People v. Sherman

Opinion

PARRILLI, J.

A jury convicted appellant Darin Mercell Sherman of selling cocaine base (Health & Saf. Code, § 11352) and he admitted a prior conviction for selling cocaine base (Health & Saf. Code, § 11370.2, subd. (a)). The court sentenced appellant to a total term of six years in prison.

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On appeal, appellant contends the evidence does not support what he claims is an essential element of his conviction for selling cocaine base: namely, that the cocaine base he sold was capable of “having a stimulant

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effect on the central nervous system.” (Health & Saf. Code, § 11054, subd. (f)(1).) In addition, appellant contends the trial court prejudicially erred when it admitted evidence of a prior instance in which defendant sold base cocaine. The trial court admitted evidence of this prior offense to prove a common design or plan in the present offense. We affirm.

I

Facts

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II

Discussion

A.

The Prosecution Was Not Required to Prove the Cocaine Base Sold Was Capable of “Having a Stimulant Effect on the Central Nervous System.”

Appellant contends an essential element of a charge of selling base cocaine is that the base cocaine sold must be capable of “having a stimulant effect on the central nervous system.” Appellant further contends the prosecution offered no evidence on this element and, consequently, his conviction must fall. We disagree. As we explain, appellant has misconstrued the applicable statutes.

Health and Safety Code section 11352, subdivision (a) provides in pertinent part: “Except as otherwise provided in this division, every person who . . . sells . . . (1) any controlled substance specified in . . . paragraph (1) of subdivision (f) of Section 11054 . . . shall be punished by imprisonment in the state prison for three, four, or five years.” Health and Safety Code section 11054 provides in pertinent part: “(a) The controlled substances listed in this section are included in Schedule I. . . . [¶] . . . [¶] (f) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances