Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 6289894A
RAYE, P. J.Following a jury trial, defendant Anthony Joseph DiBernardo, Jr., was convicted of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine (§ 11377, subd. (a)), driving under the influence of methamphetamine (Veh. Code, § 23152, subd. (a)), being under the influence of methamphetamine (§ 11550, subd. (a)), resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), and possession of drug paraphernalia (§ 11364).
Subsequent undesignated statutory references are to the Health and Safety Code
Defendant waived his right to a jury trial and admitted four prior convictions for serious or violent felonies within the meaning of the three strikes law. The court denied defendant’s motion to dismiss one or more of the strikes, and sentenced him to 25 years to life.
On appeal, defendant contends trial counsel was ineffective in failing to subpoena a witness, the trial court erred in denying his Marsden motion, and it was an abuse of discretion to deny his motion to dismiss the strike allegations. We shall affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Mardsen).
BACKGROUND
On May 7, 2009, at approximately 5:30 a.m., Roseville Police Officer Jeremy Guess stopped defendant’s car for having an expired registration.
Defendant’s passenger, Earl Rogers, displayed symptoms of substance abuse -- rocking, fidgeting, and grinding his teeth. Officer Guess arrested Rogers, searched him, and found a baggie containing.11 grams of methamphetamine.
Defendant told Officer Guess he had not slept for 24 hours. Officer Guess noticed defendant’s fingers were twitching, he had tremors in his hands, and had an elevated pulse, which were symptoms of methamphetamine use. After administering field sobriety tests, Officer Guess concluded defendant was under the influence of methamphetamine and marijuana.
Looking for other signs of drug use, Officer Guess asked if he could look inside defendant’s mouth. Defendant engaged in evasive conduct, but Officer Guess was able to see a baggie inside his mouth. He told defendant to spit it out, but defendant refused and said he did not have anything. Officer Guess and another officer took defendant to the ground and repeatedly told him to spit out the baggie. Defendant eventually spat out the baggie, and said: “There’s not even enough to test.”
Defendant was arrested for possession of methamphetamine and being under the influence of methamphetamine. He denied using methamphetamine, but when Officer Guess explained the symptoms he observed, defendant said, “you’re right.”
The baggie in defendant’s mouth was sealed, but had a hole the size of a pin. It contained.17 grams of methamphetamine.
A partially broken glass drug pipe was found on the front passenger floorboard of the car. Defendant’s blood tested positive for methamphetamine and marijuana.
DISCUSSION
I
A.
Defendant’s passenger, Earl Rogers, was named as a codefendant but absconded and never appeared at trial. Officer Gary Cole, who assisted Officer Guess at defendant’s traffic stop, testified at the preliminary hearing. According to Officer Cole, Rogers said the glass pipe and all of the drugs were his, and he gave the bag of drugs to defendant when they were stopped.
The People filed a proposed witness list which included Officer Cole, and named him as a prosecution witness in its trial brief. On October 16, 2009, the trial was continued in the middle of the People’s case to October 22 because defendant was ill.
When the trial resumed, defense counsel asked for a six-day continuance because the People were not going to call Officer Cole, whom counsel was trying to subpoena. The subpoena had been accepted by the Roseville Police Department, but Officer Cole was on vacation and would not return for five days.
Defense counsel provided an offer of proof, stating Officer Cole would testify that Rogers said the drugs and pipe were his, and he gave the bag of drugs to defendant. In response to the People’s hearsay objection, counsel argued the statements were admissible under Evidence Code section 1230 as declarations against penal interest. The court told defense counsel the statements “could qualify under [Evidence Code section] 1230, but I have to tell you, I think your problem is that you didn’t subpoena the witness in time.” Since the defense did not subpoena Officer Cole, the court did not rule on the hearsay objection.
After the People rested, defendant renewed his request for a continuance. Counsel asserted there was late discovery of the video of the arrest, and he wanted time to consult an audio expert to determine if the tape showed Rogers saying anything about the drugs. The court rejected the request, ruling that counsel should have contacted the experts earlier.
During jury deliberations, defense counsel moved to admit the preliminary hearing testimony of Officer Cole as he and Rogers were unavailable witnesses. The court denied the motion, finding defendant had not subpoenaed Cole, and thus could not establish his unavailability. The court was willing to reopen the case if Officer Cole was available and subpoenaed. Counsel told the court he had tried to subpoena Officer Cole, who was still out of town.
B.
Defendant contends trial counsel was ineffective for failing to subpoena Officer Cole. We disagree.
Defendant has the burden of proving ineffective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) To meet this burden, he must prove (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel’s failings, the result would have been more favorable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693, 698].)
We agree with defendant that trial counsel’s inability to secure Officer Cole’s testimony was deficient. Defense counsel cannot rely on the People to call a witness whose testimony might benefit his client. Defense counsel should have subpoenaed Officer Cole before trial, rather than waiting until the People declined to call him. Trial counsel’s delay fatally undermined his request for a continuance. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Since counsel was not diligent in procuring Officer Cole’s attendance, he was not an unavailable witness (Evid. Code § 240, subd. (a)(5)), which rendered Officer Cole’s preliminary hearing testimony inadmissible. (Evid. Code § 1291.) Although diligent counsel would have procured Officer Cole’s testimony, defendant’s contention still fails because he has not established prejudice arising from counsel’s deficient performance.
The hearsay exception for a declaration against penal interest is found in Evidence Code section 1230. “With respect to the penal interest exception, the proponent of the evidence ‘must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.’ [Citations.]” (People v. Lawley (2002) 27 Cal.4th 102, 153.)
Assuming Rogers, already found possessing.11 grams of methamphetamine, exposed himself to further criminal liability by admitting ownership of another.17 grams of the drug, his statement did not exculpate defendant.
“Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.” (People v. Williams (1971) 5 Cal.3d 211, 215.) By taking Rogers’s methamphetamine, placing it in his mouth, and trying to conceal it from the police, defendant would be liable for jointly possessing the drug with Rogers even if Rogers’s admission were true. In addition, an attempt to conceal Rogers’s methamphetamine would render him liable for transporting methamphetamine as an aider and abettor.
The case against defendant was compelling -- he had a baggie of methamphetamine in his mouth, methamphetamine in his blood, acted evasively when Officer Guess wanted to search his mouth, and, when he finally spat out the baggie, made the inculpatory statement: “There’s not even enough to test.” We are convinced that had Rogers’s statement to Officer Cole been admitted, the jury would not have come to a different conclusion about defendant’s guilt.
II
Defendant made a Marsden motion based on trial counsel’s inability to obtain Officer Cole as a witness. The court denied the motion, finding that while counsel made a mistake in not subpoenaing Officer Cole, this did not render his overall performance unsatisfactory. Defendant contends the decision was an abuse of discretion, and the court applied an incorrect standard.
“A defendant ‘may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.’ [Citation.] The law governing a Marsden motion ‘is well settled. “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” [Citations.]’ [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 857.) We review the trial court’s decision on a Marsden motion for a clear abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1190.)
Defendant argues the court applied an improper standard by requiring him to show ineffective assistance of counsel rather than a substantial impairment of his right to counsel. He is mistaken, as there is no appreciable difference between the two standards. “[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (People v. Smith (1993) 6 Cal.4th 684, 696, italics added.) The court denied defendant’s motion after ruling counsel’s representation was adequate. Marsden requires no more.
Defendant asserts it was an abuse of discretion to deny his Marsden motion in light of trial counsel’s failure to subpoena Officer Cole and to get an audio expert to analyze the arrest video. As we have already discussed, trial counsel was not ineffective for failing to subpoena Officer Cole. There is no record of what, if any, evidence an audio expert could have found. At best, the expert could have confirmed Rogers’s statement to Officer Cole. Since Rogers’s statement was not exculpatory, defendant’s representation was not substantially impaired by trial counsel’s errors.
III
Defendant contends it was an abuse of discretion for the trial court to deny his motion to dismiss three of his four prior strikes. We disagree.
Section 1385, subdivision (a) gives the trial court authority to dismiss an action “in furtherance of justice.” A court may use section 1385 to strike prior serious felony convictions for purposes of sentencing, “subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) Likewise, a court’s ruling not to strike a prior conviction “is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.)
In deciding whether to strike a prior conviction so a defendant will not fall within the three strikes sentencing scheme, a court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Striking a prior serious felony conviction is a departure from the sentencing norm. Thus, in reviewing the denial of a motion to strike, we will reverse only if the defendant shows the decision was “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.)
Defendant’s four prior strike convictions arose from a series of incidents taking place on November 14, 1987. At approximately 3:00 a.m., defendant entered a residence and went to the bedroom of a 14-year-old girl. The girl woke up to find defendant lying on the bed next to her. Defendant pulled the girl towards him, told her to be quiet, and started kissing her. He also tried to touch her breasts and rub her vaginal area.
Defendant got up, left the room, and then returned. He repeated this several times before going to the bed and trying to remove the girl’s panties. Defendant’s pants were unzipped, and he tried to force her legs apart. He got on top of the girl and said he wanted her to suck him. The girl reported feeling a knife against her throat. Defendant eventually got up and left the house.
Defendant then broke into two nearby homes. Both of the homes were occupied, and defendant fought one of the residents.
As a result of the incidents, defendant was convicted of assault with intent to commit rape (Pen. Code, § 220), three counts of first degree burglary (Pen. Code, § 459), and sentenced to four years in prison. Defendant’s criminal record also includes a 1978 misdemeanor conviction for possession of marijuana (§ 11357, subd. (a)); a 1987 conviction for misdemeanor battery (Pen. Code, § 242); a 1993 conviction for assault with a deadly weapon and/or force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); and convictions for failing to register as a sex offender (former Pen. Code, § 290, subd. (g)(2)) in 1998 and 2006.
Defendant first argues that his four strike convictions should be viewed as arising from a single course of aberrant conduct. Where one or more strikes arise from multiple criminal acts committed during a single course of conduct against a single victim, a trial court may dismiss one or more of the strikes if it furthers the interests of justice. (People v. Benson (1998) 18 Cal.4th 24, 36.) Defendant’s strikes took place on the same day and in the same area, but were spread over three homes with multiple victims. The sentencing court had the discretion to treat the acts as four separate strikes. (Ibid.)
Defendant also contends he is not a “career” violent felon, as his criminal record is of diminishing severity since the four strike convictions. While defendant may not be a career violent felon, he is a career criminal, having sustained a total of seven felony and two misdemeanor convictions between 1978 and 2006.
Defendant’s current felony offenses may be minor in comparison to his strikes, but they are far from trivial. Methamphetamine is a dangerous drug. Defendant drove with the drug, was under its influence while driving, and tried to conceal the contraband from the police.
Viewing the record as a whole, defendant fails to convince us the sentencing court was irrational or arbitrary in concluding the interests of justice were furthered by finding him within the spirit of the three strikes law.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., BUTZ, J.