Opinion
E052130 Super.Ct.No. FSB804483
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLEN COOPER, Defendant and Appellant.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Michael Allen Cooper was charged by amended information with possession of cocaine base for sale. (Health & Saf. Code, § 11351.5, count 1.) With regard to sentence enhancements, the information alleged that defendant had a prior conviction for the same offense (Health & Saf. Code, § 11370.2, subd. (a)), and that he had served seven prior prison terms (Pen. Code, § 667.5, subd. (b).) A jury found defendant guilty as charged. The trial court found true the prior conviction allegation, as well as all seven prior prison term allegations. Defendant, in propria persona, made an oral motion for new trial. After numerous continuances, a written motion was filed by new counsel. The court subsequently heard and denied the motion. It then sentenced defendant to a total term of 15 years in state prison, with credit for time served of 1,432 days (716 actual days + 716 conduct credits).
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
Police Officer Devin Peck, a flight officer assigned to fly in police helicopters, was dispatched to fly over a certain residence (the residence) on November 6, 2008. He flew over the area and, using the infrared system, observed an individual appear near the northwest corner of the residence, run toward the fence in the backyard, and hide between some bushes and a fence. Police officers on the ground arrived to execute a search warrant on the residence. Officer Peck made radio contact with those officers, advised them of his observations, and directed them to the location where the person was hiding.
Officer Gerald Beall arrived at the scene and entered the residence. He overheard Officer Peck's radio call and ran into the backyard. He followed Officer Peck's directions to the rear fence and observed an individual, later identified as defendant, trying to conceal himself in the weeds and brush. Officer Beall placed defendant in handcuffs and brought him into the residence. Officer Beall did not see anyone else in the residence or the yard.
Some officers followed the path that defendant appeared to have taken through the backyard and found a soda can that was folded in half. The can stood out, since it was very clean and everything else in the yard was covered in dust and spider webs. Inside the can was a clear plastic baggie containing eight individually packaged pieces of what appeared to be cocaine base. The baggie was concealed in the crease of the can. Inside the house, there were numerous other clear plastic baggies that had the corners cut out of them.
Officer Beall arrested defendant and took him to the county jail for booking. The intake deputies conducted a search and removed defendant's right shoe. They immediately handed the shoe to Officer Beall. Inside the shoe, Officer Beall found two baggies containing 22 individually packaged pieces of what appeared to be cocaine base.
The baggies found in the can and in defendant's shoe were submitted to the police narcotics lab for testing. The substance tested positive for cocaine base. The weight of the cocaine base that was recovered from the can was approximately 1.8 grams, and the weight of the cocaine base recovered from the shoe was approximately 3.7 grams. All of the individually packaged rocks of cocaine base found were of a usable quantity.
At trial, Officer Beall testified that cocaine base is most commonly packaged using the corners of baggies, which are cut off and sealed. He also testified that the manner in which the cocaine base here was packaged indicated that it was individually packaged for sale. There was no drug paraphernalia found in the residence, which indicated that the residence was being used as a location where narcotics were being sold.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and the following "issues considered by counsel": (1) the motion for new trial's discussion of the prosecution's duty to disclose exculpatory evidence to the defense; and (2) the motion for new trial's discussion of ineffective assistance of counsel. Counsel has also requested that this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. According to defendant, his brief is based on (1) ineffective assistance of counsel (IAC), and (2) prosecutorial misconduct. Because the allegations made in support of these contentions are intertwined, the brief is somewhat confusing. However, it appears that defendant is contending that his trial counsel was ineffective for various reasons, including that she failed to investigate the case, she never obtained the search warrant to determine whether it was subject to attack, she did not ask him about his allegations regarding "the illegal action of the arresting officers (with respect to drugs found on [him])," she failed to adequately prepare for trial, and she failed to file a Pitchess motion in regard to Officer Beall's background. Defendant also asserts that "when searched at the jail, a Trombetta/Youngblood motion should have been filed by the defense with regard to the drug evidence[,] which was niether [sic]preserved for testing, nor photographed . . . ."
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Defendant appears to be referring to California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood).
We note that samples of the substance found in the can and in defendant's shoe were tested.
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In order to establish a claim of IAC, defendant must demonstrate, "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.]" (People v. Dennis (1998) 17 Cal.4th 468, 540-541 (Dennis).) Hence, an IAC claim has two components: deficient performance and prejudice. (People v. Williams (1997) 16 Cal.4th 153, 214-215.) If defendant fails to establish either component, his claim fails.
Here, defendant has made no effort to demonstrate that counsel's alleged deficient representation prejudiced him, i.e., there is a reasonable probability that, but for counsel's purported failings, defendant would have received a more favorable result. (Dennis, supra, 17 Cal.4th at pp. 540-541.) Thus, his IAC claims fail. (Ibid.)
Next, defendant contends the prosecutor committed misconduct when he "fail[ed] to disclose vital information to the defense regarding the investigation of" Officer Beall. Defendant cites Brady v. Maryland (1963) 373 U.S. 83 (Brady) in support of this claim. He appears to be alleging that the prosecutor violated his duty under Brady to disclose evidence that was materially favorable to the defense. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133 (Zambrano), overruled in part on other grounds, as stated in People v. Doolin (2009) 45 Cal.4th 390, 421.) Defendant makes unsupported references to an investigation about Officer Beall's involvement in a federal case, and a report written by a federal judge regarding Officer Beall's credibility and alleged perjury during a trial. He also claims that Officer Beall was placed on administrative leave pending an investigation of his practices. However, we note that, at the hearing on the motion for new trial, evidence was presented that showed there was no such internal investigation. It also showed that, while a judge did issue a ruling in a federal case that reflected negatively on Officer Beall's credibility, the judge later "amended the credibility findings" in favor of Officer Beall. Moreover, Officer Beall testified at the hearing that he was not disciplined in any way by the police department regarding the federal case. Thus, information regarding Officer Beall's involvement in the federal case was not material for purposes of Brady, and any failure to disclose it was not prejudicial. (See Zambrano, supra, 41 Cal.4th at p. 1135.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur: RICHLI J. CODRINGTON J.