Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. DL022275 Donna L. Crandall, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Charles Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
David K. challenges the juvenile court’s adjudication he possessed methamphetamine for sale. Relying on the so-called Kelly/Frye rule, he contends the court should have excluded evidence regarding a presumptive drug test because the prosecution failed to show the test has been proven to be scientifically reliable. (See People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.) However, because defense counsel never objected to the test evidence on this basis, the issue has been waived. Moreover, because there could be a rational explanation for counsel’s failure to invoke Kelly/Frye, we reject David’s alternative claim he was denied effective representation. The judgment will stand.
FACTS AND BACKGROUND
On December 15, 2006, Probation Officer Cora Fantes and two other officers went to David’s residence to conduct a probation search. They found David sleeping on the floor next to a knife, and inside the knife they found a secret compartment containing 4.5 grams of an off-white substance. David had a lighter, some money and a digital scale in his possession. He also admitted he had a drug problem and had been using methamphetamine for the past six months. However, he claimed the knife belonged to a friend and he did not know about the secret compartment or what was inside.
Officer Fantes testified that she conducted a presumptive test on the substance found in the knife. She indicated that when she poured some of the substance into a vial of liquid, the liquid turned orange, signaling the substance was methamphetamine.
At the close of its case-in-chief, the prosecution moved to introduce into evidence the results of the crime lab tests that were done on the substance found in the knife. Defense counsel objected on the basis there was no testimony regarding those tests, and the court sustained the objection.
During argument, defense counsel asserted there was insufficient evidence to prove David knew about the substance in the knife. She also questioned whether it had “been proven beyond a reasonable doubt . . . that the substance was a controlled substance, that it was methamphetamine.” She said, “We have a probation officer’s testimony that she did a presumptive test and that it turned the proper color. But we have no testimony that it was actually being tested by the crime lab and came back as methamphetamine.”
The court found beyond a reasonable doubt that David knowingly possessed methamphetamine for purposes of sale. It reinstated his probation on the condition he serve 365 days in an appropriate juvenile institution.
DISCUSSION
Invoking the Kelly/Frye rule, David argues the court should have excluded the evidence regarding the presumptive test because the prosecution failed to establish the test has been generally accepted in the scientific community. (See People v. Leahy (1994) 8 Cal.4th 587, 612 [“Kelly contemplates appropriate expert testimony and evidence showing (the particular testing method) is generally accepted by a typical cross-section of the relevant scientific community.”].) However, defense counsel did not challenge the evidence on this basis, which raises the specter of waiver.
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .” (Evid. Code, § 353.) David asserts that by arguing at the close of evidence there was insufficient evidence to prove the substance he possessed was methamphetamine, he satisfied Evidence Code section 353 and effectively preserved the Kelly/Frye argument he raises on appeal. We cannot agree.
“While ‘Evidence Code section 353 does not exalt form over substance’ [citation], it does require sufficient specificity of evidence and legal grounds for the opposing party to respond if necessary, for the trial court to determine the question intelligently, and for the appellate court to have a record adequate to review for error.” (People v. Ramos (1997) 15 Cal.4th 1133, 1172.) Here, not once did defense counsel invoke the Kelly/Frye rule or its requirement of general scientific acceptance. She didn’t raise the issue when the evidence regarding the presumptive test results was offered into evidence, nor did she do so during closing arguments. Consequently, the prosecution was not alerted to the issue, the trial court never ruled on it, and there is no record for appellate review. Accordingly, we find David’s Kelly/Frye argument has been waived. (Ibid.; People v. Ochoa (1998) 19 Cal.4th 353, 414 [“Having failed to object on Kelly/Frye grounds to the admission of the evidence . . . defendant has not preserved his claim.”].)
Alternatively, David contends his attorney was ineffective for not objecting to the presumptive test results on Kelly/Frye grounds. However, the record is silent as to why counsel failed to object on this basis. Because she was never asked to explain her tactics, the only way we can reach David’s Sixth Amendment claim is if there could be no possible satisfactory explanation for counsel’s conduct. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
That is not the case. Counsel may have known that if she objected to the evidence regarding the presumptive test results on Kelly/Frye grounds, the prosecution would have been able to lay an adequate foundation for the introduction of the crime lab results. The record does not disclose exactly what defense counsel knew about the crime lab results, but her knowledge in this regard may have justified her failure to raise a Kelly/Frye objection to the presumptive test. Certainly, the fact the prosecution tried to introduce the results into evidence suggests they did not show the powder to be talcum. A defense attorney’s tactical decision to forego a challenge to certain evidence is not unreasonable if mounting a challenge would likely lead to the introduction of evidence that is even more damaging to the defendant.
The point is, we should not rush to judge an attorney’s competence when, as here, the record is silent as to why she acted or failed to act in the complained of manner. Given the absence of an explanation for counsel’s conduct in the record, and the plausibility that a good one exists outside the record, direct appeal is simply not the proper vehicle to consider David’s ineffective assistance of counsel claim. (See People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267 [where direct appeal is foreclosed by silent record a petition for writ of habeas corpus is the proper method by which to pursue a claim of attorney incompetence].) Therefore, we have no occasion to disturb the trial court’s decision.
The judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.