Filed 11/25/14 P. v. Winston CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

DARRYL TRAC Y 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) a nd 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 pris on 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 PROCED URAL BACKGROUND
1. Facts

. On July 23, 2013, Los Angeles Police Department Detective John Armando was working in the Southeast Narco tics Unit. At approximately 4: 50 p.m., the detective, an experienced narcotics officer, was at the Nick erson Gardens Housing Project, a “location [which] has been the subject of a number of narc otic complaints and . . . an area that [the narcotics team] routinely work[s].” At th e time, both Armando and his partner, Officer Nicholas Gallego, who also had extensive tr aining and experience in the area of narcotics, were dressed in plain clothes (j eans and T-shirts) and were in a “plain minivan.” Armando had parked the van just south of Nickerson Gard ens, facing west on Imperial Highway. He explained he had pa rked 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 num ber of blind spots.” Armando had parked at the location on Imperial Highway next to a parking area just s outh of 115th Street
because it afforded the officers a good view of a probl em spot which was not covered by the cameras, but where Armando and Gallego kn ew narcotics were being sold. Armando was sitting in the driver’s seat and Gallego wa s in the seat just behind the front passenger seat. Armando and Gallego, who were a pproximately 100 feet from Winston, used
binoculars and were able to see him “seate d against a ledge with a couple of other individuals.” In addition, three or four ot her 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 [Winst on] 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 co ntainer, removed a small red container, then
motioned the woman to come to him. Wins ton 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-w hite 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, dayli ght,” and he had an “unobstr ucted 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 oc curred and [they] attempted to make contact with [the] female.” Armando made a U-turn on Imperi al Highway and procee ded North on Success Street. The officers did not, however, see ei ther 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 Winsto n, “ma[d]e contact with him” and Armando placed him under arrest. In the meantime, Gallego searched Winst on’s blue container. Along with some clothing and tr ash, Gallego found a “small red object about the size of a softball,” removed it from the blue containe r, opened it and found inside two plastic baggies containing “off-white solid[s] resembling cocaine ba se.” One of the baggies contained “eight individual off-white rock so lids resembling cocaine base” and the other
contained “13 off-white rock so lid[s] resembling cocaine base.”
Once the evidence had been recovered fro m the red container, Armando searched Winston and found four $5 bills in his right front pocket. Wi nston and the plastic baggies found in his container were transported to th e station. There, the plastic baggies were
booked into evid ence. They were placed in a manila envelope and “labeled with the case number, [Armando’s] name, [and Wi nston’s] name.” The enve lope was then sealed and4 placed in a secured locker. From the lock er 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 co caine, the 21 rocks of cocaine found in Winston’s possession which had been cut and pa ckaged in doses whic h generally sold for $5, and that Winston, himself, was neith er smoking cocaine nor carrying with him smoking paraphernalia. Jane Villegas is a criminalist for the Los Angeles Police Department assigned to the “scientific investigation di vision narcotics analysis unit.” Villegas, a trained forensic scientist, has been analyzing controlled su bstances 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 lock er.” 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 usi ng 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-w hite solids in the second baggi e. Since the solids in the second baggie looked “very simi lar” to those in the first ba ggie, she did not believe she needed to perform any tests on them. Villegas had no doubt th e solids in the first baggie
contained cocaine base.
2. Procedural history Following a preliminary hearing, on A ugust 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 alle ged he previously ha d been convicted of possession for sale of cocaine ba se within the meaning of Hea lth and Safety Code section 11370.2, subdivision (a) and had served a pris on 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 pol ice 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 tes tified he believed if the “observation post [were to be] revealed, it would surrender a si gnificant tactical a dvantage” and “endanger a particular resident [of Nickerson Gardens] who [knew of law enforc ement’s] actions at that location.” In addition, the detective i ndicated the location was “the only spot where [officers could] be undetected without going into th e 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-exam ine 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 earlie r, Winston had been convicted of possession for sale of cocaine ba se. 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 “c ommon plan.” The tr ial 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, de fense counsel made a motion to dismiss the matter pursuant to Penal C ode 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 delibera ting on the substantive count, Winston decided, if the jury found him guilty of the offense, he would waive his right to have it determine6 whether he had been convicted of the allege d prior convictions and served the alleged prior prison term. Winston indicated the cour t, alone, could make those determinations. During their deliberations, the jury sent th e 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 stati ng, “ ‘Is there a particular por tion of that te stimony you would like to hear or would you like to hear all of that testimony?’ ” The ju ry informed the trial
court it wished to “hea r [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 ve rdict as follows: “We the jury in the aboveentitled action find the defend ant, Darryl Tracy Winston, guilty of the crime of possession for sale of cocaine base, in viol ation 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 Marsden 1 hearing. After everyone except the court, its staf f, Winston and his counsel had left the courtroom, Winston indicated that during tria l 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 actual ly 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 hi s house. Winston added that he had been coming from his fro nt door, had been walking around to the parking lot and had been nowhere near “t he ledge” when he was “grabbed” by the officers and taken into custody. Winston be lieved 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 fro m the area of 115th where he” resides, it also showed him being detained by Armando in essentially th e manner testified to by the detective. According to counsel, the vide o also “show[ed] the area of the blind spot
which is the area in between th e two buildings.” With rega rd to Winston’s girlfriend, counsel had an investigator take her statemen t and she had indicated she was available to testify. However counsel chose not to call he r as a witness because “the statement that was made by her was essentially that there wa s another individual in the area who looks
like Mr. Winston who is involved in the same t ype of activity . . . .” At the preliminary hearing, the detective had been questioned ab out 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] rela tionship between [counsel] and
the defendant” of such a kind that it would be “impossible for [counsel] to properly represent [Winston]” and, accordi ngly, the court denied Winston’s Marsden motion. After the prosecutor returned to the cour troom, Lynda Johnson testified she is a paralegal for the Los Angeles County Distri ct Attorney’s Office who reviews records regarding the criminal histories of defendant s. As to Winston, Johnson determined from a packet prepared by the Depa rtment of Corrections that, on July 20, 2010, he had been
convicted of assault with a d eadly weapon other than a fire arm upon a peace officer (Pen. Code, § 245, subd. (c)), resisting an executiv e 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 o ffenses, Winston had been sentenced to four years in prison. The trial court took judici al notice of the packet as well as a file indicating that, in another ma tter, Winston had been convic ted of possession of cocaine
base for sale in violation of Health and Safety Code section 11351.5. Fingerprint identification expe rt, Natasha Lerner, had obta ined latent prints from Winston earlier that day while he was in the “lockup room.” Winst on’s counsel had been8 present while she had obtained the prints. Le rner 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 prin ts had been “made by one a nd the same person.” Although her comparison would later be verified by an other examiner, Lerner had no doubt both sets of prints had be en 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 a nd noting Winston had been on parole at the time of the offense, the trial court senten ced him to the upper term of five years in prison for his conviction of count 1, possessi on for sale of cocaine base (Health & Saf. Code, § 11351.5). The court imposed an ad ditional consecutive term of three years in prison for the finding Winston pr eviously 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 Winsto n had previously served a te rm in prison or county jail pursuant to Penal Code section 667.5, subdiv ision (b), the trial court imposed a term of one year in prison, the term to run consecutiv e to the other terms im posed. In total, the
trial court sentenced Winsto n to nine years. Relying on the court’s decision in People v. Griffis (2013) 212 Cal.App.4th 956, the court determined the se ntence was to be served in state prison. With regard to fines and fees, the tria l 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 convic tion 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 cr edit for 133 days actually se rved and 132 days of good time/work time, for a total of 265 days. On December 25, 2013, Winston filed a timel y notice of appeal. He requested that the record on appeal in clude “the entire transcript[] in cluding the pre-trial motions [and]
the voir dire.”
CONTENTIONS
After examination of the r ecord, counsel filed an open ing brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed August 13, 2014, the cler k of this court advised Wins ton 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.