P. v. Hardy
Filed 9/12/07 P. v. Hardy CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. SEAN HARDY, Defendant and Appellant. | D049785 (Super. Ct. No. SCD198014) |
APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Affirmed.
A jury convicted Sean Hardy of possessing a controlled substance (Health & Saf. Code, 11350 subd. (a)) and unlawful possession of a syringe (Bus. & Prof. Code, 4140). It found he had two prior strikes (Pen. Code[1], 667 subds. (b)-(i), 1170.12, 668) and had served two prior prison terms ( 667.5 subd. (b), 668). The court struck one prior strike, refused to strike the second prior strike and sentenced him to prison for six years: double the two-year middle term for possessing a controlled substance with a prior strike enhanced by two one-year terms for the prior prison terms. It imposed a concurrent term for unlawfully possessing a syringe.
FACTS
Considering the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred: On March 30, 2006, Hardy's parole agent and a police officer went to Hardy's home to take him into custody. While Hardy was sitting on the toilet, Hardy reached toward his sock and, believing Hardy was reaching for a weapon, the agent forced him to the floor. The agent saw a plastic bindle fall to the floor. The police officer entered the bathroom and the agent told him he saw a plastic bindle fly somewhere. In the bathroom, the officer found a plastic bindle that contained .17 grams of heroin, a usable amount. The agent asked Hardy if there was any paraphernalia in the house and Hardy told him where a hypodermic syringe was located in the bathroom.
Hardy had been convicted in 1993 of residential burglary ( 459/460) and in 1998 of robbery ( 211). On both occasions he served a prison term.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Hardy was denied effective assistance of counsel when his attorney failed to object to testimony of the parole agent that he told the police officer he saw a bindle fall to the floor when he tackled Hardy; and (2) whether the trial court abused its discretion in refusing to dismiss both prior strikes.
We granted Hardy permission to file a brief on his own behalf. He has responded. Hardy contends he received ineffective assistance of counsel because his attorney led the "jury to believe I was a drug user and it did not matter what type." Hardy also asks this court to consider the following claims: (1) he was not explained his rights under Miranda v. Arizona (1966) 384 U.S. 436; (2) he did not make any statements at the county mental health department contrary to testimony; (3) improper documents were used to refresh the recollection of the prosecution witness; (4) the police officer's testimony at the "readiness hearing" was different from his trial testimony; (5) denial of his motion not to bifurcate the trial of his prior convictions was error; and (6) we should reduce his sentence by two years.
Effective assistance of counsel
Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.)
Hardy has not shown his trial counsel's performance was deficient. Counsel defended Hardy on the notion that the bindle of heroin on the bathroom floor was not his as there were four adults living in the apartment. By emphasizing that methamphetamine was Hardy's drug of choice, counsel was attempting to raise a reasonable doubt about the charged crime possession of heroin. " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' " (People v. Weaver (2001) 26 Cal.4th 876, 925. "[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) "[E]ven 'debatable trial tactics' do not 'constitute a deprivation of the effective assistance of counsel.' " (People v. Weaver, supra, at p. 928.)
Miranda is not an issue in this case. Whether or not Hardy said something at the county mental health department is immaterial to the result in this case. It was up to the jury, which heard the testimony of the prosecution's witnesses, to decide if the witnesses were inconsistent and what weight to give their testimony. There were no improprieties with the prosecution's use of documents to refresh the witnesses' recollection. Evidence Code section 771, subdivision (a) does not restrict the type of writing used to refresh recollections. (People v. Hess (1970) 10 Cal.App.3d 1071, 1080-1081.) Hardy's claim about the "readiness hearing" is obviously about the preliminary hearing; however, Hardy fails to show in what way the police officer's testimony at the hearing differed from his trial testimony. The court did not abuse its discretion by granting the prosecution's motion to bifurcate the trial on Hardy's prior convictions to avoid the possibility of jury nullification. (People v. Cline (1998) 60 Cal.App.4th 1327, 1333-1334; 1044.) There was no sentencing error under Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Hardy on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
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[1] All statutory references are to the Penal Code unless otherwise specified.
