spot. A search of both "Jose" and defendant did not find anything illicit. Four of the bags in the flashlight had measureable amounts of methamphetamine (1.1, 1.8, 1.9, and 3.9 grams); the fifth had an observable amount that did not register a weight. Defendant denied awareness of any contraband in the truck.

A cell phone on "Jose" showed a recent brief phone call to the informant. A cell phone on defendant had both an incoming and an outgoing phone call to the informant's phone several days earlier.

"Jose" said that he had been living in the State Route 99 cabin for three days. The officer obtained "Jose's" consent to search the cabin, along with its key. As the officer knocked on the cabin's front door and announced his presence, another officer intercepted co-defendant Ramos in the process of leaving the west bedroom. Defendant's personal indicia were present in the west bedroom. In the east bedroom, the task force found personal indicia for co-defendant Ramos with his clothes, as well as over 200 grams of methamphetamine inside a bag stuffed into a sock hidden in a disconnected car speaker. Co-defendant Ramos claimed that he had not been living at the cabin, but had been staying there for ...

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