P. v. Gaines 8/29/07 CA2/4

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B192177

Case Date: 11/28/2007

Preview:Filed 8/29/07 P. v. Gaines CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. RODNEY LOUIS GAINES, Defendant and Appellant.

B192177 (Los Angeles County Super. Ct. No. MA032254)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Chung, Judge. Affirmed in part; Reversed in part with directions. Heather J. Manolakas, 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, Assistant Attorney General, Keith H. Borjon, Kathy S. Pomerantz and Colleen Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Defendant Rodney Louis Gaines appeals from a judgment of conviction entered after a jury convicted him of possession of cocaine base and possession of a smoking device. Appellant claims that the trial court erroneously denied his Pitchess motion, that the trial court erred in instructing the jury on simple possession as a lesser included offense of sale or transportation of cocaine base, that there was insufficient evidence to support the conviction of possession, and that the court abused its discretion in denying his motion for a continuance to allow him to review the presentence report. He further contends the court committed Cunningham error in selecting the upper term for the possession count, and abused its discretion in selecting the upper term and in denying his request to strike his prior felony convictions. Finally, appellant contends his sentence constituted cruel and/or unusual punishment under either the California or United States Constitutions. We find the trial court erred in denying appellant's Pitchess motion and will remand for a limited hearing on that issue. In all other respects the judgment is affirmed.

PROCEDURAL BACKGROUND The Los Angeles County District Attorney charged appellant in an amended information with one count of sale, transportation, or offer to sell a controlled substance (Health & Saf. Code,

Download P. v. Gaines 8/29/07 CA2/4.pdf