(Super. Ct. No. MCYKCRBF 10-0841)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Joshua David Coombs guilty of felony sale of marijuana. (Health & Saf. Code, § 11360, subd. (a).) Defendant appeals, contending he received constitutionally ineffective counsel due to counsel's failure to properly object to the admission of evidence of his prior marijuana sales. He also requests this court independently review sealed materials reviewed in camera by the trial court. We have reviewed the material and affirm the judgment.
Agent Monty Cervelli, a special agent with the California Department of Justice, conducted a "controlled buy" operation, using an informant named Michael Craig. Craig signed a contract with the Siskiyou County District Attorney's office, agreeing to produce 10 prosecutable cases in exchange for dismissal of charges pending against him for being a felon in possession of a firearm and ammunition. As part of his informant training, Craig was admonished by law enforcement on the definition of entrapment.
During the program, law enforcement paid for Craig's operation costs, including food, transportation, and lodging. The operation lasted approximately two months. At the conclusion of the operation, Craig had provided 14 controlled marijuana buys, six controlled methamphetamine buys, and one controlled hydrocodone buy. Law enforcement then paid for a plane ticket for Craig to leave the area.
Defendant Joshua David Coombs was one of the subjects investigated during the operation. Craig had known defendant since 2004 and saw him approximately once a month. Craig called defendant and arranged to meet so defendant could sell him marijuana. Craig had to cancel the first arranged meeting because Agent Cervelli and his partner were not available.
On June 1, 2010, Craig called defendant again and asked to buy $50 of "pot." Defendant said "okay" and they arranged to meet at Carl's Jr. restaurant where defendant worked. Defendant told Craig he would have another person give him the marijuana because he did not have any on him at the moment.
Earlier on June 1, 2010, defendant had asked his co-worker, Steven Mowatt, to lend him some money for gas. Mowatt did not have any money to lend. A short time later, defendant asked Mowatt if he had any marijuana that he could sell. Defendant suggested Mowatt allow defendant to sell the marijuana to a friend and then borrow the money from the sale until payday when he would pay Mowatt back. Defendant told Mowatt that the friend had been "bugging" him for awhile. Mowatt agreed to defendant's plan.
Before the buy, Agent Cervelli met Craig, searched him and his vehicle, fitted him with an audio-video recording device, and provided him with $50 to buy the marijuana. Agent Cervelli and another agent then followed Craig to the buy location to observe the transaction. Craig arrived at Carl's Jr. around 7:00 p.m. and went into the restaurant to signal defendant. Defendant indicated to meet him behind the restaurant so Craig walked around to the back where he met defendant and Mowatt. Defendant introduced the two men and then Mowatt handed Craig a white plastic bag. Defendant nodded to Craig and Craig handed Mowatt the buy money. Mowatt then went back inside the restaurant and handed defendant the $50. The white plastic bag contained 9.35 grams of marijuana.
Craig estimated he called defendant a total of approximately 10 times throughout the operation -- some of those times leaving messages on his answering machine. Craig has two prior felony convictions and a misdemeanor conviction, sustained approximately 10 years earlier. Mowatt, who also testified at trial, had been facing two felony charges for selling marijuana. In exchange for his truthful ...