People v. Pena CA3

Filed 5/20/16 P. v. Pena CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C080140

v. (Super. Ct. No. 14F05724)

ALEJANDRO PENA,

Defendant and Appellant.

A jury found defendant Alejandro Pena guilty of knowingly bringing a controlled substance into jail, a felony, and misdemeanor possession of cocaine. The trial court sentenced him to six years in prison. Defendant now contends the trial court erred in denying his motion to suppress illegally seized evidence. (Pen. Code, § 1538.5.) We find no error in the denial of the motion to suppress. Defendant also contends the abstract of judgment must be corrected to reflect that his conviction for possession of a controlled substance was a misdemeanor rather than a felony, and that his total sentence was six years. We agree. We will affirm the judgment and direct the trial court to correct the abstract of judgment.

1

BACKGROUND At approximately 3:30 in the morning, Sacramento Police Officer Clayton Whitcomb was patrolling the Oak Park area. He contacted defendant, obtained his identification, and ran a records check. Officer Whitcomb learned defendant had a prior arrest history and asked if he could search defendant for anything illegal. Defendant agreed. In the search, Officer Whitcomb found a baggie containing 0.72 grams of cocaine. Officer Whitcomb arrested defendant and transported him to the county jail. Prior to being searched at the jail, Officer Whitcomb asked if defendant had anything else illegal on him, and defendant said he did not. Deputies found three additional bags of cocaine, with a total weight of over three grams, in a secret pocket in defendant’s jeans. The jury found defendant guilty of knowingly bringing a controlled substance into jail (Pen. Code, § 4573 -- count 1)1 and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a) -- count 2). In bifurcated proceedings, the trial court found true allegations that defendant had a prior felony conviction (§§ 667, subds. (b)-(i), 1170.12) and committed the offenses while out on bail (§ 12022.1, subd. (b)). The trial court sentenced defendant to six years in prison, consisting of two years on count 1, doubled for the prior conviction, a consecutive two years for the on-bail enhancement, and a concurrent 90 days for the misdemeanor conviction. (The trial court also imposed various fines and fees. DISCUSSION I Defendant contends the trial court erred in denying his motion to suppress evidence. We disagree.