Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA053865, Darlene E. Schempp, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary E. Sanchez and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Mario Santiago appeals from a judgment of conviction entered after a jury found him guilty of transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)) in count 1, and possession for sale of cocaine (§ 11351) in count 2. Defendant admitted that he had suffered a prior conviction of section 11351.5, within the meaning of sections 11370.2, subdivision (a), and 11370, subdivisions (a) and (c). The trial court dismissed count 1 in the interest of justice. The court sentenced defendant to the low term of two years on count 2 plus three years pursuant to section 11370.2, subdivision (a). It also ordered forfeiture of money found in defendant’s possession at the time of his arrest.
All further statutory references are to the Health and Safety Code, unless otherwise indicated.
On appeal, defendant claims error in sentencing and in the forfeiture order. In addition, defendant requests that this court independently review the materials sealed following the Pitchess hearing. We find no error and affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTS
On October 16, 2006, Los Angeles Police Officers Chris Gowan and Kevin Bonilla were on duty at a Chevron gas station on Cahuenga Boulevard, near the 101 Freeway. They were on a directed patrol. The officers observed defendant sitting in a car. A man named Sholberg was standing outside of defendant’s car. He was by the car window and appeared to be reaching into the window. The officers were approximately 20 yards from defendant and Sholberg.
The “directed patrol” was a patrol of gas stations along the freeway, known as “phone-in drug locations.”
Sholberg then got into his own car, drove up to the gas pumps and started pumping gas. Defendant started his car and pulled toward the exit of the Chevron gas station. Defendant stopped his vehicle. Officer Gowan approached defendant’s car on foot and Officer Bonilla approached Sholberg’s car, also on foot. During a search of Sholberg’s car, a clear red plastic bag containing a white powder resembling cocaine was recovered from the floor by the right rear passenger seat.
With defendant’s consent, the officers searched his car. Officer Bonilla recovered a black plastic bag holding several red translucent plastic bags containing a substance resembling cocaine. A black notebook from the passenger seat of defendant’s car was also recovered. In the notebook was the date of the incident and on various pages were dollar amounts with numbers next to them. Officer Gowan searched defendant and recovered a cell phone and $2110 in cash. Defendant indicated that the $50 recovered from his jacket pocket was money Sholberg “used to pay.” The red bag in Sholberg’s car and the red bags in defendant’s car were the same size and color, and they contained the same type of substance, later determined to be cocaine.
Los Angeles Police Officer Susan Clemmer opined that defendant possessed the cocaine for the purpose of sale. The amounts recovered from defendant, 14.19 grams and 3.63 grams, were more than a user would possess. The packaging in 23 bags indicated that it was being possessed for sale. The total amount of currency in defendant’s possession, and the fact that he had so many $20 bills, also indicated that he was selling cocaine. Finally, the black notebook found in defendant’s car appeared to contain “pay and owe” sheets, used by drug dealers to keep track of drug sales.
DISCUSSION
A. Sentencing
Defendant contends that the trial court was not aware of its discretion to strike the enhancement under section 11370.2, subdivision (a). The record does not support defendant’s contention.
At defendant’s sentencing hearing, defense counsel, Laine Kontos, argued that defendant should be given probation. The following colloquy then took place:
“The Court: Okay. Ms. Kontos, are you familiar with, first of all, a [section] 11370[, subdivision (a)], which was charged, specifically — I am sure you are familiar with it, but it says, any person convicted of violating the sections that we had here in this case shall not in any case be granted probation by the trial court or have the execution of the sentence imposed upon him and suspended by the court, or if he has been previously convicted of any other offense described in (c).
“I had marked these when he was first convicted to see what the options were. [¶] And then [section] 11370.2, which carries three years on its own, says, ‘any person convicted of a violation of or a conspiracy to violate the [H]ealth and [S]afety [C]ode sections we are dealing with shall receive, in addition to any other punishment authorized by law including [section] 667.5 Penal Code, a full, separate, and consecutive three-year term for each prior conviction. [¶] I do not see how — my hands are totally tied under the Health and Safety Code.
“Ms. Kontos: So the court is aware, regarding the three-year prior, the court can actually stay the imposition of the three years. The court does not have to actually impose that three years. It is unlike the five-year prior where there is absolutely no discretion. But the court can stay that time.
“The Court: Do you have some authority for that? [¶] Ms. Brunson [the prosecutor], do you have any knowledge as to that?
“Ms. Brunson: No, I don’t.
“The Court: Do you have any authority for that?
“Ms. Kontos: Your honor, it is kind of the opposite situation. The court has that authority under [Penal Code section] 1385. What Ms. Brunson would not be able to do, there is nothing that prevents the court from, under [Penal Code section] 1385, from doing so. And I hate saying it this way, but I have had experience with other trials, sales cases, where there was a three-year prior, where the court and counsel agreed that the court did not have to impose that time. Not recently. The last time was in February following a conviction at a jury trial in Judge Speer’s court — a different district attorney at that time.
“But the only prior where the court’s hands are truly tied is that situation with the five-year prior, and this is obviously not that situation. I don’t believe the court would be imposing an unlawful sentence if it were to suspend any period of state prison sentence — suspend any prison time and put Mr. Santiago on probation.
“The Court: Well, that [section] 11370[, subdivision (a),] is mandatory state prison, I know, unless the court finds special and unusual circumstances. I do follow that. And there were a lot of drugs here and $2400 cash or something.”
The record is clear that defendant’s counsel was asking for probation, and the trial court was aware that probation was not an option pursuant to section 11370, subdivision (a), upon the conviction of section 11351, since defendant had a prior conviction for possession for sale of cocaine base.
Defendant’s counsel requested a stay of the imposition of the “three year prior.” Counsel indicated that the court could not impose the time and put defendant on probation. The trial court responded that section 11370, subdivision (a), was a mandatory state prison term, unless the court found special and unusual circumstances.
A three-year prior may be stricken in the interests of justice pursuant to Penal Code section 1385 but may not be stayed. (People v. McCray (2006) 144 Cal.App.4th 258, 267.)
Throughout the discussion with the trial court, defendant’s request was for probation, and the trial court was well aware of its limitation on placing defendant on probation. The trial court properly found that it lacked discretion to strike the section 11370, subdivision (a), allegation concerning defendant’s probation eligibility. There is no evidence in the record that the trial court was asked to dismiss or strike the section 11370.2, subdivision (a), enhancement.
We presume the trial court was aware of and applied the correct statutory and case law unless the record affirmatively demonstrates otherwise. (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430 [“‘“[i]t is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties”’”].) The record shows that the trial court was made aware of its discretion to strike the section 11370.2, subdivision (a), enhancement. There is nothing in the record that affirmatively shows the trial court was unaware of its discretion to strike the enhancement. Accordingly, there is no basis for reversal.
B. Forfeiture
Defendant contends that the trial court’s order forfeiting money found in his possession at the time of his arrest is not authorized by law. We disagree.
Chapter 8 of the California Uniform Controlled Substances Act (§ 11000 et seq.) provides for the seizure and forfeiture of money used in or derived from the illegal manufacture, possession, etc., of controlled substances (§ 11469 et seq.).
In cases of the seizure of less than $25,000 cash, a judgment of forfeiture requires as a condition precedent that a defendant be convicted in an underlying or related criminal action of an offense specified in subdivisions (f) and (g) of section 11470. That offense must have occurred within five years of the seizure of the property. (§ 11488.4, subd. (i)(3).) The offenses listed in subdivisions (f) and (g) of section 11470 are violations of the Health and Safety Code or the Penal Code. (People v. $4,503 United States Currency (1996) 49 Cal.App.4th 1743, 1747.) They include possession for sale of cocaine (§ 11351), of which defendant was convicted.
At the time of defendant’s sentencing, the prosecutor asked “that any sentence would include a special notation in the minute order for me to send to our forfeiture unit about the $2,110 amount being forfeited in this case.” The trial court agreed.
The sentence was imposed and the following colloquy took place:
“Ms. Kontos: Mr. Santiago is asking the court for a further surrender date.
“The Court: I cannot do that. Once someone is sentenced to state prison, I cannot do that. [¶] The reason why I gave him the low term on count 2, the state prison sentence, is that there was a very large amount of cocaine involved. He had a pay-and-owe record and there was $2100, or whatever the amount was, which I will sign a forfeiture for that. So he was a very active individual dealing drugs, and state prison is the only appropriate sentence.”
The trial court’s minute order states: “The court orders the $2,110.00 in U.S. currency forfeited.” The abstract of judgment contains the same language.
We agree with defendant that forfeiture proceedings for money are initiated by the filing of a petition when, as in this case, the money is not automatically made forfeitable or subject to court order of forfeiture or destruction by another provision of Chapter 8 of Division 10 of the Health and Safety Code. (§ 11488.4, subd. (a).) The governmental agency proceeding with the forfeiture is required to give notice of the seizure and forfeiture hearing. (§ 11488.4, subds. (c), (e) & (f).)
In the instant case, the trial court issued an order of forfeiture to allow the start of the forfeiture proceedings, as noted in the reporter’s transcript, when the prosecutor requested an order to forward to her office’s forfeiture unit. We find no irregularity in the way the trial court handled the request for forfeiture.
C. Pitchess Motion
Defendant has requested that we review the transcript of the in camera hearing on defendant’s Pitchess motion to determine whether the trial court’s ruling was correct. We have reviewed the transcript of the hearing and are satisfied that no discoverable material was withheld from defendant. The trial court’s ruling was correct. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.