Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC440571
RUSHING, P.J.
Defendant Charles Dwayne Airy was convicted following a jury trial of three counts of selling or offering to sell cocaine base. (Health & Saf. Code, § 11352, subd. (a)). On appeal, defendant requests this court independently review the police personnel records of the two officers involved in the undercover drug transactions he was convicted of. In addition, defendant asserts he was denied effective assistance of counsel for his attorney’s failure to introduce potentially exculpatory evidence during his trial.
Statement of the Facts and Case
Defendant was involved in three drug transactions with undercover police officer Lopez. The first sale was on December 31, 2003. Officer Lopez had previously met defendant, and called him that morning on a cell phone number he had for defendant, and left a message. Defendant returned Lopez’ call. Lopez told defendant he wanted to purchase $250 worth of “shit” from him. Defendant told Lopez to go to an intersection and call him for more instructions.
When Lopez arrived at the designated intersection, he called defendant, who told him to go to a nearby parking lot behind a gas station. Shortly after Lopez entered the parking lot, defendant followed in a white Cadillac. Lopez got out of this car, and went up to the driver’s side of the Cadillac, spoke to defendant, and gave him $250. Defendant handed Lopez cocaine base. Before and after the transaction between Lopez and defendant, police officers conducting surveillance saw defendant leave a house in Cupertino driving a white Cadillac.
The second drug sale happened on January 6, 2004. The day prior, defendant called Lopez from the same cell phone number that had been used in the first sale, and asked him if he wanted to buy more cocaine base. Lopez called defendant back on January 6 to set up the sale, and defendant told Lopez to drive to the same parking lot as the original sale. Defendant drove into the parking lot in the same white Cadillac as he was driving during the first sale. Lopez walked up to defendant’s driver’s side window, handed defendant $250, and received cocaine base in exchange.
During the second sale, Lopez told defendant he wanted to “bump[] up” the amount of cocaine base for the next buy. Defendant told Lopez he should call again if he wanted to buy more cocaine base. After the sale, police officers conducting surveillance saw defendant return to the house in Cupertino in the white Cadillac.
The third drug sale was set to happen a week later, on January 15, 2004. On January 10, defendant called Lopez and left a message that he should call him back on the same cell phone he had used in the last two drug sales. Defendant called Lopez again the next day and offered to sell him $2,000 worth of cocaine base. On January 13, defendant called Lopez and asked him when the sale would take place. Lopez told him he needed time to get together all the money. The next day, on January 14, Lopez called defendant from a land line rather than his cell phone so the conversation could be recorded. The two agreed to meet for the drug sale at the same parking lot they had used on the two prior occasions. Shortly after they hung up, defendant called Lopez to ask if he was a police officer.
On January 15, defendant called Lopez and arranged to meet in the evening after work for the drug sale. Lopez told defendant he would meet him with half of the purchase money. Officers conducting surveillance saw defendant leaving the house in Cupertino in the white Cadillac. Officers also saw a woman driving a minivan follow defendant from the Cupertino house.
Lopez saw defendant drive into the parking lot where they arranged to meet driving the white Cadillac. Lopez got out of this car, made eye contact with defendant, and walked past defendant’s car and the woman’s minivan. Once Lopez walked past the two cars, another officer pulled into the parking lot in a marked police car.
After defendant’s arrest, he and his car were searched. The Cupertino home was also searched. There were no drugs found during any of the searches. Officers found the cell phone used in the previous drug transactions during the search incident to arrest. Officers found small plastic baggies consistent with drug-packaging material in the Cupertino home.
Defendant was charged by information with three counts of selling or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a)); and one count of possession of ammunition by a prohibited person (Pen. Code, §§ 12316, subd. (b), 12021, subd. (a)(1). The information also alleged defendant was ineligible for parole, had committed 12 strike offenses, and served one prior prison term. (Pen. Code, §§ 1203.073, subd. (b)(7); 667, subd. (b)-(i), 1170.12, 667.6, subd. (b).)
Defendant was found guilty following a jury trial of three counts of selling or offering to sell cocaine base; the jury acquitted defendant of the possession of ammunition by a prohibited person charge. Defendant waived his right to a jury trial, and admitted the prior conviction allegations.
The court struck all but one of defendant’s strike allegations, and sentenced him to 14 years 4 months in state prison. This timely appeal followed.
Discussion
Defendant asserts on appeal that this court should conduct an independent review of the personnel records of officers involved in his arrest to determine if proper discovery of the records was ordered, or if the trial court abused its discretion, withholding material and discoverable material from the defense. In addition, defendant argues he was denied effective assistance of counsel by his attorney’s failure to introduce potentially exculpatory evidence at trial.
Pitchess Motion for Discovery of Police Personnel Files
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Prior to trial, defense counsel filed a Pitchess motion seeking to discover evidence of prior citizen complaints against the officers “regarding previous acts of misconduct involving use of excessive force and false information in police reports.” Following a hearing on the motion, the court found good cause was established for an in camera review of the personnel records of the officers. The court conducted the in camera review, and ordered the San Jose City Attorney to disclose any names and addresses of complaining witnesses in investigations as to the officers.
Defendant requests on appeal that this court conduct an independent review of the personnel records of the officers to determine if the trial court’s discovery order was proper, and the Attorney General has no objection. When requested to do so by a defendant, an appellate court can and should independently review the transcript of the trial court’s in camera Pitchess hearing to determine whether the trial court disclosed all relevant documents. (People v. Mooc(2001) 26 Cal.4th 1216, 1229 (Mooc).) We have reviewed the transcript of the in camera proceedings and find no error in the trial court’s ruling concerning disclosure of the officers’ records.
In Pitchess, the California Supreme Court held that a criminal defendant is entitled to discovery of officer personnel records if the information contained in the records is relevant to his ability to defend against the charge. A defendant, by written motion, may obtain information contained in a police officer’s personnel records if it is material to the facts of the case. (Evid.Code, § 1043, subd. (b)(3).) When presented with such a motion, the trial court determines whether there is good cause for disclosure. (Id., §§ 1043, 1045.) If the court orders disclosure, the custodian of the officer's records brings to court all the potentially relevant personnel records and, in camera, the trial court determines whether any of the records are to be disclosed to the defense. During the in camera hearing, neither the defense nor the prosecution is present. (Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
Mooc provides that in order for the trial court to facilitate appellate review of it’s in camera rulings, it “should . . . make a record of what documents it examined before ruling on the Pitchess motion. . . . If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party’s ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer’s privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed.” (Mooc, supra, 26 Cal.4th at p. 1229, fn. omitted.)
We independently reviewed the sealed reporter’s transcript of the in camera hearings regarding the Pitchess discovery of the officers’ personnel records. As reflected in the sealed transcript, the trial court’s findings are sufficient to permit appellate review. Based on our review of the court’s findings, we conclude the trial court properly exercised its discretion in ordering the discovery of documents for disclosure.
Ineffective Assistance of Counsel
Defendant asserts on appeal that he was denied effective assistance of counsel by his attorney’s failure to introduce potentially exculpatory evidence at trial. Defendant has the burden of proving ineffective assistance of counsel. (People v. Malone (1988) 47 Cal.3d 1, 33.) To prevail on a claim of ineffective assistance of counsel, a defendant “ ‘must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.’ ” (People v. Hart (1999) 20 Cal.4th 546, 623.)
A reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Moreover, “prejudice must be affirmatively proved . . . .” (People v. Maury (2003) 30 Cal.4th 342, 389.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) Further, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Id. at p. 697.) With this legal framework in mind, we review defendant’s claim of ineffective assistance of trial counsel.
At the hearing on the Pitchess motion, defense counsel represented to the court that he had evidence of a towing receipt for defendant’s Cadillac demonstrating that the license plate and the year were different from the license plate and year Officer Lopez observed during the first drug transaction, as stated in his police report and search warrant affidavit. Specifically, defense counsel sated: “I’ve turned over to the district attorney a receipt that—towing receipt that shows that the car that was towed from the location where the stop occurred did not have the license plate number of 3VGN260, as stated in the police report. It was not a 1985 Cadillac. It was a 1989 white Cadillac with the license plate 2TMA790.” Despite counsel’s representation above, he did not seek to introduce the towing receipt into evidence at trial.
At the heart of the issue is the defense theory that defendant was not the person who participated in the original drug sales, and that he was in the wrong place at the wrong time at the time of the arrest. In support of this argument, defendant asserts the car that he was in at the time of the arrest was not the same car that Officer Lopez observed during the first two undercover drug transactions. Defendant further argues that the evidence at trial regarding the car was “ambiguous,” because none of the officers noted or could remember the license plate of the Cadillac that defendant was driving when he was arrested.
Defendant asserts the towing receipt was a critical piece of information that supported his defense of mistaken identity. The receipt, defendant argues, would clarify “any ambiguity” in the identification of the Cadillac found at the scene of the arrest as having the license plate of 2NMA790, not the license plate identified by Officer Lopez as associated with the original drug transaction. Defendant argues his trial counsel’s failure to introduce the towing receipt as evidence was ineffective assistance, because the receipt would have bolstered his defense of mistaken identity.
The significant problem with defendant’s argument is that there is nothing in the record demonstrating the reason for counsel’s failure to introduce the evidence. By asserting his claim of ineffective assistance of counsel on direct appeal, rather than by petition for habeas corpus, defendant asks us to conclude that there can be no “satisfactory explanation” for counsel’s action. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.) We cannot make that conclusion. There are many possible explanations for why counsel may not have introduced the towing receipt at trial, such as the actual existence of the receipt, or the lack of a witness to authenticate the receipt. Without more information, we cannot speculate as to counsel’s actions at trial.
In addition, defendant cannot establish that but for counsel’s failure to introduce the towing receipt, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694.) There was ample evidence at trial that defendant was the person involved in the drug transactions with Lopez. Lopez testified he recognized defendant’s voice on the telephone calls before the three transactions, and he visually identified defendant as the person from whom he received cocaine base on the two prior occasions. Moreover, the cell phone defendant used to set up each of the three transactions was found at the scene of the arrest. Defendant’s theory that this is a case of mistaken identity, and he was simply at the wrong place at the wrong time was not credible based on the evidence. The introduction of the towing receipt would have done little, if anything to bolster defendant’s theory.
Defendant fails to meet his burden of establishing that he suffered ineffective assistance of counsel at trial.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., BAMATTRE-MANOUKIAN, J.