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The People v. Bernard Clarence Howard

October 2, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BERNARD CLARENCE HOWARD, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F09375)

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

P. v. Howard 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

On June 7, 2009, based on a tip, two Folsom State Prison correctional officers conducted strip searches of defendant Bernard Clarence Howard and his cell mate. When the officer told defendant to remove his socks and hand them over, defendant placed them on a rail and one sock fell to the lower tier. The officer put defendant in a holding cell, retrieved the sock that had fallen below, and in the toe portion of that sock, found a small quantity of marijuana wrapped in cellophane. In defendant's pant pocket, the officer found a handwritten note by persons unknown. An expert opined that the note referred to marijuana.

Two inmates, including defendant's cell mate, testified on behalf of defendant, indicating that defendant's sock fell in the vicinity of the showers where other prisoners' clothing could be found.

A jury convicted defendant of possession of a controlled substance in prison (Pen. Code, § 4573.6). In bifurcated proceedings, the court found a strike prior (2005 first degree burglary) and a prior prison term allegation (1999 robbery) to be true.

On defendant's motion, the court struck the strike prior (Pen. Code, § 1385). The court imposed the midterm of three years for the offense plus one year for the prior prison term and ordered the sentence to be served consecutively to defendant's current sentence.*fn1

Defendant appeals.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief, raising several issues. He claims the sock was not his. He notes that at the time of the incident, the area was not documented with photographs, evidence cones, video, or even fingerprint evidence from the cellophane wrapper, making the case as one of his word against the officer's.

The jury determined that the correctional officer was more credible than the defense witnesses. Because the correctional officer's testimony was not inherently improbable, it is not our role on appeal to reweigh his credibility. (People v. Barnes (1986) 42 Cal.3d 284, 306.)

Defendant complains that the prosecution was allowed to introduce a reenactment video into evidence while he was not able to prepare one because of his confinement. Defendant further complains the reenactment video was inaccurate, misleading, ...


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