Opinion
B206161
10-29-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSE R. FERNANDEZ, Defendant and Appellant.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Not to be Published
We appointed counsel to represent appellant in this matter. After examining the record, counsel filed a "Wende" brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We directed appointed counsel to immediately send the record on this appeal and a copy of the opening brief to appellant and notified appellant that within 30 days from the date of the notice he could submit by brief or letter any grounds of appeal, contentions or argument he wished us to consider. We received two responses from appellant, one of which raises issues he wants us to consider.
We have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441.) We set out below a brief description of the facts and procedural history of the case, the crime of which the appellant was convicted, and the punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 110.) We also respond briefly to the points raised in appellants letter.
FACTS
A jury convicted Jose Fernandez of one count of selling a controlled substance, cocaine base. The trial court struck Fernandezs four drug priors and five prison terms and sentenced him to the upper term of five years.
Officer Hector Diaz testified that he and his partner, Jose Calderon, were working undercover on Los Angeless skid row on the evening of September 19, 2007. As Diaz walked along San Julian Street, he was approached by Avery Rhinehart who asked him, "What do you need?" Diaz replied he needed "a 20," vernacular for $20 of narcotics. Rhinehart left Diaz and walked approximately 10 feet to where Fernandez was standing. Diaz observed movements of Rhineharts and Fernandezs shoulders and arms. He did not hear any conversation between them nor did he see any item change hands. Rhinehart returned to Diaz and asked him for the money. Diaz gave Rhinehart a $20 bill which had previously been photographed and its serial number recorded. Rhinehart handed Diaz three loose wafers which laboratory tests showed to be cocaine base. After receiving the drugs from Rhinehart, Diaz walked away and signaled uniformed officers that the transaction had been completed.
Calderon testified that he observed the transaction between Diaz, Rhinehart and Fernandez from approximately 20 feet away. He saw Diaz have a brief conversation with Rhinehart after which Rhinehart walked to where Fernandez was standing. Calderon saw Fernandez hand something to Rhinehart.
Uniformed officers arrested Fernandez and Rhinehart immediately after receiving the signal from Diaz that the transaction was complete. The officer who arrested Fernandez found the prerecorded $20 bill in his possession.
Rhinehart testified on Fernandezs behalf. He stated that he alone sold the cocaine to Diaz, he had been previously convicted of that crime, and that Fernandez had nothing to do with it. What the officers mistook for a drug transaction between him and Fernandez was actually Fernandez showing him a gold medallion on a chain. Rhinehart further explained that after Diaz gave him the $20 bill for the drugs he gave the bill to Fernandez as part payment of the $40 he owed him.
DISCUSSION
In his letter, Fernandez argues that the jury should not have believed any of Calderons testimony because Calderon identified Fernandez at trial as an Hispanic when, in fact, Fernandez is black. The jury was not required to disregard all of Calderons testimony because of this mistake. Calderon positively identified Fernandez as the person "seated to the right of the defense counsel, wearing a white-colored shirt with stripes on it." His mistake about Fernandezs race did not effect his ability to recognize Fernandez as the person he saw hand something to Rhinehart.
Fernandez next argues that he was denied a fair trial because he did not know Calderon would testify until just before he took the stand. Fernandez did not object to Calderon testifying, however, so that argument was forfeited.
Finally, Fernandez argues that the court erred in denying his request to continue the trial so that he could file a Pitchess motion as to Calderon. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) In support of the continuance, Fernandez contended that he needed an opportunity to investigate incidents involving Calderons lack of truthfulness because Calderon, who had not testified at the preliminary hearing, gave testimony at trial that differed from Diazs testimony on an important point. Diaz testified that when Rhinehart approached Fernandez he could only see him from the shoulders up and did not see Fernandez hand anything to Rhinehart. Calderon, however, testified that he saw Fernandez hand something to Rhinehart.
The trial court has a lot of freedom to grant or deny a request to continue a trial. The court denied Fernandezs request for a continuance because it believed Fernandez should have made his Pitchess motion before the trial started, not after all the evidence was in and the court was about to instruct the jury. The court rejected Fernandezs argument that Calderons testimony took him by surprise. The police report, which Fernandez received prior to trial, listed Calderon as a witness to the drug deal and stated that both he and Diaz saw a hand-to-hand exchange between Rhinehart and Fernandez. The court reasoned that if, as Fernandez claims, no such exchange took place between him and Rhinehart Fernandez should have brought his Pitchess motion when he received the police report describing that exchange. We agree with the trial courts reasoning.
DISPOSITION
The judgment is affirmed.
We concur:
MALLANO, P. J.
WEISBERG, J. --------------- Notes: Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.