Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA342296, William N. Sterling, Judge.
California Appellate Project, Jonathan B. Steiner, Executive Director, and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant defendant Richard Saxton (defendant) of two counts of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). Defendant’s appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) raising no issues and requesting that this court independently review the record of defendant’s trial. Defendant filed a supplemental brief and a letter brief contending that the trial court erred by (1) denying defendant’s request for a continuance to obtain the testimony of a former codefendant, (2) admitting a police officer’s in-court identification of defendant as the perpetrator, and (3) admitting certain photographic evidence. Defendant also asserted that his appellate counsel rendered ineffective assistance.
We have reviewed the record and requested and received additional briefing with respect to one of the issues raised by defendant. We now affirm the judgment.
BACKGROUND
On appeal, “we must view the evidence in the light most favorable to the verdict and presume the existence of each fact that a rational juror could have found proved by the evidence. [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 139-140, fn. 30, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
On June 17, 2008, Officer Thomas Brown of the Los Angeles Police Department’s (LAPD) central narcotics enforcement detail observed defendant walking north on Stanford Street, between Sixth and Seventh Streets, in downtown Los Angeles. Officer Brown observed defendant through 10x30 binoculars from a distance of approximately 50 feet. A man identified as Charles Cook approached defendant. Defendant removed a small, clear bag from his left front pocket. Cook handed defendant money, after which defendant removed a small item from the bag that appeared to contain an off-white solid material. Defendant placed the item in Cook’s hand. Cook walked north on Stanford Street.
Almost immediately, another man identified as Daryl Henry approached defendant. A similar exchange occurred. Henry walked south on Stanford Street. Defendant continued to walk north.
Officers detained Cook and Henry. When officers approached Cook, he dropped an off-white object to the ground that police recovered and later determined to be rock cocaine. Officers also recovered a crack pipe from Cook’s left front pants pocket. Similarly, officers saw Henry drop an off-white solid object that they recovered and later determined to be rock cocaine. Police also recovered a crack pipe from Henry’s backpack. Officer Brown testified that one of the rocks of cocaine recovered had a street value of $5 to $10; the other rock had a street value of $3 to $5.
LAPD Officer George Mejia and his partner, Officer Lopez, also were assigned to the narcotics detail. They were in uniform in a marked black-and-white police vehicle. As directed by Officer Brown, Officers Mejia and Lopez arrested defendant as he walked westbound on Sixth Street from Stanford. Officer Mejia searched defendant and recovered $13, consisting of one $10 bill and three $1 bills. Police recovered no rock cocaine or other contraband from defendant.
Defendant offered no evidence. The parties stipulated, however, that the block of Stanford Street between Sixth and Seventh Streets was approximately 700 feet long.
Defense counsel relied on the stipulation to argue that Officer Brown’s identification of defendant was suspect.
B. Procedural Background
Defendant was charged in an amended information with two counts of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). The information also alleged that defendant had two prior strike convictions (Pen. Code, §§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)); three prior prison terms (Pen. Code, § 667.5, subd. (b)); and two prior convictions for sale of a controlled substance (Health & Saf. Code, § 11370.2, subd. (a)). The jury convicted defendant as charged.
Defendant waived his right to a jury trial on the prior conviction allegations. Defendant admitted one of the two prior strike convictions, all three prior prison terms, and both prior convictions for sale of a controlled substance. The trial court granted the prosecution’s motion to dismiss the second strike allegation. On its own motion, the trial court struck the prior prison terms and one prior conviction for sale of a controlled substance.
The trial court sentenced defendant to 11 years in state prison, consisting of the four-year mid term on count 1, doubled to eight years due the prior strike conviction, plus three years due to defendant’s prior conviction for sale of a controlled substance. The trial court imposed the identical sentence on count 2, stayed pursuant to section 654.
The trial court imposed a $200 restitution fine; a $200 parole revocation restitution fine, stayed; a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)); an $85 penalty assessment (Pen. Code, § 1464, subd. (a); Gov. Code, § 76000, subd. (a)); and two court security fees totaling $40. Defendant was awarded 264 days of presentence credit, consisting of 176 days of actual custody and 88 days of conduct credit. Defendant timely appealed.
The trial court also found defendant in violation of his probation in two other cases and revoked, reinstated and terminated probation in both cases.
DISCUSSION
We appointed counsel to represent defendant on this appeal. After examining the record, appointed counsel filed an opening brief raising no issues, but requesting this court to review the record independently in accordance with Wende, supra, 25 Cal.3d 436. We gave notice to defendant that his appointed counsel had not found any arguable issues, and that he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider.
Defendant submitted a supplemental brief contending that (1) the trial court erred by denying defendant’s request for a continuance to procure the testimony of Henry; (2) Officer Brown’s in-court identification of defendant was the result of an unduly suggestive presentation; and (3) appellate counsel rendered ineffective assistance by filing a Wende brief. Defendant also submitted an additional letter brief contending that certain photographs were “not admitted properly” into evidence at trial.
Although defendant’s letter brief was untimely, we exercise our discretion to consider it.
A. Continuance
1. Additional Background
Trial was set to commence on September 3, 2008. On August 29, 2008, defense counsel filed a written motion to continue the trial to September 29, 2008 on the ground that he needed additional time to investigate Pitchess discovery provided on August 28, 2008. At a hearing on the motion, defendant refused to waive time. The trial court continued the trial to September 9, 2008.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On September 9, 2008, defense counsel again moved to continue the trial, this time on the ground that he was engaged in trial in another matter. Defendant again refused to waive time. Over defendant’s objection, the trial court found good cause for a continuance and continued the trial to September 23, 2008.
On September 23, 2008, both sides announced that they were ready for trial. Trial was set for September 25, 2008. On September 25, 2008, both parties announced ready in the master calendar department, and the case was transferred to a trial department. In the morning session in the trial department, the trial court and the parties discussed a potential resolution of the case. Defendant made no request for a continuance at that time. A jury panel was ordered for the afternoon session.
When the afternoon session commenced, defense counsel requested a continuance and indicated that defendant was willing to waive time. At a confidential ex parte hearing, defense counsel explained to the trial court that Henry—one of the men who allegedly purchased rock cocaine from defendant—was a transient. Henry’s case had been severed from defendant’s, and Henry had pleaded guilty and been granted probation pursuant to Proposition 36. Henry subsequently failed to appear for court dates and a bench warrant was issued. Henry recently had been picked up on the warrant and was due to appear in court on October 10. Defense counsel “hope[d]” Henry would appear for his court date, where defense counsel could interview him and serve him with a subpoena. Defense counsel stated that Henry was expected to testify that he had not purchased rock cocaine from defendant.
This court ordered the transcript of the confidential ex parte hearing unsealed and served on all counsel.
The trial court inquired when defense counsel had discovered that Henry had returned to court and was no longer in bench-warrant status. Defense counsel answered that he had found out “sometime within the last week,” and that he had gone to “double-check[] when it looked like we were going to trial....” The trial court told defendant “[a]ll the Prop 36 people have to go to almost daily counseling and you can find them through” their assigned community assessment service center. The trial court asked defense counsel if he had ascertained from the appropriate court (presumably, a Proposition 36 monitoring court) to which center Henry was assigned. Defense counsel stated that he had not thought to do so. The trial court denied the motion for a continuance, stating, “I don’t see that’s a basis to continue it at this point.... I think we’re ready for trial.”
2. No Abuse of Discretion
In his supplemental brief, defendant argues that the trial court erred by denying his request for a continuance to interview and subpoena Henry. We requested and received additional briefing from the parties with respect to this issue. We conclude that defendant has failed to establish that the trial court abused its discretion.
Penal Code section 1050, subdivision (e) provides, “Continuances shall be granted only upon a showing of good cause.” “‘A showing of good cause requires that the party seeking a continuance has prepared for trial with due diligence. Particularly, when the party seeks a continuance to secure a witness’s testimony, the party must show that he exercised due diligence to secure the witness’s attendance, that the witness would be available to testify within a reasonable time, that the testimony was material and not cumulative,’ and the facts about which the witness is expected to testify cannot otherwise be proven. [Citations.]” (Mendez v. Superior Court (2008) 162 Cal.App.4th 827, 835; see also Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 270-271; People v. Henderson (2004) 115 Cal.App.4th 922, 934.) In assessing whether the moving party has established good cause, the trial court must consider “‘“‘not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’”’ [Citation.]” (People v. Doolin, supra, 45 Cal.4th at p. 450.)
“‘The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’ [Citation.]” (People v. Jackson (2009) 45 Cal.4th 662, 677-678; see also People v. Lewis (2009) 46 Cal.4th 1255, 1310 [“‘whether to grant a continuance of a hearing to permit counsel to secure the presence of a witness rests in the sound discretion of the trial court’”].) “The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.]” (People v. Beames (2007) 40 Cal.4th 907, 920.) A trial court abuses its discretion “only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]” (Ibid.)
The trial court did not abuse its discretion in this case. First, as the People argue, it does not appear that the trial court foreclosed the possibility of granting a continuance if further developments established good cause. Rather, the trial court denied defendant’s request for a continuance “at this point,” and suggested that defendant could locate Henry through the Proposition 36 monitoring court. Nothing in the trial court’s remarks indicate that it would not have entertained another request for a reasonable continuance if defense counsel located Henry and it appeared Henry’s testimony might be exculpatory. But defendant made no subsequent request for a continuance, and there is no indication in the record that defense counsel actually made any subsequent attempt to locate, interview or subpoena Henry.
Furthermore, defendant failed to establish that he exercised due diligence or that he could obtain Henry’s presence at trial within a reasonable time. Defendant was aware that Henry was a potential witness from the inception of the case. Defense counsel stated that Henry’s case had been resolved and that Henry was granted Proposition 36 probation in late June or early July of 2008—more than two months before trial. But there is no evidence that defense counsel took any action either then or later to locate, interview or subpoena Henry, other than to check Henry’s “booking information.” Furthermore, defense counsel requested a two-week delay, until Henry’s court appearance on October 10. Given that defendant made his request on the afternoon of the first day of trial—after reporting ready for trial, after spending the morning discussing the case in the trial court, and with a jury panel waiting in the wings—the trial court could conclude that a two-week delay was unreasonable. Moreover, there was a reasonable likelihood that the delay would prove fruitless. Defense counsel had not spoken to Henry to determine whether his testimony actually would be favorable to defendant, and there was no guarantee that Henry would actually appear in court on October 10—for example, Henry’s court date might have been continued to some later date, or Henry might have failed to appear, as he had in the past. The trial court did not abuse its discretion.
Defendant asserts that defense counsel “went to a scheduled court date at which Henry failed to appear.” We do not believe the record supports the assertion that defense counsel “went” to the hearing, or that he did so with the intent to interview or subpoena Henry. Defense counsel stated to the trial court, “[T]hey both [Cook and Henry] then—neither one of them showed up for their appointed court dates and warrants were outstanding. And that was as of—in late June, if not early July. Both of them had warrants issued.”
Defendant asserts that the trial court denied the continuance with respect to Henry for reasons related to defendant’s previous refusal to waive time and because the jury panel was ready for voir dire. It appears, however, that those remarks pertained to defendant’s renewed request for a continuance to investigate Pitchess discovery, not his request for additional time to locate Henry. When the trial court ended the confidential hearing as to Henry, the trial court stated, “We’ll get Ms. Williams [the prosecutor] in on the Pitchess.” When back in open court, the trial court stated, “Ms. Williams has returned with Mr. Summers [defense counsel]. I’m going to deny the request for continuance.”
Relying on Title 42 of the Code of Federal Regulations, defendant argues that it would have been futile for defense counsel to attempt to locate Henry through the Proposition 36 community service assessment center because federal law would have prohibited the disclosure of any information relating to Henry while he was in treatment. Even if we assume that defendant is correct, defendant nevertheless failed to provide any evidence to the trial court that defense counsel had made any effort to locate Henry or to obtain his presence at trial, or that he would be able to do so within a reasonable time.
3. No Ineffective Assistance of Counsel
Defendant asserts in his supplemental brief that, if the trial court denied his request for a continuance due to his attorney’s lack of diligence, then he was denied the effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. Defendant, however, has failed to establish the requisite prejudice.
On direct appeal, the burden is on defendant to demonstrate that he is entitled to relief because of his counsel’s ineffective assistance. (In re Lucas (2004) 33 Cal.4th 682, 721; see Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) To do so, 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. [Citations.] 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.”’” [Citations.]’” (In re Hardy (2007)41 Cal.4th 977, 1018-1019.) “[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.” (Strickland, supra, 466 U.S. at p. 697; In re Scott (2003) 29 Cal.4th 783, 825; In re Ross (1995) 10 Cal.4th 184, 204; see In re Lucas, supra, 33 Cal.4th at pp. 731-736.)
The record contains no evidence that, if the trial court had granted a continuance, defense counsel or a defense investigator actually would have located Henry; that Henry would have consented to an interview; or that Henry’s trial testimony would have been favorable to defendant. The only support in the record for any of these facts was defense counsel’s offer of proof that Henry would testify that he did not buy rock cocaine from defendant—but it is clear from the record that defense counsel’s statement was based on information provided by defendant, not information obtained directly from Henry. In any event, a bare offer of proof is not a substitute for a declaration or other competent evidence to establish prejudice. (See Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1398 [“the mere offer of proof by one party does not convert counsel’s statements as to what a witness would testify to into evidence”].) Accordingly, for purposes of his direct appeal, defendant has failed to establish a reasonable probability that, but for defense counsel’s alleged errors, the result of the trial would have been different. Defendant’s claim that his trial counsel “rendered ineffective assistance of counsel... must properly await resolution on a fully developed factual record in a habeas corpus proceeding.” (People v. Snow (2003) 30 Cal.4th 43, 118.)
Because we conclude that defendant has failed to establish prejudice, we need not determine whether defense counsel’s performance fell below an objective standard of reasonableness.
B. In-Court Identification
In his supplemental brief, defendant argues that Officer Brown’s in-court identification of defendant as the seller of the rock cocaine violated defendant’s constitutional rights because it was tainted by an unduly suggestive pretrial identification procedure. (See United States v. Wade (1967) 388 U.S. 218; People v. Boyer (2006) 38 Cal.4th 412, 478-479.) Defendant argues that, although Officer Brown testified that he personally saw defendant sell the drugs to Cook and Henry, Officer Brown also testified that defendant passed out of his sight before defendant was detained by Officers Mejia and Lopez. There was no evidence, defendant argues, that Officer Brown later identified defendant as the seller either in the field or at the police station. In contrast, defendant contends, it appears that Officer Brown “was given” a photograph of defendant before trial, apparently because Officer Brown identified photographs of defendant offered by the prosecution at trial. Defendant concludes that Officer Brown’s in-court identification of defendant was thus based upon the “unduly suggestive” photograph that Officer Brown saw before trial.
Defendant forfeited any such contention by failing to object in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 989.) In any event, there is no arguable support in the record for defendant’s position. There is no evidence that Officer Brown saw a photograph of defendant prior to trial, or that if he did, it influenced his in-court identification of defendant. There is no evidence of any impermissibly suggestive pretrial identification procedure that might have tainted Officer Brown’s in-court testimony.
To the extent defendant contends that the in-court identification itself violated his due process rights, his contention lacks arguable merit. “Admission of... identification evidence is error only if the identification procedure was unduly suggestive and unnecessary and it is unreliable under the totality of circumstances.” (People v. Kennedy (2005) 36 Cal.4th 595, 610.) Defendant bears the burden of demonstrating than the identification procedure was unduly suggestive. (People v Avila (2009) 46 Cal.4th 680, 700; People v. Gonzalez (2006) 38 Cal.4th 932, 942.) Officer Brown identified defendant in open court. He identified defendant before the prosecutor marked for identification any photograph of defendant. Officer Brown testified that he observed defendant conduct the drug sales transactions through 10x30 binoculars from a distance of 50 feet. Officer Brown thus had ample opportunity to observe defendant at the time of the crime. There is no evidence that Officer Brown at any time gave a description of defendant that was inconsistent with defendant’s appearance, nor is there any indication in the record that Officer Brown’s identification of defendant at trial was tentative or uncertain. (See People v. Kennedy, supra, 36 Cal.4th at p. 610, citing Neil v. Biggers (1972) 409 U.S. 188, 199-200.) Accordingly, defendant has failed to raise an arguable issue that the identification violated his constitutional rights.
C. Photographic Evidence
In his letter brief, defendant argues that certain photographs—including photographs of defendant, Cook, Henry, and the drugs and drug paraphernalia recovered by police—were “not admitted properly” into evidence. The photographs, however, were properly marked for identification and were received into evidence without objection at the close of the People’s case. Defendant does not specify how the trial court erred in receiving the photographs, nor does he identify how he was prejudiced by any such error. We discern from the record no arguable basis for reversible error with respect to the photographs.
D. Appellate Counsel
Finally, defendant contends that he has received ineffective assistance of counsel on appeal because the record demonstrates “potentially meritorious[] issues” that his current counsel “abandoned” by filing a Wende brief. He requests the appointment of new appellate counsel. We disagree with defendant’s assertion and deny his request. We requested and received competent briefing from defendant’s appellate counsel with respect to the continuance issue, the only arguable issue presented by the record. With respect to the other issues raised by defendant, we have independently reviewed the whole record and concluded that none of those issues is an arguable basis for reversal. We are therefore satisfied that defendant’s appellate counsel has fully complied with her responsibilities. (Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.