People v. Wyatt

Opinion

DABNEY, J.

Defendant Victor Wyatt was charged in an information with one felony count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a).) A jury found him guilty as charged. He was sentenced to state prison for the aggravated term of three years.

Defendant contends on appeal that the trial court erred: (1) in failing to sua sponte instruct the jury that his inconsistent statement obtained in violation of his Miranda

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rights could only be used to determine his credibility and not as substantive evidence of his guilt; (2) in instructing the jury in accordance with CALJIC Nos. 2.21, 2.13, and 2.71, which were cumulatively prejudicial; and (3) in using an improper circumstance to sentence him to the aggravated term of three years.

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Statement of Facts

On December 26, 1987, at approximately 5:10 p.m., Deputy Sheriff Clifford C. Raynolds was patrolling an alley in Victorville. It was still light enough that he could see the area clearly without artificial lighting. As he entered the alley at a low rate of speed he saw the defendant walking towards him. The deputy saw defendant drop a rolled-up piece of paper on the ground. The deputy stopped the vehicle and recovered the paper, which turned out to be a napkin from a nearby convenience store. There were no other pieces of paper on the ground or any other people in the area. The deputy looked inside the napkin and examined its contents. From his experience in making arrests for narcotics transactions, the deputy determined that the napkin contained rock cocaine. A laboratory analysis confirmed the substance was cocaine. The deputy told defendant “Hey, stop.” A brief pursuit followed, and the deputy arrested defendant. Raynolds asked defendant why he threw the napkin down. Defendant responded, “I did not think you could see me, I thought I was behind that pole.” At trial it was stipulated that this statement was received in violation of

Miranda.

Defense.

Defendant testified that he was in the area to use the telephone and to buy some chewing gum from the Barrel House liquor store. He admitted having been in the alley and having seen the patrol car, but he denied having thrown down the paper containing the cocaine. He testified that he had discarded the wrapping from a package of chewing gum; and that the deputy discovered the packet containing the suspected contraband at a location other than where he had thrown the gum wrapper after, not before, he was stopped by the deputy. He denied that the cocaine was his. Defendant admitted that he had a prior felony conviction for commercial burglary in 1982.