P. v. Khan CA3

Filed 4/9/13 P. v. Khan CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C070799

v. (Super. Ct. No. 10F07780)

DAVID AHMED KHAN,

Defendant and Appellant.

The trial court convicted defendant David Ahmed Khan of possession of a controlled substance for sale and found true enhancement allegations that he had a prior strike conviction and two prior prison terms. The trial court denied defendant‟s motion to strike the enhancement allegations and sentenced defendant to six years in state prison. Defendant contends the trial court abused its discretion in denying his motion to strike. We disagree. We will affirm the judgment.

1

BACKGROUND An officer conducted a traffic stop on a car driven by defendant. Defendant‟s passenger, Jessie Peralez, was a validated and active Norteño gang member with a gang tattoo on his forearm. Defendant had the same gang tattoo on his fingers and he was wearing a red sweater, a common Norteño gang color. Defendant was on parole with a special no-gang condition. He previously admitted being a Norteño gang member. Defendant and Peralez were booked into county jail. At the time of booking, defendant had $191. When a sergeant arrived for work at the jail, he found on the ground a clear plastic bag with five Ziploc baggies containing a total of 6.9 grams of methamphetamine. A review of video surveillance at the jail revealed that defendant, who was handcuffed with his hands behind his back, dropped the bag with the methamphetamine as he was escorted inside the jail. Defendant waived his right to a jury trial. Following a bench trial, the trial court convicted defendant of possession of a controlled substance (methamphetamine) for sale (Health & Saf. Code, § 11378). The trial court found enhancement allegations true that defendant had a prior strike conviction for first degree burglary (Pen. Code, §§ 459, 667, subds. (b)-(i), 1170.12, 1192.7, subd. (c)) and that he served two prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant had been convicted of false imprisonment by violence or menace in 2001 and first degree burglary in 2005. He served a prison term for each conviction. Defendant moved to strike the prior conviction allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Then, at sentencing, he added a request that the trial court strike the prior prison term allegations. The trial court denied defendant‟s motion to strike the enhancement allegations and sentenced defendant to an aggregate term of six years in state prison.