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The People v. Algerey Mckinley

February 24, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALGEREY MCKINLEY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 095032)

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

P. v. McKinley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a jury trial, defendant Algerey McKinley was convicted of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and possession of methamphetamine for sale (Health & Saf. Code, § 11378). The trial court sustained prior narcotics conviction (Health & Saf. Code, § 11370.2) and prior prison term (Pen. Code, § 667.5) enhancements, and sentenced defendant to nine years eight months in prison.

On appeal, defendant contends the trial court erred in admitting text messages, and a witness improperly disclosed his criminal history. We shall affirm.

FACTS

In 2009 members of the Yolo County Narcotics Enforcement Team (YONET) made two undercover methamphetamine purchases at 612 and 614 Welland Way in West Sacramento. YONET members observed Marsha Bertagna exit the home at 614 Welland and walk across the lawn to 612 Welland, where she sold methamphetamine to undercover informants. YONET officers later executed a search warrant on the two residences.

Officers entering the 614 Welland residence found defendant in the dining room, about two to three feet from a computer desk. A search of the desk revealed a mechanic's glove containing saleable amounts of cocaine base and methamphetamine in individual packages, a letter addressed to defendant, and a pay/owe sheet in the top left drawer. There were several baggies of marijuana and a scale in the center drawer, and a letter to defendant with a Sacramento address in the top right drawer.

Defendant had a wallet containing over $700 in cash and his driver's license. The southeast bedroom closet held a jacket with $6,000 in cash and a wallet with defendant's Social Security card, along with a glass jar containing two packages of methamphetamine weighing 13.9 grams and 27.8 grams. A bathrobe in the closet held a digital scale, a glass pipe, and six packages of methamphetamine, each weighing .5 to .6 gram, and one package of methamphetamine weighing 1.8 grams. A bedroom dresser contained a cellular phone bill in defendant's name, showing the 612 Welland address. A purse containing a pill bottle in Bertagna's name was also found in the bedroom.

Defendant dropped a cellular phone he was holding when the officers entered the 614 Welland residence.*fn1 Text messages from the phone were admitted over defendant's objection.

At the time of the search, 67-year-old Herman Mitchell had been renting a room from defendant at 614 Welland for three days. He identified a picture of Bertagna as defendant's girlfriend, who shared a bedroom with defendant. At trial, Mitchell denied getting rock cocaine from defendant but had previously admitted to a YONET officer that he got the drug from defendant.

Bertagna testified that she had known defendant for about 32 years and started a romantic relationship with him when she left her abusive husband. She lived at 614 Welland, while defendant lived at 612 Welland. The $6,000 in cash was part of her $25,105 winnings from a slot machine at the Jackson Rancheria Casino. Defendant was in her house to fix the back door on the day of the search, and she had paid him $600 to $700 in cash.

Bertagna claimed the methamphetamine in the closet was hers. She obtained the drugs from Mitchell and sold them through one of her husband's friends. She never saw defendant possess or sell methamphetamine. As a result of the raid, Bertagna pleaded no contest to ...


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