Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA341658, Ronald Rose, Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Jose Arguez Perez was convicted by jury in 2008 of selling cocaine base and possessing cocaine base for sale. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5.) (People v. Perez (Jan. 19, 2010, B213254) [nonpub. opn.].) In a prior appeal, we conditionally reversed in part and remanded to the trial court to conduct an in camera review of personnel records requested by appellant regarding complaints alleging dishonesty, fabrication of police reports, planting of evidence, or perjury. (Ibid.) The judgment was affirmed in all other respects. (Ibid.)
On remand, the trial court conducted a Pitchess hearing (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and ordered the production of records regarding 37 incidents. Defense counsel investigated the incidents for several months and located many witnesses, most of whom were in state prison. Specifically, the defense investigator located half of the potential witnesses, but four-fifths of those were in state prison, and the last known address for the others was the county jail. Defense counsel decided against sending the investigator to speak with witnesses in prison because it generally was not fruitful, noting that he had never called a Pitchess witness at trial. He explained that jurors tended to discount the testimony of witnesses who are in prison after having a complaint against an officer.
After this investigation, defense counsel informed the court that the potential witnesses would not have been called at trial even if the Pitchess information had been disclosed. He informed the court that appellant’s two best witnesses would have been his codefendants, but they both had pled guilty before trial and refused to testify for him.
The court found that there was no reasonable probability the outcome of the trial would have been different had the information been disclosed prior to trial and that appellant received a fair trial. Because the outcome would have been the same, the court found that appellant could not demonstrate prejudice from the failure to disclose the Pitchess information earlier. The court therefore reinstated the judgment and remanded appellant to state prison to serve his sentence, which was a total term of 12 years 4 months. The court also addressed appellant’s request to increase his custody credits based on the amendment of Penal Code section 4019. The court reasoned that it was a matter of only 102 days out of 12 years, and the People did not object, so the court gave appellant an additional 102 days of credit, for a total of 204 days of good time/work time credit and a total of 408 days of credit. Appellant timely appealed the ruling on the Pitchess material and the reinstatement of judgment.
After review of the record, appellant’s court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On March 4, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider. On March 10, 2011, we granted appellant’s request to augment the record on appeal. Appellant filed a supplemental brief on May16, 2011, raising a litany of issues, all of which should have been raised in his prior appeal. “[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay.” (People v. Senior (1995) 33 Cal.App.4th 531, 538.) Appellant has failed to show any justification for the delay in raising his claims.
In order to obtain relief, “a defendant who has established that the trial court erred in denying Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed. [Citations.]” (People v. Gaines (2009) 46 Cal.4th 172, 182 (Gaines).) The California Supreme Court explained in Gaines that “a finding that material evidence was wrongfully withheld under Pitchess does not invariably mean that a defendant’s right to due process was denied....” (Id. at p. 183.) Rather, in addition to showing that helpful evidence was withheld, “a defendant must go on to show that ‘“there is a reasonable probability that, had [the evidence] been disclosed to the defense, the result... would have been different”’ [citations.].” (Ibid.) We agree with the trial court that appellant has not demonstrated a reasonable probability of a different outcome had the Pitchess evidence been disclosed prior to trial.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.