Sutton

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.]

II. Procedural background. Trial was by jury. On October 5, 2006, the jury found Sutton and Jackson guilty of count 1, sale of a controlled substance, cocaine base (Health Saf. Code, § 11352, subd. (a)). The jury also found Sutton guilty of count 2, possession for sale of a controlled substance, cocaine base (Health Saf. Code, § 11351.5). On October 24, 2006, the trial court sentenced Jackson to the midterm of four years on count 1. On November 21, 2006, the trial court sentenced Sutton to the upper term of five years on count 1. The court imposed an additional three years under Health and Safety Code section 11370 , subdivision (a), based on a prior felony conviction for violating Health and Safety Code section 11351.5 and an additional year under Penal Code section 667.5 , subdivision (b). The court sentenced him to a concurrent four-year term on count 2. The court dismissed one prior conviction from 1990.

A. Additional facts. During the transaction, Officer Diaz was the "point" officer — the officer who keeps his eyes on the undercover officer…