People v. Smith CA5

Filed 2/17/15 P. v. Smith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F067688 Plaintiff and Respondent, (Super. Ct. No. CRF40494) v.

CHARLES FREDERICK SMITH, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. John K. Cotter, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Poochigian, J.

INTRODUCTION Appellant Charles Frederick Smith stands convicted by a jury of possession of an illegal substance, methamphetamine, while in a jail facility, a violation of Penal Code section 4573.6.1 Smith admitted two prior convictions for robbery and three prior prison terms. The trial court imposed the midterm of three years, doubled pursuant to section 667, subdivisions (b) and (e)(2)(C), for the offense, plus one year each for the prior prison terms pursuant to section 667.5, subdivision (b). The total term imposed was nine years, to be served consecutively to any term Smith currently was serving. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. FACTUAL AND PROCEDURAL SUMMARY On February 1, 2013, Smith was charged with violating section 4573.6. It also was alleged that he had two prior serious felony convictions and had served three prior prison terms. The trial court appointed the public defender to represent Smith. Smith pled not guilty to the charges. On June 19, 2013, outside of the presence of the prospective jurors, the trial court advised Smith of his rights before he admitted the two prior convictions for robbery and the three prior prison terms. Both parties stipulated that the drugs seized from Smith’s bunk were tested and found to be methamphetamine. After accepting the admissions and stipulation, jury selection began. During jury selection, defense counsel informed the prospective jurors that Smith was incarcerated at the time of the charged offense and asked if the fact that he had been incarcerated would influence their deliberation or if they could “keep that out of the equation.” Prospective Juror No. 261797 indicated it might be “a little hard” to ignore the “fact that they’re already in prison.” Defense counsel exercised a peremptory challenge against this juror.