Filed: 4/9/15 (unmodified opn. attached)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK DWAYNE KEITH et al.,

Defendants and Appellants.

 B255005

 (Los Angeles County

 Super. Ct. No. BA409380)

MODIFICATION ORDER

[NO CHANGE IN JUDGMENT]

The opinion filed April 6, 2015 is modified as follows:

1. On the last line of page 1, “No appearance for Plaintiff and Respondent” is to 

be deleted and replaced with “Kamala Harris, Attorney General, and Tannaz 

Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.” 

2. In the Part II (C) heading on page 5, “Penal Code” is to be deleted and replaced 

with “Health and Safety Code.”

_____________________

TURNER, P.J.

______________________

MOSK, J.

______________________

KRIEGLER, J.

* Pursuant to California Rules of Court, rules 8.1100(b) and 8.1110, this opinion is 

certified for publication with the exception of parts II (A), (B) and (D).
Filed: 4/6/15 (unmodified version)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK DWAYNE KEITH et al.,

Defendants and Appellants.

 B255005

 (Los Angeles County

 Super. Ct. No. BA409380)

APPEALS from judgments of the Superior Court of Los Angeles County, Barbara 

R. Johnson, Judge. Reversed in part, affirmed in part, and remanded with directions.

Jasmine Patel and Athena Shudde, under appointment by the Court of Appeal, for 

Defendants and Appellants.

No appearance for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rules 8.1100(b) and 8.1110, this opinion is 

certified for publication with the exception of parts II (A), (B) and (D).
2

I. INTRODUCTION

A jury convicted co-defendants, Mark Dwayne Keith and Eric Edell Stokes, of 

cocaine base possession for sale and cocaine base transportation or sale respectively.

(Health & Saf. Code, § 11351.5, § 11352, subd. (a).) They committed these crimes on 

March 24, 2013. Mr. Keith was sentenced to eight years in the county jail; the high term 

of five years for possession of cocaine base for sale, plus three years under Health and 

Safety Code section 11370.2, subdivision (a). Mr. Stokes had previously sustained a

prior serious or violent felony conviction. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) 

Mr. Stokes was sentenced to 12 years in state prison. As to Mr. Keith, we affirm the 

judgment of conviction but reverse the sentence. Upon remittitur issuance, Mr. Keith is 

to be resentenced. As to Mr. Stokes, we affirm the judgment but direct the abstract of 

judgment be amended. 

II. DISCUSSION

[Parts II (A)-(B) are deleted from publication. See post at page 5 where publication is to 

resume.]

A. Overview

We appointed counsel to represent defendants on appeal. After examination of the 

record, appointed appellate counsel both filed opening briefs in which no issues were 

raised. Instead, appointed appellate counsel requested we independently review the 

entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See 

Smith v. Robbins (2000) 528 U.S. 259, 277-284.) On September 29, 2014, we advised 

Mr. Stokes that he had 30 days within which to personally submit any contentions or 

arguments he wished us to consider. No response has been received from Mr. Stokes. 

On December 15, 2014, we advised Mr. Keith to the same effect. Mr. Keith’s response is 
3

discussed below. We have examined the entire record and are now satisfied that

appointed appellate counsel have fully complied with their responsibilities.

B. Mr. Keith’s Pro Se Contentions

Mr. Keith filed a letter brief on January 7, 2015. Rock cocaine weighing 2.7 

grams was recovered from Mr. Keith’s person during a strip search following his arrest. 

Mr. Keith briefly asserts a Sixth Amendment confrontation right violation in that the 

officer who found the rock cocaine did not testify at trial. Mr. Keith has not shown an 

objection on this ground was raised in the trial court. Therefore, the contention has been 

forfeited. (People v. Lucas (2014) 60 Cal.4th 153, 330; People v. Riccardi (2012) 54 

Cal.4th 758, 827, fn. 33.) In any event, Officer George Lara was present when an officer 

identified only as Officer Riojas strip searched Mr. Keith. Officer Lara observed the 

recovery of the rock cocaine from Mr. Keith’s person. Officer Lara so testified at trial 

and was subject to cross-examination. Mr. Keith was confronted with the witness against 

him and was allowed to cross-examine that witness. There was no Sixth Amendment 

confrontation clause violation. (See Pointer v. Texas (1965) 380 U.S. 400, 403-404; 

People v. Burney (2009) 47 Cal.4th 203, 230; People v. Fletcher (1996) 13 Cal.4th 451, 

455.)

Mr. Keith made an unsuccessful evidence suppression motion at the preliminary 

hearing. He renewed that motion in the trial court based on the preliminary hearing 

transcript. The motion was denied. Mr. Keith asserts his evidence suppression motion 

should have been granted because police officers lacked probable cause to arrest him. 

We disagree. 

Our Supreme Court has held: “Probable cause [to arrest] exists when the facts 

known to the arresting officer would persuade someone of ‘reasonable caution’ that the 

person to be arrested has committed a crime. (Dunaway v. New York (1979) 442 U.S. 

200, 208, fn. 9.) ‘[P]robable cause is a fluid concept—turning on the assessment of 

probabilities in particular factual contexts.’ (Illinois v. Gates (1983) 462 U.S. 213, 232.) 
4

It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371.) 

‘“The substance of all the definitions of probable cause is a reasonable ground for belief 

of guilt,”’ and that belief must be ‘particularized with respect to the person to be . . . 

seized.’ (Ibid.)” (People v. Celis (2004) 33 Cal.4th 667, 673; accord, People v. Scott 

(2011) 52 Cal.4th 452, 474; People v. Thompson (2006) 38 Cal.4th 811, 818.) Further, 

“Law enforcement officers may ‘draw on their own experience and specialized training to 

make inferences from and deductions about the cumulative information available to them 

that “might well elude an untrained person.” [Citations.]’ (United States v. Arvizu 

(2002) 534 U.S. 266, 273.)” (People v. Hernandez (2008) 45 Cal.4th 295, 299; accord, 

People v. Letner (2010) 50 Cal.4th 99, 145-146.) If the facts observed combined with an 

officer’s experience and knowledge would lead a reasonable person to believe that a drug 

transaction was in progress, then there is probable cause to arrest. (People v. Guajardo 

(1994) 23 Cal.App.4th 1738, 1742; People v. Limon (1993) 17 Cal.App.4th 524, 534; 

People v. Mims (1992) 9 Cal.App.4th 1244, 1247.) 

The applicable standard of review is well established. (People v. Redd (2010) 48 

Cal.4th 691, 719; People v. Glaser (1995) 11 Cal.4th 354, 362.) As our Supreme Court 

has held: “We defer to the trial court’s factual findings, express or implied, where 

supported by substantial evidence. In determining whether, on the facts so found, the 

search or seizure was reasonable under the Fourth Amendment, we exercise our 

independent judgment. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. 

Lawler (1973) 9 Cal.3d 156, 160.)” (People v. Glaser, supra, 11 Cal.4th at p. 362; 

accord, People v. Redd, supra, 48 Cal.4th at p. 719.) The present facts are undisputed; 

therefore, this case presents a question of law. (In re Raymond C. (2008) 45 Cal.4th 303, 

306; People v. Hernandez (2008) 45 Cal.4th 295, 299.) 

Here, experienced police officers observed Mr. Keith’s participation in a drug 

transaction at a public park. On March 24, 2013, police officers were conducting a 

narcotics investigation at a Los Angeles County park. Mr. Keith was seen walking 

through the park and in and out of it. Mr. Stokes, who was in a wheelchair, appeared to 

be conducting narcotics transactions on the street corner near the park’s entrance. Mr. 
5

Stokes spoke with Wanda Gray for a brief moment. Mr. Stokes handed Ms. Gray an offwhite solid resembling rock cocaine base. Ms. Gray placed the item in her right jacket 

pocket. Ms. Gray handed currency to Mr. Stokes. Immediately following that

transaction, Mr. Stokes approached Mr. Keith. The two men had a brief conversation. 

No one else was present. Mr. Stokes then placed light-colored, folded paper, which 

appeared to be currency, in Mr. Keith’s pant pocket. Mr. Stokes returned to the street 

corner. An experienced narcotics officer testified based on his expertise that it was 

common for sellers to use homeless people to sell drugs in that area. The facts known to 

the officers and the inferences drawn based on their expertise would lead a reasonable 

person to believe a drug transaction had occurred. Therefore, the officers had probable 

cause to arrest Mr. Keith. (See People v. Limon, supra, 17 Cal.App.4th at pp. 529-534; 

People v. Mims, supra, 9 Cal.App.4th at pp. 1246-1249.)

Mr. Keith’s reliance on People v. Jones (1991) 228 Cal.App.3d 519, 524, is 

misplaced. In Jones, the Court of Appeal for the First Appellate District, Division Two, 

held, “[T]he mere fact that [the defendant] received money from another person on the 

street in an area known for drug activity is insufficient justification for a detention.” 

(Ibid.) Here, the preliminary hearing testimony established more than a simple exchange 

of money in an area known for drug transactions. We need not decide whether the Jones

decision is correct.

[Part II (C) is to be published.]

C. Mr. Keith’s Penal Code Section 11351.5 Sentence

Prior to January 1, 2015, a violation of Health and Safety Code section 11351.5 

was punishable by three, four or five years in custody. (Former Health & Saf. Code, 

§ 11351.5; Stats. 2011, ch. 15, § 153.) As noted above, Mr. Keith, who committed his 

crime on March 24, 2013, received a five-year sentence. However, effective January 1, 

2015, Health and Safety Code section 11351.5 was amended to reduce the punishment to 
6

two, three or four years in custody. (Stats. 2014, ch. 749, § 3.) Uncodified section 2 of

Senate Bill No. 1010 (2013-2014 Reg. Sess.) states: “(a) The Legislature finds and 

declares that cocaine hydrochloride (powder cocaine) and cocaine base (crack cocaine) 

are two forms of the same drug, the effects of which on the human body are so similar 

that to mete out unequal punishment for the same crime (e.g., possession for sale of a 

particular form of cocaine), is wholly and cruelly unjust. [¶] (b) It is the intent of the 

Legislature in enacting this act to provide that for the purposes of determining 

appropriate penalties for crimes relating to cocaine hydrochloride and cocaine base, 

including, but not limited to, the crime of possession, possession for sale, or 

transportation for sale, cocaine hydrochloride and cocaine base shall be treated in an 

identical manner.” (Stats. 2014, ch. 749, § 2.) 

We asked the parties to brief the question whether, under In re Estrada (1965) 63 

Cal.2d 740, 745, the reduced punishment for cocaine base possession for sale applies to 

Mr. Keith. The parties agree that it does. The 2014 amendment to Health and Safety 

Code section 11351.5 mitigates punishment, there is no savings clause and the judgment 

against Mr. Keith is not yet final. Therefore, the amended version of the statute applies 

to him. (In re Estrada, supra, 63 Cal.2d at p. 745; People v. Hajek (2014) 58 Cal.4th 

1144, 1195-1196 [explaining Estrada analysis]; accord, People v. Nasalga (1996) 12 

Cal.4th 784, 787, 789-798 [§ 12022.6, subd. (b) enhancement].) Mr. Keith’s sentence is 

reversed. Upon remittitur issuance, defendant is to be resentenced.

[Part II (D) is deleted from publication. See post at page 8 where publication is to 

resume.]

D. The Abstracts of Judgment

The trial court imposed on each defendant a $50 criminal laboratory analysis fee 

(Health & Saf. Code, § 11372.5, subd. (a)) “plus penalty assessment.” The abstracts of 

judgment must be amended to include the orally imposed penalty assessments, 
7

specifically: a $50 state penalty (Pen. Code, § 1464, subd. (a)(1)); a $35 county penalty 

(Gov. Code, § 76000, subd. (a)(1)); a $10 state surcharge (Pen. Code, § 1465.7, subd. 

(a)); a $25 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); a $5 

deoxyribonucleic acid penalty (Gov. Code, § 76104.6, subd. (a)(1)); a $20 state-only 

deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a)); and a $10 emergency 

medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)). (People v. Hamed (2013) 

221 Cal.App.4th 928, 937, 940; People v. Sharret (2011) 191 Cal.App.4th 859, 864; 

People v. High (2004) 119 Cal.App.4th 1192, 1199-1200.)
8

[The balance of the opinion is to be published.]

III. DISPOSITION

The judgment of conviction as to Mr. Keith is affirmed. Mr. Keith’s sentence is 

reversed. Upon remittitur issuance, Mr. Keith is to be resentenced under Health and 

Safety Code section 11351.5 as amended effective January 1, 2015. The superior court 

clerk is to amend Mr. Keith’s abstract of judgment to reflect the new sentence. The 

judgment as to Mr. Stokes is affirmed. Further, both defendants’ abstracts of judgment 

are to be amended to include the orally imposed penalties and surcharge on the $50 

criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)), specifically: 

a $50 state penalty (Pen. Code, § 1464, subd. (a)(1)); a $35 county penalty (Gov. Code, 

§ 76000, subd. (a)(1)); a $10 state surcharge (Pen. Code, § 1465.7, subd. (a)); a $25 state 

court construction penalty (Gov. Code, § 70372, subd. (a)(1)); a $5 deoxyribonucleic acid 

penalty (Gov. Code, § 76104.6, subd. (a)(1)); a $20 state-only deoxyribonucleic acid 

penalty (Gov. Code, § 76104.7, subd. (a)); and a $10 emergency medical services penalty 

(Gov. Code, § 76000.5, subd. (a)(1)). The superior court clerk is to deliver copies of the 

amended abstracts of judgment to the Department of Corrections and Rehabilitation.

CERTIFIED FOR PARTIAL PUBLICATION

TURNER, P. J.

We concur:

MOSK, J.

KRIEGLER, J.