People v. Colds

Opinion

KINGSLEY, Acting P. J.

Defendant was charged with a violation of section 11379.5 of the Health and Safety Code (transportation and sale of phencyclidine). After trial by the court (trial by jury having been duly waived), he was found guilty as charged. He was sentenced to the middle term of four years. He has appealed. We affirm the conviction.

The People, both by appeal (Crim. No. 39678) and by petition for writ of mandate (Civ. No. 61729), have attacked the sentence as unauthorized, claiming that, on the record, defendant should have been given the upper term of five years. We reverse the judgment and dismiss the petition for mandate.

1

[863]

I

On his appeal, defendant contends only that the evidence does not support the conviction. We disagree. The case for the People was that defendant had accompanied two other men (codefendants in the case) while they discussed with undercover agents the sale of PCP in gallon lots, had accompanied his companions to a rendezvous where the purchase price was exhibited and, at the request of one of his companions, produced the PCP from a leather bag he was carrying. Defendant testified that he had accompanied the other two men to a bar, thinking only that they were to drink together, had not heard the conversation, and was carrying the bag only because he thought it should not be left in an unlocked car, and had no knowledge of its contents.

As defendant correctly argues, conviction of a violation of section 11379.5 requires proof of both possession and knowledge of the character of the material possessed. We cannot say that the trial court was not entitled to reject defendant’s story (which contained some unexplained and unlikely factors)

2

and infer, from the People’s evidence, that defendant was well aware of the fact that he was carrying the PCP involved and was a party to the sale.

II

At the time of sentencing, the People urged the upper term be imposed. The trial court said: “The sentence for this is three, four or five years in prison and there is enough in this probation report for me to aggravate it up to an upper term, five years, but I will take into consideration that the defendant did waive a jury trial.”