P. v. Alexander

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Filed 12/12/03 P. v. Alexander CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
THE PEOPLE,
Plaintiff and Respondent,
v.
LARRY D. ALEXANDER,
Defendant and Appellant.
C041257
(Super. Ct. No.
SF082949A)
Defendant Larry Alexander was convicted of transporting
cocaine and possessing cocaine base for sale. He admitted two
prior serious felony convictions within the meaning of the Three
Strikes Law (Pen. Code, §§ 667, subd. (d) and 1170.12, subd.
(b)) and was sentenced to 25 years to life in state prison.
On appeal he argues the trial court erred in: (1) denying
his motion to discover the personnel files of the officers

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involved in his arrest; (2) denying his motion to suppress
evidence; (3) preventing cross examination; (4) denying his
motions to discharge his court appointed attorney; and (5)
denying his motion to strike one or both of his prior felony
conviction allegations. He also asserts there was insufficient
evidence to convict him of possession of cocaine with the intent
to sell it.
We find no merit in defendant’s arguments and shall affirm
the judgment with directions to correct the abstract of judgment
to conform to the trial court’s order to stay the possession
with intent to sell conviction (count 2) pursuant to Penal Code
section 654.
FACTUAL AND PROCEDURAL BACKGROUND
The Stockton Police Department received several complaints
that apartment 280 in the Delta Gateway Apartments was receiving
short stay traffic. Based on this information narcotics
officers Jimmy Fritts and Mike Dixon went to the apartment
complex in plain clothes and an unmarked police van. They
parked inside the complex and observed apartment 280 from inside
the van. Narcotics detectives Jose Martinez and Scott Votino
were waiting outside the apartment complex in plain clothes and
an unmarked car.
As officers Fritts and Dixon watched, Ronzetta Brown exited
apartment 280 onto the landing and looked northbound toward the
entrance to the complex. She walked back in the apartment, then
came out with a portable phone. She continued to look toward

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the entrance to the complex as she spoke on the phone. Seconds
later a car came through the main entrance and parked in a stall
directly in front of apartment 280.
A man later identified as defendant got out of the car and
went upstairs to speak with Brown. They spoke briefly outside
then walked inside the apartment. Less than 30 seconds later
defendant came out, went down the stairs to the car and opened
the gas tank cover. Fritts and Dixon observed defendant take a
clear plastic baggie from the gas tank area and could see more
plastic tucked inside the gas tank cover.
Defendant closed the plastic baggie into his fist and went
back up to apartment 280. He was there a minute before he came
back out and went to his car. Officer Fritts contacted officers
Martinez and Votino by radio, gave them a description of the
defendant and his car, and told them to have a marked unit stop
defendant’s car after it left the complex.
After defendant left, Brown came out of her apartment and
went to apartment 188. She had one hand clenched into a fist.
She went inside briefly, then came back out and returned to
apartment 280. Officers Fritts and Dixon searched apartment
280, but found no drugs.
After Fritts contacted officers Martinez and Votino by
radio, they contacted dispatch and asked for a marked patrol car
and uniformed officer to respond to the area to stop defendant.
Officers Miles and Wentland were the uniformed officers
dispatched to the area. Officers Martinez and Votino observed

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officer Miles stop defendant’s car after it left the apartment
complex. While Officer Miles had defendant sitting in the back
of the patrol car, Officer Votino opened the gas tank on
defendant’s car. Officers Martinez and Votino both observed
plastic bags containing an off-white rock-like substance that
was later determined to be cocaine. The amount of cocaine
recovered was 18.62 grams.
Officer Votino searched defendant and retrieved a pager and
cell phone from his pockets.
Defendant was charged with transporting cocaine and
possessing cocaine base for sale. (Health & Saf. Code, §§
11352, 11351.5.) The information alleged defendant had suffered
two prior serious felony convictions within the meaning of the
Three Strikes Law. (Pen. Code, §§ 667, subd. (d) and 1170.12,
subd. (b).)1
Defendant moved to suppress, inter alia, the observations
of the law enforcement officers, any statements he made to the
officers, the cocaine, and his cell phone and pager on the
grounds the officers did not have probable cause to search him.
The trial court found there was probable cause and denied the
motion.
1 References to a section are to the Penal Code.

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Defendant also brought a Pitchess2 motion to discover
certain personnel files of all of the officers involved in the
stake-out and arrest. The motion was denied.
The jury found defendant guilty on both counts. Defendant
admitted the truth of the prior conviction allegations.
The trial court sentenced defendant to 25 years to life on
count 1, and imposed a consecutive one year and four months
sentence on count 2, which was stayed pursuant to section 654.
DISCUSSION
I
Pitchess Motion
Defendant made a motion to discover the personnel records
of officers Votino, Martinez, Fritts, Miles, Dixon, and Wentland
relating to “acts, statements, or any other type of behavior
demonstrating untruthfulness, propensity for fabrication and
planting evidence.”
The declaration of defendant’s counsel in support of the
motion asserted on information and belief “that Mr. ALEXANDER
did not take any narcotics out of his gas tank and did not have
two additional bags containing cocaine base stuffed beside[] the
gas intake area.” The declaration also alleged on information
and belief defendant did not “possess, sell, transport or
possess for sale any rock cocaine” on the date of the offense
and that “Officers Fritts and Dixon fabricated their
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

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observations” and that “Officers Fritts, Dixon, Martinez,
Votino, Miles and Wentland fabricated their claims that they
found two plastic bags containing cocaine base stuffed beside
the gas intake area.” The declaration asserted the officers
either fabricated finding any cocaine or planted the cocaine.
Both the district attorney and city attorney representing
the City of Stockton filed oppositions to the motion. Defendant
objected to the opposition of the district attorney on the
grounds the district attorney had no standing to represent a
third party in discovery proceedings. However, the trial court
heard argument from both the district attorney and the city
attorney.
The district attorney argued the declaration supporting the
motion was inadequate because it merely stated conclusions
without giving the source of the facts on which the conclusions
were based. The district attorney also argued the version of
events stated in the declaration was not credible. The city
attorney incorporated the arguments of the district attorney and
submitted the matter.
After the motion was argued, the trial court ruled with the
exception of officers Fritts and Dixon there were no credibility
issues and denied the motion as to the other four officers.
With regard to officers Fritts and Dixon, the trial court stated
there was “some color” to an argument for discovery of their
records, but found defendant had not made the required threshold

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showing because the declaration was nothing more than a
disagreement with the officers’ version of events.
a. Standing to Oppose Pitchess Motion.
Defendant argues the trial court erred when it allowed the
district attorney to oppose the Pitchess motion. We agree.
However, we find the error harmless in this case.
In the recent Supreme Court case, Alford v. Superior Court
(2003) 29 Cal.4th 1033, 1045, the court held a district attorney
has no standing to be heard on a Pitchess motion. Nevertheless,
any error here was harmless beyond a reasonable doubt. If the
custodian of the records being sought raises an objection to the
disclosure, as the City of Stockton did in this case, the
defendant must make “a plausible justification” for the
necessity of the records. (Ibid.) As we explain, post,
defendant did not make such a showing in this case.
b. Inadequate Showing of Good Cause.
Pitchess, supra, established the right of a criminal
defendant to discover the personnel records of peace officers,
subject to certain limitations. The holding in Pitchess was
later codified. In particular Evidence Code sections 1043 and
1045 set forth a two-step process for obtaining discovery of
peace officer personnel records.
First, the defendant must file a written motion and give
notice to the agency holding the records. The motion must
describe the type of records sought and contain a declaration
showing “good cause” for the discovery and setting forth the

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materiality of the records to the pending litigation.3 (Evid.
Code, § 1043.) Second, if the court finds the showing of good
cause has been made, it reviews the records to determine whether
any are relevant. (Evid. Code, § 1045.)
3 The full text of Evidence Code section 1043 reads as
follows:
“(a) In any case in which discovery or disclosure is sought
of peace or custodial officer personnel records or records
maintained pursuant to Section 832.5 of the Penal Code or
information from those records, the party seeking the discovery
or disclosure shall file a written motion with the appropriate
court or administrative body upon written notice to the
governmental agency which has custody and control of the
records. The written notice shall be given at the times
prescribed by subdivision (b) of Section 1005 of the Code of
Civil Procedure. Upon receipt of the notice the governmental
agency served shall immediately notify the individual whose
records are sought.
(b) The motion shall include all of the following:
(1) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure,
the peace or custodial officer whose records are sought, the
governmental agency which has custody and control of the
records, and the time and place at which the motion for
discovery or disclosure shall be heard.
(2) A description of the type of records or information
sought.
(3) Affidavits showing good cause for the discovery or
disclosure sought, setting forth the materiality thereof to the
subject matter involved in the pending litigation and stating
upon reasonable belief that the governmental agency identified
has the records or information from the records.
(c) No hearing upon a motion for discovery or disclosure
shall be held without full compliance with the notice provisions
of this section except upon a showing by the moving party of
good cause for noncompliance, or upon a waiver of the hearing by
the governmental agency identified as having the records.

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A showing of “good cause” requires a defendant to set forth
a “specific factual scenario” that establishes a “plausible
factual foundation” for the allegations of misconduct. (City of
Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86;
California Highway Patrol v. Superior Court (2000) 84
Cal.App.4th 1010, 1020.) The “good cause” requirement is a
“relatively low threshold for discovery”, that is offset by the
protective provisions of Evidence Code section 1045 excluding
certain records from disclosure and establishing a procedure for
in camera inspection prior to disclosure. (City of Santa Cruz
v. Municipal Court, supra, at p. 83.)
Whether the defendant's threshold showing is sufficient is
addressed solely to the discretion of the trial court. (People
v. Breaux (1991) 1 Cal.4th 281, 311-312; City of San Jose v.
Superior Court (1998) 67 Cal.App.4th 1135, 1145.) We conclude
the trial court did not abuse its discretion in finding
defendant failed to meet the threshold showing.
The factual scenario proposed by defendant’s motion was
that officers Dixon and Fritts lied about seeing defendant
retrieve drugs from his gas tank, and all the officers lied
about recovering drugs from around the gas tank of his car.
Alternatively, he asserted “they planted the cocaine base in the
gas tank area.”
Defendant’s factual scenario as set forth in the
declaration supporting the motion is sufficiently specific as it
relates to the allegation of fabricating evidence, but not as it

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relates to the allegation of planting evidence. Defendant does
not specify when or who planted the evidence, only that the
evidence was planted.
Whether or not the factual scenario was sufficiently
specific, the trial court did not abuse its discretion in
finding the scenario was not plausible. Defendant’s factual
scenario is based on the premise that no less than six officers
conspired to falsify police reports in order to arrest him.
Only four of these officers were narcotics officers. The other
two were dispatched after the operation was underway. There is
no allegation in the declaration that any of the officers knew
defendant or had any kind of score to settle with him. The
officers testified they were on a stakeout of Brown’s apartment.
Therefore, when the operation began they had no idea defendant
would become involved.
The scenario involving planting evidence is even less
plausible. The officers who recovered the cocaine were not the
same officers as those who first observed it in defendant’s car.
It is unlikely officers Fritts and Dixon would have had time to
plant evidence since defendant was only inside the apartment a
minute or two.
The trial court was required to determine the plausibility
of defendant’s proposed factual scenario. Because the only
basis for the scenario was defendant’s denial of the
allegations, the defendant’s scenario was contradicted by the
proposed testimony of six officers, and the factual scenario was

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inherently unlikely, we cannot say the trial court abused its
discretion in deciding there was no plausible factual foundation
to support a finding of good cause.
II
Probable Cause
Defendant made a pre-trial motion pursuant to section
1538.5 to suppress evidence obtained as the result of the search
on the grounds there was no search warrant and there was
insufficient evidence for probable cause.
Officer Fritts testified at the hearing on defendant’s
motion. He testified on the day in question he was observing
apartment 280 because of complaints of short stay traffic
related to suspected drug activity in that apartment. He had
information that the tenant of that apartment, Ronzetta Brown,
might be involved.
As he was watching apartment 280, Brown came out of the
apartment and spoke on a portable phone to someone as she looked
towards the entrance to the apartment complex. A brown
Oldsmobile came through the entryway and parked directly in
front of Brown’s apartment. When the vehicle arrived, Brown put
down the phone. Defendant was later determined to be the driver
of the car. He was its sole occupant.
Defendant went over to Brown, then the two of them went
inside her apartment. Ten to twenty seconds later defendant
came out by himself, walked to his car, and opened the gas
cover. Fritts observed a bunch of clear plastic stuffed inside
the gas cover. Defendant reached in and removed a plastic

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bindle that appeared to have a solid object the size of a large
marble inside.
Defendant closed the gas cover and closed the bindle into
his fist. There was still more plastic inside the gas tank
area. At this point Fritts radioed officers Martinez and Votino
to have defendant’s vehicle stopped when it left the complex.
Defendant returned to Brown’s apartment, then came back out,
returned to his car and left. Fritts contacted the other
officers again to give them a description of defendant and his
car. Defendant was stopped within a minute or two of leaving
the complex. Fritts was informed defendant had been stopped
around the time Brown was walking across to apartment 188.
If probable cause exists, law enforcement officers may
search an automobile even without a warrant. (People v. Banks
(1990) 217 Cal.App.3d 1358, 1362; (United States v. Ross (1982)
456 U.S. 798, 823 [72 L.Ed.2d 572, 592-593].) The test for
determining whether probable cause exists is whether “‘given all
the circumstances . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.’ (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d
527, 548, 103 S.Ct. 2317].)” (People v. Banks, supra, at p.
1363.)
In this case the officers were watching Brown’s apartment
because they received a tip the apartment was being used for
drug trafficking. Defendant met with Brown briefly, then
retrieved what appeared to the officers to be a bindle of

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narcotics from his gas tank area. They saw what appeared to be
more drugs stashed around the gas intake area. Given these
circumstances there was a fair probability a search of
defendant’s car would produce the observed contraband. These
circumstances were sufficient to establish probable cause.
People v. Huntsman (1984) 152 Cal.App.3d 1073, cited by
defendant, is to be distinguished from the present case. In
People v. Huntsman, supra, officers observed two men behind a
vehicle in a parking lot located in a high-prostitution area.
One of the men was holding a large Zip-Lock bag, but the
officers were unable to see whether the bag contained anything.
One of the men was looking around, and when the officer’s
unmarked vehicle approached, the men slammed the trunk lid
closed and walked away. (Id. at p. 1079.) This court observed
that “the officer simply observed defendant holding an eight-by-
eleven-inch plastic bag; no more, no less.” (Id. at p. 1083.)
We noted such bags could be used to hold a variety of legitimate
objects.
Here, unlike People v. Huntsman, the officers were able to
see that the plastic bag defendant retrieved contained a
substance that appeared to be contraband. Defendant was in
contact with a person the officers were watching for suspected
drug trafficking. Additionally, defendant retrieved the bag
from around his gas tank, which, unlike the trunk, is a highly
suspicious area to be used for transport. Defendant took the
plastic bag concealed in his closed fist into the apartment the

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officers were surveilling. Shortly thereafter, Brown left the
apartment to go to another apartment, apparently concealing
something in her closed fist as had defendant in bringing a
plastic bag to her. These factors present circumstances far
more incriminating than those in People v. Huntsman.
III
Right to Confront Witnesses
Officer Fritts wrote a letter that was published in the
Stockton Record. In the letter, he criticized the district
attorney’s office for offering plea bargains in drug cases in
order to improve its conviction ratio.
On cross-examination defendant’s attorney questioned Fritts
without objection about his motivation for writing the letter.
Later on re-cross, defendant’s attorney asked Fritts if he had
planted evidence in the past. He responded he had never planted
evidence. Counsel asked if he would admit to planting evidence
if he had. The trial court sustained the prosecution’s
objection to the question.
Defendant’s attorney asked officer Dixon if he had read the
letter Fritts wrote. Dixon replied he had not read the letter.
Dixon was then asked if Fritts had ever discussed with Dixon his
frustrations with the district attorney’s office. The trial
court sustained the prosecution’s objection to this question.
Later on re-cross, defendant’s counsel asked what Dixon would
have done if he had seen Fritts plant drugs in defendant’s gas
tank. Dixon stated he would have arrested Fritts.

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Defendant now argues he was precluded from inquiring into
Fritts’s credibility and from demonstrating Fritts could have
fabricated testimony and planted evidence. He claims this
violated his Sixth Amendment right to confront and cross-examine
witnesses. We disagree.
“‘[A] criminal defendant states a violation
of the Confrontation Clause by showing that
he was prohibited from engaging in otherwise
appropriate cross-examination designed to
show a prototypical form of bias on the part
of the witness, and thereby, “to expose to
the jury the facts from which jurors . . .
could appropriately draw inferences relating
to the reliability of the witness.”’
[Citations.] However, not every restriction
on a defendant's desired method of cross-
examination is a constitutional violation.
Within the confines of the confrontation
clause, the trial court retains wide
latitude in restricting cross-examination
that is repetitive, prejudicial, confusing
of the issues, or of marginal relevance.
[Citations.] California law is in accord.
[Citation.] Thus, unless the defendant can
show that the prohibited cross-examination
would have produced ‘a significantly
different impression of [the witnesses']
credibility’ [citation], the trial court's
exercise of its discretion in this regard
does not violate the Sixth Amendment.”
(People v. Frye (1998) 18 Cal.4th 894, 946.)
The trial court did not violate defendant’s Sixth Amendment
rights here because the cross-examination was not otherwise
appropriate and because he has failed to show the cross-
examination would have produced a significant difference in the
impression of Fritts’s credibility.

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Defendant’s question to Fritts about whether he would admit
to falsifying evidence if he had done so was improper because it
assumed facts not in evidence and was argumentative. (Evid.
Code, §§ 403, 765.) Although the question to officer Dixon may
have been admissible as it related to Fritts’s credibility,
there was no showing the questioning would have produced
evidence probative of Fritts’s credibility. The question asked
related to Fritts’s expressed frustrations with the district
attorney’s office, not with any statements Fritts had ever made
about planting evidence. Defendant’s counsel was not precluded
from questioning Dixon about whether he had ever seen Fritts
plant evidence or talk about planting evidence.
Defendant’s counsel was able to plant the seed of doubt
with the jury that Fritts was frustrated with the district
attorney’s handling of narcotics cases and might have planted
evidence in this case. It is unlikely the prohibited cross-
examination would have produced a different impression of
Fritts’s credibility.
IV
Marsden Motion
Defendant raised four Marsden4 motions to discharge his
court appointed attorney.
4 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

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a. First Marsden Motion.
In the first motion defendant complained because his
attorney had advised him to accept the plea bargain being
offered by the district attorney, had not communicated with him,
had a conflict of interest, and was not “adequate counsel[.]”
The trial court asked what the conflict involved, and defendant
replied it was telling his family he would get 25 to life if he
went to trial. Defendant claimed he wrote his counsel several
letters and had not heard from her.
The trial court questioned defendant’s counsel. She
acknowledged she told defendant’s mother there was an offer of
eight years imprisonment and that his exposure was 25 years to
life if he went to trial. She told defendant he had no real
defense if they were unable to win a suppression motion, and
that he would likely be convicted and receive 25 to life unless
she could get the court to strike one of his prior felony
convictions.
Defense counsel stated defendant had not written her any
letters, and that she was not aware he wanted her to come visit
him. She stated she had filed a suppression motion and was not
aware there was anything further they needed to discuss.
The trial court found counsel’s representation adequate and
denied the motion.
b. Second Marsden Motion.
At the second Marsden motion defendant claimed counsel was
not communicating with him, was not filing motions that needed

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to be filed, and had not asked the district attorney to give him
a “proper deal[.]” He claimed he wanted her to file a Pitchess
motion and a Faretta motion.5 He said, “I even asked people that
some of the inmates they was telling me about her, they say, ‘If
you go to trial with her, you’re going to lose.’” Defendant
stated his complaints were the motions and the conflict of
interest, explaining that “[w]e always arguing.” Defendant said
he thought he had raised enough issues to get a new lawyer
because, “I got rid of lawyers before and I only had one excuse
. . . .”
The trial court asked for comments from defendant’s
attorney. She stated the suppression motion had been denied,
and that after the denial she spoke to defendant to see what he
wanted to do. He told her he was now willing to take the offer
of eight years, and she communicated that to the district
attorney. However, defendant later decided he did not want to
take the eight year deal.
She did not think defendant actually wanted a Faretta
motion. She believed he wanted some type of motion that would
relieve the public defender’s office. She told him she was not
aware there was such a motion.
Counsel admitted she had not seen defendant for two weeks.
She said their relationship had been contentious and she did not
see him because he told her they had nothing to talk about. She
5 Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].

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stated she agreed with defendant that if the case went to trial
a Pitchess motion should be filed because of information
defendant recently gave her.
The trial court told defendant he did not see any conflict
of interest, merely a conflict of personality. The trial court
observed defendant was a “fairly contentious person.” The trial
court stated, “[n]obody is going to get along with you. There
isn’t anybody that’s going to satisfy you, as far as I can
tell.”
The court explained to defendant that a Faretta motion was
a motion to represent himself, not to get rid of every public
defender. Defendant confirmed he did not want to bring a
Faretta motion.
The trial court denied the motion.
c. Third Marsden Motion.
Defendant brought a third Marsden motion, complaining his
attorney did not do anything on time, had failed to prepare and
file motions, specifically a section 995 motion, and had failed
to present evidence critical to his defense.
Defendant stated he wanted to present evidence officer
Fritts had been held in contempt of court for perjury.
Defendant stated he had heard about Fritts from an inmate. The
trial court told defendant the information he had was incorrect.
The court stated that if Fritts had been held in contempt for
perjury, the court would have known about it and officer Fritts

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would not be an officer anymore. Defendant admitted his
attorney was now visiting him.
Defendant’s counsel stated she had not filed a 995 motion.
She felt there was probable cause presented at the preliminary
hearing, and saw no legitimate issues for a 995 motion. She
stated she had filed the Pitchess motion and it had been denied.
She was planning to file a writ, but told defendant it was
unlikely to be successful.
The trial court denied the third Marsden motion.
d. Fourth Marsden Motion.
In his fourth Marsden motion, defendant challenged his
attorney’s decision not to call Ronzetta Brown as a witness.
The attorney believed Brown’s harmful testimony would outweigh
her beneficial testimony. The trial court denied the fourth
Pitchess motion.
A defendant is entitled to discharge his or her attorney
and have a new one appointed upon a showing that the attorney is
not providing adequate representation or that the defendant
cannot receive effective representation because of an
irreconcilable conflict. (People v. Fierro (1991) 1 Cal.4th
173, 204.) Defendant does not argue the trial court erred
because his attorney was not providing adequate representation.
Instead, he argues there was an irreconcilable conflict, and the
trial court erred because it did not further explore this in the
hearings.

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We review the trial court’s ruling under the deferential
abuse of discretion standard. (People v. Jones (2003) 29
Cal.4th 1229, 1245.)
Defendant argues without support that the trial court
should have “inquired further about whether the relationship was
impaired to a degree that the Sixth Amendment right was being
violated.” We disagree.
Defendant never told the trial court his relationship with
his attorney had deteriorated to such a point she was unable to
effectively represent him. The questions the trial court asked
defendant and his counsel satisfied the court that defendant’s
counsel was adequately representing him. While the trial court
must inquire into the reasons for defendant’s complaints, allow
defendant an opportunity to state the specific instances of
inadequacy, and even question the attorney in some
circumstances, the trial court is not required to “catechize” a
defendant who had inadequately supported the reasons he is
dissatisfied. (People v. Hill (1983) 148 Cal.App.3d 744, 753;
People v. Culton (1979) 92 Cal.App.3d 113, 116-117.)
Even if defendant and his counsel had a contentious
relationship, there is no indication from the record that their
relationship affected counsel’s representation. Nor do we find
the number of motions filed by defendant any indication his
trial counsel could not effectively represent him. Instead, the
picture that emerges from the record is defendant decided, based
on his conversations with other inmates, he would lose his case

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if his attorney continued to represent him. His repeated
attempts to discharge his attorney were merely an attempt to get
someone he thought would be better. They were not an indication
the relationship was so contentious the attorney could not
effectively represent him. Accordingly, the trial court did not
err in denying the Marsden motions.
V
Sufficiency of the Evidence
Defendant argues there was insufficient evidence to support
his conviction of possession with intent to sell because the
only evidence defendant intended to sell the cocaine was officer
Fritts’s expert opinion defendant possessed the drug for sale.
It is well settled that our role is not to reweigh the
evidence upon a claim of insufficiency, but simply to determine
whether the record discloses substantial evidence to support an
inference of guilt. (People v. Perry (1972) 7 Cal.3d 756, 785,
overruled in part on other grounds in People v. Green (1980) 27
Cal.3d 1, 21; People v. Johnson (1980) 26 Cal.3d 557, 575-579.)
In this case the evidence was clearly sufficient to support
a finding by the jury that defendant possessed the cocaine for
sale. Defendant was observed going to an apartment the police
suspected was being used for drug trafficking. After meeting
briefly with the tenant of the apartment (Brown), defendant went
directly to his vehicle where he had stored multiple bags of
cocaine, removed at least one bag from his gas tank, and
appeared to take it back, concealed in his closed fist, to the
apartment. After he left, Brown appeared to take the cocaine,

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concealed in her closed fist, to another apartment from which
she returned without the cocaine. These actions are consistent
with a sales transaction between defendant and Brown.
Additionally, officer Fritts testified the amount of
cocaine indicated it was for sale. He stated a usable amount of
cocaine is .05 grams, which is the amount someone would normally
smoke, although he had seen people smoke .10 grams. He
testified it would be highly uncommon to find a user carrying
the amount of cocaine defendant had. By defendant’s own
testimony, he did not use cocaine.
The evidence was sufficient to support the jury’s finding
of possession of cocaine for sale.
VI
Romero Motion
Defendant made a motion to strike one or both of his prior
felony conviction allegations pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497. The grounds articulated
for the motion were that the current offenses were “relatively
minor” in comparison to his prior robbery convictions, and that
he had support from the community.
The trial court articulated several reasons for denying the
motion. The court stated the present offense, while not serious
and violent in terms of the Three Strikes Law, was nevertheless
a serious offense. Secondly, the court stated defendant’s
criminal history was both serious and recent. The court cited
the fact that defendant had not been able to stay out of “legal
difficulties” as a “big, big factor[.]”

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Next, the court found defendant’s record did not look
favorable in terms of his background and likelihood of staying
out of trouble in the future. By way of explanation, the court
noted that defendant’s testimony itself was damning on this
subject. Defendant told the jury he had lost $2,000 gambling
and made money by loan sharking. The jury did not believe
defendant’s story that the drugs had been planted, and
defendant’s testimony led the court to believe defendant had not
learned any lessons. The court indicated it had warned
defendant of the serious nature of the charges he was facing and
urged him to make an appropriate choice, presumably with respect
to the plea offer.
The trial court acknowledged that defendant’s family was
supportive, but did not feel defendant fell outside the spirit
of the Three Strikes Law. Accordingly, the trial court declined
to exercise its discretion to strike one of the prior felony
conviction allegations.
Defendant argues the trial court refused to exercise its
discretion to strike one or both of the prior felony convictions
because it improperly relied on defendant’s personality traits
and his decision to exercise his constitutional right to trial
in making its determination. Defendant claims the trial court
“viewed him as stubborn, willful, and having made stupid
decisions.” Defendant argues these were improper grounds on
which to base a sentencing decision.

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A review of the entire transcript of the sentencing hearing
reveals the trial court’s decision was properly grounded. As
noted above, the trial court properly considered the nature and
circumstances of the current and prior felonies, as well as
defendant’s character and prospects. These are proper
considerations in a trial court’s determination. (People v.
Garcia (1999) 20 Cal.4th 490, 498-499.) There was no abuse of
discretion.
VII
Correction of Abstract
Defendant correctly points out that the abstract of
judgment does not reflect the trial court’s order that count 2
be stayed pursuant to section 654. We shall order the abstract
be corrected.
DISPOSITION
The abstract of judgment is ordered corrected to reflect
count 2 is stayed pursuant to section 654. The clerk of the
superior court is directed to prepare a corrected abstract of
judgment and to forward it to the Department of Corrections.
The judgment is affirmed in all other respects.
BLEASE , Acting P. J.
We concur:
SIMS , J.
NICHOLSON , J.

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