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The People v. Tywana Marie Cathey et al

February 26, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TYWANA MARIE CATHEY ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. 07F00933)

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

P. v. Cathey

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Tywana Marie Cathey (Cathey) and Christopher Mason, Jr. (Mason), while formerly married, remained linked in an on-going drug trafficking operation for which they were arrested, charged, and tried by jury.

Mason was convicted of possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count one), possession of a firearm by a convicted felon (Pen. Code, former § 12021, subd. (a)(1), now § 29800, subd. (a)(1); count three),*fn1 and possession of ammunition while prohibited from owning or possessing a firearm (former § 12316, subd. (b)(1), now § 30305, subd. (a)(1); count four). He was further found personally armed with a firearm in the commission of count one. (§ 12022, subd. (c).) A count of cultivation of marijuana ended in deadlock. (Health & Saf. Code, § 11358; count two).

Cathey was convicted on counts one and two and found to be personally armed with a firearm in the commission of count one.

In a bifurcated proceeding, the jury found that Mason had six prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12) and two prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (a)), and that he had served two prior prison terms (§ 667.5, subd. (b)).

Mason was sentenced to state prison for a determinate term of 11 years plus a consecutive indeterminate term of 25 years to life.*fn2 The mistried count two was dismissed in the interest of justice in light of the sentence.

Cathey was sentenced to state prison for nine years eight months. Execution of sentence was suspended and Cathey was placed on probation for five years on conditions including 365 days' incarceration.*fn3

On appeal, Mason contends the trial court erred when it denied his motion to traverse the search warrant pursuant to Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 678] (Franks). Cathey contends her trial counsel rendered ineffective assistance when he expressly declined to join in Mason's Franks motion. We conclude the Franks motion lacked merit, and Cathey's trial counsel's refusal to join the meritless motion could not have been prejudicial, and therefore affirm.

FACTS

Prosecution Case-in-Chief

On January 30, 2007, several teams of law enforcement officers served a search warrant at residences on Delta Street (Delta) and Rio Linda Boulevard (Rio Linda) in Sacramento. The warrant authorized the searches of both residences, a gold Cadillac Escalade, and defendants Cathey and Mason.

Delta

Upon entering Delta, officers found and detained both defendants and three other persons. In the kitchen, officers found and seized a glass plate containing 4.02 grams of cocaine base and a razor blade; a baggie containing 6.87 grams of cocaine base; a glass pipe for smoking narcotics; a digital gram scale; a spoon with cocaine residue; six walkie-talkies; and a box of shotgun shells. Mason's fingerprints were found on the glass plate and the digital scale.

In the front room, officers found and seized three surveillance cameras and DVD's explaining how to grow marijuana.

In the southeast bedroom, officers found and seized 0.43 grams of cocaine; 0.74 grams of marijuana; and two boxes of shotgun shells. Officers also found documents and papers belonging to, or relating to, Cathey and Mason. Pacific Gas and Electric bill was addressed to Cathey at Delta.

In the northeast bedroom, officers found and seized a semiautomatic pistol loaded with six rounds. In this bedroom, too, officers found documents related to Cathey and Mason.

In a bathroom, officers found and seized a pipe for smoking narcotics.

In the Escalade parked at Delta, officers found cash; documents related to Cathey and Mason; and a stun gun.

A search of Mason's person yielded cash and a key ring with two keys. One key operated the front door lock at Delta, and the other unlocked a safe found at Rio Linda. After Mason was placed in a patrol car, an officer observed he appeared to have several small white objects in his mouth. When the officer tried to reach in Mason's mouth, the objects were gone. In the officer's experience, it is common for people who possess cocaine base to conceal it in their mouths. Cocaine base is not water soluble and cannot be ingested by swallowing it.

Diane Cutrer was present at Delta when the search warrant was executed. She consented to a search of her person. An officer found 0.09 grams of cocaine in her pocket. Cutrer told the officer that she had come to Delta to purchase cocaine. Cutrer testified at trial that she had purchased cocaine from Mason and Cathey on several prior occasions. On the day of the search, she had come to Delta and found cocaine ...


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