Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA334188, Marcelita V. Haynes, Judge.
Cindy Brines, 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, Scott A. Taryle, Roy C. Preminger, and Blythe Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Antwain Washington was convicted by a jury of selling cocaine (Health and Saf. Code, § 11352, subd. (a)) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5). In a separate court trial it was found that he had sustained one prior conviction within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b), and that he had sustained two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). He was sentenced to 12 years in prison. He appeals, contending that he did not receive effective assistance of counsel because his attorney did not make a Pitchess motion, he was wrongfully denied a continuance of his sentencing hearing, and the finding with respect to one of his prior convictions is not supported by constitutionally sufficient evidence. We find his contentions to be without merit and affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are not in dispute. It will suffice to observe that on December 27, 2007, Los Angeles police officers arrested appellant and Tyrone Richard during an undercover narcotics operation in downtown Los Angeles. Officer Michael Saragueta, dressed in plain clothes, observed appellant and Richard standing together. Appellant was next to a shopping cart containing a brown paper bag. Officer Saragueta walked up to them and Richard asked him what he wanted. Officer Saragueta told Richard that he needed a “twenty.” Richard told appellant he needed a “twenty” and appellant removed three off-white solids resembling rock cocaine from the bag and handed them to Richard, who gave them to Saragueta. Saragueta gave Richard four marked $5 bills. Officer Anthony Jackson, who was standing nearby, observed the transfer and radioed other officers, who moved in to make the arrest. Appellant dropped the paper bag, walked away from the cart and stood on the curb. Richard dropped the four marked bills on the ground. Officer Cho searched appellant and found $1,894 in his jacket pocket, mostly in small bills. Officer Martinez retrieved the brown paper bag which appellant had dropped and found it contained more rocks resembling cocaine. The rocks were later examined and were determined to contain cocaine base. In Officer Saragueta’s expert opinion, the rocks in the paper bag were possessed for purpose of sale.
Richard was charged separately and entered a guilty plea in a separate proceeding.
Appellant presented no witnesses in his defense. He offered into evidence maps of the area and diagrams of a shopping cart.
During the court trial on the prior convictions, the prosecution presented the testimony of a Los Angeles Police Department fingerprint expert and documentary evidence of the convictions.
DISCUSSION
I. Alleged Ineffective Assistance of Counsel
Defense counsel prepared a Pitchess motion in which he requested information about whether the seven police officers involved in the narcotics operation had engaged in acts of bias, dishonesty, or other acts of misconduct relevant to the development of the defense in this case. On the day of trial, defense counsel explained to the court that he had prepared the motion prior to trial, but due to illness, had been unable to file it until April 17, 2008. Counsel said he had had several conversations advising appellant “of the benefit or potential benefit of receiving some discovery relating to the officers’ misconduct, if there is anything, in light of his prior convictions.” Counsel stated he also explained to appellant that he would have to waive time in order to have the Pitchess motion heard and advised appellant to do so; however, he was going to defer to appellant’s wishes. Appellant refused to waive time, thus there was no hearing or ruling on the Pitchess motion. Appellant contends that he was denied effective assistance of counsel because counsel did not override his wishes and insist that the motion be heard.
To prevail on a claim of ineffectiveness of counsel, a defendant must show that counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that prejudice resulted. If a defendant cannot show that the actions of counsel were prejudicial, a reviewing court may reject the claim without a determination of whether counsel’s performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 686; People v. Mayfield (1997) 14 Cal.4th 668, 784.)
We have reviewed the Pitchess motion proffered by defense counsel and have determined that it would not have been granted, and thus no prejudice occurred when defense counsel did not pursue it further.
In Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick), the defendant was arrested in downtown Los Angeles during a narcotics operation. The officers stated that they observed the defendant standing at a wall holding a clear plastic baggie containing off-white solids. When the officers got out of their patrol car, the defendant fled, discarding numerous off-white rocks resembling cocaine. The defendant was arrested after a short pursuit with an empty baggie in his hand, $2.75 in cash, and items described as common tools of auto thieves. (Id. at p. 1016.) The defendant filed a Pitchess motion which contained a declaration that he was in the area, and had an outstanding parole warrant. He stated in the declaration that when the police arrived, someone else threw cocaine rocks on the ground and people in the area began kicking and fighting trying to retrieve them. Defendant fled, not wanting to face arrest, and was stopped by officers who wrongfully accused him of throwing the rocks of cocaine. Defendant sought to obtain personnel records of the arresting officer to show previous complaints of dishonesty. (Id. at p. 1017.) The trial court denied the Pitchess motion.
Warrick reviewed the Pitchess requirements and determined that the defendant had shown good cause for Pitchess discovery. A Pitchess motion requires an affidavit showing good cause for the discovery by demonstrating the materiality of the information to the pending litigation, and a reasonable belief that the police agency had the records or information at issue. (Warrick, supra, 35 Cal.4th at p. 1019, citing City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.) The information sought must be described with some specificity so as to ensure that the defendant’s request is limited to officer misconduct related to the misconduct asserted by the defendant. (Warrick, at p. 1021.) The affidavit “must also describe a factual scenario supporting the claimed officer misconduct” that is plausible when read in light of the pertinent documents. (Id. at pp. 1024-1025.) The affidavit need not, however, “provide a motive for the alleged officer misconduct.” (Id. at p. 1025.) The Warrick court concluded appellant’s defense would be supported by a showing that the arresting officers had previously made false arrests, planted evidence, committed perjury, or falsified police records. (Id. at p. 1027.)
In contrast to Warrick, counsel’s declaration in support of the Pitchess motioncontains no factual scenario supporting the claimed officer misconduct, much less a plausible one. Through counsel, appellant merely denied he had any contact with co-arrestee Richard, the bag of drugs, or Officer Saragueta. “[H]e [did] not state a nonculpable explanation for his presence in an area where drugs were being sold, sufficiently present a factual basis for being singled out by the police, or assert any ‘mishandling of the situation’ prior to his detention and arrest. Counsel’s declaration simply denied the elements of the offense charged.” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1317.) In addition, appellant did not deny that $1,894 was found on his person, including one hundred eight $5 bills and two hundred eighty-four $1 bills. Put simply, appellant failed to establish good cause for the trial court to order an in camera review of the requested police personnel records. Thus, appellant has not established that he was prejudiced by counsel’s failure to waive time over his objection in order to have the Pitchess motion heard.
II. Motion for Continuance
Appellant was found guilty on May 9, 2008. The court trial on appellant’s prior convictions was held on June 18, 2008. Immediately following the court’s findings, appellant requested to represent himself and the court granted his request. Appellant waived his right to be sentenced that day and the court continued the hearing. On July 24, 2008, appellant said that he needed an expert witness or investigator to gather new evidence. His request was denied. He was provided with the trial transcript and informed the court that he would be ready with a new trial motion on August 29, 2008. The court granted him a continuance, but told him to have his motion ready to file on the 29th or he would be sentenced.
On August 29, appellant filed a written motion for a continuance, saying that he needed a private investigator “to set an affirmative defense” and more time to prepare a new trial motion and a petition for a writ of habeas corpus. He asserted he had to gather records to support an ineffective assistance of counsel claim and subpoena Richard, who would offer exonerating evidence. He asked at varying times for continuances of three months, two months, and two weeks. He presented the court with two declarations, one by a Mr. Green and one by a Mr. Semppo. Green’s declaration stated that he was falsely arrested by the Central Division narcotics buy team and Officer “Saeaqueta” had lied at his trial and preliminary hearing. Semppo’s declaration stated, “All the cops in downtown are rogue cops.”
Richard was called during the trial and exercised his right against self-incrimination.
The court denied the motion, finding appellant had presented no grounds for his requests, and proceeded to sentence him. Appellant contends the denial of his motion effectively denied him the right to represent himself.
The denial of a motion to continue is reviewed for abuse of discretion. (People v. Beames (2007) 40 Cal.4th 907, 920.) An abuse of discretion occurs “when the court exceeds the bounds of reason, all circumstances being considered.” (Ibid.)
In this case, appellant waited until after the trial and priors hearing had been concluded before he requested to represent himself. He was initially granted two continuances, and his third was denied. Between June 18, 2008, and August 29, 2008, appellant had not discovered any new evidence to support a new trial motion and had no prospect of finding any. The affidavits he presented to the court made assertions that were either irrelevant or unsubstantiated.
An important factor for a trial court to consider is whether a continuance would be useful, that is, whether there is material evidence that could be obtained if a continuance were granted. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) In this case, appellant was simply embarking on a fishing expedition. He failed to establish good cause for a continuance and the court did not abuse its discretion in denying his motion.
III. The Evidence Supporting the Prior Drug Convictions
Appellant claims that the true finding of one of his prior drug convictions violated his federal constitutional rights because the court relied on a printout from the California Law Enforcement Telecommunications System (CLETS) generated by an employee of the district attorney’s office, and a certified computer printout of a trial court minute order also generated by the district attorney’s office. Appellant contends that these documents were inadmissible because they were not official judicial documents. At the priors trial, appellant objected solely on hearsay grounds.
Appellant rests his claim on Shepard v. United States (2005) 544 U.S. 13. He argues the two exhibits in question were barred because they were not judicial documents, as that term is defined in Shepard. The Attorney General argues appellant forfeited this contention by failing to object on this ground in the trial court. We agree. (People v. Boyette (2002) 29 Cal.4th 381, 424 [counsel is required to inform the court that the defendant is objecting on constitutional grounds].) In any event, appellant’s contention is without merit. As he acknowledges, our Supreme Court held in People v. McGee (2006) 38 Cal.4th 682, 707-709, that Shepard interpreted a federal statute and did not purport to determine the issue of what evidence a state court may consider at a priors trial. Appellant asserts the McGee court erred, but we are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454-456.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., WILLHITE, J.