Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10456
Robie, J.
Defendant Alonzo Smith was charged with possession of cocaine base for sale and transporting cocaine base. According to the police report, after law enforcement officers removed a plastic bindle containing approximately 3.43 grams of “crack” cocaine from his pocket, he “began yelling, ‘Somebody help me! Police brutality! They just planted drugs on me.’” At trial, defendant testified the officers found the cocaine elsewhere and “just... sa[id]” “that they found it in [his] pocket.”
On appeal from his convictions, defendant contends he was denied his constitutional right to effective assistance of counsel because his attorney did not file a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) to determine “whether the officers involved ha[d] a history of planting drugs on suspects, or similar misconduct.”
“To prevail on a claim of ineffective assistance of counsel, a defendant ‘“must establish not only deficient performance, i. e., representation below an objective standard of reasonableness, but also resultant prejudice.”’” (People v. Maury (2003) 30 Cal.4th 342, 389.) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘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.’” (Ibid., quoting Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].)
Here, relying on In re Avena (1996) 12 Cal.4th 694, the People contend defendant has failed to make the requisite showing of prejudice. We agree. In Avena, the California Supreme Court rejected a similar argument in a habeas proceeding. There, the defendant argued his trial attorney was ineffective for failing to make a Pitchess motion to challenge the officer who the defendant claimed beat him during interrogation. (Id. at p. 730.) The court rejected this argument on the ground there was “no showing of possible prejudice” because the defendant had failed to “show, for example, what [defense counsel] would have discovered had he made a Pitchess motion.” (Ibid.) In response to the defendant’s complaint “that he had no opportunity to move for discovery [in order to demonstrate prejudice] because the trial court lost jurisdiction by the time appellate/habeas corpus counsel began their representation and first raised this issue,” the court noted that “[a]lthough [the defendant] lost the opportunity for discovery when the trial court relinquished jurisdiction in the case, his burden to establish the grounds for collateral relief remained. Moreover, discovery may be available in a habeas corpus proceeding if, as here, an order to show cause has issued.” (Ibid.)
Defendant here tries to distinguish Avena because “the habeas petitioner in Avena, unlike appellant in the instant case, could have obtained discovery of the officer’s file.” Defendant is correct that he has no right to discovery absent the commencement of a habeas proceeding (and maybe not even then), but that makes no difference for purposes of our analysis of his claim of ineffective assistance of counsel on this direct appeal. Whether defendant has the right to discovery, when he seeks relief on the ground that his trial attorney was constitutionally ineffective, “his burden to establish the grounds for... relief [here, relief on appeal] remain[s].” (In re Avena, supra, 12 Cal.4th at p. 730.)
At oral argument, defense counsel cited the California Supreme Court’s recent decision in People v. Gaines (2009) 46 Cal.4th 172 in support of defendant’s position. Gaines involved a claim of Pitchess error in the trial court’s summary denial of the defendant’s Pitchess motion without examining the requested records in camera to determine whether they contained relevant information. (Id. at p. 176.) On review, the Supreme Court concluded “that the trial court’s erroneous denial of a Pitchess motion is not reversible per se. Rather, the failure to disclose relevant information in confidential personnel files, like other discovery errors, is reversible only if there is a reasonable probability of a different result had the information been disclosed.” (Ibid.) The court also concluded that “the proper remedy when a trial court has erroneously rejected a showing of good cause for Pitchess discovery and has not reviewed the requested records in camera is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand.” (Id. at p. 180.)
Thus, Gaines dealt with the proper remedy for a trial court’s erroneous summary denial of a Pitchess motion. Defendant would have us apply the same remedy to a claim of ineffective assistance of counsel when no Pitchess motion was made, but he offers no authority that would allow us to do so. As we have explained, under the federal constitutional principles that govern a claim of ineffective assistance of counsel, defendant “must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” (People v. Maury, supra, 30 Cal.4th at p. 389.) Defendant simply has not made, and cannot make, that showing on the record before us, because the record gives us no idea what his trial attorney would have discovered if he had made a Pitchess motion. And in the absence of such a showing, there is simply no legitimate basis for us to accept defendant’s argument that his trial attorney violated his Sixth Amendment rights by rendering constitutionally ineffective assistance of counsel. In any event, defendant’s statement, “‘Somebody help me! Police brutality! They just planted drugs on me,’” is an insufficient basis for a Pitchess motion.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P. J., CANTIL-SAKAUYE , J.