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The People v. Jonathan Gary Shaw et al

August 14, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JONATHAN GARY SHAW ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. Nos. 09F1387, 10F3266)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendants Jonathan Gary Shaw and Tara Shaw*fn1 were each convicted of possession of a controlled substance and possession of a device used for smoking a controlled substance after submitting their case based on a preliminary examination transcript. Jonathan was also convicted of possession of a deadly weapon.

Defendants appeal. Both defendants contend there was insufficient evidence to convict them of possession of a device used for smoking a controlled substance. They assert that the officer's preliminary examination testimony did not establish beyond a reasonable doubt that the device was used for smoking a controlled substance. Separately, Tara argues there was insufficient evidence because the preliminary examination transcript was not formally admitted into evidence during the court trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2010, Special Agent Andrew Torres and Police Detective Rex Berry conducted a probation search at defendants' apartment. During the search, the officers found 0.2 grams of methamphetamine in a utility room and 0.3 grams on the kitchen counter. Also on the kitchen counter was a smoking device. In the bedroom, the officers found a black-colored baton sitting against the wall. During the booking process, jail staff found more methamphetamine in Tara's sock.

Defendants were jointly charged with possession of a controlled substance and possession of a device used for smoking a controlled substance. Jonathan was also charged with possession of a deadly weapon.

In June 2010, a preliminary hearing was held. Special Agent Torres testified he found a useable amount of methamphetamine and a "glass smoking device" on the kitchen counter in defendants' apartment. He also testified he found more methamphetamine in a utility room and a baton in a bedroom.

On February 4, 2011, a trial readiness conference was held, where Jonathan and Tara waived jury trial. They agreed to a court trial for decision on the basis of the preliminary hearing transcript. The prosecutor also put on the record that the case was "effectively going to be a slow plea."

On February 8, 2011, the court trial was held. The prosecutor informed the court there was "a stipulation that the preliminary hearing transcript can be admitted as evidence." The trial court directed that the transcript be marked as an exhibit but then made no other mention of it. The trial then proceeded with testimony from Jonathan about his methamphetamine addiction and the baton found in the bedroom.

The trial court found both defendants guilty of possession of a controlled substance and possession of a device used for smoking a controlled substance. The trial court also found Jonathan guilty of possession of a deadly ...


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