P. v. Cathey
Filed 2/26/13 P. v. Cathey CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
TYWANA MARIE CATHEY et
al.,
Defendants and Appellants.
C065248
(Super. Ct. No. 07F00933)
Defendants,
Tywana Marie Cathey (Cathey) and Christopher Mason, Jr. (Mason), while formerly
married, remained linked in an on-going drug trafficking operation for which
they were arrested, charged, and tried by jury.
Mason
was convicted of possession of cocaine base for sale (
11351.5; count one), possession of a firearm by a convicted felon (Pen. Code,
former § 12021, subd. (a)(1), now § 29800, subd. (a)(1); count three),
and possession of ammunition while prohibited from owning or possessing a
firearm (former § 12316, subd. (b)(1), now § 30305, subd. (a)(1); count
four). He was further found personally
armed with a firearm in the commission of count one. (§ 12022, subd. (c).) A count of cultivation of marijuana ended in
deadlock. (Health & Saf. Code, §
11358; count two).
Cathey
was convicted on counts one and two and found to be personally armed with a
firearm in the commission of count one.
In
a bifurcated proceeding, the jury
found that Mason had six prior serious felony convictions (§§ 667, subds.
(b)-(i), 1170.12) and two prior narcotics convictions (Health & Saf. Code,
§ 11370.2, subd. (a)), and that he had served two prior prison terms (§ 667.5,
subd. (b)).
Mason
was sentenced to state prison for a determinate term of 11 years plus a
consecutive indeterminate term of 25 years to life.
interest of justice in light of the sentence.
Cathey
was sentenced to state prison for nine years eight months. Execution of sentence was suspended and
Cathey was placed on probation for five years on conditions including 365 days’
incarceration.
title="">[3]
On
appeal, Mason contends the trial court erred when it denied his motion to
traverse the search warrant pursuant to Franks
v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 678] (Franks). Cathey contends her
trial counsel rendered ineffective assistance when he expressly declined to
join in Mason’s
motion could not have been prejudicial, and therefore affirm.
FACTS
Prosecution
Case-in-Chief
On
January 30, 2007, several
teams of law enforcement officers served a search warrant at residences on Delta
Street (Delta) and Rio
Linda Boulevard (Rio Linda) in Sacramento. The warrant authorized the searches of both
residences, a gold Cadillac Escalade, and defendants Cathey and Mason.
Delta
Upon
entering Delta, officers found and detained both defendants and three other
persons. In the kitchen, officers found
and seized a glass plate containing 4.02 grams of cocaine base and a razor
blade; a baggie containing 6.87 grams of cocaine base; a glass pipe for smoking
narcotics; a digital gram scale; a spoon with cocaine residue; six
walkie-talkies; and a box of shotgun shells.
Mason’s fingerprints
were found on the glass plate and the digital scale.
In
the front room, officers found and seized three surveillance cameras and DVD’s
explaining how to grow marijuana.
In
the southeast bedroom, officers found and seized 0.43 grams of cocaine; 0.74
grams of marijuana; and two boxes of shotgun shells. Officers also found documents and papers
belonging to, or relating to, Cathey and Mason.
Pacific Gas and Electric bill was addressed to Cathey at Delta.
In
the northeast bedroom, officers found and seized a semiautomatic pistol loaded
with six rounds. In this bedroom, too,
officers found documents related to Cathey and Mason.
In
a bathroom, officers found and seized a pipe for smoking narcotics.
In
the Escalade parked at Delta, officers found cash; documents related to Cathey
and Mason; and a stun gun.
A
search of Mason’s person yielded cash and a key ring with two keys. One key operated the front door lock at
Delta, and the other unlocked a safe found at Rio Linda. After Mason was placed in a patrol car, an
officer observed he appeared to have several small white objects in his
mouth. When the officer tried to reach
in Mason’s mouth, the objects were gone.
In the officer’s experience, it is common for people who possess cocaine
base to conceal it in their mouths.
Cocaine base is not water soluble and cannot be ingested by swallowing
it.
Diane
Cutrer was present at Delta when the search warrant was executed. She consented to a search of her person. An officer found 0.09 grams of cocaine in her
pocket. Cutrer told the officer that she
had come to Delta to purchase cocaine.
Cutrer testified at trial that she had purchased cocaine from Mason and
Cathey on several prior occasions. On
the day of the search, she had come to Delta and found cocaine on the kitchen
table waiting for her. Mason and Cathey
were at the table. Cutrer paid $7 for
the cocaine.
Rio Linda
Meanwhile,
other officers searched Rio Linda, which was four miles away from Delta. Three juveniles were present at Rio Linda;
two of them had the last name Mason.
In
a bedroom, officers found a safe containing a large plastic baggie. Inside the baggie were three smaller baggies
containing cocaine base in the amounts of 27.3 grams, 27.4 grams, and 27.1
grams. The safe also contained $178
cash. In the same bedroom, officers
found documents and papers belonging to, or relating to, Cathey and Mason. Some items were addressed to Delta or to a
different address in Sacramento County;
a child’s report card was the only item addressed to Mason at Rio Linda. In the bedroom and bathroom, officers found
numerous plastic baggies, some with the corners ripped off.
In
a different bedroom, officers found 31 immature marijuana plants and a grow
light.
Other
Evidence
Detective
Jason Oliver, an expert in the sale and possession of narcotics, testified it
was common for sellers of narcotics to keep their supply in one location and
conduct sales at a different location.
Detective Oliver opined -- based upon the amounts of cocaine base found
at the two locations; the presence of packaging material; the presence of
equipment such as the digital scale, the razor blade, the safe, walkie-talkies,
and the surveillance cameras; and the presence of firearms -- that the cocaine
base was possessed for the purpose of sales.
The
parties stipulated, for purposes of counts three and four, that Mason was
previously convicted of a felony.
Defense
Mason
presented the testimony of Rosio Gutierrez, who lived next door to Rio
Linda. Gutierrez testified Cathey was
her neighbor, but that she did not know Mason.
Cathey
rested without presenting evidence or testimony.
DISCUSSION
I
Mason
contends the trial court violated his Fourth and Fourteenth Amendment rights by
denying his motion to traverse the search warrant pursuant to
We are not persuaded.
Background
A
defendant may challenge a search warrant after the warrant has been issued and
executed by showing the supporting affidavit contained deliberate falsehoods or
statements made with reckless disregard for the truth (Franks, supra, 438 U.S.
at p. 171), or that “the affiant deliberately or recklessly omitted material
facts that negate probable cause when added to the affidavit [citations]†(
136).
In
January 2007, Detective Oliver executed an affidavit in support of a warrant to
search Delta and Rio Linda. In the
affidavit, Detective Oliver described the investigation that had been ongoing
since November 2006.
In
the following summary of the affidavit, the statements Mason alleges to be
deliberate falsehoods appear in bold font.
The facts Mason alleges to have been recklessly omitted appear in bold
italic font.
Between
November 19, 2006, and December 2, 2006, two confidential informants (CI#1 and
CI#2), on different occasions, told law enforcement that an African-American
male known to them as “Tattoo†was dealing cocaine base out of Delta. Both informants reported that Tattoo drove a
gold Cadillac Escalade and parked it in front of Delta. CI#2 reported that Tattoo had multiple ounces
of cocaine base at the residence.
Between November 30, 2006,
and December 6, 2006,
officers observed a third confidential informant (CI#3) walk from Delta to a
vehicle that was parked in front. The
officers contacted CI#3 about a Vehicle Code violation, searched him, and found
cocaine on his person. CI#3 stated that
he had just purchased the cocaine from an African-American man inside
Delta. CI#3 reported that this man had
four ounces of cocaine at Delta and was converting it to cocaine base. CI#3 said the man drove the Escalade that was
then parked south of Delta.
On
December 1, 2006, two
officers saw the Escalade leave Delta.
The officers made a traffic stop of the Escalade for a Vehicle Code
violation. Cathey was the driver, and
Mason was the passenger. A records check
showed that Mason had been discharged from parole in May 2006, and that his
last parole address was Delta. The
Escalade was registered to Cathey or Dorothy Redman. Further checking revealed that the Sacramento
Municipal Utility District (SMUD) listed Cathey’s address as Delta.
On
December 11, 2006,
detectives conducted surveillance at Delta.
At 2:55 p.m., a gold Escalade
arrived at the residence and then left within five minutes. The driver matched Cathey’s description and
the passenger matched Mason’s description.
Detectives
followed the Escalade to the area of El Camino and Howe, where a white man met
with the occupants. The Escalade then
proceeded to Rio Linda.
the front door without knocking or waiting to be let in.â€
Around
6:09 p.m., detectives saw the
Escalade leave Rio Linda. The driver
matched Mason’s description, and the other occupant was an unidentified
teenager. Detectives followed the
Escalade and saw the driver stop in a parking lot for a two-minute meeting with
the driver of another car. Detective
Oliver noted that such a short meeting in a parking lot was consistent with a
drug transaction.
The
Escalade then proceeded at high speed, at times approaching 95 miles per hour,
to San Lorenzo, California,
an approximately two-hour trip. The
Escalade stopped at a San Lorenzo residence where a
person entered the car on the passenger side.
Within five minutes the Escalade left the residence, entered a freeway,
traveled an unspecified distance, left the freeway, and returned to where it
had picked up the passenger.
Within
30 minutes thereafter, the Escalade proceeded back to Sacramento
at speeds not exceeding 75 miles per hour and parked at Rio Linda. “The
occupants of the Cadillac entered [Rio Linda]
through the front door without knocking or waiting to be let in.†The detectives ended the surveillance. Detective Oliver noted that this trip was
consistent with a trip to pick up narcotics from a supplier.
The
next morning, Detective Oliver returned to Rio Linda and saw the Escalade was
parked where officers had last observed it.
Detective Oliver learned the SMUD account for Rio Linda was in the name
of Chianti Mason.
On
January 3, 2007, detectives
conducted additional surveillance.
Around 7:30 p.m., they saw Cathey
drive the Escalade from Rio Linda to Delta with a male African-American
passenger. Within five minutes, the
Escalade began to leave. A person
approached the passenger side of the Escalade and made a hand-to-hand
transaction with the passenger. A surveilling
detective believed the activity was consistent with a narcotics
transaction. Cathey made several stops
in the Escalade before returning to Rio Linda.
“Cathey entered the front door
without knocking or waiting to be let in.â€
While
conducting surveillance on January 16,
2007, around 5:30 p.m.,
Detective Oliver saw the Escalade arrive at Rio Linda. He saw Mason “exit the passenger side of the
vehicle and enter the front doorway of [
Detective
Oliver and another detective (Detective Nasca) then planned an operation in
which a confidential reliable informant (CRI) would attempt to buy drugs at
Delta. The CRI was shown a color
photograph of Mason. “CRI was furnished
with pre-recorded official funds with which to purchase drugs/narcotics. From
this point on, the CRI was kept under constant surveillance by [Detective]
Nasca or other officers.†The CRI
was followed to the area of Delta and kept under surveillance until he or she
approached Delta. A short time later,
the CRI left Delta and met officers at a predetermined meeting place. The CRI gave officers a substance that tested
positive for cocaine. The CRI confirmed
that he or she had used funds provided by the officers to purchase cocaine from
Mason inside Delta. Although the affidavit fails to
so state, no surveillance team member visually observed the CRI entering or
exiting from Delta.
Detective
Oliver stated his beliefs that Mason was involved in narcotics sales at Delta,
resided at Rio Linda, and probably stores evidence of narcotics sales at Rio
Linda. Detective Oliver believed Cathey
was a coconspirator.
A
search warrant was signed on January
25, 2007, and executed on January
30, 2007.
Mason
attempted without success to challenge the search warrant prior to the
preliminary examination. In July 2008,
Mason was held to answer on all charges except a weapon enhancement on count
two.
In
August 2008, Mason filed a motion to traverse the affidavit in support of the
search warrant and to suppress evidence, along with exhibits in support. Mason claimed Detective Oliver’s affidavit
“contains reckless and intentional misrepresentations, actions, and omissions
without truth to mislead the magistrate.â€
Mason later filed a supplement, consisting of a declaration by his
investigator, Lori Brown.
Specifically,
Mason alleged the statement that Mason was seen entering the front door of Rio
Linda without knocking or waiting to be let in was a reckless falsehood, in
that it would have been “physically impossible†to make that observation
without standing directly in front of the door.
Mason also alleged the failure to “disclose†that officers did not
actually observe the CRI enter and exit the door of Delta was a reckless
omission in that the affidavit did state the CRI was under constant
surveillance.
The
prosecution filed an opposition to Mason’s motion, and Mason filed a
reply. The prosecution then filed an
amended opposition to the motion.
The
motion was heard on September 3, 2008. After hearing arguments of counsel, the trial
court (Judge Bakarich) denied the motions regarding the search warrant. The court explained: “I’ve read the search warrant. I’ve got a statement of a person the officers
see leaving that house on Delta Street,
found to be in possession of drugs, stating that he bought the drugs from the
person in that house, your client. He
knows him, and he knows that he drives a Cadillac Escalade. [¶]
I’ve got surveillance by officers who follow that vehicle from Delta . .
. to . . . Rio Linda . . . on numerous occasions. The vehicle is left there overnight. The vehicle, your client is seen getting into
that vehicle on one of these occasions.
[¶] The person who subscribes to
SMUD at that address has the same last name as your client. There’s a nexus between [Rio Linda], [Delta],
your client and the selling of drugs.
Just from that alone. And it’s
all within the month of January, I believe, January of ’07. [¶]
. . . [¶] You have to show that the affidavit includes
false statements made knowingly and intentionally or with reckless disregard
for the truth and, two, the most important part, that the allegedly false
statement is necessary for the finding of probable cause. [¶] So
based on what you’ve told me today, if I were to exclude those portions of the
search warrant that they saw the occupants of the Escalade enter [Rio Linda]
without knocking or without using a key, if I were to exclude all of those in
the affidavit, I would still find that there’s sufficient probable cause for
the finding of a search warrant on all those addresses. [¶]
Even if I were to exclude the controlled buy, I would still find that
there’s sufficient probable cause for the issuance of a search warrant but I’m
not excluding the controlled buy.â€
In
March 2009, Mason filed a motion to suppress evidence, traverse and quash the
search warrant or, in the alternative, reconsider the prior ruling. The motion was heard in May 2009. The trial court (Judge Davidian) found that
Mason had received a “full and fair hearing by Judge Bakarich†and that there
had been sufficient ground for the ruling against Mason.
Analysis
“A
defendant has a limited right to challenge the veracity of statements contained
in an affidavit of probable cause made in support of the issuance of a search
warrant. The trial court must conduct an
evidentiary hearing only if a defendant makes a substantial showing that (1)
the affidavit contains statements that are deliberately false or were made in
reckless disregard of the truth, and (2) the affidavit’s remaining contents,
after the false statements are excised, are insufficient to support a finding
of probable cause. Innocent or negligent
misrepresentations will not support a motion to traverse. [Citations.] A defendant who challenges a search warrant
based on omissions in the affidavit bears the burden of showing an intentional
or reckless omission of material information that, when added to the affidavit,
renders it insufficient to support a finding of probable cause. [Citations.]
In either setting, the defendant must make his showing by a
preponderance of the evidence, and the affidavit is presumed valid.†(People
v. Scott (2011) 52 Cal.4th 452, 484, italics omitted.)
If
the defendant makes the requisite showing, “and if, when material that is the
subject of the alleged falsity or reckless disregard is set to one side, there
remains sufficient content in the warrant affidavit to support a finding of
probable cause, no hearing is required.
On the other hand, if the remaining content is insufficient, the
defendant is entitled, under the Fourth and Fourteenth Amendments, to his
hearing.†(Franks, supra,
omitted.) In short, a defendant is
entitled to an evidentiary hearing only if he “makes a substantial showing that
(1) the affidavit contains statements that are deliberately false or were made
in reckless disregard of the truth, and (2) the affidavit’s remaining contents,
after the false statements are excised, are insufficient to support a finding
of probable cause.†(
456.) Those contents support probable
cause if they give the magistrate a substantial basis for concluding a fair
probability existed that a search would uncover wrongdoing. (People
v. Kraft (2000) 23 Cal.4th 978, 1040.)
The
trial court’s finding that Mason failed to make the showing required by
subject to de novo review. (
183.)
Four
Entries to Rio
Mason
claims he made a substantial showing the affidavit’s four statements that
false. He relies in part on investigator
Brown’s declaration that “the only vantage point that allows vision to the
front door of the residence is by standing directly in front of the door,†and
that the door is 3.5 to 4.5 feet from the front wall.
neither he, nor Cathey, nor other residents of the complex ever saw an officer
standing at a location that afforded a sufficient view of the front door. In addition, Mason relies on Detective Roman
Murrietta’s handwritten surveillance note indicating defendant and Cathey
returned to the “yellow duplex behind 3625 Rio
Linda Blvd -- both to entry way.â€
Mason’s
evidence suggested that Rio Linda’s front
door was not visible from a location where officers could conduct
surveillance while remaining undetected by the targets of the
investigation. However, Mason’s evidence
did not reveal whether persons standing
outside the door, knocking and awaiting admission, would similarly
be out of view and earshot of adequately-concealed officers.
Specifically,
Brown’s declaration that the door was 3.5 to 4.5 feet from the building’s front
wall in some unstated direction raised only a speculative possibility that the
building would conceal, not just the door itself, but also any persons who
remained outside the door until it was opened for them. Nor did Brown’s declaration suggest anyone
could depart from the area just outside the front door on an alternate route,
without entering the door or the officers’ field of vision.
Thus,
if officers observed defendants approach the door and promptly disappear from
view without making what appeared to be knocking motions and without appearing
to linger outside the door, and if the officers heard no sounds associated with
knocking on a door, the officers could fairly infer that they had observed
defendants in the process of entering without knocking or waiting to be let
in. Mason has not shown the challenged
statements were deliberately false or made in reckless disregard of the
truth. (People v. Scott, supra,
52 Cal.4th at p. 484.)
name="_ftnref6" title="">[6]
As
ably and succinctly observed by Judge Bakarich after hearing and denying
Mason’s Franks motion, and echoed by
Judge Davidian prior to trial, even if the four unassisted entries to Rio Linda
are excluded, the affidavit gave the magistrate a substantial basis for
concluding a fair probability existed that a search of Rio Linda would uncover
evidence of wrongdoing. (
1040.) The affidavit contained abundant
evidence that defendants were conducting drug sales from Delta and the
Escalade. Defendants were observed
taking the Escalade from Delta to Rio Linda.
The same day, Mason drove the Escalade from Rio Linda, engaged in two
apparent narcotics transactions, and returned to Rio Linda. The Escalade was parked at Rio Linda when
surveillance resumed the next morning. A
few weeks later, officers observed Cathey drive the Escalade from Rio Linda to
Delta, leave Delta and engage in an apparent narcotics transaction, and return
to Rio Linda. Two weeks after that,
officers again saw Mason at Rio Linda.
Thereafter, officers conducted a controlled buy from Mason at
Delta. This evidence, plus the fact the
Rio Linda
SMUD account was in the name of a person with the same surname as Mason, raised a
fair probability defendants were using Rio Linda, as well as Delta, for their
narcotics operation and evidence of that activity would be found at Rio
Linda. Mason’s argument that defendants’
narcotics activity at Delta cannot be considered when evaluating probable cause
for Rio Linda is illogical and has no merit.
Mason
disagrees, claiming the foregoing information “is suspect†in light of the
claimed “ ‘lying or reckless inaccuracy’ †we have already discussed. (People
v. Kurland (1980) 28 Cal.3d 376, 386.)
Having found no evidence of lying or reckless inaccuracy, we reject
Mason’s contention.
In
any event, the affidavit did not show -- and Mason does not contend -- that
there was any evidence, other than
the entries without knocking or waiting to be admitted, that Mason personally
had any reasonable expectation of privacy at Rio Linda, “ ‘ “either by
reference to concepts of real or personal property law or understandings that
are recognized and permitted by society.†’ â€
(People v. Ayala (2000) 23
Cal.4th 225, 255, quoting Minnesota v.
Carter (1998) 525 U.S. 83, 88 [142 L.Ed.2d 373, 379].) The mere facts he shared a surname with the
SMUD subscriber and with some juveniles found during the search are manifestly
insufficient for that purpose. Had Mason
succeeded in challenging the disputed passages, he perversely would have
negated his reasonable expectation of privacy and thus defeated his Fourth
Amendment claim as it relates to Rio Linda.
Surveillance
of CRI at Delta
Mason
claims he made a substantial showing the affidavit (1) deliberately or
recklessly included the false statement that the CRI had been kept under
“constant surveillance,†and (2) intentionally or recklessly failed to state
that no surveillance team member visually observed the CRI entering or exiting
from Delta. Mason claims the statements the
CRI “was kept under constant surveillance,†and the CRI “ ‘approached’ †and
later “ ‘left’ †Delta, falsely suggested the CRI was seen “entering and
exiting the house,†even though one officer lost sight of the CRI and the other
officer saw the CRI walk only “ ‘to’ †the door. We are not convinced.
The
affidavit described the officers’ observations of the CRI at Delta as
follows: “[Detective] Nasca met with
CRI. CRI and CRI’s vehicle, were
searched by a member of law enforcement for any contraband or money. None was found. CRI was furnished with pre-recorded official
funds with which to purchase drugs/narcotics.
From this point on, the CRI was
kept under constant surveillance by Nasca or other officers. The CRI was then followed to the area of [Delta]. The CRI
was kept under surveillance from the time that the informant left the presence
of Nasca and other officers till such time as CRI approached [
A short time later, CRI left [Delta] and was followed out of the area to
a predetermined meeting location by Officers.
At this point in time, CRI handed Nasca the suspected cocaine
base. . . . CRI told
Nasca that CRI had used the pre-recorded official funds to purchase an amount
of cocaine from [Mason] while inside [Delta].â€
(Italics added.)
The
affidavit’s statement that, “[f]
under constant surveillance†precisely identifies the surveillance’s
at best, vague as to its end (i.e.,
“onâ€). (Italics added.) However, this vagueness is cured, and the end
point is precisely identified, in the ensuing statement that “[t]he CRI was
kept under surveillance from the time that the informant left the presence of
Nasca and other officers till such time
as CRI approached [Delta]
(Italics added.) No reasonable
magistrate would read “[f]rom this point on†in isolation from “till such time
as CRI approached [Delta],†and thus conclude the surveillance continued “on,â€
until he crossed its threshold. Thus,
contrary to Mason’s argument, the affidavit’s failure to reiterate the officers
did not see the CRI cross the threshold of Delta was not a material
omission.
In
any event, a magistrate who was told more explicitly that the CRI had been seen
approaching Delta and then leaving Delta, but had not been seen crossing
Delta’s threshold, could do no more than
speculate that, contrary to the CRI’s statement to Detective Nasca, the CRI
had obtained the cocaine from a supplier other than Mason at a location other
than Delta.
As
Mason concedes, investigator Brown determined that, while the front door of
Delta generally was free of “vision obstructions,†there was “a large oak tree
directly in front of the front door making vision of the front door somewhat
blocked standing directly in front of the door.†Thus, the tree -- the sole obstruction -- did
not give the CRI sufficient cover to arrange and consummate a drug purchase
elsewhere in the neighborhood. At most,
the tree would have allowed the CRI to make the purchase from someone other
than Mason who serendipitously was
lurking behind the tree. The utter
absurdity of this scenario makes plain why the omission was not material to the
determination of probable cause to search.
Mason’s Franks motion was
properly denied by Judge Bakarich and echoed by Judge Davidian.
II
Cathey
contends her trial counsel rendered ineffective assistance when, without
explanation, he withdrew his previous joinder in Mason’s Franks motion. We disagree.
“[A]
conviction will not be reversed based on a claim of ineffective assistance of
counsel unless the defendant establishes both
of the following: (1) that counsel’s
representation fell below an objective standard of reasonableness;
that, but for counsel’s unprofessional errors, a determination more favorable
to defendant would have resulted.
[Citations.] If the defendant
makes an insufficient showing on either one of these components, the
ineffective assistance claim fails.
Moreover, ‘ “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.â€
[Citation.]’ [Citation.]†(People
v. Rodrigues (1994) 8 Cal.4th 1060, 1126, quoting People v.
italics.)
In
this case, the issue of prejudice is dispositive. In part I, ante, we determined that the trial court’s denial of Mason’s
prejudice from her trial counsel’s refusal to join in the meritless motion.
DISPOSITION
The
judgment is affirmed.
NICHOLSON , J.
We concur:
BLEASE , Acting P. J.
BUTZ , J.
name="_ftn1" title="">[1] Further statutory references are to
the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] Mason was awarded 1194 days’ custody
credit and 596 days’ conduct credit. The
relevant 2010 amendment to section 2933 does not entitle Mason to additional
conduct credit because he has prior convictions for serious felonies. (Former § 2933, subd. (e)(3) [as amended by
Stats. 2010, ch. 426, § 1, eff. Sept.
28, 2010].)
