Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA336713. John S. Fisher, Judge.
Mojgan Aghai, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Eugene Dowdell appeals from the judgment imposed after a jury convicted him of possession for sale of cocaine base with a finding he was armed, possession for sale of marijuana, and possession of a firearm by an ex-felon. The court found that appellant had served a prior prison term and suffered a prior serious felony “strike” conviction and a prior conviction of possessing cocaine base for sale (Health & Saf. Code, § 11370.2, subd. (a)). Appellant was sentenced to a term of 17 years.
We appointed counsel to represent appellant. On November 25, 2008, counsel filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441-442.) On November 26, 2008, we advised appellant that he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished the court to consider. On December 17, 2008, we received from appellant a letter requesting that we consider certain issues.
The evidence at trial showed that on the evening of November 8, 2007, Los Angeles police arrived at a house on 56th Street in South Los Angeles, to serve a search warrant for narcotics. When the officers announced their presence and purpose, one of the occupants locked a security door and an inside door and shouted, “Police! Police!” Looking in a window, Detective Debbie Lopez saw two individuals carry bags of leafy material, which she recognized as marijuana, to a bathroom, while another man dropped currency onto the kitchen floor. Then he and appellant tipped a refrigerator onto the floor, blocking the front door.
A few minutes later, Detective Lopez observed appellant withdraw a handgun from his waistband and throw it near some couches in a rear bedroom. Police pried open the front doors, and six officers entered. One of them retrieved the gun appellant had thrown and rendered it safe. In a rear bathroom, Officer Mitchell found off-white rocks resembling cocaine under the toilet bowl and a green, leafy substance resembling marijuana in the bowl and on the floor. Baggies of the substance were placed in the toilet by two suspects, one of whom also emptied a baggie of cocaine-like rocks into the bowl. A plunger was used to assist the disposal. Another officer recovered a beaker with cocaine residue on a burner, as well as baggies and baking soda, and a spoon with off-white powder. The kitchen also yielded two scales containing powder. Another baggie of what resembled marijuana was found in the back room, while currency was near the front door. Police boxed and sealed these items, and they were transferred to a criminalist, who tested the marijuana and cocaine and confirmed their nature. Detective Christian Urbina opined that the cocaine and marijuana were possessed for sale, and that the house’s occupants were working in concert to possess for sale and to sell both substances.
Over appellant’s objection, Officer Steven Ralph testified that on July 2, 2005, two years earlier, he observed appellant standing next to a car. After the car’s occupant ran away, Officer Ralph approached appellant and found him holding a wrapped cocaine rock in his mouth, which he spit out on command. The court instructed the jury that this testimony was limited to showing appellant’s prior knowledge of rock cocaine.
Appellant testified in his own defense. He said the police “raid” occurred five minutes after he arrived at the house, so he was not involved in the “operation” there. He denied ever touching a gun, and claimed that fingerprinting the gun would prove it. Appellant also denied participating in upsetting the refrigerator, and he claimed no knowledge of any narcotics at the home until an officer explained the raid to him. Appellant admitted a 1997 conviction of two counts of robbery, and a 2005 conviction of possessing cocaine for sale.
On cross-examination, appellant stated that the three other men arrested with him were friends whom he had met after getting out of prison. He admitting having used marijuana with them, as well as being a cocaine user, but stated that the marijuana he observed that day was for personal use. Appellant claimed that when the police entered all four occupants had lain prone and put their hands behind their heads. On the other hand, he acknowledged most of what the police had seen, except his own participation by lowering the refrigerator and throwing the gun.
Appellant also called Antoine Thomas, who was in custody from the same event. He testified he had invited appellant to the house to play video games. The raid occurred five minutes after they arrived. Thomas also said the group had lain with their hands over their heads. In rebuttal, Detective Urbina testified that Detective Lopez, who had surveilled the house before the police entered, had not radioed that anyone had gone in and not come out.
At sentencing, the court denied appellant’s motion to strike his remaining strike conviction. The court had previously stricken one such strike, on its own motion.
The issues appellant now raises lack substance. First, he claims that he did not possess narcotics, because there was affirmative evidence that he wasn’t seen with any. This claim fails to take into account laws regarding constructive possession and aiding and abetting, both of which the jury was instructed about.
Second, appellant complains about his attorney’s performance. He states that the attorney failed, although asked, to have the gun fingerprinted, to prove appellant hadn’t handled it. But there was repeated testimony that doing so would have been impossible or fruitless, because the officer who retrieved the gun inside the house had personally handled it, without safeguarding the surfaces, while unloading the weapon and rendering it safe. Appellant’s further complaint that counsel didn’t file any pretrial motions involves a tactical decision. The same is true of the attorney’s alleged readiness to proceed to trial while appellant claimed he (appellant) wasn’t ready. With regard to counsel’s not moving to strike a strike prior at the outset of trial, counsel told the court that he had intended to do so if appellant were convicted.
Finally, appellant’s reference to the amounts of contraband retrieved, and whether they might have been possessed for personal use, simply revisits an issue that was presented to, and resolved by, the jury.
We have examined the entire record and are satisfied that appellant’s appellate counsel has fully complied with his responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 279-280; People v. Wende, supra, 25 Cal.3d at pp. 441, 443.)
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.