Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA112220 Robert J. Higa, Judge.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MANELLA, J.
Rickey Lamar Jones appeals from the judgment entered following his conviction by jury on possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) The trial court imposed and stayed two three-year enhancements under Health and Safety Code section 11370.2, subdivision (a), but we modify the judgment to strike those enhancements. We affirm in all other respects.
On September 15, 2009, around 2:00 a.m., Los Angeles County Deputy Sheriff Majalia Booth was riding in a marked patrol car being driven by her partner, Deputy Travis Dowdy. As they drove westbound on 88th Street toward Central Avenue, they saw appellant on the southwest corner, walking toward them, crossing Central Avenue.
Deputy Booth testified that it was dark and traffic was minimal, but appellant was creating a traffic hazard because he was not crossing in a crosswalk. Deputy Dowdy similarly testified that appellant was crossing outside a crosswalk and was interfering with traffic, causing cars to stop suddenly. Appellant made eye contact with the deputies and then turned right and started walking southbound on Central Avenue. The deputies saw him drop a brown paper bag the size of a lunch bag before he started down Central Avenue. Appellant’s left arm was in a sling, and he dropped the bag from his right hand. This aroused Deputy Dowdy’s suspicion because “suspects often discard stuff or camouflage it in order to hide contraband and then disassociate themselves with it.”
Deputy Dowdy turned the car and shone the headlights on appellant. Deputy Booth then got out of the car and asked appellant to stop so she could talk to him. Deputy Booth detained appellant for jaywalking and littering, patted him down, put him in the patrol car, and recovered the paper bag. The bag contained a black plastic bag that held 28 or 29 small baggies of what appeared to be cocaine. Deputy Booth found about $89 in cash on appellant. Appellant did not appear to be under the influence, and he was not carrying a pipe to smoke the cocaine. Deputy Booth tested appellant and determined that he was not under the influence of narcotics.
Under cross-examination, defense counsel pointed out that Deputy Booth wrote in her report that appellant was walking outside the marked crosswalk, but there was no marked crosswalk where appellant was crossing the street. Defense counsel further pointed out that the result of the field sobriety test was not in Deputy Booth’s report, even though that was relevant to the conclusion that appellant possessed cocaine for sale, not for personal use. Deputy Booth’s report mistakenly stated that appellant was found with approximately $97, rather than $89, but Deputy Dowdy testified that it was not unusual for them to make mistakes because they often are tired when they write their reports.
Appellant was taken to the police station, where he agreed to speak with the deputies after receiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). He also made a written statement. Appellant told the deputies that he lived in Long Beach and was waiting for his wife to pick him up. As he was walking eastbound on 88th Street, he saw the bag on the ground and picked it up. Appellant did not look at what was inside, assumed it was money, and kept walking.
After booking appellant, Deputy Booth booked the baggies of suspected cocaine into evidence. She stored the evidence in a sealed plastic bag, placed an evidence sticker on the bag, and received a lab receipt. Tammy Klein, a senior criminalist with the Los Angeles County Sheriff’s Department, received the evidence and determined that the baggies contained cocaine in base form. Klein testified that the laboratory receipt stated that there were 28 individual baggies, but she counted 29. However, she said this slight discrepancy was not unusual because the baggies sometimes stick together.
Under cross-examination, Deputy Dowdy stated that the paper bag and the large black plastic bag in which the individual baggies were found were not retained for evidence, photographed, or checked for fingerprints. He thought that a plastic bag or paper bag could not be fingerprinted, but he was not sure.
An information was filed on October 15, 2009, charging appellant with one count of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) The information alleged that appellant had suffered nine prior convictions for purposes of the one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)), one prior strike within the scope of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and two narcotics sales convictions for purposes of the three-year enhancement (Health & Saf. Code, § 11370.2, subd. (a)). Appellant pled not guilty and denied all the special allegations. Trial was continued three times on defense motions: November 24, 2009, December 30, 2009, and February 22, 2010. The February 2010 minute order indicates that a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) was to be heard on March 30, 2010.
On April 13, 2010, appellant waived his right to a jury trial on his prior convictions. An amended information was filed on April 19, 2010, correcting some of the dates of his prior convictions and correcting one prior conviction from burglary to attempted burglary.
Deputy Booth, Deputy Dowdy, and Klein testified at trial. Appellant did not testify. The jury found appellant guilty of possession for sale of cocaine base.
The court held a trial on the allegations of prior convictions and found them all true. At sentencing, the court exercised its discretion to strike a March 1978 attempted burglary conviction, for purposes of both the Three Strikes law and as a one-year prior prison term, because it was remote. The court struck four other one-year priors as remote and old, leaving four one-year priors. The parties and the court then discussed whether the court had the authority to strike the two sales priors, and the court decided to impose and stay both three-year enhancements. Appellant was sentenced to the upper term of five years, plus four consecutive one-year terms, for a total of nine years. The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 233 days of actual custody and 233 days of good time/work time credit for a total of 466 days. Appellant filed a timely notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On November 1, 2010, we advised appellant that he had 30 days within which to submit any contentions or issues he wished us to consider. On November 12, 2010, appellant filed a supplemental brief. Appellant claims ineffective assistance of trial counsel, contending that his counsel failed to file motions and conduct investigation that he requested. Specifically, he wanted trial counsel to file motions under Penal Code sections 995 and 1538.5. Trial counsel also failed to file a Pitchess motion, despite having waived time three times in order to file the motion. Appellant further wanted counsel to investigate in the following ways: seek an incident printout; hire an expert witness regarding toxicology, fingerprints, and DNA evidence; have an investigator take a photo of the crime scene at 2:30 a.m. to show the lighting; and make a diagram of the scene. In addition to his ineffective assistance claim, appellant contends that the chain of custody of the narcotics was disturbed and that his detention was not supported by probable cause because he was not jaywalking and was not a traffic hazard.
On November 12, 2010, we granted counsel’s motion to strike the Wende brief originally filed and for leave to file a new Wende brief. On November 23, 2010, appellant filed a second supplemental brief, again asserting that counsel was ineffective for failing to file the Pitchess motion, pointing out that Deputy Booth changed her testimony between the preliminary hearing and the trial. Appellant repeats his claims that his arrest was illegal, counsel failed to obtain photo evidence, and the evidence was tampered with.
“‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.... 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.]’ [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 391 (Gamache).)
In addition, “Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 2069, 80 L.Ed.2d 674], informs us that ‘there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (In re Cox (2003) 30 Cal.4th 974, 1019-1020.)
The record does not contain any explanation for trial counsel’s failure to file motions under Penal Code sections 995 and 1538.5. We need not decide whether counsel was ineffective for failing to file a motion under Penal Code section 995 because appellant cannot establish prejudice. An information should be set aside under Penal Code section 995 “‘only when there is a total absence of evidence to support a necessary element of the offense charged. [Citations.]’” (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 842.) The record indicates that such a motion would have been denied because there was not a total absence of evidence to support the charge. Appellant similarly has failed to show prejudice for the failure to file a motion under Penal Code section 1538.5 to suppress evidence because the record does not indicate that the search and seizure were unreasonable.
Nor does the record shed any light as to trial counsel’s failure to file a Pitchess motion. However, appellant cannot show that he has suffered prejudice to a reasonable probability because his version of events was essentially consistent with the deputies’ version of the incident. (See People v. Galan (2009) 178 Cal.App.4th 6, 8-9 [“Where... a defendant’s undisputed extrajudicial statements are reasonably consistent with the officer’s description of the crime, discovery of any complaint of prior fabrication is foreclosed... [b]ecause... [the defendant] has impliedly acknowledged that the officer has been truthful in his report of the circumstances of the crime.”].) Although appellant told the deputies that he found the bag on the ground, there is no question that the deputies saw him drop the bag and that it contained cocaine. Appellant has “failed to present a ‘scenario of officer misconduct... that might or could have occurred.’ [Citation.]” (Id. at p. 12.) He therefore cannot show a reasonable probability of a more favorable outcome had trial counsel made the Pitchess motion.
Appellant alleges that trial counsel was ineffective for failing to investigate in numerous ways, such as hiring an expert witness, obtaining photographic and other evidence about the incident, and using a diagram of the scene. The record reveals that trial counsel vigorously cross-examined Deputies Booth and Dowdy regarding their speed and direction of travel, their distance from appellant, what they saw appellant doing and why they stopped him, the lighting of the area, the timing of the incident, appellant’s direction of travel and his precise location when they saw him, appellant’s movements across the street, and the deputies’ reported basis for the detention. The record further indicates that trial counsel took photographs of the area and introduced them at trial. Trial counsel also questioned Deputy Booth regarding numerous aspects of her written report, as well as her testimony at the preliminary hearing, emphasizing inconsistencies and errors. He questioned Deputy Booth regarding her training and experience, and, in his closing argument, he pointed out all the possible inconsistencies in the deputies’ statements and their asserted reasons for the detention. Appellant has failed to overcome the presumption that “‘counsel’s actions and inactions can be explained as a matter of sound trial strategy....’” (Gamache, supra, 48 Cal.4th at p. 391.)
Appellant’s claim that his detention was illegal because it was not supported by probable cause also must be rejected. The deputies stated that appellant made eye contact with them and then dropped the paper bag he was carrying. Deputy Dowdy testified that this aroused his suspicion because “suspects often discard stuff or camouflage it in order to hide contraband and then disassociate themselves with it.” “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) The initial, “brief, investigative detention” accordingly was supported by the deputies’ reasonable suspicion that the bag contained contraband. (Id. at p. 230.) Deputy Booth’s discovery of cocaine inside the bag they saw appellant drop established probable cause for further detention. (Ibid.)
As to the chain of custody of the evidence, trial counsel did not object to the evidence on those grounds. “Objections related to the chain of custody are waived if not timely asserted. [Citations.]” (People v. Baldine (2001) 94 Cal.App.4th 773, 779.) Even if such an objection had been made, the admission of evidence over a chain of custody objection is reviewed for abuse of discretion. (People v. Hall (2010) 187 Cal.App.4th 282, 294.) “In a chain of custody claim, ‘“[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶]... [W]hen it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” [Citations.]’ [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 134 (Catlin).)
Trial counsel questioned Deputies Booth and Dowdy and the criminalist regarding the chain of custody. He also raised numerous questions regarding the evidence in order to point out inconsistencies and potential problems with the chain of custody. The record indicates that defense counsel only could have raised “‘“the barest speculation that there was tampering.”’” Because of the trial court’s “broad discretion to determine the admissibility of evidence, ” even if a chain of custody objection had been made, the admission of the evidence would not have constituted an abuse of discretion. (People v. Jimenez (2008) 165 Cal.App.4th 75, 81.)
Appellant appears to incorporate his chain of custody claim into his ineffective assistance of counsel claim. However, we need not consider whether trial counsel’s failure to preserve the claim for appeal constituted ineffective assistance of counsel because of our conclusion that the admission of the evidence was not an abuse of discretion. (
Although we reject all the claims appellant raises in his supplemental briefs, we note that the trial court imposed and stayed the two three-year enhancements for appellant’s prior narcotics convictions. However, the court must either impose or strike the three-year enhancements under Health and Safety Code section 11370.2, subdivision (a). (People v. McCray (2006) 144 Cal.App.4th 258, 267.) Its stay of the enhancements was a jurisdictional error that can be corrected on appeal. (Ibid.)
The transcript indicates that the court intended to strike the 1985 narcotics conviction for purposes of both the one-year prior allegation and the three-year allegation because it was so remote. In addition, the record indicates that the parties and the court did not intend to impose the additional three-year enhancement. Because the prosecution did not argue against the trial court’s decision not to include the three-year enhancements in appellant’s sentence, the narcotics sales enhancements under Health and Safety Code section 11370.2, subdivision (a), must be stricken.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is modified to strike the two three-year enhancements under Health and Safety Code section 11370.2, subdivision (a). As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: EPSTEIN, Acting P. J., SUZUKAWA, J.
People v. Catlin supra