People v. Stewart CA3

Filed 8/26/15 P. v. Stewart CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C077313

Plaintiff and Respondent, (Super. Ct. No. 13F07316)

v.

PATRICIA STEWART,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment, but order correction of the verdict form. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND On October 31, 2013, a parole search of the one-bedroom apartment where Kevin Henderson lived revealed 0.28 grams of cocaine base, a pipe, and a razor on the bedside

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table. When officers asked about the controlled substance, defendant Patricia Stewart, who was also present and lived in the apartment, claimed it as hers. At trial, defendant explained she falsely claimed the substance as hers to cover for Henderson. A jury convicted defendant of possession of a controlled substance. The court suspended imposition of sentence and granted probation pursuant to Penal Code section 1210.1 et seq. (commonly referred to as Proposition 36 probation). We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. WENDE REVIEW We note an error requiring correction. Defendant was charged by complaint with a violation of Health and Safety Code section 11350, possession of a controlled substance, cocaine base, and was held to answer for the same.1 The complaint was deemed the information. The evidence at trial reflects that the substance was cocaine base. Defense counsel argued the substance was “crack” cocaine. The prosecutor argued he had to prove the substance was “cocaine base or cocaine” and that “it’s all cocaine.” The jury was instructed in the language of CALCRIM No. 2304 that defendant was “charged with possessing cocaine base, a controlled substance, in violation of Health and Safety Code Section 11350” and that one of the elements required that the prosecutor prove that the controlled substance was cocaine base. The written instruction also applies to a violation of section 11377, which is referenced at the top of the instruction. When