Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. TA093037 Kevin L. Brown, Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted Roy Evans of possessing cocaine base, as a necessarily included offense of the charge of possessing cocaine base for sale. The jury acquitted appellant of possessing marijuana. Appellant admitted two “strike” priors and a prior prison term within the scope of Penal Code section 667.5, subd. (b). The court sentenced him to seven years in prison, consisting of double the high term, plus one year under section 667.5, subd. (b).
All subsequent statutory references refer to the Penal Code, unless otherwise noted.
Appellant began running as Los Angeles County Sheriff’s deputies in a marked car drove toward him. The deputies followed appellant, who threw down a plastic bag containing smaller bags of marijuana. The deputies found about 20 small rocks of cocaine base in appellant’s pocket.
Appellant filed a timely appeal. We appointed counsel to represent him on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On August 22, 2008, we advised appellant he had 30 days within which to personally submit any contentions or issues he wished us to consider. Appellant filed a letter brief raising numerous points for our consideration.
Appellant first contends that the trial court should have declared a mistrial because Officer Jose Velasco testified at his trial. Appellant argues that Velasco “has numerous Pitchess hits having to do with planting of drugs in cases, misconduct, [and] perjury” and refers to Case No. TA100469. Minute orders attached to the prosecutor’s sentencing memorandum reveal that in Case No. TA100469, appellant pled nolo contendere on August 25, 1999, to a single count of possession of a controlled substance for sale after two trials that ended in hung juries. The results of Pitchess motions in Case No. TA100469 are matters outside the appellate record and may not be considered in this appeal. (People v. Szeto (1981) 29 Cal.3d 20, 35.) Velasco was not within the scope of the Pitchess motion in the present case. At appellant’s trial, Velasco testified regarding his execution of a search warrant in 1998 at a house adjacent to the spot where appellant was arrested in the present case. Velasco testified that after officers entered the house, appellant threw down a baggie containing smaller baggies of rock cocaine. That recovery apparently led to the charges in Case No. TA100469. Our review of Velasco’s testimony in the present case reveals nothing objectionable, and certainly nothing that would warrant a mistrial. Moreover, appellant failed to preserve his claim by objecting to Velasco’s testimony during trial. (People v. Williams (1997) 16 Cal.4th 153, 208.)
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Appellant also contends the police coerced his confession. As far as the record reveals, appellant did not make a confession. If he did, he filed no motion to suppress it. In any event, the record contains no factual support for, or basis for analyzing, appellant’s contention.
Appellant also cites Evidence Code sections 1043 through 1046 and the Due Process Clause, but does not state what happened to purportedly violate these authorities. He therefore fails to state an intelligible and cognizable claim.
Appellant contends the trial court erred by instructing the jury that appellant “had 28.5 grams.” The court never instructed the jury that appellant possessed any amount of any controlled substance. The court instead instructed the jury that in count two appellant was “charged with possessing more than 28.5 grams of marijuana … as a lesser to count 2.” The court then corrected itself and instructed the jury to omit the portions of the instruction referring to “more than 28.6 grams” from their printed copies of the instructions. The court then read the entire corrected instruction to the jury. The jury acquitted appellant of both the greater and lesser offenses for count 2. Accordingly, appellant cannot possibly show he was harmed by any possible error pertaining to this instruction.
Appellant further contends that the trial court erred by instructing the jury that it could not see or read the police report. The police report was inadmissible hearsay and was not admitted in evidence at trial. The jury was not entitled to review it.
Appellant contends his seven-year prison term constituted sentencing error because he should have received the low term. Appellant admitted two strike priors. Although the prosecution only sought a second strike sentence, appellant could have received a term of 25 years to life plus one year for the section 667.5, subdivision (b) enhancement. If appellant intended to argue that the trial court’s selection of the high term violated Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny, he is also incorrect. Appellant had at least eight prior robbery convictions, a conviction of possession of a controlled substance for sale, and a misdemeanor burglary conviction. He had just been released on parole when he committed the current offense. The court cited these recidivism factors in selecting the high term. Use of the high term in calculating appellant’s second strike sentences was entirely permissible under Apprendi.
Finally, appellant contends he received ineffective assistance of counsel. He bases his claim on counsel’s failure “to show facts that Officer Jose Velasco, #222, facts the court finds and declares a mistrial as to counts 1, 2, and 3 [in] Case No. TA100469 4-22-99[,] fact in the Clerk’s Transcript legal questions ‘Error’ and ‘Prejudice’.” A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Appellant has not explained why any of these “facts” would have been admissible in the trial of the current case. Appellant’s conviction in Case No. TA100469 was based upon his nolo contendere plea. His convictions did not result from Velasco’s testimony in that case, and the mistrial was irrelevant. Although impeachment evidence against Velasco may well have been admissible in the trial of this case, the appellate record does not demonstrate the existence of any such evidence. Moreover, appellant has not shown, and cannot show upon this record, that his attorney knew of the existence of such evidence. Appellant’s final “fact” regarding the Clerk’s Transcript is unintelligible.
We have examined the entire record and are satisfied that appellant’s counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P.J., ROTHSCHILD, J.