Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F03216
NICHOLSON, Acting P. J.
A jury convicted defendant of possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) Sentenced to state prison for the midterm of four years, defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, arguing he was denied the effective assistance of counsel. Defendant also challenges the trial court’s denial of his suppression and Marsden motions and the evidence adduced at trial to support his conviction. We find no error and affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
Hearing on Suppression Motion
Having received complaints about narcotics sales at a particular apartment, Sacramento County Sheriff’s Detective Brandon Luke and Deputy Willie Wright went to the location about 4:30 p.m. on March 28, 2007, posing as narcotics buyers. Detective Charles Esty was in a wire vehicle with a one-way transmitter, listening to the undercover detectives.
The officers contacted Jonvvan Smith to purchase drugs. She told them she could obtain the drugs they wanted, but the person who had the drugs “would only deal with people [he] knew.” She then asked for money to purchase the drugs. The detectives gave Smith a prerecorded $20 bill and parked their car on a nearby corner. Smith went to 10446 Croetto, apartment No. 1, which was located across the street from the officers.
A man (buyer No. 1) was sitting on the top step near the door of apartment No. 1. Smith walked up to the apartment and sat next to buyer No. 1. Defendant, a dark-complected Black man wearing a black or blue sweatshirt and a blue ball cap, came out of the front door of apartment No. 1, leaned out, tossed something on the ground next to buyer No. 1, then walked back inside and closed the door. Buyer No. 1 immediately got up, got on a bicycle and left the area. Smith remained seated on the step. Detective Luke concluded, based on his training and experience, that buyer No. 1 had bought narcotics from defendant.
Immediately thereafter, buyer No. 2 drove up in a green Toyota and sat next to Smith on the steps. The apartment door opened up and an arm leaned out and tossed something on the ground. Detective Luke was unable to determine the race of the person whose arm came out of the apartment door. Buyer No. 2 picked up the object, got in his car and drove away. Detective Luke concluded that buyer No. 2 had also bought narcotics from a person in the apartment.
Smith remained seated on the steps. Defendant came out of the apartment. He was talking on a cell phone. He then conversed with Smith. Defendant went inside the apartment and closed the door. The door opened again and Smith tossed something into the apartment. Defendant came back out and tossed something back toward Smith. Smith returned to where the detectives were parked and handed them three rocks of cocaine, about 0.3 to 0.5 grams total. The detectives left the area. Smith walked westbound on Croetto and was arrested five to 10 minutes later within a few hundred feet of the apartment. Smith did not have a cell phone when the undercover officers first contacted her.
About 5:45 p.m., more than 10 officers, including Detective Nick Goncalves, went to the apartment, announced themselves as members of the “sheriff’s department,” entered without a search warrant, “froze” the residence and conducted a protective sweep. Detective Esty claimed it was a “tight neighborhood” and the presence of law enforcement personnel might lead to the destruction of the drugs if the officers had waited for a signed search warrant. The officers entered the apartment not only to prevent the destruction of drugs but to prevent additional sales. They did not conduct a search until the warrant arrived.
In the meantime, Detective Esty applied for a search warrant based on the three narcotics transactions observed by Detective Luke and Deputy Wright as well as evidence found after entering the apartment -- 6.6 grams of cocaine base in a plastic baggie located in plain view on a coffee table in the living room and a marijuana plant in front of the apartment.
After Detective Esty’s affidavit was reviewed by an attorney with the district attorney’s office, the search warrant was signed at 9:45 p.m. by an after-hours magistrate. The prosecution introduced a copy of Detective Esty’s affidavit. The warrant was executed at 9:50 p.m. Detective Goncalves obtained a statement from defendant at 10:18 p.m.
Defendant testified at the suppression hearing. He claimed the officers broke down the apartment door and entered without knocking or announcing themselves but claiming they had a search warrant. The officers ordered him not to move and to put his hands behind his back. He was handcuffed. The officers found drugs and a premarked $20 bill before executing the search warrant. Defendant never saw the warrant, although the officers claimed they had one. Prior to the arrival of the search warrant and about an hour after the officers entered, defendant made a statement to the officers.
The trial court granted defendant’s motion, in part, finding that there were no specific and articulable facts for exigent circumstances to justify the warrantless entry, and concluding it was mere speculation that the neighborhood would have tipped off those in the apartment about the officers. The trial court denied defendant’s motion in part, concluding the detectives’ observations prior to entry constituted sufficient probable cause to obtain a search warrant and the physical evidence would inevitably have been discovered. The trial court excluded defendant’s statement, finding the officers obtained the statement as a result of exploiting the four-hour detention.
Trial
The facts adduced at trial were substantially the same as those adduced at the suppression hearing with respect to the complaints about narcotics trafficking at the apartment, the participants in the undercover investigation, Detective Luke’s and Deputy Wright’s interaction with Smith, and the number and description of the other buyers of suspected narcotics observed at the apartment. Although Detective Luke testified at the suppression hearing, Deputy Wright testified at trial.
Deputy Wright’s trial testimony regarding the three drug transactions varied somewhat from his report. According to his report, Deputy Wright saw defendant come out of the apartment when dealing with buyer No. 1; he was wearing a black “hoodie” and a black hat and was on the phone. At trial, however, Deputy Wright testified that he did not see defendant during the suspected drug transaction with buyer No. 1. Deputy Wright recalled that during the first drug transaction, buyer No. 1 was talking to someone at the door. Buyer No. 1 tossed something in the door and a hand appeared and tossed something out; buyer No. 1 picked the item up and left on a bicycle. Even though Wright’s report indicated that he had seen defendant during the transaction with buyer No. 1, Wright did not recall seeing anyone.
With respect to buyer No. 2, Deputy Wright’s memory was that buyer No. 2 drove up in a green Honda. Defendant came outside. He was wearing a black “hoodie,” had on a black hat, and was wearing glasses (Wright’s report does not indicate that defendant was wearing glasses), and had a conversation with either buyer No. 2 or Smith. Buyer no. 2 threw something inside the apartment, defendant went back inside, the door opened, and something was thrown out.
Smith was buyer No. 3. She had been sitting on the steps during the first two transactions. She threw something into the apartment. Defendant came out wearing a black “hoodie” and a black hat; he was talking on a cell phone. Wright could see “the face with the glasses and [defendant] talking [on] the phone.” Defendant reentered the apartment. Defendant came back out, the two talked, the door closed, opened again and something was thrown on the ground, which Smith picked up. When the object was thrown out of the house, Wright could see only an arm, not any other part of the person’s body, although he could tell the person was Black. (Later in his testimony, however, Wright stated that he saw defendant throw something on the ground. He stated he’d misconstrued the question as asking whether there had been a “hand-to-hand transaction,” which there was not; this was reflected in Wright’s report, as well.)
Wright testified that he recalled defendant came out of the house prior to dealing with Smith and that he was talking on the phone. However, it is unclear from his testimony whether Wright was talking about the transaction with buyer No. 2 or with Smith. Smith picked up the item, walked across the street and handed several pieces of cocaine base weighing 0.22 grams to the officers.
At trial, more evidence was adduced as to what happened thereafter. Detective Esty testified that after the third transaction, he contacted the prosecutor’s office to determine whether there was probable cause to enter and freeze the apartment pending the application for and receipt of a search warrant. Prior to receipt of the search warrant, Detective Roy Keller and several other officers entered the apartment. The warrant was executed later. Four individuals were found inside the apartment -- defendant, John Villanueva, Jahmeelah Sullins and Danny Williams. Villanueva appeared to be either Hispanic or Filipino and had shoulder-length, wavy hair and numerous tattoos on his arms and shoulders. Sullins was a light-skinned Black woman; she wore her hair in braids. Williams was a tall, thin, light-skinned Black man. Defendant was thin; he was Black and was slightly darker complected than Williams. Defendant was wearing glasses. Villanueva and Sullins claimed they lived in the apartment. Williams claimed he was visiting. Defendant also claimed he was visiting, and claimed the suitcases in the living room belonged to him.
The apartment had a living room, a bedroom, a bathroom and a kitchen. On a coffee table in the living room, officers found a clear sandwich bag containing cocaine base weighing 5.37 grams, packaging material, a cell phone, books, magazines, and other items. A digital scale was found on top of a VCR. On or in the dresser in the bedroom, officers found the premarked $20 bill that had been given to Smith. Other items found in the bedroom suggested that the bedroom belonged to Villanueva. In defendant’s wallet, officers found four $100 bills, three $20 bills, three $10 bills, four $5 bills and twenty-eight $1 bills.
Based on his training and experience, Detective Keller opined that a usable amount of cocaine base is between 0.10 and 0.20 gram and has a value of $20. He opined that the cocaine base found in the living room was possessed for sale rather than personal use based on the amount that had been found in the sandwich bag, the presence of the digital scale, and the amount of money found on defendant.
A defense investigator took pictures of the area and claimed that the officers’ view of the apartment had been obstructed by a tree. He admitted, however, that he had been standing when he took the pictures, and that if he had been sitting in a vehicle where the officers claimed to have been, his view may not have been obstructed.
Marsden Hearing
Less than a month after the jury convicted defendant of possession of cocaine base for sale, defendant sought substitute counsel. He had a litany of complaints: defense counsel “hardly ever” visited him; failed to file “motions”; failed to file a Penal Code section 995 motion; did not show him the premarked $20 bill or the “crack cocaine”; failed to “bring up anything [defendant] asked him to”; failed to bring up any of the inconsistencies in the officers’ testimony; failed to object “to anything”; did not “really” question the officers; and did not “present to the jury anything.”
The court invited defense counsel, Robert Lee, to summarize his experience and his preparation in the case, noting that Lee had done so before on a previous Marsden motion made prior to trial.
Lee explained he had been a criminal defense attorney for about 13 years. He said he visited defendant “quite often on a regular basis,” “probably more than five times.” Based on Lee’s recommendation, it was decided early on that defendant would not testify. Lee went to the scene and had an investigator take photographs depicting what the officers could and could not have seen from their vehicle to attack their credibility. Lee said a conflict developed over a plea offer that Lee believed defendant should have taken based on the fact that there were officers’ reports that reflected that they could identify defendant as the person was selling the cocaine base. In addition, the large amount of cocaine base found in the apartment, the prerecorded $20 buy bill that was found inside the apartment, “plus” defendant’s “confession,” which was suppressed, led Lee to tell defendant that not too many cases of that type could be won. Lee claimed he did cross-examine the officers on their ability to see defendant and their identification based on the glasses, which was not included in their reports, and the black hoodie, which defendant was wearing at the time of his arrest. Lee noted he filed a suppression motion and did not file a Penal Code section “995 [motion] because [he] didn’t think that that would have been warranted based on the evidence that was presented at the prelim [sic].”
Defendant complained that he told Lee during trial that “these officers are not telling the truth.” Defendant insisted he was innocent; that he was guilty only of being present.
As the court noted, defense counsel could not testify at trial or change the facts and defendant chose not to testify. The court determined, to the extent there were conflicts between Lee’s and defendant’s statements, it believed Lee and disbelieved defendant. The court stated that Lee’s decisions were strategic and thoughtful, that he put on a reasonable defense, and that he effectively cross-examined the officers in an attempt to create a reasonable doubt. The court said Lee’s advice that defendant take a plea deal was a professional opinion based on Lee’s experience and assessment of the case.
Defendant complained Lee did not prepare him for the case, which is why he did not testify.
Lee replied, had defendant testified, his Iowa felony conviction would be admissible and the statement that defendant had made that had been suppressed “would probably [have] come in.”
The court denied defendant’s Marsden motion.
DISCUSSION
I
Ineffective Assistance of Counsel
In his supplemental brief, defendant argues he was denied effective assistance of counsel. To establish ineffective assistance of counsel, defendant must demonstrate Lee’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
In order to demonstrate Lee’s performance was deficient, defendant must show Lee “failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425.) If the record fails to show why Lee acted or failed to act as he did, the contention fails unless Lee failed to provide an explanation upon request or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Pope, supra, 23 Cal.3d at p. 426.)
We accord great deference to counsel’s reasonable tactical decisions. (People v. Weaver (2001) 26 Cal.4th 876, 925-926; see also People v. Freeman (1994) 8 Cal.4th 450, 484.) “‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’ [Citation.]” (People v. Weaver, supra, 26 Cal.4th at p. 926.)
We consider defendant’s claims seriatim. Defendant first claims Lee failed to file a Penal Code section 995 motion, “based on lack of probable cause, the probable cause that was stated was mere speculation by officers.” Defendant says, “With the knowledge that no search warrant was presented at trial, coupled with a[n] unsigned affidavit, shows ground to file [a] [Penal Code section] 995 motion.” Defendant further says, “There was two probable causes wrote up in this case, Esty claimed someone was in upstairs apartment, then Esty wrote in his affidavit that [Detective] [L]uke saw hand to hand sale, the court found these claims as speculation and no one ever testif[ied] to being in the upstairs apartment.” (Sic.)
“A criminal defendant may test the unreasonableness of a search or seizure by making a motion to suppress at the preliminary hearing and, if unsuccessful, renewing the motion in superior court if held to answer. ([Pen. Code,] § 1538.5, subd. (i).) Or, if unsuccessful at the preliminary hearing, he or she may raise the matter in superior court under the standards governing a [Penal Code] section 995 motion. ([Pen. Code,] § 1538.5, subd. (m).)” (People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717.)
At the Marsden hearing, Lee recalled he filed a suppression motion and did not file a Penal Code section “995 [motion] because [he] didn’t think that that would have been warranted based on the evidence that was presented at the prelim [sic].” Lee provided an adequate explanation of why he did not file a motion under Penal Code section 995. Lee filed a motion to suppress after the preliminary hearing and prior to trial. There was no motion to suppress at the preliminary hearing. Defendant has failed to demonstrate Lee’s performance was deficient in not filing a Penal Code section 995 motion.
Defendant claims Lee “failed to demand presentation of the search warrant.” He argues: “Trial counsel at no point within this case asked for the presentation of the search warrant, he stated that he had no reason to not believe that there was a search warrant, but at no point has [defense counsel] or I seen this search warrant.” (Sic.) Defendant also complains that Lee never saw a signed affidavit submitted in support of the search warrant.
At the hearing on the motion to suppress, Lee stated he had a copy of the affidavit submitted in support of the search warrant but not a copy of the warrant itself. There are many possibilities for why he did not demand a copy of the search warrant as well. Lee was not asked for an explanation of why he did not demand the presentation of the search warrant and a signed affidavit. It is possible he subsequently obtained or saw them. We may not find Lee was ineffective absent his explanation.
Defendant claims Lee “failed to call [Detective] Esty on his numerous conflicting statements.” Defendant says, “I’m asking of the court of appeal to not only look at the numerous conflicting statements of [Detective] ‘Esty’ but of all the officers, [Lee] failed in allow[ing] numerous conflicting of [sic] statements by all officers.” Defendant claims Lee “failed to question testimony of officers that [sic] had multiple statements.” Defendant asserts Lee “never chall[e]nged the testimony of [Detective] Luke in the fact that out of no where [sic] he had a class, [Deputy Wright] testif[i]ed and made untrue claims as to what he saw.” Defendant claims Lee did not know the law and failed to bring a Pitchess motion.
At trial, when Deputy Wright appeared confused and referred to his report, he explained that he had not planned to testify but was, essentially, filling in for Detective Luke who was “in class.”
Pitchess v. Superior Court (1974) 11 Cal.3d 531 “established that a criminal defendant could ‘compel discovery’ of certain relevant information in the personnel files of police officers by making ‘general allegations which establish some cause for discovery’ of that information and by showing how it would support a defense to the charge against him. [¶]... To initiate discovery, the defendant must file a motion supported by affidavits showing ‘good cause for the discovery,’ first by demonstrating the materiality of the information to the pending litigation, and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue. [Citation.] This two-part showing of good cause is a ‘relatively low threshold for discovery.’ [Citation.] [¶] If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019 (Warrick).)
Defendant fails to explain how Lee’s performance was deficient. Lee cross-examined the deputies and detectives who testified at the suppression hearing and at trial. Questions are a matter of trial tactics. With respect to defendant’s claim Detective Esty’s statement in his affidavit about an upstairs apartment was a conflicting statement, it was nothing more than a point of reference. Detective Esty’s affidavit always referenced apartment No. 1 as the site from which came the cocaine base and in which the search warrant was executed. Lee was not asked to explain why he did not file a Pitchess motion. There are many possibilities to explain the lack of such a motion. We may not find Lee was ineffective absent his explanation.
Defendant claims Lee “failed to subpheona [sic] crucial evidence.” Defendant says he “failed [to] subpheona [sic] the digital photo. Counsel also failed to find out why fingerprints were never took [sic] off of [the] bag of drugs and who was watching the apartment from 1715 [until] 1747.”
Here, Lee was not asked for an explanation of why he did not subpoena “the digital photo,” determine why fingerprints were not taken from the plastic bag of cocaine base, or who, if anyone, watched the apartment for the specified time frame. There are many possibilities. We may not find Lee was ineffective absent his explanation.
On cross-examination of Detective Erin McAtee, defense counsel established the items gathered were preserved for fingerprinting and the prosecutor could have had it done.
Defendant claims Lee “failed in not chall[e]nging absence of cocaine or buy money or buy drugs.” Defendant says Lee “at no point challenged the fact that there was no cocaine in evidence[;] counsel also never chall[e]nged the fact that the buy-fund was also not in the evidence.”
Defendant is mistaken with respect to the cocaine base. It was introduced into evidence. With respect to the $20 bill given by the detectives to Smith to make the cocaine base purchase, its serial number was recorded before either that transfer to her or its recovery in the apartment and photographed. There are many potential explanations why Lee did not seek admission into evidence of the actual $20 bill.
Defendant claims Lee “failed to challenge evidence.” Defendant says Lee “never chall[e]nged the fact that the evidence was not in plain view. [Detective] Keller stated it was found on a table 90% full of things, the buy-fund was found in a dresser draw[er] in the bedroom also not in plain view.”
Defendant is mistaken. While Detective McAtee testified the $20 prerecorded bill was found on, not in, the dresser, Detective Esty testified on cross-examination that it was recovered from Villanueva’s dresser drawer. And Lee established there were many items on the coffee table.
Finally, defendant states, “Within this case the decision and the investigation took [sic] by my counsel failed[.] [H]e did not have a strategy sat [sic] he tr[i]ed to show it was someone el[se’s] when all I ask[ed] of counsel was to state the truth. [T]he drug were not on me. [T]he buy-money was not on me and it was not my apartment. Counsel’s decisions and actions no matter how unobjectiona[ble] is [sic] professionally deficient. Counsel deprived his self [sic] and my case.” Defendant complains Lee failed to show that the officers never saw defendant tossing the drugs to the buyers.
Defendant made many of these claims at the hearing on his Marsden motion. Lee called an investigator who took photos and testified the officers’ view was obstructed. As the trial court stated, Lee raised issues which he believed provided reasonable doubt. The jury had none.
II
Suppression Motion
Defendant challenges the trial court’s denial of his suppression motion. He notes there was no search warrant when the officers initially entered the apartment and claims the officers’ fear the evidence would be destroyed did not justify the warrantless entry.
The trial court determined the initial entry was unlawful, finding no exigent circumstances. It upheld the search and seizure on the ground that a search warrant was subsequently obtained and it was supported by probable cause. In doing so, the trial court excised the observations made after entry, noted the officers’ observations of defendant’s sale of cocaine base to Smith and the suspected sale to two previous buyers, all within a relatively short period of time, and concluded “[t]here was no evidence officers were prompted to request the warrant by their later observations.” People v. Weiss (1999) 20 Cal.4th 1073, cited by the trial court, supports its findings.
Defendant challenges the statements in the affidavit as untruthful.
“[A] defendant may challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower courts must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed.” (People v. Bradford (1997) 15 Cal.4th 1229, 1297.)
“There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant.” (Franks v. Delaware (1978) 438 U.S. 154, 171 [57 L.Ed.2d 667, 682.) Defendant has the burden of showing material misstatements and/or omissions in the affidavit. (People v. Bradford, supra, 15 Cal.4th at p. 1297.)
Defendant did not request or make a substantial showing for an evidentiary hearing and cannot do so for the first time on appeal.
Defendant claims the drugs were not in plain view. The trial court determined the search warrant was later obtained and supported by probable cause, that is, by the officers’ observations of the three buys, without regard to what was found inside, so it does not matter whether the cocaine base was in plain view.
Defendant challenges the finding of probable cause, claiming no sale was observed, no one could identify what was being tossed or who tossed it, and there was no surveillance for half an hour after the sale to Smith. Defendant asserts the officers’ claims were based on speculation and were not credible or reliable.
“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] ‘The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041, quoting Illinois v. Gates (1983) 462 U.S. 213, 238-239 [76 L.Ed.2d 527, 548].)
The evidence adduced at the suppression hearing supports the trial court’s finding of probable cause. The officers testified as to what was observed and done while they were undercover. That is, they established defendant sold a usable amount of cocaine base to an operative, Jonvvan Smith, for $20. Further, the officers established there were two other suspected sales which occurred shortly before and in substantially the same manner as the sale to Smith. Defendant was identified as the seller to Smith and one of other two buyers. Further, it was shown there had been complaints in the neighborhood about the narcotic trafficking at the apartment. Probable cause supported issuance of the warrant. The trial court did not err.
III
Marsden Motion
Defendant claims the trial court abused its discretion in denying his Marsden motion. He says he established Lee did not prepare or research the case and he suffered prejudice as a result.
“A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) We review the trial court’s denial of defendant’s motion to substitute counsel under the “deferential abuse of discretion standard.” (Id. at p. 1245.) “‘Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel.’ [Citations.]” (People v. Hart (1999) 20 Cal.4th 546, 603.)
At the hearing on defendant’s Marsden motion, Lee explained he visited the scene and hired an investigator. He successfully sought the suppression of defendant’s statement which Lee described as a “confession.” Lee questioned the officers about their identification of defendant as the seller. Although defendant and Lee may have had some disagreements as to trial tactics and strategy, they were matters controlled by trial counsel (People v. Welch (1999) 20 Cal.4th 701, 729 [“‘[w]hen a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant’”]), they were not embroiled in an irreconcilable conflict leading to ineffective assistance of counsel. We conclude the trial court did not abuse its discretion in denying defendant’s motion.
IV
Sufficiency of the Evidence
Defendant challenges the sufficiency of the trial evidence adduced to support his conviction. He queries how he can “possess some thing [on the coffee table that he does not] even know is there?” He claims there was no evidence of a hand-to-hand exchange, the buy money was found in the bedroom in a drawer in an apartment belonging to someone else. He also queries, “How is there possession or a sales [sic] with no drugs?” He claims there was no surveillance, suggesting there could have been a lot of people in blue or black hooded jackets coming and going during the half an hour after the sale to Smith and the initial entry by the officers into the apartment. He also claims the evidence was weak in view of the conflicting statements by the officers.
In reviewing a challenge to the sufficiency of the evidence, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “[C]ircumstantial evidence and the reasonable inferences drawn therefrom ‘may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (In re James D. (1981) 116 Cal.App.3d 810, 813.)
Defendant claims he was merely present in someone else’s apartment and, essentially, convicted based on his proximity to the drugs and association with the people in the apartment, even though he had no idea the cocaine base was present.
In order to convict defendant of possession of cocaine base for sale, the jury had to and did find he possessed a controlled substance, cocaine base, intended to sell it, knew of its presence, knew of its nature or character, and a usable amount existed. (Health & Saf. Code, § 11351.5; CALCRIM No. 2302.) The jury was instructed: “Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.” (CALCRIM No. 2302.) The jury was also instructed on aiding and abetting. (CALCRIM Nos. 400, 401.) “If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.” (CALCRIM No. 401.)
By convicting defendant, the jury necessarily found he possessed, and specifically intended to sell, cocaine base. Had the jury believed defendant did not know about the presence of the cocaine base, it could not have found him guilty.
Substantial evidence supports defendant’s conviction for possession of cocaine base for sale.
Having undertaken an examination of the entire record, we conclude, as originally and correctly asserted by defendant’s appellate counsel in his Wende brief, there is no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., ROBIE, J.
“[A] showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Warrick, supra, 35 Cal.4th at p. 1021.) “What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Id. at p. 1025.)
“To determine whether the defendant has established good cause for in-chambers review of an officer’s personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsel’s affidavit in support of the Pitchess motion adequately responds to these questions, and states ‘upon reasonable belief that the governmental agency identified has the records or information from the records’ [citation], then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant.” (Warwick, supra, 35 Cal.4th at pp. 1026-1027.)