Opinion
NOT TO BE PUBLISHED.
Superior Court County of Los Angeles, No. PA050395, Robert J. Schuit, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Charles S. Lee, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Christopher Ivan Dunlap was convicted by jury of possession of cocaine base for sale (count 1, Health & Saf. Code, § 11351.5) and transportation of cocaine (count 2, Health & Saf. Code, § 11352, subd. (a)). He admitted the allegations that he had suffered two prior convictions within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170 subds. (a)-(d)) and served seven prior prison terms (§ 667.5, subd. (b)).
The trial court imposed a sentence of 12 years in state prison, consisting of the upper term of 5 years on count 1, doubled pursuant to the Three Strikes law, plus two consecutive one-year prior prison term enhancements. The court dismissed the remaining strike allegation, and stayed imposition of punishment in count 2 pursuant to section 654.
Appellant was represented by retained counsel. Following trial, he moved for a new trial based on the ineffective assistance of counsel. His motion was denied, and he appealed. We conditionally reversed and remanded the matter to allow appellant to retain new counsel for the purpose of arguing his new trial motion. (People v. Dunlap (Sept. 20, 2007, B190462) [nonpub. opn.].) Appellant retained new counsel who moved for a new trial on the ground of ineffective assistance of trial counsel. The court heard argument, and denied the motion. We affirm.
Our disposition read: "We conditionally reverse the judgment and remand the matter with the following directions: (1) the trial court shall hold a hearing to allow appellant the opportunity to request a reasonable continuance to retain private counsel or apply for the appointment of counsel upon an adequate showing of indigence; (2) if newly retained or appointed counsel determines there is a basis for a new trial motion, the court shall consider and decide that motion; (3) if counsel does not move for a new trial, or such a motion is denied, the court shall reinstate the original judgment and sentence which shall stand affirmed."
FACTS
Los Angeles City Police Officers Brad Kolfschoten and Wilcer Godoy were on patrol in a marked police car. At approximately 1:45 a.m., they were near Van Nuys Boulevard and Herrick Street in Los Angeles County, an area known for narcotic sales and gang activity.
It was raining and the officers noticed a Volkswagen Cabriolet several car-lengths ahead, traveling about 50 mph in a 35 mph zone. It had no rear license plate. The car made a sharp right turn and pulled into a gas station. The officers activated the lights and the siren and pulled in behind it. Appellant stepped out of the car. Godoy asked why he had no rear license plate, and appellant said the car belonged to his girlfriend, who was in the process of getting it registered. The officers ran the vehicle identification number and found that the owner's name matched the name appellant had given to them.
Godoy asked if he could search appellant. He responded, "Go ahead officer. I don't have anything." Godoy recovered a glass crack pipe from appellant's left front jacket pocket. In his inner right jacket pocket Godoy found three loose pieces of rock cocaine totaling approximately 6.74 grams. Appellant consented to a search of his car, and Kolfschoten recovered a digital scale inside a small handbag in the front passenger seat.
At the police station, appellant waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. He told Officer Godoy that he had purchased the cocaine for $140 and could "double up." Appellant said the rock cocaine was "good quality" and he wanted to make money from it. Godoy testified that the phrase "double up" meant that appellant could cut the substance and resell it in greater quantity, for a higher profit.
The only issue at trial was whether appellant possessed the cocaine for personal use or for sale. Los Angeles Police Detective John Ray was assigned to the Narcotics Enforcement Detail. It was his opinion that a person who uses rock cocaine might also sell it in order to support his habit. In response to a hypothetical, the detective testified that, in his opinion, a person possessing 6.74 grams of cocaine did not possess it solely for personal use. After the jury rendered its verdict, appellant filed a motion for a new trial based on the ineffective assistance of counsel.
Filing of First New Trial Motion by Attorney Paul T. Beckstein
Attached to the new trial motion was appellant's declaration in which he claimed he was innocent. Appellant told Beckstein that he had never made a statement to the police that he could "double-up" the amount of cocaine, and was unaware of any method of cutting rock cocaine. Beckstein was also under the impression that the substance could not be cut, and advised appellant that the People's theory was "fatally flawed." Appellant asserted that, based upon Beckstein's advice, he rejected a pre-plea offer of eight years.
In his new trial motion, Beckstein argued that the prosecution raised a new theory when Detective Ray testified that the amount of the cocaine possessed by appellant, standing alone, was sufficient to indicate possession for sale. Beckstein stated that he "made no objection or attempt[ed] to stop this new theory, " nor did he request a continuance to retain an expert to rebut Ray's testimony. Beckstein argued that, due to his ineffective assistance, appellant should have his new trial motion prepared by an independent attorney.
Attached to appellant's motion was the declaration of Steven Strong, a former police detective who was a narcotics expert. Had he been called to testify, he would have offered his opinion that the amount of rock cocaine that appellant possessed was consistent with personal use.
At the hearing on the motion, Beckstein acknowledged that he failed to anticipate that the prosecution would call an expert who would testify that the sheer amount of cocaine showed possession for personal use. Beckstein also stated that he should have objected to the expert's testimony once it was introduced.
Beckstein orally raised the issue of the jacket that appellant was wearing at the time of his arrest, from which officer Godoy had retrieved the rock cocaine. Beckstein told the court that appellant had requested that he produce the jacket at trial, but he had failed to do so. Appellant believed an examination of the jacket could prove that it lacked cocaine residue. There had been difficulty locating the jacket, and appellant thought that its production would also demonstrate that officers had committed perjury in disclosing its whereabouts. The motion was denied.
Following trial, and prior to the hearing on the new trial motion, the court had determined that the jacket had been booked into property, rather than into evidence. It ordered the jacket produced for testing, which subsequently revealed the presence of cocaine.
Filing of Second New Trial Motion by Attorney Brent H. Merritt
After remand, appellant retained attorney Brent H. Merritt, who filed a new trial motion alleging that Beckstein had rendered ineffective assistance at trial. The motion was based upon the record, new declarations filed with the current motion for new trial, and the declarations submitted with the first new trial motion.
Attached to the motion was appellant's declaration, which stated that he was innocent of possession for sale or for personal use. Appellant claims that, during his initial consultation, he told Beckstein he was innocent and was not in possession of any drugs. He also provided Beckstein with the names of two witnesses, Wendel Beasley and Wyline Hayward. Appellant alleged that Beckstein was ineffective for failing to call them, because both were present at the time of his arrest.
According to Beasley's declaration, he did not see the officers remove anything from appellant's pockets or the car. Beasley, who knew appellant prior to his arrest, indicated that the car searched was not a car he normally saw appellant drive. Instead, appellant generally drove one of his girlfriend's two cars, "a Honda Civic or a Grenada (or possibly a Kia)."
There was no declaration from Wyline Hayward. Appellant alleged that Hayward could have testified that the officers did not recover any narcotics or paraphernalia from his person. He stated that Beckstein had falsely told him that he had interviewed Ms. Hayward, but had made no attempt to do so. Attorney Merritt declared that attempts to locate Hayward were unsuccessful.
Appellant also argued in his motion that attorney Beckstein had admitted in his declaration to the first new trial motion that he was unaware that the prosecution could offer the testimony of a narcotics expert. When that testimony was offered, he "failed to object or request time to cure his lack of preparedness." Appellant alleged that Beckstein should have used the testimony of narcotics expert Steven Strong, who would have testified that appellant's possession of cocaine was consistent with personal use.
Appellant raised the issue of the jacket he was wearing at the time of his arrest. He alleged that Beckstein's failure to examine the jacket cost him the opportunity to impeach the officers at trial. He alleged that Beckstein improperly conceded possession during his opening statement. He did not call any defense witnesses and told appellant he would only be convicted of simple possession.
In his opening statement, Beckstein had told the jury that the evidence would show that there was loose cocaine in appellant's jacket pocket. He stated that appellant told the officers that he bought the rock cocaine "for $140 and it was good quality and that he could double up." Beckstein expected that the jury would conclude "it's more likely than not that [appellant] possessed for personal use."
Attached to the new trial motion was the declaration of attorney Merritt. He alleged that Beckstein ignored appellant's claims of innocence and failed to conduct any investigation, which included interviewing witnesses and locating appellant's jacket. Merritt declared that no competent trial counsel would have conceded the issue of possession and the truthfulness of a client's statement without offering the testimony of a defense narcotics expert. In Merritt's opinion, appellant was prejudiced by Beckstein's performance.
Hearing on New Trial Motion
At the hearing on the motion, Merritt told the court that all the items seized, including the jacket, had been destroyed. He argued that the jacket did not have a right inside pocket, the location officer Godoy testified he found the cocaine. The prosecutor reminded the court that the jacket had been tested by the Scientific Investigation Division of the Los Angeles Police Department, and that the test had revealed the presence of cocaine.
The court noted that the jacket had not been produced at trial but, after trial, was sent to an agency "to accommodate [appellant's] concern that somehow there was some kind of conspiracy against him." It stated that appellant now claimed that the there was no inside right pocket and concluded, "whether it was the inside right pocket or the inside left pocket doesn't seem to be a significant issue to me."
The court determined that Beckstein was not incompetent for not having called witness Beasley. According to his declaration, Beasley would have testified that he did not see anything recovered from appellant. The court concluded that "[Beasley] wouldn't testify the police were lying and he wouldn't testify the police did not recover anything from [appellant]. His sole testimony would be that he didn't see anything recovered."
The next argument addressed Beckstein's concession in his opening argument that appellant possessed the cocaine for personal use. The court reasoned that, given the strength of the People's case, Beckstein probably chose to argue that appellant possessed cocaine for personal use, rather than arguing that he did not possess it at all. This would have allowed him the advantage "if convicted of a lesser offense, of being able to seek some type of program instead of going to prison."
The court stated that Beckstein "probably should have anticipated that the People were going to call a narcotics expert.... [¶] Apparently Mr. Beckstein thought the People would base their case solely on... [appellant's] confession that he possessed it for the purpose of sales without producing any additional evidence." The court indicated that, even if Beckstein's performance had fallen below an objective standard of reasonableness, appellant had not established prejudice. The court concluded that there was not "a reasonable probability, but for Beckstein's failure to anticipate the expert's testimony, that the result would have been different."
The court noted that Beckstein had, in fact, objected to the expert's testimony, and that it had overruled his objection. Moreover, Beckstein had thoroughly cross-examined the expert. The prospective defense expert, Detective Strong, would have testified that the amount of rock cocaine in appellant's possession was consistent with personal use. The court concluded, however, that Strong's opinion would not necessarily have meant that appellant's possession of the cocaine was inconsistent with possession for the purposes of sale. "[Strong] would no doubt [have been] cross-examined by the People, and [would have] been asked to explain the presence of the scale and the defendant's confession as well. So I think the presence of the scale and the confession would have belied that particular testimony." The court denied the motion, and ordered the judgment reinstated.
DISCUSSION
Appellant claims the trial court abused its discretion by denying his new trial motion. He argues that he told Beckstein that he was innocent. He denied possessing any controlled substance, and denied telling the officers that he intended to "double up" the cocaine for resale. Appellant further asserts that failing to produce the jacket at trial precluded Beckstein from conducting an effective cross-examination of the arresting officers. Appellant contends that he was prejudiced by Beckstein's advice that the charge of possession for sale lacked "credibility" because rock cocaine could not be doubled or cut. He argues that, based upon this advice, he rejected a pre-trial plea offer of eight years.
A new trial may be granted where a defendant receives ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583; People v. Andrade (2000) 79 Cal.App.4th 651, 659.) Denial of a new trial motion based on the ineffective assistance of counsel is a constitutional issue requiring our independent review. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725; People v. Albarran (2007) 149 Cal.App.4th 214, 224-225 & fn. 7.)
To prevail on such a claim, the defendant was must show that counsel's performance was deficient, and the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice results when there is a reasonable probability the result would have been different absent counsel's ineffective representation. (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) Counsel's performance is measured against the standard of a reasonably competent attorney. (People v. Andrade, supra, 79 Cal.App.4th at pp. 659 -660.)
The People presented evidence at trial that appellant was found in possession of three rocks of cocaine and a glass pipe. A digital scale was recovered from the car he was driving. He waived his Miranda rights and admitted that he bought the cocaine for $140, that it was high quality, and said he intended to resell it. Beckstein made a tactical decision to concede that appellant possessed rock cocaine for personal use. This was reasonable, given the overwhelming evidence of possession.
Nor was counsel ineffective for not calling appellant's proposed witness, Beasley, or locating Hayward. Neither would have been able to testify as to what appellant had in his possession, or what he said to the officers. Their testimony would have been irrelevant to the defense theory that appellant possessed cocaine for personal use. Production of appellant's jacket at trial would have proved nothing. There was no evidence to support an argument that the officers fabricated the evidence or the confession.
In light of the foregoing evidence, there is no reasonable probability that the result would have been different had Beckstein argued that appellant did not possess cocaine. Likewise, appellant suffered no prejudice by Beckstein's conceding possession or his failure to anticipate the prosecution's expert testimony.
Appellant's argument that he rejected a pre-plea offer based on Beckstein's advice is without merit. Although he mentions it in the declaration attached to the first new trial motion, there is no mention of a plea offer in the second new trial motion. Instead, it reflects appellant's insistence that he was innocent and did not possess cocaine. In the absence of a showing of prejudice, appellant failed to demonstrate that his trial counsel was ineffective and, therefore, that he was entitled to a new trial. His motion was properly denied.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
We concur: GILBERT, P.J., YEGAN, J.