Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA 082765, Arthur M. Lew, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, J.
On April 21, 2006, pursuant to a plea bargain in case number TA082765, Michael Aguinaldo pleaded no contest to being a felon in possession of firearm ammunition in violation of Penal Code section 12316, subdivision (b)(1), and admitted having earlier been convicted of violating Health and Safety Code section 11366.5, subdivision (a). The court placed him on probation for three years and ordered him to serve 365 days in jail.
On May 24, 2007, police officers responding to a “suspicious person” call found Aguinaldo alone in a car in the driveway of his mother’s house. When officers searched the car, they found a plastic baggie containing 0.03 grams of methamphetamine inside a green cassette tape case and arrested Aguinaldo. As a result, he was charged in case number TA 090920 with violating Health and Safety Code section 11377, subdivision (a). At the preliminary hearing, one of the arresting officers testified that he arrived at the scene after other officers detained Aguinaldo; he and another officer searched the car; in a green cassette case they found a baggie containing a white crystalline substance that looked like methamphetamine; he advised Aguinaldo of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and Aguinaldo waived them; he asked Aguinaldo about the “item that resembled methamphetamine,” and Aguinaldo said that he had found it; and the first officers at the location had not searched the car before the testifying officer arrived. At one point the preliminary hearing transcript states the booking number for the baggie of methamphetamine as “407070811620184,” at another point as “40700811620184.”
On August 21, 2007, on the prosecution’s motion, the court dismissed case number TA090920 in the interest of justice and held a hearing on the charged probation violation in case number TA082765. Both counsel stipulated to admitting the preliminary hearing transcript, and only Aguinaldo testified. He stated that the first two officers at the scene, neither of whom testified at the preliminary hearing, searched his car; the testifying officer arrived later and, along with one of the first two officers, searched the car again and found the green cassette tape case; the officers said they found something but never showed him the cassette case; he did not recall having a cassette case in his car and was not aware of any methamphetamine in his car; the officers found $500 in his car and gave it to his mother, who was at the search location; and Aguinaldo offered to take a urine test, but the officers did not request it. Aguinaldo asserted that the testifying officer lied under oath when he testified that the car was not searched until after the officer arrived; he also noted that the testifying officer failed to mention that Aguinaldo’s mother was at the search location or that the officers gave her the $500 they found in the car. The court found Aguinaldo had violated the terms of his probation, revoked probation, sentenced him to the mid-term of two years in prison, and credited him with 512 days in custody. On September 19, 2007, the court entered a nunc pro tunc order correcting a clerical mistake that had given him 602 days, instead of the correct figure of 512 days, of credit.
Aguinaldo timely appealed, and we appointed counsel to represent him. After examining the record, counsel filed a brief raising no issues and asking us independently to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On February 5, 2008, we advised Aguinaldo that he had 30 days within which to submit any contentions or issues he wished us to consider. On March 4, 2008, we received a brief from Aguinaldo contending the trial court denied him “DUE PROCESS OF THE LAW, of a FAIR TRIAL and HEARING with NOTICE of COMPULSORY APPEARANCE”; the testifying officer committed perjury; and Aguinaldo’s public defender provided inadequate assistance by failing to afford him “Compulsory Process of obtaining witnesses in [his] favor[,]” among other assertions. We disagree.
We have examined the entire record and are satisfied that Aguinaldo’s appellate attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.) We are limited, of course, to reviewing only the record before us. (See People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.)
Aguinaldo apparently contends he was denied his constitutional rights to a jury trial in case number TA090920. Because case number TA090920 was dismissed, Aguinaldo was not entitled to a trial in that matter. To the extent he contends he was entitled to a jury trial on the probation violation, he is mistaken. Probation revocation proceedings are not trials, and a probationer facing revocation is not entitled to a jury trial. (See Pen. Code, § 1203.2, subd. (c); People v. Monette (1994) 25 Cal.App.4th 1572, 1575; People v. Johnson (1993) 20 Cal.App.4th 106, 110-111.)
Regarding perjury, Aguinaldo maintains that discrepancies between his testimony and the testifying officer’s, or other alleged factual inaccuracies in the officer’s testimony, show perjury. Even assuming that discrepancies existed between the testimony of the officer and Aguinaldo and that there were factual inaccuracies in the officer’s testimony, the court was entitled to believe the officer and disbelieve Aguinaldo. To do so did not constitute error. (See Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 518.) Further, even if Aguinaldo was correct and the testifying officer was incorrect in some of his testimony, neither the discrepancies themselves nor anything else in the record establishes that the officer knowingly and deliberately lied under oath.
Aguinaldo’s complaints of inadequate counsel appear to be that his counsel did not demand a jury trial and did not call as witnesses his mother or all the other police officers involved in the arrest. Because he had no right to a jury trial on the charged probation violation, counsel’s failure to request one could not constitute ineffective representation. With regard to failing to call witnesses, Aguinaldo claims that the other witnesses would have confirmed his testimony regarding some of the alleged discrepancies or inconsistencies we have described. Because the record contains no evidence of what the witnesses would have testified, on this record we cannot find counsel’s performance inadequate for not calling additional witnesses.
Aguinaldo also contends that his counsel “made decisions in the case TA090920 and TA082765 . . ., without my knowledge or consent, on a[n] unscheduled court date [August 21, 2007].” Aguinaldo was present in court and testified on August 21, 2007. Nothing in the record suggests that counsel made any decisions without Aguinaldo’s knowledge or consent. Regarding his claim that he did not consent to advancing the probation violation hearing by two days from August 23 to August 21, nothing in the record supports his assertion that the change was not authorized by him or that it caused him any prejudice.
Aguinaldo contends the amount of powder containing methamphetamine that officers found in his car “was insufficient.” In support of his position, he claims that the powder weighed 0.003 grams. He is mistaken. The only evidence of the weight of the powder is the parties’ stipulation that the police criminalist found that the powder weighed 0.03 grams. As our Supreme Court has observed, any amount greater than a mere useless residue may support a conviction of drug possession, even if the amount is not enough to produce a narcotic effect. (See People v. Rubacalba (1993) 6 Cal.4th 62, 65-67; see also People v. Schenk (1972) 24 Cal.App.3d 233, 238-239.) Although the amount of powder found in Aguinaldo’s car was small, the record does not indicate that it was only a useless residue. (See People v. Miranda (2008) 161 Cal.App.4th 98, 104 [0.02 grams of methamphetamine is a usable quantity].)
Aguinaldo contends, apparently, that he was wrongly convicted of the felonies in the cases numbered TA055389 and TA056268, which were the basis for finding him a felon in case number TA082765, the case which is the subject of this appeal. Nothing in the record allows us to evaluate whether that claim is legitimate or timely. Aguinaldo also complains that there were clerical errors in a minute order (later corrected) and in the reporter’s transcript of the preliminary hearing, but nothing in the record shows that these clerical errors caused him prejudice.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)