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The People v. Fabian Abarca Salas

February 23, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FABIAN ABARCA SALAS, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF080005273)

The opinion of the court was delivered by: Hull , J.

P. v. Salas

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is the second time this case has come before us. In People v. Salas (June 9, 2010, C062523 [nonpub.opn.]) a jury convicted defendant of transportation of methamphetamine, two counts of possession of methamphetamine, possession of drug paraphernalia, driving without a driver's license, and falsely representing his identity to a law enforcement officer. The court sentenced defendant to 12 years eight months in prison.

Defendant appealed, contending that both during trial and at sentencing the court had misinformed him of his rights regarding a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We agreed and remanded the matter to the trial court solely for the purpose of recalculation of his custody credits and to afford him a Marsden hearing consistent with procedures set forth in People v. Smith (1993) 6 Cal.4th 684. On September 27, 2010, the court conducted the Marsden hearing and on October 1 the court denied the motion.

Defendant appeals, again contending the trial court erred in denying his Marsden motion. We disagree.

FACTS AND PROCEEDINGS

On July 23, 2008, a police officer stopped a Ford Explorer for running a red light. Defendant, the driver and sole occupant of the Explorer, had a white flakey substance on his lips, moustache and beard. Among items scattered on the floorboard of the passenger's side of the Explorer were additional white flakes and a torn baggie with white flakes in it. The white flakey substance found on the floorboard and in the baggie was methamphetamine and weighed approximately 0.6 grams. Defendant admitted swallowing a $10 bag of methamphetamine just before being stopped. Defendant started getting ill, medical personnel were called and defendant was taken to a hospital.

On November 4, 2008, officers were conducting an investigation at the residence of Esteban Gonzalez when defendant walked in. Defendant admitted to an officer that he had a methamphetamine pipe in his possession. The officer removed the pipe from defendant's jacket and a baggie of methamphetamine from a coin pocket of defendant's pants.

Gonzalez testified that on November 4, 2008, defendant was helping him move into Gonzalez's residence. Because defendant's clothes got dirty, Gonzalez gave defendant a change of clothing, including a jacket and pants. According to Gonzalez, he had left a methamphetamine pipe in the jacket and a baggie of methamphetamine in the pants. Gonzalez admitted that on November 4 he was arrested for possession of methamphetamine and that he was under the influence of that drug.

DISCUSSION

Marsden ...


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