P. v. Moore

Filed 2/24/10 P. v. Moore CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara R. Johnson, Judge. Affirmed.

Jonathan B. Steiner and Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

David Michael Moore appeals from the judgment entered following a jury trial in which he was convicted of carrying a dirk or dagger (Pen. Code, 12020, subd. (a)(4)) and his admission that he served eight prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for three years consisting of the middle term of two years, plus one year for one of the prior prison terms. The remaining prior prison term enhancements were dismissed pursuant to Penal Code section 1385.

The evidence at trial established that on March 29, 2009, at approximately 11:00 a.m., Los Angeles Deputy Sheriff Christopher Oakley and his partner Deputy Concha were in the vicinity of 56th Street and Fortuna Avenue in Los Angeles County when Deputy Oakley conducted a lawful search of appellant.^[1] Deputy Oakley recovered from appellants front, left jacket pocket a metal knife approximately seven inches in total length with a four inch fixed blade. The knife had no protective cover or sheath. Appellant asked if he was going to be arrested for the knife and stated he did not trust anyone in the area and that he previously had been robbed.

Deputy Oakley testified the knife was recovered from a black jacket that appellant was wearing. Deputy Oakley acknowledged that a photo taken of appellant showed him wearing a white jacket and explained the white jacket had been underneath the black jacket. When appellant was taken into custody, he left the black jacket with his companion.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On October 28, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. Appellants request for extension of time to file a supplemental brief was granted and on November 17, 2009, he filed same. Appellant contends:

1. He should have had the right to cross-examine Officer Concha based on his testimony at the preliminary hearing. The search was done in the officers presence and he did not see his partner take a knife from appellants person.

2. Any piece of evidence not produced in court should not have been used against him. The black coat should have been booked into evidence if the knife was found in that coat.

3. The knife should have been preserved for fingerprints.

4. There was no audiotape or written statement of the incident so that evidence used against him at trial constituted hearsay.

We have examined the entire record and are satisfied that no arguable issues exist. Appellants claim that the black jacket should have been booked into evidence is in essence a claim challenging the strength of the evidence. In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.) We do not reweigh the evidence or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) While appellant claims the knife should have been preserved for fingerprints, the record indicates the knife had been preserved and was admitted as evidence at trial. To the extent appellant argues the prosecution should have taken fingerprints from the knife, law enforcement officials are under no affirmative duty to discover potential evidence for the defense. (People v. Bradley (1984) 159 Cal.App.3d 399, 405.)

Appellants claim he was not allowed to cross-examine Deputy Concha is not supported by the record. While defense counsel initially asserted he wished to cross-examine Deputy Concha to impeach Deputy Oakley, the court questioned how that testimony would constitute impeachment. Thereafter, defense counsel did not pursue the request and we do not question counsels trial strategy.

Further, the statement that appellant made to Deputy Oakley, in essence, that he was carrying the knife for protection, was an admission and thus an exception to the hearsay rule pursuant to Evidence Code section 1220.

Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA J.

We concur:

EPSTEIN, P.J.

SUZUKAWA, J.

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^[1] The parties stipulated there was a legal basis for the search.