Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD202154, Melinda J. Lasater, Judge.
O'ROURKE, J.
A jury found Darryl Gartley guilty of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (count 1) and guilty of being a felon in possession of ammunition (§ 12316, subd. (b)(1)) (count 2). In a bifurcated hearing, he admitted two prior prison terms (§§ 667.5, subd. (b), 668) and a strike (§ 667, subds. (b)-(i)). The court struck the prison priors and sentenced him to prison for two years eight months: two years eight months on count 1 (twice the lower term) and a stayed term on count 2. Gartley appeals. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
Around 7:00 a.m. on June 13, 2006, Gartley's parole officer, Louis Torres-Skerret, went to the home on Brooklyn Avenue where Gartley had been living with his parents. Gartley was not there. Torres-Skerret left his business card with Gartley's stepfather. At 7:32 a.m., Gartley telephoned Torres-Skerret. Torres-Skerret told Gartley he would go back to the home later. Gartley said he would be there. That evening Torres-Skerret returned to the Brooklyn Avenue address and met with Gartley. Gartley said he was going to be staying in an apartment on Willie James Jones Avenue with his girlfriend, Sara Coleman. Torres-Skerret documented the change of address.
On July 3, 2006, Torres-Skerret went to the Willie James Jones Avenue apartment to verify Gartley's new address. When Torres-Skerret knocked, Gartley answered the door. Torres-Skerret gave him a card directing him to come to the parole office on July 5.
On July 5, 2006, Gartley reported to the parole office. Torres-Skerret detained him, said he was going to search the apartment on Willie James Jones Avenue and asked if there were any weapons there. Gartley said there was a pistol in the bedroom closet. Torres-Skerret read Gartley his rights and Gartley agreed to speak with him. Torres-Skerret again asked if there were any weapons in the residence. Gartley repeated his previous answer.
On July 5, 2006, Torres-Skerret and other law enforcement personnel went to the Willie James Jones Avenue apartment. Using a key he had found on Gartley's person, Torres-Skerret entered the apartment. Torres-Skerret found a loaded pistol in the closet of Coleman's bedroom. Other officers found a single bullet and a box of ammunition in the closet. On top of the dresser was the card Torres-Skerret had given to Gartley on July 3. Men's underwear and socks were in a dresser drawer. On the bed was a stack of men's shirts and a stack of men's pants that appeared to be Gartley's size.
An officer advised Gartley of his rights. Gartley said he was willing to talk. He denied the gun was his but admitted knowing it was in the closet. When the officer asked whose gun it was, Gartley did not respond. Later, Gartley said it belonged to "his girl." Gartley denied living in the apartment, but said, "I stay there. I go over there" and "I live with my girl sometimes." He admitted he had clothing in the apartment and the underwear in the drawer were his.
There were no fingerprints on the gun. Prints were found on the ammunition box, but at the time of trial they had not been compared to Gartley's. There was DNA on the gun from at least two people, one of whom was Gartley.
Coleman testified the gun and box of ammunition were hers. Gartley sometimes spent the night at her apartment and she gave him a key. He had full access to everything in her home. She showed Gartley the gun but did not let him hold it. He told her to put it away. Coleman found out on July 6, 2006, that Gartley had been arrested because of the gun in the closet. She did not call the police to report that it was her gun. The first time she stated the gun was hers was in court. Before that, she did not know whether Gartley's parole violation was for associating with a person who had a gun or for possessing a gun himself.
A police detective testified that on July 5, 2006, he asked Coleman if she owned a gun, if there was a gun in her home, and if she had ever seen a gun in her home. She said no to all three questions.
Gartley's mother testified Gartley lived with her on Brooklyn Avenue. During June and July 2006 he spent the night with Coleman once or twice a week, but continued receiving mail at his mother's home and never removed all his belongings or told his mother he was moving in with Coleman.
A defense DNA expert testified that either the DNA on the gun was not Gartley's, or the DNA sample was very weak.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. He presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, he lists, as a possible but not arguable issue, whether the court erred by denying Gartley's motion to suppress evidence.
We granted Gartley permission to file a brief on his own behalf. He has responded, asserting the search and seizure were illegal, the conviction was not supported by substantial evidence, and he did not receive effective assistance of counsel.
The Search and Seizure
Defense counsel filed a suppression motion, opposed by the People. Defense counsel argued that entry into the apartment was illegal because the officers were not positive it was Gartley's residence and because they searched areas, including the side of the closet where the gun was found, that he did not jointly control with Coleman. The court denied the motion, citing evidence that Gartley was on parole, lived in the apartment, and knew the gun was there. This was not error.
The evidence at the suppression hearing showed Gartley was on parole and his residence could be searched without probable cause as a condition of parole. Gartley said he was going to be staying at the Willie James Jones Avenue apartment, and when Torres-Skerret went there to verify this statement, Gartley was in the apartment and answered the door wearing boxer shorts and a white T-shirt. During the interview at the parole office, Gartley had a key to the apartment on his person and said that there was a gun in the closet.
Furthermore, the record does not show a Miranda error (Miranda v. Arizona (l966) 384 U.S. 436). Torres-Skerret testified at the preliminary hearing that he was investigating Gartley's participation in a crime involving a gun. During the parole interview, Torres-Skerret said he was going to conduct a parole search of the Willie James Jones Avenue apartment and asked Gartley if there were any weapons or contraband there. When Gartley said there was a gun in the closet, Torres-Skerret advised him of his Miranda rights. Gartley said he understood and waived his rights.
Substantial Evidence
Gartley contends the gun was not his and he did not live at the Willie James Jones Avenue apartment, noting Torres-Skerret never entered the apartment or talked to Coleman to investigate these matters.
We must evaluate the entire record in the light most favorable to the respondent to determine whether it contains evidence from which a rational trier of fact could find Gartley guilty beyond a reasonable doubt. (People v. Price (1991) 1 Cal.4th 324, 462, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165; People v. Johnson (1980) 26 Cal.3d 557, 576.) We cannot second guess the jury's evaluations of witnesses' credibility. (People v. Barnes (1986) 42 Cal.3d 284, 303-304.) There is ample evidence, outlined above, to support the conclusion that Gartley possessed the gun and resided in the apartment on Willie James Jones Avenue.
Effective Assistance of Counsel
Gartley makes numerous allegations to support his contention trial counsel was ineffective. Grouped together by subject matter, those allegations are as follows. (1) Defense counsel refused to subpoena Gartley's parole records. The parole records would have shown that Gartley's residence remained on Brooklyn Avenue, and Torres-Skerret called him to the office to investigate a report he had brandished a gun, but never read him his rights, and never claimed until the preliminary hearing that he had done so. Counsel did not cross-examine Torres-Skerret about these facts. (2) Counsel did not challenge discrepancies between the evidence the prosecutor presented at trial and the evidence the prosecutor presented at the preliminary hearing. (3) Counsel did not adequately deal with the issue of ownership of the gun, have the gun tested for Gartley's DNA or fingerprints, or contest the weak DNA sample obtained from the gun with a single swab. (4) Counsel did not adequately deal with the issue of Gartley's place of residence. Counsel used defense witnesses to tell the jury that Gartley remained at the Brooklyn Avenue address and never lived on Willie James Jones Avenue, but in closing argument confused the jury by saying that Gartley was staying or living on Willie James Jones Avenue. (5) Counsel mentioned to Gartley possible sentences of 44 months and 48 months, but never explained that he faced a maximum sentence of 10 years.
The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, he must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) When reviewing an appeal we are limited to the record before us. (People v. Roberts (1963) 213 Cal.App.2d 387, 394.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The record sheds no light on the reasons for the alleged omissions of trial counsel, nor does it show that counsel was asked for an explanation and failed to provide one. The first four of Gartley's allegations are all matters for which there may be satisfactory explanations. Indeed, counsel provided some explanations at a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118), and it seems likely that sound strategic reasoning underlies all four of these alleged shortcomings. As to the fifth allegation, Gartley has not shown prejudice. The sentence he received was substantially more lenient than any of the possible sentences he mentions.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Gartley has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., AARON, J.