People v. Brace CA6

Filed 3/30/15 P. v. Brace CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040271 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1242970)

v.

GEORGE ALDEN BRACE,

Defendant and Appellant.

I. INTRODUCTION Defendant George Alden Brace appeals after a jury convicted him of receiving stolen property (Pen. Code, § 496, subd. (a))1 and possession for sale of a controlled substance (Health & Saf. Code, § 11378). The trial court found true allegations that defendant had served two prior prison terms (§ 667.5, subd. (b)) and had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). Defendant was sentenced to a prison term of six years four months. On appeal, defendant contends his trial counsel was ineffective for failing to retain an expert in drug possession and sales, claiming that expert testimony would have supported the defense theory that defendant was only guilty of simple possession, not

1 All further statutory references are to the Penal Code unless otherwise indicated.

possession for sale. We find no merit to this claim, and we will therefore affirm the judgment. Appellate counsel has filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)

II. BACKGROUND A. Evidence Relating to Receiving Stolen Property Charge In October of 2012, Rebecca Maxim lived in a mobile home on Lisa Lane in San Jose. Two roommates paid rent to Maxim: Chris Johnson and Raymundo Hernandez. For about two months, defendant had also been staying there, “on and off.” At some point, Maxim had seen one of defendant’s bank statements, which showed that he had received $78,000 on September 7, 2012. Although defendant did not pay rent to Maxim, at some point in October of 2012, defendant had given Maxim some money. Maxim had been collecting Barbie dolls for 26 years. She owned about 60 Barbie dolls, all in their original packaging and in mint condition. The dolls were valued at $70 to $1,000 each. In October of 2012, Maxim needed money and therefore decided to sell the dolls. She did an inventory of the dolls in preparation for selling them, and discovered that some were missing. On October 13, 2012, Maxim called the police and provided them with a list of the missing dolls. Police subsequently recovered five of the missing dolls from a storage locker rented by defendant. B. Evidence Relating to Possession For Sale Charge San Jose Police Officer Gary Petrakovitz contacted defendant at Maxim’s residence on October 13, 2012. Defendant’s speech was rapid, indicating he was either nervous or under the influence. Officer Petrakovitz observed defendant’s eyelids flutter when defendant closed his eyes, which suggested defendant was under the influence.