The People v. Wisneski CA3

Filed 9/19/13 P. v. Wisneski CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C071083

Plaintiff and Respondent, (Super. Ct. No. 11F03557)

v.

RICHARD WISNESKI,

Defendant and Appellant.

Defendant Richard Wisneski entered a plea of no contest to transportation of cocaine from one county to a noncontiguous county (Health & Saf. Code, § 11352, subd. (b); undesignated section references are to this code; count one) and possession of cocaine for sale (§ 11351; count two) and, in connection with both counts, admitted that the amount of cocaine exceeded 20 kilograms by weight (§ 11370.4, subd. (a)(4)). Defendant entered his plea in exchange for a sentencing lid of 18 years. In entering his plea, defendant understood that the trial court would consider a “split” term, but not probation. The court sentenced defendant on count one to the low term of three years plus 15 years for the quantity enhancement. The court ordered a “split” sentence under

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realignment, that is, defendant serves 13 of the 18 years in county jail and the remaining five years on mandatory supervision. (Pen. Code, § 1170, subd. (h)(5)(B).) Sentence on count two was imposed and stayed (Pen. Code, § 654).1 Defendant appeals. The trial court granted defendant’s request for a certificate of probable cause (Pen. Code, § 1237.5). Defendant contends the court erred in imposing the enhancement. We affirm the judgment. FACTS2 About 9:30 p.m. on May 16, 2011, an officer pulled a car over on Interstate 5. David Ciarelli was driving and defendant was his front seat passenger. The officer’s canine “showed interest” and a search of the trunk revealed three zipped duffel bags containing a total of 35 kilos of cocaine valued at $10,000 per kilo. Each kilo was vacuum sealed in clear plastic. Under the cocaine, officers found defendant’s shoes. Defendant claimed he did not know about the narcotics in the trunk. He claimed he was going to Oregon to a skateboard competition. Officers found a skateboard on the backseat. Ciarelli said he was going to Oregon to a skate park and asked defendant, a skateboarder, if he wanted to go with him. Ciarelli asserted that he had been instructed to pick up the car at the airport and to transport the bags to a skate park in Oregon. A receipt showed Ciarelli rented the car about 2:15 p.m. on May 16, 2011, at the Los Angeles airport. Ciarelli stated that he put the bags in the car. Ciarelli had transported bags to Oregon two months earlier and had received $1,500. Officers found $500 in an envelope in Ciarelli’s pants pocket.