Wyatt

Defendant Victor Wyatt was charged in an information with one felony count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a).) A jury found him guilty as charged. He was sentenced to state prison for the aggravated term of three years.

Defendant contends on appeal that the trial court erred: (1) in failing to sua sponte instruct the jury that his inconsistent statement obtained in violation of his Miranda rights could only be used to determine his credibility and not as substantive evidence of his guilt; (2) in instructing the jury in accordance with CALJIC Nos. 2.21, 2.13, and 2.71, which were cumulatively prejudicial; and (3) in using an improper circumstance to sentence him to the aggravated term of three years.

Statement of Facts

On December 26, 1987, at approximately 5:10 p.m., Deputy Sheriff Clifford C. Raynolds was patrolling an alley in Victorville. It was still light enough that he could see the area clearly without artificial lighting. As he entered the alley at a low rate of speed he saw the defendant walking towards him. The deputy saw defendant drop a rolled-up piece of paper on the ground. The deputy stopped the vehicle and recovered the…