Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County No. BA364156 of Los Angeles, Barbara R. Johnson, Judge.
Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury found defendant and appellant Edward Moreno (defendant) guilty of the sale or transportation of marijuana and possession for sale of marijuana, and the trial court sentenced him to four years in prison. On appeal, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 requesting that this court independently review the entire record to determine if there are any issues which, if resolved in defendant’s favor, would require reversal or modification of the judgment. Defendant filed a supplemental brief raising various issues.
Based on our independent review of the entire record, including defendant’s supplemental brief, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 3, 2009, Los Angeles Police Officer Rudy Gonzalez was assigned to the gang narcotics division working in an undercover capacity. He was participating in a “buy-bust” operation during which undercover officers locate drug dealers in the streets and purchase narcotics from them. He was acting as the “point officer” assigned to maintain visual contact with the undercover officer making the purchase. The undercover or “buy officer” was Officer Ramos.
At approximately 3:15 p.m., Officer Gonzalez was approximately 30 feet north of Officer Ramos’s location on the same side of the street. He observed Officer Ramos make contact with defendant on the east side of San Julian Street in the middle of the block between Sixth and Seventh Streets. Officer Ramos had a brief conversation with defendant after which defendant handed Officer Ramos an item. Officer Ramos then gave defendant paper currency and gave Officer Gonzalez a predetermined signal indicating that a narcotics transaction had just taken place. Officer Gonzalez was also informed by the command unit in contact with Officer Ramos that a transaction had taken place.
Once Officer Gonzalez observed Officer Ramos leave the area, he notified the command unit to bring in the chase officers. Officers Melgoza and De La Cruz responded to the scene and Officer Gonzales observed them detain defendant.
On November 3, 2009, Los Angeles Police Officer Edgar Ramos was assigned to the gang narcotics division “buy team.” During his seven years as a police officer, he had been involved in over 2000 narcotics investigations, over half of which involved marijuana. On that day, he was working undercover as the “buy officer” in the area of San Julian Street between Sixth and Seventh Streets. At about 3:00 p.m., he observed defendant on the east sidewalk of San Julian about 20 feet away. Officer Ramos approached defendant and asked him if he had a “dime, ” street vernacular for $10 worth of narcotics. Defendant responded by asking, “A dime of weed?” When Officer Ramos replied, “Yeah, weed, ” defendant removed a “ziplock baggie” from somewhere on his person and showed it to Officer Ramos. Officer Ramos saw that it contained “green plant material resembling marijuana.” Defendant said, “I’ll give you this cush for $10.” Officer Ramos understood “cush” to be a higher grade of marijuana. Officer Ramos took the ziplock baggie from defendant and handed him a prerecorded $10 bill. Defendant accepted the money and Officer Ramos left the area while transmitting to other officers a description of defendant and the amount of money he gave him.
Officer Ramos explained that he had photocopied the bill prior to the operation so that it could later be identified if recovered during a narcotics arrest.
Officer Ramos later that day confirmed that a picture of defendant taken in the field at the time of his arrest was a picture of the man from whom Officer Ramos had purchased marijuana. Officer Ramos also booked into evidence the ziplock baggie he had obtained from defendant, as well as a second ziplock baggie, containing what appeared to be marijuana and a hand-rolled cigarette that was recovered from defendant during his arrest. In addition, Officer Ramos booked into evidence a glass pipe with cocaine residue that was also recovered from defendant during his arrest. Officer Ramos was advised that the prerecorded $10 bill that he gave defendant was not recovered from defendant during his arrest.
Office Ramos opined that defendant possessed the marijuana for sale based on the area the transaction took place—which is known for “its high narcotics sales and use”—the fact defendant sold marijuana to him, and the fact that defendant had additional marijuana on his person.
On November 3, 2009, Los Angeles Police Officer Manuel Melgoza was working as a chase officer with the narcotics unit. At about 3:15 p.m. that day, he was in a patrol car with his partner, Officer De La Cruz. They received an order from Officer Gonzalez to respond to the area of Sixth Street and San Julian Street. The officers arrived 20 to 30 second later and looked for a suspect that Officer Gonzalez had described as a male Hispanic wearing a white shirt and blue jean shorts. Officer Melgoza saw defendant on the east side of San Julian near Sixth. The officers exited their vehicle and approached defendant who was standing on the sidewalk. The officers detained defendant, searched him, and recovered from his right front pocket a clear plastic baggie containing a green leafy substance resembling marijuana and a hand rolled cigarette containing a similar substance. Officer Melgoza also recovered $.35 from defendant, but did not find the prerecorded $10 bill for which he had been told to search. He and six to eight other officers searched the area for the $10 bill, but were unable to locate it.
At the time of trial, Jose Gonzalez was a criminalist for the Los Angeles Police Department Scientific Investigation Division. He conducted a physical and a chemical test of the contents of the two baggies booked into evidence at the time of defendant’s arrest. The contents of both baggies tested positive for marijuana.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an information charging defendant in count 1 with the sale or transportation of marijuana in violation of Health and Safety Code section 11360, subdivision (a) and in count 2 with possession of marijuana for sale in violation of Health and Safety Code section 11359. The District Attorney also alleged that defendant had suffered three prior convictions for which a prison term was served within the meaning of Penal Code section 667.5, subdivision (b) and that defendant had suffered two prior convictions of serious or violent felonies within the meaning of sections 1170.12, subdivision (a) through (d) and 667, subdivisions (b) through (i).
All statutory references are to the Penal Code unless otherwise indicated.
Defendant pleaded not guilty and denied the special allegations. In response to defendant’s Pitchess motion, the trial court held an in camera hearing as to one officer and ordered three documents produced.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Following trial, the jury found defendant guilty on both counts. Defendant admitted that he suffered a prior conviction of a serious or violent felony within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivision (b) through (i). The trial court sentenced defendant on count 1 to the low term of two years, plus an additional two years pursuant to the true finding on the prior strike conviction, for a total base term sentence of four years. The trial court also sentenced defendant on count 2 to a concurrent middle term sentence of two years. Defendant was awarded 239 days of actual custody credit and 239 days of conduct credit for a total of 478 days of presentence custody credit.
DISCUSSION
As noted above, appointed counsel filed an opening brief in accordance with People v. Wende, supra, 25 Cal.3d 436. We gave notice to defendant that his counsel had not found any arguable issues to raise on appeal and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted us to consider. Defendant then filed a supplemental brief.
In his supplemental brief, defendant raises a number of issues, none of which has merit. He first contends that because the trial court granted his Pitchess motion, he demonstrated improper police conduct, but his trial counsel failed to introduce that conduct at trial. He also contends that the trial court should have dismissed juror number nine because she did not understand English, but his trial counsel failed to move the trial court to excuse that juror. In addition, defendant argues that his trial counsel improperly waived a jury trial on the prior conviction allegations. Each of these contentions appears to be asserted by defendant as instances of alleged ineffective assistance of counsel.
“‘The law governing defendant’s claim is settled. “A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] ‘Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.’” (People v. Wharton (1991) 53 Cal.3d 522, 575 [280 Cal.Rptr. 631, 809 P.2d 290], quoting People v. Ledesma (1987) 43 Cal.3d 171, 215 [233 Cal.Rptr. 404, 729 P.2d 839], italics in original.) It is defendant’s burden to demonstrate the inadequacy of trial counsel. [Citation.] We have summarized defendant’s burden as follows: “‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness... under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”’” [Citation.] [¶] Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” [Citation.] Defendant’s burden is difficult to carry on direct appeal, as we have observed: “‘Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.”’ [Citation.]’ (People v. Lucas (1995) 12 Cal.4th 415, 436-437 [48 Cal.Rptr.2d 525, 907 P.2d 373].) If the record on appeal ‘“‘sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ’ the claim on appeal must be rejected, ”’ and the ‘claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.’ (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)” (People v. Vines (2011) 51 Cal.4th 830, 915-917.)
Here, the record sheds no light on why defendant’s trial counsel did not submit evidence of the alleged police misconduct, why counsel did not move to excuse juror number nine, or why counsel waived jury trial on the prior conviction allegations. Thus, the claim on appeal must be rejected and reviewed, if at all, in a habeas corpus proceeding.
Defendant also raises certain factual issues, including alleged inconsistencies in the testimony of the officers involved in his arrest and the fact that the prerecorded $10 bill that Officer Ramos testified he gave to defendant was never recovered. He denies that he possessed the drugs for sale and claims the officers fabricated evidence. We construe defendant’s factual arguments as a claim of insufficient evidence to support the verdict.
“‘In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]’ (People v. Guerra (2006) 37 Cal.4th 1067, 1129 [40 Cal.Rptr.3d 118, 129 P.3d 321]; see People v. Lindberg (2008) 45 Cal.4th 1, 27 [82 Cal.Rptr.3d 323, 190 P.3d 664].)” (People v. Nelson (2011) 51 Cal.4th 198, 210.)
Defendant’s factual arguments ask us to reweigh the evidence, make independent credibility determinations concerning the officers’ testimony, and resolve conflicts in the evidence in defendant’s favor. Under the applicable standard of review, however, we cannot reweigh the evidence or make credibility determinations, and we must resolve all conflicts in the evidence in favor of the judgment. We therefore cannot reverse based on defendant’s claim of insufficient evidence.
Defendant further argues that the trial court promised him more custody credits than he actually received. But the reporter’s transcript and the abstract of judgment both reflect that the trial court properly awarded defendant 239 days of actual custody credit and 239 days of conduct credit for a total award of 478 days of custody credit. Thus, the record does not support defendant’s custody credit claim. Defendant also argues that the sentence is excessive. But we have no power to review that sentence. In addition to reviewing and addressing the matters raised in defendant’s supplemental brief, we have made an independent examination of the entire record to determine if there are any other arguable issues on appeal. Based on that review, we have determined that there are no other arguable issues on appeal. We are therefore satisfied that defendant’s appointed counsel has fully satisfied her responsibilities under People v. Wende, supra, 25 Cal.3d 436.
DISPOSITION
The judgment of conviction and sentence are affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.