People v. Dossman

Opinion

HANING, J.

—Freva Short Dossman appeals her conviction by guilty plea of possession of marijuana for sale. (Health & Saf. Code, § 11359.) She contends the evidence supporting her conviction was the product of an unlawful search and seizure, and that the court erred in sentencing her to the upper term. We affirm.

Procedural History

Appellant was charged by complaint with possession for sale of methamphetamine, possession for sale of cocaine, possession for sale of lysergic acid diethylamide (L.S.D.), and possession for sale of marijuana. Pursuant to Penal Code section 1538.5, subdivision (f),

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she moved at the preliminary hearing to suppress evidence seized from her home. The motion was granted and the complaint was dismissed when the People were unable to proceed. Thereafter, the People moved successfully in the superior court for reinstatement of the complaint pursuant to section 871.5. The court granted the motion and ordered the magistrate to reinstate the complaint. The preliminary hearing then resumed and additional evidence was taken, after which appellant was held to answer. Thereafter, pursuant to a plea bargain in the superior court, and without renewing her motion to suppress (§ 1538.5) or moving to dismiss (§ 995), appellant pled guilty to possession of marijuana for sale (Health & Saf. Code, § 11359) and the remaining charges were

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dismissed. She was sentenced to the upper term of three years in state prison. Her notice of appeal states that the grounds for appeal include, but are not limited to, the court’s error in imposing the upper term. Her appellate brief raises search and seizure issues.

Facts

The Petaluma police arrested David Bettencourt and found him in possession of an ounce of methamphetamine. Either from a sincere pang of conscience or an effort to assist his own case, Bettencourt agreed to assist the police in apprehending his supplier, whom he identified as appellant. Police gave Bettencourt $1,300 in recorded public funds for use in the transaction, and he was wired with a body microphone to monitor his conversation with appellant. He was instructed to signal police with a prearranged statement if he observed narcotics and a transaction was conducted. After being invited into appellant’s house, Bettencourt gave the prearranged signal to the police, after which they forcibly entered. Appellant was handcuffed and signed a written consent-to-search form. The police recovered large quantities of marijuana, methamphetamine, cocaine, L.S.D. and related drug paraphernalia, records of drug sales, and $1,040 in currency.