Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. TA111581, John C. Cheroske, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
RUBIN, ACTING P. J.
On February 14, 2010, appellant Charles Brown entered a Yum Yum Donut Shop which he had previously frequented. He talked to the owner, whom he had known for some time and demanded $30. The owner handed over the money because he was afraid. The owner later told one of the investigating officers that Brown said he “did not want to do this, but if [the owner] didn’t give it to him, he would jump over the counter, take more from the register.”
Brown was later arrested and charged with one count of robbery, with two prior convictions as strikes and prior serious felonies. (Pen. Code, §§ 211, 667, subds. (a), (b) - (i); 1170.12, subds. (a) – (d).) It was also alleged that he had four prior prison terms. (Pen. Code, § 667.5, subd. (b).)
During pretrial proceedings, defense counsel filed a motion to dismiss or for other sanctions due to destruction of evidence. The defense claimed that a videotape that would have demonstrated Brown’s innocence had been destroyed. The court conducted an evidentiary hearing at which both the owner and Los Angeles Deputy Sheriff Dennis Parker testified. Deputy Parker was one of the officers who first responded to the scene. The testimony revealed that the owner told police that the robbery had been videotaped on the store’s security system. Deputy Parker viewed the recording on the owner’s personal hard drive. The owner then offered to download the recording onto Officer Parker’s flash drive. However, the owner’s computer used a software system that was not compatible with the county flash drive and nothing was actually downloaded. Around the same time, the owner’s computer crashed and the recording of the robbery video from that source was unrecoverable. Therefore no recorded version of the security video was available for trial.
At the close of the hearing, the trial court denied the motion for dismissal or other sanctions, finding that law enforcement had not intentionally destroyed evidence and there was no showing that evidence favorable to the accused had been lost. Deputy Parker indicated that although he was unable to view the video from the flash drive, no computer expert had tried to recover the video from that drive. After inquiry from the court, Deputy Parker agreed to keep custody of the flash drive for future testimony. The record does not show the defense ever requested production of the flash drive for examination.
A few days later, Brown changed his plea to no contest in exchange for an agreed upon sentence of nine years. Defendant was advised of and waived his constitutional rights under Boykin v. Alabama (1969) 395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122, was advised of the agreed upon sentence and the maximum term of 39 years to life as a three strikes case, and was told the other consequences of his plea.
Brown filed a notice of appeal, and we appointed appellate counsel. Before the filing of the Appellant’s Opening Brief, appointed counsel filed a motion in this court to treat as timely a certificate of probable cause filed with the trial court under Penal Code section 1237.5 [certificate of probable cause generally required for appeal following a guilty or no contest plea]. We granted the motion but denied a companion motion to expand the appeal to issues beyond that set out in the Notice of Appeal. The record contains an application for probable cause and the certificate issued by the trial court.
On May 5, 2011, Brown’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The brief included a declaration from counsel that she had reviewed the record and had sent Brown a letter advising him that such a brief would be filed and that he could file a supplemental brief if he chose to. That same day, this court sent Brown a letter advising him that a Wende brief had been filed and that he had 30 days to submit a brief raising any issues he wanted us to consider. On June 3, 2011, Brown filed a supplemental brief in which he made the same destruction of evidence arguments that he presented to the trial court.
Under People v Kelly (2006) 40 Cal.4th 106, we find that Brown’s supplemental briefs do not raise any arguable issues. The supplemental brief cites California v. Trombetta (1984) 467 U.S. 479, 489 and Brady v. Maryland (1963) 373 U.S. 83 dealing with willful destruction of evidence and the obligation to furnish favorable evidence to the defense. Neither case has application here because the trial court found (1) the recording of the robbery was not destroyed by any bad faith of law enforcement but rather was lost due to the vagaries of even sophisticated computer technology; and (2) nothing suggested that the video tape contained evidence favorable to the defense. We also do not find arguable any claim that trial counsel was ineffective by not arranging for further testing of the flash drive. As we noted, the record is silent on any request. Assuming one was not made, for an ineffective assistance of counsel claim to be sustained, the defendant must show that counsel’s performance fell below an objective level of reasonableness and defendant was prejudiced by counsel’s failings. (People v. Williams (1997) 16 Cal.4th153, 164-165.) The defendant must also demonstrate from the record “the lack of a rational tactical purpose for the challenged act or omission.” (Id. at p. 165.) Counsel may have preferred to argue the loss of evidence than to run the risk that the video would confirm the owner’s testimony. In any event, Brown pled within a week of the trial court’s ruling, and received a nine year sentence for conduct that carried a 39 years to life maximum. Nothing suggests the failure to test the flash drive contributed to the plea.
We have examined the entire record and are satisfied that Brown’s attorney has fully complied with her responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: FLIER, J., GRIMES, J.