Opinion
G057475
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. OSCAR LEE THOMAS, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF3266) OPINION Appeal from a judgment of the Superior Court of Orange County, Elizabeth G. Macias, Judge. Affirmed. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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A jury found defendant Oscar Lee Thomas guilty of possession of heroin for sale (Health & Saf. Code, § 11351; count 1) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2). In a bifurcated court trial, defendant admitted allegations of a prior serious and violent felony conviction (Pen. Code, §§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and two prison priors (Pen. Code, § 667.5, subd. (b)). The court sentenced defendant to a state prison term of four years (the upper term) on count 1 and a concurrent 364-day jail sentence on count 2. The court dismissed defendant's prior convictions under Penal Code section 1385.
Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel did not argue against defendant but advised the court he was unable to find an issue to argue on defendant's behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given the opportunity to file written argument on his own behalf and he has done so, raising a single issue. Defendant claims his trial counsel rendered ineffective assistance for failing to introduce into evidence a body camera video from the arresting officer showing his detention and arrest, and further that appellate counsel has rendered ineffective assistance for failing to raise that issue on appeal.
We have examined the entire record and have not found an arguable issue on appeal. Accordingly, we affirm the judgment.
FACTS
Following our usual standard of review on appeal, we recite the facts "in the light most favorable to the judgment . . . ." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Tustin Police Officer Travis Wilson was on duty on November 20, 2018, and was driving westbound on First Street, in an area known for drug dealing, when he observed a man, later identified as defendant, and a woman standing on the north curb. He saw defendant and the woman join hands in a manner he recognized as a "hand-to-hand" drug transaction. Wilson turned his car around and, as he was getting out of the car, he heard the woman yell "oh shit." He also observed a baggie fall to the ground as he got out of his car. Wilson ordered the subjects to have a seat on the curb. After a backup officer arrived, Wilson separated the subjects and searched defendant. He found a "plastic baggy containing a white crystalline substance" that Wilson recognized as methamphetamine, and $2,111 in cash in defendant's pockets. Wilson's search of the woman found hypodermic needles, pipes, and $5 in cash. After placing defendant in the patrol car, Wilson went back to the area where he saw the baggie dropped and recovered it. The baggie contained multiple small balls of a black tar substance which Wilson recognized as heroin. In response to a hypothetical question mirroring the facts of this case, Wilson opined that the person with the large amount of cash (defendant) was the seller.
The Orange County crime lab determined the black tar substance in the dropped baggie was heroin weighing 4.089 grams. The crystalline substance in the baggie found on defendant's person was determined to be methamphetamine weighing 679 milligrams (0.679 grams).
A defense witness, testified that she and appellant had been saving money to buy a vehicle and had saved about $2,100. She said she had placed the cash in defendant's jacket pocket, but defendant did not know the money was in his pocket when he left home.
DISCUSSION
Appointed counsel has not identified any issue that may be arguable on appeal. Defendant's supplemental brief argues that trial counsel was ineffective for failing to introduce the officer's body camera video showing his arrest and the discovery of the baggie containing heroin. He further argues that appellate counsel was ineffective for failing to raise the issue on appeal. He asserts the body camera video "would have showed that there was no baggie found on the ground until after [he] was handcuffed and placed in the Police car."
Defendant's argument is not reviewable on appeal for the simple reason the appellate record does not contain a copy of the purported body camera video. As defendant acknowledges, the video is not in the appellate record because his trial counsel did not offer it in evidence. In fact, we have no evidence that any body camera video that may exist shows any exculpatory conduct. Thus, if defendant has a remedy grounded on the content of a body camera video, it is only by way of habeas corpus. The absence of a record of the video precludes relief on his direct appeal.
The evidence amply supports defendant's conviction. Our independent review of the entire record has not disclosed any issue reasonably arguable on appeal.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: MOORE, ACTING P.J. GOETHALS, J.