People v. Davis

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Opinion

PERREN, J.

Wilson L. Davis appeals the judgment entered after a jury convicted him of possession of cocaine base for sale (Health & Saf. Code,

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§ 11351.5), and possession of marijuana for sale (§ 11359). The jury also found true the allegation that the section 11351.5 offense took place “upon the grounds of, or within 1,000 feet of’ an elementary school (§ 11353.6, subd. (b)). In a bifurcated proceeding, Davis admitted that he had previously been convicted of a drug offense (§ 11370.2, subd. (a)). He was sentenced to a total state prison term of 11 years eight months, consisting of the midterm of four years on the section 11351.5 offense, plus four years pursuant to section 11353.6, subdivision (b), plus three years pursuant to section 11370.2, subdivision (a), plus a consecutive term of eight months for the section 11359 offense.

Davis contends, and the People concede, that the evidence is insufficient to sustain the jury’s finding on the section 11353.6 enhancement with regard to his section 11351.5 offense. Accordingly, we shall order the enhancement stricken. Otherwise, we affirm.

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FACTS AND PROCEDURAL HISTORY

At approximately 4:00 p.m. on December 15, 2004, Los Angeles County Sheriff’s Detective Charles Oeland and a team of narcotics agents executed a search warrant at a single-family residence located at 9503 Grape Street in Los Angeles. The residence is located across the street from the 92d Street Elementary School. At the time the warrant was executed, between 50 and 115 children were attending after-school programs at the school.

When the agents arrived at the residence, four men, including Davis, were congregated in the front yard. After all four were detained, the agents entered the house and encountered Davis’s mother, Martha Allen, and another woman, both of whom were brought outside.

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