Filed 12/15 /15 P. v. Parker CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and pa rties from citing or relying on opinions not ce rti fied for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been ce rti fied for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTR ICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.
JONATH A N GERALD PARKER , Defendant and Appellant. G0 5 1645
(Super. Ct. No. 1 3CF2527 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Ronald
E. Klar , Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed

.

John E. Edwards , under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 A j ury convicted defendant Jonath a n Gerald Parker of possessi ng methamphetamine (count1) and marijuana (count 2) for sale

. ( Health & Saf. Code , § § 11378, 11359. ) In bifurcated proceeding s regarding sentence enhancement allegations , the court found true an allegation Parker was free from custody on bail at the time of these offenses, and Parker admitted he had suffered four prison prior convictions. (Pen. Code, §§ 12022.1, s ubd. (b) & 667.5, subd. (b).)

The court sentenced Parker to a total term of six years in county jail, comprised of concurrent two

- year middle terms on each of counts 1 and 2, plus
consecutive two

- year terms on the bail enhancement and two of the four prison priors.
The court struck the remaining two prison priors for sentencing purpo ses only. The court
stated it sentenced Parker in this manner because of his lengthy criminal history and the
lack of a realistic chance of rehabilitation.

The court granted Parker a total of 638 days of credit for time served, consisting of 319 days of actual custody and 319 days of conduct credit under Penal Code
section 4019. After this appeal was filed, the court granted Parker’ s informal request and awarded him an additional 20 days of presentence credits (1 0 actual plus 10 conduct) due

to a flash incarceration in another case resulting from the conduct in this case.

Parker filed a timely notice of appeal. We appointed counsel to represent Parker on appeal. C ounsel filed a brief summarizing the proceedings and facts of the case and advised the c ourt he found no arguable issues to assert on Parker ’ s behalf. ( Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) To assist us in our independent review of the record, counsel suggested we consider the issues set out below.

Counsel notified Parker that he could file a supplemental brief on his own
behalf. We also notified Parker he could file a supplemental brief on his own behalf

. However, t he time for Parker to do so has passed and we have received no supplemental
brief or other communication from him.3 FACTS On August 6, 2013, Officer Evan Beresford was conduct ing surveillance at
a residence in the city of Santa Ana. That afternoon, Beresford saw Parker walk out of
th e resid ence and after 10 or 15 m inutes go back inside.

The following day Beresford , along wit h seven or eight other officers,
served a search warrant at th e residence. Prior to the search, another officer saw P arker walk from a nearby park to the residence , go inside for about five m inutes and then w alk back to the park.

The officers search ing the residence found a baggie containing smaller Ziploc bags in the top drawer of a nightstand in the northeast bedroom

. In the closet, they found a locked black box which contained methamphetamine, small Ziploc bags commonly used to package narcotics , marijuana, a digital scale and a letter from the University of Phoenix addressed to “ Jonathan. ”

On the shelf next to the black box were two letters addressed to Parke r at the residence

. M en ’ s and women ’ s clothing was found in the bedroom. The officers did
not check the sizes of the men ’s clothing, and they did not collect any fingerprints or DNA while executing the search warrant.

The prosecution drug expert opine d Parker possessed the methamphetamine and marijuana for the purpose of sale.

Quianna Wiley testified as a defense witness . She l ive d at the residence,
with her three sons , and t wo other individuals rent ed a room in the back. She testified the
northeas t bedroom was hers, and the men ’ s clothing in that bedroom belonged to the children’s father, Tony Foster, who kept clothing there because he wa s allowed to spend the night. She continue d to have an intimate relationship with Mr. Foster. She also had a

r elationship with Parker , but they d id not have sexual relations at the residence. She d id not sleep with Parker in her bedroom, they always g o t a hotel.4 Wiley testified Parker wa s allowed to enter the home through the back patio
which was occupied by the renters. She told the police that if Parker wanted to leave something in the residence he could do so, but she did not know if he had left anything
there

. If Parker had left something there, she would not have ask ed any questions. She
said Parker li ves with his mother. She could not explain why mail addressed to Parker at the residence was found

.

An of ficer t estified in rebuttal that Wiley told him her boyfriend Parker keeps property in the northeast bedroom but he is not allowed to stay there. D uring the search, she denied that the black b ox was hers.

Russell Harmon testified he and his girlfriend Dawn Williams live d on the back patio of the residence which ha d been converted into a room. Harmon ha d never

seen Parker handling methamphetamine a nd ha d never known Parker to either use or sell methamphetamine.
DISCUSSION

We have independently reviewed the entire record according to our obligations under Anders v. California , supra , 386 U.S. 738 and People v. Wende , supra , 25 Cal.3d 436 , including the issues suggested by counsel set out and discussed below , and we have found no arguable issues on appeal

.

(1) C ounsel cited In re Adams (1975) 14 Cal.3d 629 and People v. Chung (2015) 237 Cal.App.4th 462 , and suggested we consider whether Pa rker may sustain two separate convictions for possessing two different drugs for sale at the same time

. Adams involved a single incident of transportation, during which the defendant used his car to deliver multiple types of drugs to a single dealer. Sim ilarly, Chung involved a single offer to sell multiple drugs to a single buyer . But in this case, the record supports an inference that Parker possessed the methamphetamine and marijuana for sale to more
than one customer , so multiple convictions and even multiple punishments are permitted

. ( People v. Blake (1998) 68 Cal.App.4th 509, 512 .)5 (2) Counsel suggested we consider whether Parker’s custody credits were properly calculated because he was simultaneously in custody on this case and on case No. 13HF1275

. The only thing in the record on this issue is the discussion which occurred at the time of sentencing, and from that record we discern no error.

(3) Counsel suggested we consider whether the court erred in sustaining
the prosecutor ’ s objection to the introduction of Parker ’ s D epartment of M otor V ehicles
Soundex address. O ne of the police officers was asked if the address of the residence
searched was the same as the address on the Soundex. The prosecutor objected on
hear say and foundation grounds and, after some discussion, the court correctly sustained the foundation objection because the officer could not authenticate the Soundex

.

(4 ) Counsel suggested we consider whether the court erred in failing to give a sua sponte instruction regarding Wiley potentially being an accomplice , in light of Wiley’ s testimony the black box did not belong to her and that Parker was allowed to leave property at the residence. No sua sponte instruction was required because there was insufficient evidence in the record that Wiley was an accomplice. ( People v. Tobias (200 1 ) 25 Cal.4th 327, 331 .)

(5 ) Counsel suggested we consider whether the prosecutor engaged in improper argument when he commented upon the reasons he had challe nged and retained jurors and , if so, whether there was any prejudice to Parker

. T he prosecutor reminded the jurors that during voir dire he had told them he was looking for impartial and unbiased jurors with common sense and life experience. He then said , “Notice the young girl that I got rid of, that was not even out of college yet. Who here is a supervisor? Who here is a manager? Who here has children? That’s why I chose you.” “ Assuming (which we do only for the purpose of thi s analysis) that the p rosecutor’ s argument was improper, it is clear to us from our review of the record that the argument was harmless, and that no prejudice has been (or can be) demonstrated. ” ( People v. Fernandez (2013) 216 Cal.App.4th 540, 564 .)6 ( 6 ) Counsel suggested we consider whether substantial evidence support s the verdict. We have and it does. ( Jackson v. Virginia (1979) 443 U.S. 307, 318

- 319; People v. Story (2009) 45 Cal.4th 1282, 1296; People v. Johnson (1980) 26 Cal.3d 557,
578 ; People v. Zamudio (2008) 43 Cal.4th 327, 357

- 358.)

(7 ) Counsel suggested we consider whether the jury was properly instructed on the requirements for finding constructive possession. We have and they

were. (CALCRIM No. 2302; Armstrong v. Superior Court (1990) 217 Cal.App.3d 535. )

(8 ) Counsel suggested we consider whether the court abused its discretion
when it rejected Parker’s r equest for split sentencing. P en al Code section 1 170,
subd ivision (h)(5) allows the court to reject split sentencing if “t he court finds that, in the interests of justice, it is not appropriate in a particular case

. . . . ” In this case the court found split sentencing was not appropriate because of Parker’s lengthy criminal history and his lack of a realistic chance of rehabilitation. This finding w as well within the court’s broad discretion.
DISPOSITION

The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

RYLAARSDAM , ACTING P. J.

FYBEL , J.