People v. Winkle CA5

Filed 6/1/16 P. v. Winkle 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069715 Plaintiff and Respondent, (Super. Ct. No. BF149265B) v.

JERRY WINKLE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw and Colette M. Humphrey, Judges.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Poochigian, Acting P.J., Franson, J. and Peña, J.

INTRODUCTION Defendant Jerry Winkle appeals from his convictions for unlawful sale or giving away of methamphetamine (Health & Saf. Code,1 § 11379, subd. (a), count 1) and possession of methamphetamine for sale (§ 11378, count 2). Defendant contends his conviction for count 2 is a lesser included offense of count 1 and should be vacated. Defendant acknowledges that rulings from the California Supreme Court are contrary to his position, but seeks to preserve the issue for review by higher courts. We find no error and affirm the judgment. PROCEEDINGS On October 15, 2013, an information was filed alleging defendant and his codefendant Rodney Lancaster sold or offered to give away methamphetamine (§ 11379, subd. (a)) and possessed methamphetamine for sale (§ 11378). At the conclusion of a jury trial on May 21, 2014, defendant and Lancaster were found guilty of both counts. On June 18, 2014, the trial court placed defendant on probation upon various terms and conditions, including that he spend a year in county jail. Defendant was awarded total custody credits of 92 days and ordered to pay various fines, fees, and penalties, including a restitution fine of $280. FACTS Deputy Logan August and Sergeant William Starr with the Kern County Sheriff’s Department were working undercover attempting to purchase narcotics on June 25, 2013. August saw defendant standing in front of a residence on Hickerson Drive, drove his van up to the sidewalk, and greeted defendant. Defendant approached the van. A sheet hanging behind the front seats concealed other deputies in the rear of the van. August told defendant he wanted to purchase methamphetamine. Defendant replied he could help. Defendant asked for, and August gave him, his cell phone number. Defendant said he would call August when he obtained the methamphetamine. August