Filed 3/29/16 P. v. Fuller CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                             B262000
         Plaintiff and Respondent,                                      (Super. Ct. No. GA092794)

         v.
LARRY THOMAS FULLER,
      Defendant and Appellant;
_____________________________________

In re                                                                   B269261
        LARRY THOMAS FULLER
        on
        Habeas Corpus.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Dorothy L. Shubin, Judge. Affirmed. Petition for writ of habeas corpus is denied.
         Anthony J. Patti, under appointment by the Court of Appeal, for Defendant
and Appellant.
         No appearance for Plaintiff and Respondent.
                                             _________________________
       A jury convicted defendant and appellant Larry Thomas Fuller of possessing and
of transporting cocaine base for sale. (Health & Saf. Code, §§ 11351.5, 11352,
subd. (a).)1 Fuller appealed from the judgment, and he filed a petition for writ of habeas
corpus, which we ordered to be considered concurrently with the appeal. We affirm the
judgment and deny the petition for writ of habeas corpus.
                 FACTUAL AND PROCEDURAL BACKGROUND
I.     Factual background.
       On March 1, 2014, at about 3:30 in the afternoon, Detective Jonathan Buchholz
drove past the Pasadena Motor Inn. He saw a man walk up to the passenger side of a car
parked in the driveway. Without a word, the man reached in through the passenger side
open window with his right hand, which had nothing in it, and “as he pulled his hand
out,” the “hand was closed.” The man then continued to walk, “without even looking
around or anything.” To the detective, it looked like a “narcotics transaction.”
       The detective parked behind the car so it couldn’t leave. The car’s driver, Fuller,
got out. Fuller had money and a piece of plastic containing four white rocks, which a
chemist later tested and found were .62 grams of a solid substance containing cocaine in a
base form. Based on his experience, the detective estimated that each rock was worth
$10. The detective recovered from Fuller a cell phone having “very few text messages”
and $130 in denominations of fives, tens and twenties.
       In the detective’s opinion, Fuller possessed the cocaine for sale. The detective
based his opinion on the area the transaction occurred in; that Fuller had no smoking
apparatus; Fuller’s fingertips and lips were not burnt, which indicated he wasn’t using a
hot glass pipe to smoke the cocaine; his money was in small denominations; and Fuller
had multiple rocks. The detective had never seen a user with multiple rocks; users
usually get one rock and smoke it. Sellers also usually don’t carry too many rocks, it
could be “five to ten, up to 20 sometimes.”



1
       All undesignated statutory references are to the Health and Safety Code.


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       Three years earlier, Officer Jeff Disney was part of a task force that involved
investigating Fuller in January 2011. On January 13, 2011, Officer Disney worked with a
paid confidential informant on a drug operation. Before the operation, the officer
searched the informant and the informant’s vehicle to ensure he had no contraband. The
officer then gave the informant money to buy a certain amount of crack cocaine. Officer
Jason Cordova watched the informant drive up to a motel and Fuller exit room number
five. The informant and Fuller then engaged in a “hand-to-hand transaction.” When the
informant returned to the officers, he had an “off-white, tannish substance . . . consistent
with crack cocaine” packaged in a clear plastic bag. In Officer Disney’s opinion, the
substance was crack cocaine, based on its color and the feel of it. Officer Disney had
encountered rock cocaine “more than a hundred times” in ten years. The amount of rock
cocaine the informant bought was consistent with the money he was given to make the
purchase.
II.    Procedural background.
       On May 27, 2014, an information was filed alleging count 1, possession for sale of
cocaine base (§ 11351.5) and count 2, transportation for sale of a controlled substance
(§ 11352, subd. (a)). The information also alleged that at the time of the commission of
the offenses, Fuller had been released from custody on bail or on his own recognizance
(Pen. Code, § 12022.1). The information also alleged that Fuller had prior convictions
within the meaning of section 11370.2, subdivision (a); prior convictions within the
meaning of Penal Code section 667.5, subdivision (b); and a prior strike conviction
within the meaning of the Three Strikes law.
       On October 15, 2014, the trial court denied Fuller’s Marsden2 motion.
       On November 6, 2014, the trial court granted Fuller’s Pitchess3 motion but, after
an in camera review, no disclosure of records was ordered.


2
       People v. Marsden (1970) 2 Cal.3d 118.
3
       Pitchess v. Superior Court (1974) 11 Cal.3d 531.


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       Before trial, the People indicated it wanted to introduce evidence of two prior
incidents, under Evidence Code section 1101, subdivision (b), on the issue of Fuller’s
intent to sell. The court excluded an older incident from 2000 but admitted the one from
2011, about which Officer Disney testified at trial.
       On December 12, 2014, a jury found defendant guilty of counts 1 and 2, as alleged
in the information. Defendant admitted the fact of his prior convictions and the
out-on-bail allegation. The trial court denied defendant’s Romero4 motion. On
January 30, 2015, the court then sentenced defendant, on count 1, to the midterm of four
years doubled, based on the prior strike conviction, to eight years. The court imposed a
consecutive three-years sentence for one of the sales priors, under section 11370.2,
subdivision (a). On count 2, the court imposed but stayed, under Penal Code section 654,
the midterm of four years. The court struck, under Penal Code section 1385, the out-on-
bail allegation. The court imposed a $300 victim restitution fine, a $300 parole
revocation fine, a $40 court security fee, a $30 criminal conviction assessment per count,
and a $50 lab fee plus penalty assessment.
                                       DISCUSSION
       After review of the record, appellant’s court-appointed counsel filed an opening
brief which raised no issues and which asked this court to conduct an independent
review of the record, under People v. Wende (1979) 25 Cal.3d 436, 441. By letter dated
August 24, 2015, we advised appellant that he had 30 days to submit by brief or letter any
contentions or argument he wished this court to consider. After we granted extensions of
time to file a brief, Fuller submitted a letter, filed on January 4, 2016. Fuller also filed a
petition for writ of habeas corpus on January 4, 2016, case number B269261, which we
ordered to be considered concurrently with the appeal.
       In his supplemental brief and petition, Fuller argues that his trial counsel provided
ineffective assistance of counsel because counsel failed to file a motion to suppress. To
establish that his counsel was ineffective, Fuller “must show that (1) counsel’s

4
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


                                               4
representation fell below an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is
a reasonable probability that, but for counsel’s failings, the result would have been more
favorable to the defendant.” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212; see
also Strickland v. Washington (1984) 466 U.S. 668, 694.) We defer to counsel’s
reasonable tactical decisions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) The
record shows that counsel made a reasonable tactical decision, based on the evidence, not
to file a suppression motion. We also reject Fuller’s claim that his trial counsel provided
ineffective assistance by failing to make a Pitchess motion. Counsel made such a motion,
and it was granted but, after an in camera hearing, the trial court found no materials were
subject to disclosure.
       Fuller next contends that admitting evidence of his 2011 uncharged offense
deprived him of his due process and fair trial rights. (U.S. Const., 14th Amend.)
Evidence that a defendant committed misconduct other than that currently charged is
generally inadmissible to prove he or she has a propensity to commit the charged crime.
(Evid. Code, § 1101, subd. (a).) But such evidence is admissible if it is relevant to prove,
among other things, intent. (Id., subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 400,
402.) Here, Fuller conceded that he possessed the rock cocaine but disputed that he had
an intent to sell it or to transport it for sale. Evidence of Fuller’s 2011 offense was
therefore admissible, in the trial court’s discretion, to establish his intent. (See generally
People v. Williams (2009) 170 Cal.App.4th 587, 607.) We therefore also reject any
contention that admitting evidence of the 2011 offense violated Fuller’s constitutional
rights to due process and a fair trial. The application of ordinary rules of evidence
generally does not impermissibly infringe on a defendant’s constitutional rights. (Holmes
v. South Carolina (2006) 547 U.S. 319, 326-327; People v. Cornwell (2005) 37 Cal.4th
50, 82, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.)




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       We have examined the record and are satisfied appellant’s attorney has fully
complied with the responsibilities of counsel and no arguable issue exists. (People v.
Kelly (2006) 40 Cal.4th 106, 126; People v. Wende, supra, 25 Cal.3d at p. 441.)
       Fuller’s petition for writ of habeas corpus is almost identical to his supplemental
letter brief, and we therefore deny it on the same grounds.
                                     DISPOSITION
       The judgment is affirmed. The petition for writ of habeas corpus is denied.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 ALDRICH, J.




We concur:




              EDMON, P. J.




              HOGUE, J. 





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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