P. v.
Filed 9/19/13 P. v. Richardson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
VERNON RICHARDSON,
Defendant and
Appellant.
2d Crim. No.
B243525
(Super. Ct.
No. MA055583)
(Los
Angeles County)
Vernon Richardson
appeals the judgment entered after a jury convicted him of
(Pen. Code,
title="">[1] § 4502, subd. (a)). In a bifurcated proceeding, appellant
admitted suffering two prior strike convictions (§§ 667, subds. (b) – (i),
1170.12, subds. (a) – (d)). The trial
court sentenced him to 25 years to life in state prison. The court also imposed various fines and
fees, including a $5,000 restitution fine (§ 1202.4, subd. (b)), and a
$5,000 parole restitution fine (§ 1202.45), the latter of which was stayed
with the stay to become permanent on the successful completion of parole.
Appellant was found in
possession of a six-inch sharpened metal rod while in custody as a
weapon because he had received threats and suffered prior attacks from other
inmates, some of whom were gang members.
He did not believe that the prison staff would protect him because he
was in prison for attacking a police officer.
We appointed
appeal. After counsel's examination of
the record, he filed an opening brief in which no issues were raised. We thereafter advised appellant that he had
30 days within which to personally submit any contentions or issues he wished
us to consider. In a timely response,
appellant stated that appointed counsel had yet to send him the record on
appeal. He asserts that this precluded
him from "mak[ing a] prima facie showing on . . . the Court['s] request to
file a Supplemental Brief," then goes on to allege that (1) the court
violated his rights to due process and a fair trial by modifying the jury
instructions on the defense of necessity
(CALCRIM No. 3403); (2) his first appointed trial attorney was ineffective; and
(3) the court erred in denying his second attorney's request for a continuance
to give counsel time to obtain a copy of appellant's "C" (central)
file. He also asks us to either reduce
or eliminate the restitution fine
based on his inability to pay.
Appellant subsequently
sent another letter stating that although he now had the record on appeal, he
was unable to file a more thorough supplemental brief because the prison's law
librarian was denying him "full access" to the law library due to the
fact he is represented by counsel. He
also briefly reiterates his earlier claims of instructional error and
ineffective assistance. We subsequently
gave appellant until April 30, 2013,
to file and serve a supplemental brief.
Appellant did not further respond.
Appellant has failed to
identify any arguable issues for appeal.
He relied at trial on the affirmative defense of necessity, based on the
allegation that the weapon found in his possession was necessary for his
protection. The jury was instructed
pursuant to CALCRIM No. 3403 that in order to establish the defense, appellant
had to prove among other things that "[h]e acted in an emergency to
prevent a significant bodily harm or evil to himself." During deliberations, the jury asked the
court: "In section 3403, No. 1, is
the emergency defined as immediate or possible, in other words is it an
immediate emergency or a possible (future) emergency or potential emergency?" The court's instruction was a correct
statement of the law. (
Cal.App.4th 1147, 1162-1163.)
To establish ineffective
assistance of counsel, appellant must show (1) that his counsel's
representation fell below an objective standard of reasonableness, and (2) a
reasonable probability that appellant would have obtained a more favorable
result but for counsel's deficient performance.
(Strickland v. Washington
(1984) 466 U.S. 668, 688, 694.)
Appellant's claim of ineffective assistance faults his first attorney
for failing to obtain a copy of appellant's
"C" file. Appellant
asserts that this evidence was essential to his case because it would
"show how the Department of Corrections [has] been retaliating against me
because of my commitment offense," which would thereby "show the jury
why I felt I could not go to the staff for protection." Aside from the speculative nature of this
claim, appellant's necessity defense was fatally undermined by the absence of
any evidence that he faced an imminent threat of harm. He thus fails to establish either deficient
performance or prejudice. (
This also effectively disposes of appellant's claim that the court erred
in denying his second attorney's request for a continuance so that he could
obtain appellant's "C" file. (
450 [erroneous denial of a continuance does not warrant reversal absent a
showing of prejudice].)
Appellant forfeited the
right to challenge the restitution fine on direct appeal by failing to object
below. (See, e.g., People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347, 409.) In any event, appellant fails to establish
that he is unable to pay the fine from wages he can earn while in prison. (See People
v. Dickerson (2004) 122 Cal.App.4th 1374, 1380, fn. 8 [restitution fines
may be collected from prison wages].)
Finally, appellant fails
to demonstrate that he has been denied adequate access to the prison law
library for purposes of pursuing his appeal.
He merely claims that he was denied "full access" and does not
disavow any potentially legitimate basis the prison might have had for
curtailing his library use. Moreover,
appellant has had the opportunity to review the record on appeal and has
identified the issues he wished us to consider.
We have reviewed the
entire record and are satisfied that appellant's attorney has fully complied
with his responsibilities and that no arguable
issues exist. (People v. Wende (1979) 25 Cal.3d 436, 443; People v. Kelly (2006) 40 Cal.4th 106, 125–126.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Lisa
M. Chung, Judge
Superior
Court County of Los Angeles
______________________________
Michael W. Flynn, under
appointment by the Court of Appeal; Vernon Richardson, in pro. per., for
Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory references are to the
Penal Code.
