Filed 11/25/14 P. v. Winston CA2/3 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

DARRYL TRACY WINSTON, 

 Defendant and Appellant. 

 B253557 

 (Los Angeles County 

 Super. Ct. No. TA129252) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, Sean D. 

Coen, Judge. Affirmed. 

 Daniel R. McCarthy, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 No appearance for Plaintiff and Respondent. 
2

 Defendant and appellant, Darryl Tracy Winston, appeals from the judgment 

entered following a jury trial which resulted in his conviction of possession for sale of 

cocaine base (Health & Saf. Code, § 11351.5) and the trial court’s findings he previously 

had been convicted of possession for sale of cocaine base pursuant to Health and Safety 

Code section 11370.2, subdivision (a) and had served a term in prison pursuant to Penal 

Code section 667.5, subdivision (b) following his conviction of several other felonies. 

The trial court sentenced Winston to nine years in state prison. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

 1. Facts. 

 On July 23, 2013, Los Angeles Police Department Detective John Armando was 

working in the Southeast Narcotics Unit. At approximately 4:50 p.m., the detective, an 

experienced narcotics officer, was at the Nickerson Gardens Housing Project, a “location 

[which] has been the subject of a number of narcotic complaints and . . . an area that [the 

narcotics team] routinely work[s].” At the time, both Armando and his partner, Officer 

Nicholas Gallego, who also had extensive training and experience in the area of 

narcotics, were dressed in plain clothes (jeans and T-shirts) and were in a “plain 

minivan.” Armando had parked the van just south of Nickerson Gardens, facing west on 

Imperial Highway. He explained he had parked at that particular location because, 

although “in Nickerson Gardens there is a network of cameras . . . monitored by the 

police department at [the] Southeast Station[,] [and] [t]hose cameras provide really good 

coverage of the projects, . . . there are a number of blind spots.” Armando had parked at 

the location on Imperial Highway next to a parking area just south of 115th Street 

because it afforded the officers a good view of a problem spot which was not covered by 

the cameras, but where Armando and Gallego knew narcotics were being sold. Armando 

was sitting in the driver’s seat and Gallego was in the seat just behind the front passenger 

seat. Armando and Gallego, who were approximately 100 feet from Winston, used 

binoculars and were able to see him “seated against a ledge with a couple of other 

individuals.” In addition, three or four other people were walking among the cars parked 

in the parking lot. 
3

 While Armando and Gallego watched, Winston was approached by a Black 

woman wearing shorts and a black top. The two “seemed to engage in [a] short 

conversation at which time she handed [Winston] some money.” Winston accepted the 

money, stood up and walked to a blue storage container sitting on the lawn approximately 

10 feet behind him. He opened the blue container, removed a small red container, then 

motioned the woman to come to him. Winston opened the red container and removed a 

small plastic bindle from inside. As he handed the object to the woman, Armando could 

see that it contained an “off-white solid resembling cocaine base.” The woman took the 

object, closed her hand and walked away in an “eastward” direction. According to 

Armando, it was “sunny, daylight,” and he had an “unobstructed view of [Winston].” 

Gallego, too, indicated the light was “bright” and, although there were trees and a trash 

container in the area, nothing was obstructing his view. 

 After the woman walked away, Armando and Gallego “formed the opinion . . . a 

narcotic[s] transaction had occurred and [they] attempted to make contact with [the] 

female.” Armando made a U-turn on Imperial Highway and proceeded North on Success 

Street. The officers did not, however, see either the Black woman or Winston. They 

parked the van in a lot of off 115th Street, got out and began to walk through the 

apartment complex. There, they saw Winston, “ma[d]e contact with him” and Armando 

placed him under arrest. In the meantime, Gallego searched Winston’s blue container. 

Along with some clothing and trash, Gallego found a “small red object about the size of a 

softball,” removed it from the blue container, opened it and found inside two plastic 

baggies containing “off-white solid[s] resembling cocaine base.” One of the baggies 

contained “eight individual off-white rock solids resembling cocaine base” and the other 

contained “13 off-white rock solid[s] resembling cocaine base.” 

 Once the evidence had been recovered from the red container, Armando searched 

Winston and found four $5 bills in his right front pocket. Winston and the plastic baggies 

found in his container were transported to the station. There, the plastic baggies were 

booked into evidence. They were placed in a manila envelope and “labeled with the case 

number, [Armando’s] name, [and Winston’s] name.” The envelope was then sealed and 
4

placed in a secured locker. From the locker it was later taken to the laboratory for 

analysis. 

 Based on his “background, training, and experience,” Armando was of the opinion 

Winston possessed rock cocaine for sale. He based his opinion on the fact he had seen 

what he believed had been the sale of cocaine, the 21 rocks of cocaine found in 

Winston’s possession which had been cut and packaged in doses which generally sold for 

$5, and that Winston, himself, was neither smoking cocaine nor carrying with him 

smoking paraphernalia. 

 Jane Villegas is a criminalist for the Los Angeles Police Department assigned to 

the “scientific investigation division narcotics analysis unit.” Villegas, a trained forensic 

scientist, has been analyzing controlled substances since 1991. On July 24, 2013, 

Villegas examined the contents of an evidence envelope with Winston’s name on it. She 

had obtained the sealed envelope from the “narcotics storage locker.” Inside the 

envelope were two “knotted plastic sandwich bag[s] containing off-white solid[s].” The 

first baggie weighed 1.92 grams. Using the off-white solids from inside that baggie, 

Villegas “identified the kind of narcotic by using a microcrystal test and an instrumental 

analysis.” She concluded the baggie contained “cocaine in the form of cocaine base.” 

Villegas did not test the off-white solids in the second baggie. Since the solids in the 

second baggie looked “very similar” to those in the first baggie, she did not believe she 

needed to perform any tests on them. Villegas had no doubt the solids in the first baggie 

contained cocaine base. 

 2. Procedural history

 Following a preliminary hearing, on August 22, 2013 Winston was charged by 

information with one count of possession for sale of cocaine base (Health & Saf. Code, 

§ 11351.5), a felony. It was further alleged he previously had been convicted of 

possession for sale of cocaine base within the meaning of Health and Safety Code section 

11370.2, subdivision (a) and had served a prison term within the meaning of Penal Code 

section 667.5 for convictions of assault with a deadly weapon other than a firearm (Pen. 
5

Code, § 245, subd. (c)), battery against a police officer (Pen. Code, § 243, subd. (c)(2)) 

and the federal offense of being a felon in possession of a firearm. 

 Prior to trial, the prosecutor indicated Armando, the arresting officer, intended to 

exercise his privilege pursuant to Evidence Code section 1040 to withhold information 

regarding his whereabouts when he observed Winston sell the cocaine base. At an incamera hearing held in chambers, Armando testified he believed if the “observation post 

[were to be] revealed, it would surrender a significant tactical advantage” and “endanger 

a particular resident [of Nickerson Gardens] who [knew of law enforcement’s] actions at 

that location.” In addition, the detective indicated the location was “the only spot where 

[officers could] be undetected without going into the projects [and] that [they were] able 

to see this one [particular] spot [from] where” they knew drugs were being sold. The trial 

court determined, although Evidence Code section 1040 might otherwise apply, the 

evidence was material to the defense and “defense [counsel] would have to have an 

opportunity to cross-examine regarding the location of the narcotics post.” 

The prosecutor then argued he should be allowed to present evidence pursuant to 

Evidence Code section 1101, subdivision (b) that, 13 years earlier, Winston had been 

convicted of possession for sale of cocaine base. In the 13-year-old case, Winston had 

been in his residence when he was “found to be in possession of a loaded firearm and . . . 

was near a cutting board that had rock cocaine on it[.]” The prosecutor argued the 

evidence would be relevant to show a “common plan.” The trial court, however, 

determined an incident which had occurred 13 years earlier was too far removed from the 

present action and it was “not going to allow the admission of [the] prior conduct” or 

conviction. 

After the prosecution presented its case, defense counsel made a motion to dismiss 

the matter pursuant to Penal Code section 1118.1. The trial court denied the motion, 

indicating “the evidence [was] quite sufficient to show the defendant [was] guilty of the 

charged count . . . .” 

While the jury was deliberating on the substantive count, Winston decided, if the 

jury found him guilty of the offense, he would waive his right to have it determine 
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whether he had been convicted of the alleged prior convictions and served the alleged 

prior prison term. Winston indicated the court, alone, could make those determinations. 

During their deliberations, the jury sent the following inquiry to the trial court: 

“ ‘We would like to hear [D]etective Armando’s testimony.’ ” In response, the trial court 

sent a note to the jury stating, “ ‘Is there a particular portion of that testimony you would 

like to hear or would you like to hear all of that testimony?’ ” The jury informed the trial 

court it wished to “hear [the] entire testimony of Officer Armando.” 

At approximately 10:50 a.m. on November 18, 2013, the jury indicated it had 

reached a verdict. The court clerk read the verdict as follows: “We the jury in the aboveentitled action find the defendant, Darryl Tracy Winston, guilty of the crime of 

possession for sale of cocaine base, in violation of Health and Safety Code section 

11351.1, a felony, as charged in count 1 of the information . . . .” When the jury was 

polled, each individual juror indicated he or she had reached this conclusion. 

At proceedings held on December 2, 2013, the trial court was to determine the 

truth of the allegations of Winston’s prior convictions and prison term and to impose 

sentence. However, before the court could address those issues, Winston indicated he 

wished to have a Marsden1

 hearing. 

After everyone except the court, its staff, Winston and his counsel had left the 

courtroom, Winston indicated that during trial his counsel had failed to present evidence 

of his alibi: that although the police officers had testified he had been sitting on a ledge 

with several other individuals, he had actually been at his home talking on the telephone 

with his girlfriend. Winston indicated he had a “phone record” which showed this and 

that there existed a video tape which showed him coming out of his house. Winston 

added that he had been coming from his front door, had been walking around to the 

parking lot and had been nowhere near “the ledge” when he was “grabbed” by the 

officers and taken into custody. Winston believed the officers had been “going for” him 

and had arrested him although he was innocent of the charge. 

 

1

 People v. Marsden (1970) 2 Cal.3d 118. 
7

In response, defense counsel indicated, although she had in her possession a video 

tape which “show[ed] Mr. Winston coming from the area of 115th where he” resides, it 

also showed him being detained by Armando in essentially the manner testified to by the 

detective. According to counsel, the video also “show[ed] the area of the blind spot 

which is the area in between the two buildings.” With regard to Winston’s girlfriend, 

counsel had an investigator take her statement and she had indicated she was available to 

testify. However counsel chose not to call her as a witness because “the statement that 

was made by her was essentially that there was another individual in the area who looks 

like Mr. Winston who is involved in the same type of activity . . . .” At the preliminary 

hearing, the detective had been questioned about this other individual and his responses 

had apparently not been favorable to Winston. 

The trial court concluded it “appear[ed] quite obvious to [the] court all 

decisions . . . [by defense counsel had been made] for tactical reasons.” The court 

determined “there [had] not been a breakdown in [the] relationship between [counsel] and 

the defendant” of such a kind that it would be “impossible for [counsel] to properly 

represent [Winston]” and, accordingly, the court denied Winston’s Marsden motion. 

After the prosecutor returned to the courtroom, Lynda Johnson testified she is a 

paralegal for the Los Angeles County District Attorney’s Office who reviews records 

regarding the criminal histories of defendants. As to Winston, Johnson determined from 

a packet prepared by the Department of Corrections that, on July 20, 2010, he had been 

convicted of assault with a deadly weapon other than a firearm upon a peace officer (Pen. 

Code, § 245, subd. (c)), resisting an executive officer in the performance of his or her 

duties (Pen. Code, § 69) and battery against a peace officer (Pen. Code, § 243, 

subd. (c)(2)). For his convictions of those offenses, Winston had been sentenced to four 

years in prison. The trial court took judicial notice of the packet as well as a file 

indicating that, in another matter, Winston had been convicted of possession of cocaine 

base for sale in violation of Health and Safety Code section 11351.5. 

Fingerprint identification expert, Natasha Lerner, had obtained latent prints from 

Winston earlier that day while he was in the “lockup room.” Winston’s counsel had been 
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present while she had obtained the prints. Lerner had then compared the prints she had 

taken to a set of prints on another document. Using the “A.C.E.V.”2

 method, Lerner 

concluded the two sets of prints had been “made by one and the same person.” Although 

her comparison would later be verified by another examiner, Lerner had no doubt both 

sets of prints had been made by Winston. 

After evaluating the evidence presented by Johnson and Lerner, the trial court 

found the alleged prior convictions and prison term “true beyond a reasonable doubt and 

that Mr. Winston [was] the individual who [had] been convicted of [the] charges [and 

served the term.]” 

After reviewing the probation report, reading the People’s sentencing 

memorandum, hearing argument by the parties and noting Winston had been on parole at 

the time of the offense, the trial court sentenced him to the upper term of five years in 

prison for his conviction of count 1, possession for sale of cocaine base (Health & Saf. 

Code, § 11351.5). The court imposed an additional consecutive term of three years in 

prison for the finding Winston previously had been convicted of possession for sale of 

cocaine base pursuant to Health and Safety Code section 11370.2, subdivision (a). With 

regard to the finding Winston had previously served a term in prison or county jail 

pursuant to Penal Code section 667.5, subdivision (b), the trial court imposed a term of 

one year in prison, the term to run consecutive to the other terms imposed. In total, the 

trial court sentenced Winston to nine years. Relying on the court’s decision in People v. 

Griffis (2013) 212 Cal.App.4th 956, the court determined the sentence was to be served 

in state prison. 

With regard to fines and fees, the trial court ordered Winston to pay a $280 

restitution fine (Pen. Code, § 1202.4, subd. (b)), a stayed $280 parole revocation 

restitution fine (Pen. Code, § 1202.45), a $40 court operations assessment (Pen. Code, 

§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), and 

 

2

 In the abbreviation “A.C.E.V.,” the “A” stands for “analysis,” the “C” stands for 

“comparison,” the “E” stands for “evaluation” and the “V” stands for “verification.” 
9

a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5). Winston was then 

awarded presentence custody credit for 133 days actually served and 132 days of good 

time/work time, for a total of 265 days. 

On December 25, 2013, Winston filed a timely notice of appeal. He requested that 

the record on appeal include “the entire transcript[] including the pre-trial motions [and] 

the voir dire.” 

CONTENTIONS 

After examination of the record, counsel filed an opening brief which raised no 

issues and requested this court to conduct an independent review of the record. By notice 

filed August 13, 2014, the clerk of this court advised Winston to submit within 30 days 

any contentions, grounds of appeal or arguments he wished this court to consider. No 

response has been received to date. 

REVIEW ON APPEAL 

We have examined the entire record and are satisfied counsel has complied fully 

with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People 

v. Wende (1979) 25 Cal.3d 436, 443.) 

DISPOSITION 

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 KITCHING, J. 

We concur: 

 KLEIN, P. J. ALDRICH, J.