People v. Johnson

[757]

Opinion

HEWS, J.

A jury convicted Ronald Johnson of possessing cocaine and Diazepam for sale (Health & Saf. Code, §§ 11351, 11378). He was sentenced to prison and appeals, claiming the trial court erroneously denied his Penal Code section 1538.5 motion and improperly sentenced. We reject his first contention, but agree in part with his second and therefore remand for resentencing.

Facts

Johnson dealt cocaine and other controlled substances in the Palm Springs area. One night, he was shot by his female roommate’s estranged husband, who then forcibly kidnapped the woman. Police officers responded to his home and while searching it for evidence of the shooting and kidnapping, discovered evidence of drug dealing. A more comprehensive search pursuant to a warrant then obtained revealed more evidence of the crimes.

1.

Motion to Suppress

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2. Sentencing

In denying probation and sentencing Johnson to the midterm for possessing cocaine for sale and a consecutive term for possessing Diazepam, the court said to Johnson: “I. . . [,] in having heard the evidence^] believe you were a big-time dealer in the Palm Springs area. You’re a big-time street dealer. I think under these circumstances, probation should certainly be denied. ... I really—other than the fact that you’ve not been in trouble before, I think you’re too sophisticated to have gotten caught before. I do think these activities have been going on for some time, and I think the evidence supports that theory. So I’m going to sentence you—and incidentally, you are here as a privilege, being a citizen of another country. And yet, you abused that privilege, and seriously abused it. So it will be the judgment and order of this Court, and like I say, the only mitigating circumstances is your lack of prior conviction, but there are the aggravating circumstances which certainly outweigh the mitigating circumstances just by the very nature of the crime. The fact that you are a heavy dealer. You

[758]