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People v. Fentress1/3/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant was convicted in one trial of being under the influence of methamphetamine and in a second trial of transporting methamphetamine. On appeal, he contends that the court should have granted his motion to dismiss the charges in the second case because he was subjected to multiple prosecution in violation of Penal Code section 654. He further contends that the court violated his constitutional trial rights by instructing the jury with CALJIC No. 17.41.1. We find no error and affirm the judgment.
Background
In October 1997 defendant was charged by amended information (Super. Ct. No. 194786) with auto theft (Veh. Code, § 10851) and two misdemeanors: providing false information to a peace officer (Pen. Code, § 148.9) and being under the influence of methamphetamine (Health & Saf. Code, § 11550). Defendant pleaded guilty to the false identification charge, and a jury found him guilty of being under the influence. It failed to reach a verdict on the auto theft, however, and the court declared a mistrial as to that count.
On October 29, 1997, the trial court granted the prosecutor's motion to dismiss the information over defendant's objection. On February 17, 1998, the prosecutor filed a new information charging defendant with two counts of burglary (Pen. Code, § 459), one count of unlawful taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a)), two counts of receiving stolen property (Pen. Code, § 496), and one count of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)). Defendant moved to dismiss the information, asserting a violation of double jeopardy under Penal Code section 1023 and improper prosecution under Penal Code section 654. The trial court granted the motion on double jeopardy grounds as to the unlawful taking, but denied it as to the remaining counts. Thereafter a jury found defendant guilty only of transporting methamphetamine.
All of these charges arose on December 28, 1996. That evening defendant was driving a stolen car belonging to Mary Goglio, whose home had been burglarized on December 10. Defendant's passenger was John Evans, who had promised to pay defendant $25 in exchange for a ride from Oakland back to his home in Campbell. Defendant and Evans had both been at the home of a mutual acquaintance. While he was there, Evans had snorted some of the methamphetamine he had just bought, and shortly afterward defendant had showed Evans how he was "mixing crystal meth and shooting it."
On the way to Evans's home defendant was stopped by the police at a DUI checkpoint. Defendant appeared to the officers to be under the influence of a controlled substance. He did not produce his identification and gave the officers a false name. When they discovered that the car was stolen, the officers arrested defendant and Evans. Inside Evans's wallet they found half a gram of methamphetamine. Defendant's blood tested positive for both methamphetamine and amphetamine.
Mary Goglio, the owner of the car, eventually recovered it from the police. She testified at the preliminary hearing in the first case that inside the car were a number of items, including two syringes and a Ziploc bag containing bags of white powder, which she threw away.
At the first trial defendant testified on his own behalf. He said that he was promised "speed"
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