APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher G. Estes, Judge. (Los Angeles County Super. Ct. No. MA051307)
The opinion of the court was delivered by: Turner, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed as modified with directions.
A jury convicted defendant, George Ray Thomas, of possessing cocaine base for sale (Health & Saf. Code,*fn2 § 11351.5) and transporting a controlled substance (§ 11352, subd. (a)). Defendant admitted that special allegations were true concerning: two prior drug convictions (§ 11370.2, subd. (a)); two prior prison terms (Pen. Code, § 667.5, subd. (b)); and two prior serious or violent felony convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). He was sentenced to 31 years to life in state prison.
In the published portion of this opinion, we address whether the two section 11370.2, subdivision (a) three-year prior drug conviction enhancements must be imposed on both counts. In addition, we address whether the trial court has discretion pursuant to Penal Code section 1385, subdivision (a) to strike either or both of the prior drug conviction enhancements. As defendant has received two indeterminate terms, the enhancements must be imposed on both counts subject to being stricken pursuant to Penal Code section 1385, subdivision (a). We affirm the judgment with modifications.
[The portion of the opinion that follows until the heading of part III is not published. Publication is to resume with the heading for part III.]
Leon Moore was a narcotics detective with the Los Angeles County Sheriff's Department. On February 22, 2010, Detective Moore received information from a confidential informant concerning defendant. Detective Moore testified, "The individual told me that [defendant] would be driving in the Palmdale-Lancaster area and that [defendant] would have some rock cocaine on [his] . . . person." The informant described defendant's car and license plate number. At Detective Moore's request, Deputies Gregory Flores and Michael Prottung executed a traffic stop of defendant's vehicle. Defendant admitted he did not have a driver's license. He denied he had any weapons or drugs. Defendant consented to a search of his person. Deputies Prottung and Flores found a Saran-wrapped package about the size of a large egg between defendant's buttocks. The package contained 11.44 grams of cocaine base, a usable amount. Inside the package were smaller pieces of cocaine base. Defendant also had a cellular telephone and $63 in cash. Defendant did not appear to be under the influence of narcotics. There was nothing associated with the personal use of narcotics in defendant's car.
Defendant spoke to Deputy Flores. Defendant said he had received the narcotics as "a picture"--in other words, a sample. The sample was purportedly received from a friend. The friend was a drug dealer. Defendant was given the cocaine base while in the Michael Antonovich Courthouse. Defendant was in the courthouse on a traffic matter. Defendant said he was on his way to a park frequented by drug users.
About 30 minutes after he was stopped, defendant changed his explanation about the contraband. Defendant claimed to be holding the cocaine base for sheriff's narcotics Detective Daniel Welle. Defendant asked to speak with Detective Welle. Detectives Moore and Welle both arrived and separately spoke with defendant. Following the arrest in the present case, defendant began providing information to Detective Moore. Deputy Kenneth Price, a narcotics investigator, testified in response to a hypothetical question tracking the facts of this case that the cocaine based was possessed for sale.
The prosecution presented evidence that informants generally act under supervision. Deputy Price described the usual method: "[T]ypically . . . we would meet with . . . informant[s], and they would be searched prior to any type of operations; make sure they didn't have any narcotics on them or currency, and then we would provide them with an amount of currency. We would surveil them, either audibly with a wire or visually, to a known location, and watch them constantly while they made a purchase, and then we would watch them all the way back to a designated area where we would meet. We would get the item that they purchased, the drugs, and then they would be searched again for any additional narcotics or currency." It was department policy to inform informants not to acquire narcotics on their own, without being followed by sheriff's detectives.
Defendant testified as follows. He had incurred the following convictions: 1994, controlled substance possession for sale; 1994, two counts of assaultive conduct in the same case; 1998, controlled substance and marijuana possession for sale; and 2006, marijuana possession for sale. Starting in 1992, he had worked as an informant for several federal law enforcement agencies including the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco, Firearms and Explosives. He understood the federal rules governing informants. Until recently, he had not worked for any local law enforcement entity.
In late December 2009 or early January 2010, defendant began providing information to Detective Welle. Defendant testified: "[Detective Welle] said he wanted everything from Palmdale, Lancaster, all the way to Santa Clarita. And he said he's gonna give me the phone number, but he said don't call him unless I got something for him or I got it right there or it's in my hand, in my possession."
On the day he was arrested, defendant had been in court on a traffic matter. While in the courthouse, he was contacted by a drug dealer. The dealer gave defendant a sample of cocaine base. Defendant put the drugs between his buttocks. He did so because he needed to behave like an active drug dealer. Defendant used a payphone to contact Detective Welle. Defendant used a payphone because he did not have cellular telephone reception inside the courthouse. In their conversation, defendant said he had acquired cocaine base. Detective Welle directed defendant to meet in a park. Defendant left the courthouse and briefly stopped at home. Defendant was on his way to the park when he was stopped by the deputies. Defendant testified, "My intent was to turn [the drugs] over to Detective Welle."
Detective Welle testified in rebuttal. He was a gang enforcement deputy; not a narcotics detective. He was not assigned to narcotics enforcement. Before using defendant as an informant, Detective Welle had spoken with a Bureau of Alcohol, Tobacco, Firearms and Explosives agent, Jason Hammond. Agent Hammond told Detective Welle defendant was a reliable confidential informant. Detective Welle instructed defendant to "window shop," not to gather any contraband. According to Detective Welle, only the narcotics bureau used informants to acquire controlled substances, and only under "extremely controlled" circumstances. Detective Welle described the controlled circumstances: "Narcotics detectives, when they meet up with their informant or their buyer, they meet up with them with a pair of investigators. They contact the buyer. They search him out to make sure that that buyer doesn't have any contraband, any money of their own, or any weapons on their person. [¶] They then actually drive them over - - because narcotics officers are what we call dirtied up or plainclothes. They've got beards, you know, they - - they don't look like cops. [¶] And then they go escort them to the location. The buyer goes and does the buy; sometimes with officers, sometimes without. But in each circumstance when they come out, they drive off, they'll go to a location, they stop, and they'll research the buyer or the informant, and they'll take everything off of his property and they'll go through it all and make sure, one, they've collected all the narcotics off of his person, and, two, any money that they've provided to him, that's left over, is also taken back." To the best of Detective Welle's knowledge, department policy prohibited a civilian acquiring narcotics or weapons absent law enforcement supervision. Detective Welle testified: "To the best of my knowledge, [that is the policy], except for probably in the rarest of circumstances to where they've already got it and it's something that happens so spontaneously. But either way, there would still be a controlled response to that."
On cross-examination, Detective Welle admitted: "There might be an occasion where - - because of their nature as a . . . citizen on the street . . . where they come across something. In that situation, they would have to call us immediately, and we would come get whatever they had." Detective Welle had heard of that happening on one occasion; he had never personally known it to occur. Detective Welle admitted never specifically telling defendant not to take possession of contraband. On February 22, 2010, defendant telephoned Detective Welle after--but not before--the traffic stop. Defendant had not called earlier to say he was in possession of narcotics. Detective Welle never told defendant to meet at a park. Detective Welle spoke with Detective Moore. Defendant was not working on anything specific for Detective Welle on February 22, 2010. Detective Welle had not told defendant to take possession of narcotics on that date. Defendant's cellular telephone records did not reflect a call to Detective Welle on February 22, 2010 prior to the traffic stop, search and arrest.
[The heading for part III is to be published.]
[Parts III(A) through III(F) are deleted from publication.]
Defendant contends the trial court abused its discretion and denied him due process by failing to continue the trial. After the jury was empanelled and pre-instructed, on the first day of trial, defendant advised the court he was unable to proceed for mental health reasons. Defendant agreed that standby counsel, Michael Morse, should take over. Mr. Morse had been appointed standby counsel two days earlier. Mr. Morse requested a continuance: "The Court: . . . Mr. Morse, you're prepared to step in and move forward with the trial? [¶] Mr. Morse: I am. [¶] I would request a short continuance so I have some time to really prepare. I know the case has already gotten started and the People are ready to call their first witness, but I've only had . . . a 20-minute conversation with the defendant, and he has a lot of phone records and - - [¶] I have read the trial transcript for the first trial, but there may be one or two witnesses that he wants to bring in that I have to find out what their availability is. [¶] The Court: Well, it's - - and I think the defense investigator is the one. You may want to speak to Mr. Lewis at some point. [¶] But what I'm inclined to do is to deny the request to continue. We are here. We're ready. [¶] The People have all their witnesses ready to go; is that correct? [¶] [Deputy District ...