Opinion
B222721
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. ABROM KEITH DAVIS et al., Defendants and Appellants.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant Abrom Keith Davis. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Roy Earl Brooks. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA354028)
APPEAL from judgments of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant Abrom Keith Davis.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Roy Earl Brooks.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellants Abrom Keith Davis and Roy Earl Brooks appeal from judgments of convictions for conspiracy to manufacture a controlled substance --phencyclidine or PCP, manufacturing PCP, possession of PCP, and possession of controlled substances in order to manufacture PCP. They contend (1) there was insufficient evidence to support the convictions, (2) the trial court erred in partially denying a Pitchess motion, and (3) there was ineffective assistance of counsel. Finding no prejudicial error, we affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535.
STATEMENT OF THE CASE
In an amended information, appellants were charged with conspiracy to manufacture PCP (Pen. Code, § 182, subd. (a)(1); count 1), manufacturing PCP (Health & Saf. Code, § 11379.6, subd. (a); count 2), possession for sale of PCP (Health & Saf. Code, § 11378.5; count 3), and possession of controlled substances with intent to manufacture PCP (Health & Saf. Code, § 11383, subd. (a); count 4). It was further alleged that Brooks had one prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). In addition, it was alleged that Davis had two prior drug-related convictions and four convictions within the meaning of section 1203, subdivision (e)(4). As to count 2, it was also alleged that the substance containing PCP exceeded three gallons of liquid within the meaning of Health and Safety Code section 11379.8, subdivision (a)(1).
All further statutory citations are to the Penal Code, unless otherwise stated.
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A jury found appellants guilty as charged, and found true the special allegations. The trial court sentenced Brooks to state prison on count 2 for seven years, plus three years on the Health and Safety Code section 11379.8, subdivision (a)(1) allegation. The sentences on the remaining counts were stayed pursuant to section 654. The trial court struck the prior convictions enhancement under section 1385. Davis received the same sentence as Brooks. Appellants timely appealed.
STATEMENT OF THE FACTS
On March 12, 2009, Long Beach Police Department Officers Jeremy Reno and Alex Lawrence were on patrol when they smelled a strong odor that they associated with the manufacture of PCP. They followed the smell to a nearby house. As they drove up to the residence, they noticed two people in an SUV parked in the driveway. The two people appeared to be drinking, and there was an odor of PCP coming from the vehicle.
The officers left their patrol vehicle and approached the SUV. As they did so, they noticed appellants in the backyard of the residence. Brooks was wearing a dark-colored, long-sleeve shirt and gloves, and Davis was wearing a sweatshirt. When appellants noticed the officers, Davis took off running and Officer Reno chased after him. Officer Reno quickly apprehended Davis, handcuffed him, and led him back to the house. During this time, Officer Lawrence remained at the scene, where he saw Brooks walk into the house. He also called for backup and spoke with the individuals in the SUV, Anthony Wilson and Dana Miles.
Other officers arrived shortly, and those officers detained the individuals in the SUV. As they did so, Officers Reno and Lawrence approached the house and knocked on the door. Brooks answered the door; he was wearing a white tank top and dark-colored pants. Officer Lawrence spoke with Brooks and obtained permission to go into the backyard. As the officers entered the house, Officer Reno noticed a black, long-sleeve shirt and a pair of black gloves lying on the couch in the living room.
In the backyard, the officers found what they believed was an active PCP lab. They returned to the house, arrested Brooks, evacuated the other residents, and contacted the fire department's Hazardous Materials (HAZ-MAT) unit. The HAZ-MAT unit decontaminated appellants and Wilson at the scene as a precaution.
Officer Reno retrieved the black shirt and gloves from the house, and placed them in his patrol vehicle. He noticed his clothing had picked up the chemical smell of ether from being in the house and backyard, and that the shirt and gloves had an even stronger chemical odor. The shirt and gloves were subsequently destroyed because they were deemed contaminated waste.
An expert on PCP manufacturing, Detective Gregory Roberts, testified that materials used to manufacture PCP were found in the SUV. He also opined that the trashcans in the backyard were being used to manufacture PCP; the orange substance that was "cooking" in the trashcans was part of the final stage of manufacturing PCP.
DISCUSSION
On appeal, appellants contend there was insufficient evidence to support their convictions. Brooks separately contends the trial court erred in denying his Pitchess motion with respect to Officer Lawrence. Davis separately contends he received ineffective assistance of counsel because his trial counsel failed to object when the prosecutor stated in closing that Davis "reek[ed]" of ether. We conclude (1) there was substantial evidence to support the convictions, (2) the trial court did not err in denying the Pitchess motion with respect to Officer Lawrence, and (3) Davis cannot state a claim of ineffective assistance of counsel. We address each issue in turn.
I. Sufficiency of the Evidence
In reviewing a challenge to the sufficiency of the evidence supporting a judgment of conviction, this court examines "'the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence --that is, evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt' [citation], 'presum[ing] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence' [citation]." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 161.)
Here, Brooks contends there was insufficient evidence to support his convictions because (1) there was no evidence of an agreement between appellant and other co-defendants to manufacture PCP, (2) there was no evidence, such as DNA evidence, linking appellant to the black, long-sleeve shirt and gloves, and (3) there was no evidence that appellant encouraged or facilitated the commission of the crime. Brooks concedes that he was present at the scene and that he had a connection with the other residents of the house, but contends this evidence is insufficient to support the convictions. We conclude there was substantial evidence in the record to support the convictions.
It is undisputed that there was an active PCP lab in the backyard of the residence. It is also undisputed that the SUV parked in the driveway of the residence contained materials associated with the manufacture of PCP. Officers Reno and Lawrence saw Brooks in the backyard with Davis. They noticed Brooks was wearing a black, long-sleeve shirt and gloves. When the officers knocked on the door of the residence, Brooks answered the door and gave them permission to go to the backyard. The black shirt and gloves were lying on the couch in the house, and they smelled of ether, a chemical associated with the manufacture of PCP. The shirt and gloves were so contaminated that they had to be destroyed. In addition, the house and backyard smelled of ether. Finally, the fire department's HAZ-MAT unit decontaminated Brooks, Davis, and Wilson at the scene.
From this evidence, a reasonable jury could conclude that Brooks was guilty of the charged offense. It was reasonable to conclude: (1) that Brooks knew of the presence of an active PCP lab, based on the pervasive smell of ether; (2) that Brooks, Davis, and Wilson were part of a conspiracy to manufacture PCP, as Brooks and Davis were together in the backyard where PCP was being manufactured, and Wilson was parked in Brooks's driveway in a vehicle with PCP-manufacturing equipment; and (3) that Brooks was manufacturing PCP, because the shirt and gloves he had been wearing had to be destroyed as contaminated waste, and he had actual or constructive control over the PCP lab as he answered the door and gave the officers permission to enter the backyard. Accordingly, there was sufficient evidence to support Brooks's convictions.
Davis contends his presence at the scene and his flight upon the officers' arrival were insufficient to support his convictions. He concedes that presence at the scene, combined with other factors such as companionship and flight, has been found sufficient to support a conviction. (People v. Mitchell (1986) 183 Cal.App.3d 325, 330.) Davis contends, however, that his flight does not show a consciousness of guilt. According to Davis, an innocent person would have fled when he saw the police officers, based upon his knowledge through smelling ether that he was at the scene of an active PCP lab. While this explanation for Davis's flight is possible, it was also to conclude that Davis fled the scene because he was aware of his role in manufacturing PCP. Thus, Davis's presence at the scene in the company of Brooks and his flight from the officers were sufficient to support the convictions.
II. Pitchess Motion
Prior to trial, Brooks filed a Pitchess motion seeking materials that might reflect a propensity for dishonesty on the part of Officers Reno and Lawrence. In the accompanying affidavit, defense counsel asserted that Brooks was challenging the testimony in the police report that he was in the backyard of the residence, as the officers claimed. The trial court granted the motion as to Officer Reno, who wrote the report, but denied the motion as to Officer Lawrence. On appeal, Brooks contends the trial court erred because Officer Lawrence testified at trial that he observed Brooks walking back into the house. We review a trial court's decision on a Pitchess motion for an abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
Here, the Pitchess motion challenged statements in a police report written by Officer Reno. Although Officer Reno stated that he and Officer Lawrence saw Brooks in the backyard, there was no allegedly false statement of fact attributable to Officer Lawrence in the police report. For example, the police report stated that "we observed . . . that there were two male Black subjects (Abrom Davis and Roy Brooks) inside the backyard of the home" and "both subjects had walked from behind a small shed in the backyard." These statements of facts were made in a report written by Officer Reno, and he did not attribute any of these statements to Officer Lawrence. Thus, there was no false statement by Officer Lawrence in the police report. The fact that Officer Lawrence subsequently testified at trial that he observed Brooks walking into the house does not change the analysis because the Pitchess motion challenged only Officer Lawrence's purported testimony in the police report that he saw Brooks in the backyard. As discussed, there was no false testimony attributable to Officer Lawrence in the police report. Thus, the trial court did not abuse its discretion in denying the Pitchess motion as to Officer Lawrence.
Finally, as requested by Brooks, this court has independently reviewed the sealed transcript of the in camera proceeding on the Pitchess motion. We conclude the trial court did not abuse its discretion in determining only one item from Officer Reno's personnel files should be disclosed. (People v. Mooc, supra, 26 Cal.4th at p. 1232.)
III. Ineffective Assistance of Counsel and Prosecutorial Misconduct
Davis contends he received ineffective assistance of counsel because his trial counsel failed to object when the prosecutor argued during closing that Davis reeked of ether, as there was no evidence to support that fact.
In order to prevail on a claim of ineffective assistance of counsel, Davis must show (1) that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Gray (2005) 37 Cal.4th 168, 206-207; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) When "defense counsel's reasons for conducting the defense case in a particular way are not readily apparent from the record, we will not assume inadequacy of representation unless there could have been '"no conceivable tactical purpose"' for counsel's actions." (People v. Earp (1999) 20 Cal.4th 826, 896.)
Here, there was a plausible tactical reason for not objecting to the prosecutor's statement that Davis reeked of ether. Defense counsel may have wanted to discredit the prosecutor by arguing that the prosecutor's statement was not supported by the evidence. Indeed, in her closing argument which followed the prosecutor's, defense counsel noted that "Officer Reno did not testify Mr. Davis smelled of ether. There was no testimony of any of that. . . . [I]f he was in that backyard he should reek of ether and there is no testimony of that. So . . . Mr. Davis wasn't in that backyard." She also noted that there was no evidence that Davis's clothes smelled of ether. In any event, appellant cannot show prejudice. The jury was instructed that the arguments by the attorneys during closing were not evidence. The jury was reminded that there was no evidence that either Davis or his clothes smelled of ether. In addition, there was substantial evidence in the record to support his convictions. On this record, there is no reasonable probability that the result would have been more favorable if defense counsel had objected to the prosecutor's statement that Davis reeked of ether. Accordingly, we reject Davis's claim of ineffective assistance of counsel.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J. We concur: EPSTEIN, P. J. SUZUKAWA, J.