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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Antonio Ramirez RODRIGUEZ, Defendant and Appellant.

No. B088842.

Decided: July 16, 1996

Patricia L. Watkins, under appointment by the Court of Appeal, Half Moon Bay, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey and Sanjay T. Kumar, Supervising Deputy Attorneys General, and Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.

Convicted by jury of possessing for sale cocaine base (Health & Saf. Code, § 11351.5), appellant contends evidence it was cocaine base he possessed was insufficient.   We reject this contention.   We also reject all but one of appellant's multiple “three strike” contentions.   We agree a trial court has limited discretion to dismiss a “strike” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628), affirm the judgment but remand the matter so the trial court may determine whether or not to exercise its limited discretion.


The undisputed facts are simple.   On April 20, 1994, two experienced Los Angeles police officers saw appellant with a plastic baggie in his palm, apparently engaged in a narcotic transaction with another Hispanic man.   When appellant saw the officers he dropped the baggie with 15 rocks of cocaine.   The officers recovered the baggie and arrested appellant.

In addition to the substantive offense, multiple felony priors were alleged, including four “strikes” (Pen. Code, § 667, subds. (b)-(i)).   These allegations were bifurcated, jury was waived, and the trial court found three of them true.   Appellant was sentenced to prison for 25 years to life.


1. Appellant contends evidence it was cocaine base he possessed was insufficient

Health and Safety Code section 11351.5 applies only to a single substance, cocaine base.   Other substances possessed for sale, including cocaine, are prohibited by a separate section, section 11351.

Although cocaine base is a type of cocaine, it is different from ordinary cocaine.  (See People v. Howell (1990) 226 Cal.App.3d 254, 260, 276 Cal.Rptr. 454.)   Ordinary cocaine is not cocaine base.

Thus, to prove a violation of section 11351.5 it is not enough to prove cocaine was possessed for sale, the proof must show it was cocaine base which was possessed for sale.

Appellant contends such proof was lacking because the prosecutor neglected to ask the criminalist the results of her analysis.   We consider this contention.

The chemist (Stella Chu) testified she performed two analyses.   On April 21, 1994, she conducted a test solely to determine whether the white rock-like substance contained cocaine.   She testified it did.   On April 26, 1994, she conducted a second test to determine whether or not the substance contained cocaine base.   As to that test, she was asked this question by the prosecutor and gave this answer:

“Q. In doing so, what did you do with the infrared to determine whether or not it is cocaine base?

“A. I usually frame the infrared spectrum.   And also there is a computerized calculation in the instrument that also compares the standard with my sample, and determines that it is actually cocaine base.”

 We agree that however pregnant this colloquy, it did not establish the subject substance was cocaine base.   We also agree the evidentiary gap was not closed by the officers' testimony that the substance was “rock cocaine” because the officers did not testify “rock cocaine” was cocaine base.  (Compare People v. Adams (1990) 220 Cal.App.3d 680, 269 Cal.Rptr. 479 with People v. Bailey (1991) 1 Cal.App.4th 459, 2 Cal.Rptr.2d 204.)

What did close the gap and does provide substantial evidence supporting the judgment, is People's Exhibit 1.   That exhibit, admitted into evidence and viewed by the jury, contained not only the remaining rocks of cocaine but the results of both the April 21, 1994, and April 26, 1994, tests performed by Chemist Stella Chu.   Those results were contained in Ms. Chu's reports, part of Exhibit 1.  “[A]ll parts of the exhibit will be deemed to have been admitted into evidence․  Even assuming that [part of the exhibit] is objectionable hearsay, the defendant made no objection to its admission into evidence at time of trial and ․ may not raise the objection on appeal.”  (People v. Caruth (1965) 237 Cal.App.2d 401, 404, 47 Cal.Rptr. 29.)

 While it is true that Exhibit 1 is not part of the record on appeal,1 its omission does not assist appellant.  “ ‘For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction.   Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him.’   This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.”   (People v. Clifton (1969) 270 Cal.App.2d 860, 862, 76 Cal.Rptr. 193;  see also People v. Merriam (1967) 66 Cal.2d 390, 396–397, 58 Cal.Rptr. 1, 426 P.2d 161, overruled on other grounds in People v. Rincon–Pineda (1975) 14 Cal.3d 864, 882, 123 Cal.Rptr. 119, 538 P.2d 247 [“It is elementary that the function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to a consideration of matters contained in the record of trial proceedings, and that ‘Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs.’ ”];  People v. Keligian (1960) 182 Cal.App.2d 771, 774, 6 Cal.Rptr. 680;  People v. Green (1979) 95 Cal.App.3d 991, 1000–1001, 157 Cal.Rptr. 520;  Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193;  People v. Siegenthaler (1972) 7 Cal.3d 465, 469, 103 Cal.Rptr. 243, 499 P.2d 499;  Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1360, 7 Cal.Rptr.2d 482 (dis. opn. of Johnson, J.).)

These dispositive principles are particularly apt here.  “The reality of this case is ․ [that] whether this was base cocaine was not even the focus of dispute in the trial court․”  (People v. Bailey, supra, 1 Cal.App.4th 459, 464, 2 Cal.Rptr.2d 204.)   At the preliminary hearing it was stipulated that Ms. Chu's April 26, 1994, analysis showed the substance was cocaine base.   Prior to trial, as part of routine discovery, defense counsel would have been provided a copy of the chemist reports.   Defense counsel, with 33 years experience, never contested that the substance was cocaine base.   We find the contention without merit.

2. Multiple “three strike” contentions

Appellant contends his serious felony convictions cannot be considered “strikes” because:  (1) they occurred before March 7, 1994, (2) the statute (Pen. Code, § 667, subds. (b)-(i)) is unconstitutionally vague, (3) the statute is an invalid emergency measure, and (4) a 25–years–to–life sentence (based upon his “strikes”) constitutes cruel and unusual punishment.

No purpose would be served by detailing the reasons and analysis we and other courts have repeatedly given in rejecting each of these contentions.   (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196, 2 Cal.Rptr.2d 714;  People v. Cartwright (1995) 39 Cal.App.4th 1123, 1133–1134, 46 Cal.Rptr.2d 351;  People v. Spears (1995) 40 Cal.App.4th 1683, 1688–1690, 48 Cal.Rptr.2d 634;  People v. Reed (1995) 33 Cal.App.4th 1608, 1610–1612, 40 Cal.Rptr.2d 47;  People v. Anderson (1995) 35 Cal.App.4th 587, 600–601, 41 Cal.Rptr.2d 474.)

The contentions are without merit.

3. The Penal Code section 245 “strike”

One of the alleged “strikes” was a conviction of assault with a deadly weapon in violation of Penal Code section 245 (Los Angeles County Superior Court No. A363472).

 To prove this allegation the prosecution called a fingerprint expert (Sandra Clayborne), a correctional case records manager (Lucy Bross), and introduced documentary evidence.   Included in the documentary evidence was an abstract of judgment stating Pepe Cuenca (one of appellant's 20 aliases) was convicted of “245(a),” “ASLT GBI/DLY WPN” (People's Exh. 6, p. 8).

Appellant now contends 2 this evidence is insufficient because it may not satisfy the applicable definition of a serious felony, namely, “any felony in which the defendant personally used a dangerous or deadly weapon.”  (Pen. Code, § 1192.7, subd. (c)(23).)   We reject the contention.

It is possible—from the proof offered—appellant may not have “personally used a dangerous or deadly weapon” yet still have been convicted as alleged.   But as a reviewing court determining sufficiency of evidence neither possibilities nor proof beyond a reasonable doubt are our concern.   If substantial evidence supports the finding we must sustain it.

4. Trial court discretion to dismiss a “strike”

 On November 22, 1994, the sentence date, the trial court believed it was without discretion to dismiss a “strike.”   It was mistaken.  (People v. Superior Court (Romero), supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.)

We are not sure how the trial court would have ruled had it known it had limited discretion to dismiss a “strike.”

On the one hand, the trial court said this:

“If you look at Mr. Rodriguez' record, as the People have pointed out to me, maybe this is just the kind of case that the Legislature intended, I just think it is a bit harsh, and that is that this defendant has been in prison approximately four or five times for assault with a deadly weapon, with a robbery, with another robbery, with selling drugs, with possession of drugs.

“He's here illegally.   He's done nothing but come to this country, and commit crime, after crime, after crime, without ever holding down a job, and being supported by the taxpayers in prison most of his life;  that he's been in this country since 1976.

“He went to CYA as a juvenile.   He has forty-four AKA's, forty-four aliases, and has twenty-six different birthdays.

“This is a very cagey, sly, fellow, twenty-six birthdates, forty-four names, four prison commitments.

“The number of other arrests is longer than my arm.   We are talking into, from juvenile, on a great many other convictions for both serious crimes against people and against property.

“If the Legislature intended to have a fellow to be locked away, this guy kind of fits the profile, although I feel 25 to life is kind of harsh, he fits, and, therefore, the sentence is twenty-five to life.”

On the other hand, the trial court said this:

“I tried at the beginning of this case to settle it with him.   He wouldn't hear of it.   Because I knew the ramifications that could happen.   And I would have pushed on the prosecutor to try to take some of the punishment down.”

“․ The defendant is facing, in actuality, here, 27 years to life on this, and the court not having much movement in there because of the strikes.  [¶] So that's why I said I'm not pleased with the law․  [¶] I feel that the penalty, that it carries is much more severe for the charges.   But I would indicate that I'm a judge who tries my best to follow the law.”

Accordingly, although we shall affirm the judgment, we shall remand the matter to the trial court so it may determine whether or not to exercise its limited discretion.  (People v. Superior Court (Romero), supra, 13 Cal.4th 497, 528–533, 53 Cal.Rptr.2d 789, 917 P.2d 628.)   If it decides not to exercise its limited discretion, the defendant need not be present and the imposed sentence shall remain in effect.   However, if the trial court believes it would not be an abuse of its limited discretion to dismiss one or more “strikes” 3 —and it wishes to do so—then the defendant must be present and a new sentence hearing conducted.


The judgment is affirmed.

The matter is remanded to the trial court for further proceedings consistent with the views here expressed.


1.   It was admitted “by reference,” apparently to relieve the court clerk from retaining the cocaine post-verdict.

2.   No such argument was made in the trial court either by appellant when he testified at his bifurcated priors trial nor by his trial attorney.

3.   We express no view concerning this matter.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.