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 ], We disagree with these contentions and affirm the judgment. 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, later identified as Jimmy Cunningham, got out of the car…