People v. Murphy

A jury convicted defendant Tasauna Danielle Murphy of single counts of selling cocaine base, possessing cocaine base for sale, and evading a pursuing police officer. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5; Veh. Code, § 2800.2, subd. (a).)

On appeal, defendant contends a prior conviction for possessing cocaine base for sale should have been excluded; her Marsden motion was erroneously denied; the possession conviction cannot stand because it was part of the sale; her counsel was ineffective; and her upper term violates Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] and Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] (Cunningham). We shall affirm.

In the published portion of the opinion, we conclude that possession of cocaine base for sale is not a necessarily included offense of the crime of selling cocaine base.

Background

On December 10, 2003, Sacramento police officers conducted a narcotic “buy/bust” operation that at one point set its sights on a woman and a man sitting in a car. The woman, who was later identified as defendant, was sitting in the driver’s seat; it was her car. The man,…