P. v. Robyn




Filed 6/8/11 P. v. Robyn 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
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THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOHN ROBYN, Defendant and Appellant.

C063473 (Super. Ct. No. 09F01300)

After officers observed defendant Robert John Robyn driving with two tires on the sidewalk and two tires on the road, they requested identification. Subsequent events revealed drug paraphernalia, marijuana, and methamphetamine in the car defendant was driving. An information charged him with possession of methamphetamine and marijuana. Defendant requested dismissal of the case pursuant to California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413] (Trombetta), which the court denied. A jury found defendant guilty as charged. Sentenced to four years eight months in prison, defendant appeals, contending the court erred in denying his Trombetta motions and ineffective assistance of counsel. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On a fall morning in 2008 officers observed a Ford Taurus traveling with two tires on the sidewalk and two on the street in order to pass slower street traffic. The officers followed the Taurus, driven by defendant, to a gas station, where defendant got out and went into the gas station convenience store.
When defendant left the store, an officer asked him if he had a driver’s license and defendant responded that he did not. The officer asked for defendant’s name and birth date for a records check.[1] The officer also asked defendant if he had anything in his vehicle to confirm the information. Defendant said he had something in the car.
Defendant walked toward the passenger side of the car and reached inside. One of the officers saw defendant reach for a small black carrying case on the vehicle’s center console. The other officer could not see inside the Taurus.
For officer safety reasons, one of the officers told defendant to “[s]top; stay right there.” When defendant did not immediately comply, the officer grabbed him and pulled him away from the Taurus. Defendant said he had something in the car with his name on it.
After officers placed defendant in the patrol car, they retrieved the black bag from the Taurus. They searched the bag, among other reasons, to find some indicia of ownership. The bag contained defendant’s California driver’s license, hypodermic needles, a scale, spoons, and Ziploc bags. Defendant denied ownership of the items and claimed they belonged to his wife.
A subsequent search of the Taurus disclosed a metal tin with a large magnet underneath. Inside the tin officers found Ziploc bags, Q-tips, and a smaller bag containing 0.49 gram of marijuana. The officers issued defendant a citation and released him.
During the search of the Taurus one of the officers ran a driver’s license records check on a “Carolyn Stout” and a “Luc Truong,” who were both unrelated to the investigation. The officer could not recall why he ran these names, but speculated he might be following up on another investigation.
The officers returned the black case and the driver’s license to defendant, retaining the tin, hypodermic needles, and the Ziploc bags. The needles were discarded pursuant to department policy in the “Sharps container” located at the police station. Later, as the tin can was being prepared for booking, officers discovered the plastic baggie containing the marijuana also contained 0.55 gram of methamphetamine.
An information charged defendant with possession of methamphetamine and possession of not more than 28.5 grams of marijuana. (Health & Saf. Code, §§ 11377, subd. (a), 11357, subd. (b).) The information also alleged that defendant had suffered a prior strike conviction and served two prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b).)[2]
Defendant requested a dismissal under Trombetta based on the prosecutor’s failure to preserve certain evidence. The court denied the motion. A jury trial followed.
The officers involved in the incident testified. Neither officer saw defendant make any “sneaky gestures” while driving the Taurus. Throughout the traffic stop, defendant was cooperative and not visibly nervous, nor did he appear to be under the influence. None of the confiscated items were submitted for fingerprint analysis.

Defense Case

Defendant’s sister, Lea Robyn, testified on his behalf. On the morning of the incident, defendant and his wife Kim were at Lea’s house. Kim took Lea’s Taurus to the market. After she returned, Kim went outside to put some things in the car. She noticed a black bag on the floor of the vehicle. She knew the bag was not hers but thought it belonged to Kim.
Later that morning, defendant asked Lea if he could borrow her Taurus and she agreed. Defendant was not carrying anything but his wallet when he got in the car.
Lea testified her boyfriend drove the Taurus three or four times a week. The previous week, a neighbor had borrowed the car to move some things.
Lea was surprised to learn that the police found drugs in the Taurus. The metal tin did not belong to Lea and she had never seen it before; she did not use drugs.
The jury found defendant guilty as charged, and he admitted the other allegations. Defendant moved for reconsideration of his Trombetta motion, which the court again denied. The court sentenced defendant to four years eight months in state prison; defendant filed a timely notice of appeal.

DISCUSSION

First Trombetta Motion

Defendant contends the court erred in denying his Trombetta motion because the officers failed to “preserve an identification which did not depict [him]” although they were aware it was “exonerating evidence.” In addition, defendant argues the destruction of the syringes deprived him of the ability to conduct DNA testing, which would demonstrate he did not inject drugs.

Background

During the hearing on the motion, the following evidence was presented. The day of the incident Officer Dwight Turner saw defendant driving with two tires on the sidewalk and two on the street, trying to avoid traffic. Officer Turner and his partner, Officer Durham, approached defendant and asked for his driver’s license. Defendant said he did not have one.
Officer Turner learned, via dispatch, that defendant was on parole. The officers stood about 15 feet from the car as defendant started walking towards the passenger side of the vehicle and reached for a black bag on the center console. On cross-examination, Officer Turner stated defendant told him he was going into the car to get his identification.
The officers followed defendant to prevent him from entering the car. Officer Durham ordered defendant out of the car and grabbed him. Officer Turner retrieved the black case from the car and searched it. The bag contained spoons, hypodermic needles, a small scale, empty Ziploc bags, and a driver’s license.
According to defendant, the identity of the person depicted in the photo is a matter of dispute. Defendant claimed the identification was that of a female, based on the officer’s running a “warrant check on a driver’s license number he attributed to a Carolyn Stout.” Officer Turner testified he found only one driver’s license in the bag and it belonged to defendant.
After searching the bag, Officer Turner asked dispatch to run a records check on a female named Carolyn Stout. Dispatch could not locate a Carolyn Stout with a birth date of October 17, 1977.
At the hearing, Officer Turner testified he did not know who Stout was or why he had her driver’s license number; however, he did not recall seeing any driver’s license other than defendant’s. On cross-examination, Officer Turner testified it was not uncommon for a third party to request him to run information on a subject during a different investigation. Officer Turner ultimately determined Stout was not connected to the case. On redirect, Officer Turner stated a third party did not ask him to run a check on Stout. Instead, Officer Turner speculated Stout’s driver’s license could have been obtained from another case he had been working on.[3] Officer Turner omitted the warrant check on Carolyn Stout from his report on the incident.[4]
A subsequent search of the Taurus yielded a metal container with Q-tips, Ziploc bags, marijuana, and methamphetamine.
The syringes found in the bag were discarded under department policy. This policy is based on officer safety. Officer Turner photographed the syringes prior to discarding them. Officer Turner did not book any photo identification into evidence and gave the bag and its contents back to defendant.
At the hearing, defendant argued the officers failed to preserve the identification of a female subject, despite running a warrant check on Carolyn Stout. According to defendant, assuming the “ID” found was not his, it would have been exculpatory because it would have corroborated his claim that the items in the black bag did not belong to him. Defendant also claimed that if the syringes contained DNA not matching his, this would support his claim that he had no knowledge of the contraband in the vehicle.
The court denied the motion. The court noted it was “curious” that the officer ran the name of Carolyn Stout and “unfortunate” that he could not remember why he did so. However, the court concluded: “I certainly don’t see any reasonable basis to believe from this evidence that the officer was setting up the defendant by destroying or otherwise not booking a driver’s license of somebody that wasn’t there.”
As for the syringes, the court found the evidence in question was not exculpatory because defendant was charged with possession, not drug use. The court found no bad faith on the part of the officers, stating, “I can’t imagine that it is standard procedure to go through, you know, DNA testing to determine who may have used drugs.”

Discussion

Law enforcement has the duty under the federal due process clause to preserve evidence “that might be expected to play a significant role in the suspect’s defense.” (Trombetta, supra, 467 U.S. at p. 488.) To meet this standard, “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id. at p. 489.) When the evidence is only potentially useful, the failure to preserve such evidence does not constitute a violation of due process unless the defendant proves bad faith on the part of the police. (Arizona v. Youngblood (1988) 488 U.S. 51, 57-58 [102 L.Ed.2d 281, 289].)
In reviewing the denial of a Trombetta motion, we apply the substantial evidence standard to factual determinations such as the apparent exculpatory value of the destroyed evidence, the availability of comparable evidence, and the absence of bad faith. (People v. Roybal (1998) 19 Cal.4th 481, 510.) We review conclusions of law independently. (People v. Uribe (2008) 162 Cal.App.4th 1457, 1473, fn. 19.)
Defendant argues the court erred in giving credence to Officer Turner’s testimony that he failed to recall why he ran a warrant check on Carolyn Stout. Defendant labels the officer’s testimony “incredible,” arguing it is “clear that the officer recovered someone’s name from the black bag, and he did not need an identification from appellant to run a warrant check on appellant. There is no dispute that appellant denied at the scene having a driver’s license.”
Defendant further argues the most reasonable inference is that Officer Turner recovered an identification bearing the name of Carolyn Stout: “This interpretation best fits the facts presented.” According to defendant, the officer’s failure to retain the evidence and his failure to record the “Carolyn Stout” incident in his report show the officer acted in bad faith.
We disagree. The test is not whether, in our view, defendant’s scenario is the most reasonable inference to be drawn from the evidence, but whether substantial evidence supports the trial court’s factual findings.
According to Officer Turner’s testimony, the only identification card recovered from the black bag was defendant’s driver’s license. Officer Turner acknowledged he ran a check on Carolyn Stout, but theorized he could have obtained her information for a previous case. Ultimately, Officer Turner determined Stout was not connected to the case.
Even though the court expressed some concern over Officer Turner’s failure to remember why he ran the check on Stout, the court ultimately concluded there was no reasonable basis to believe the officer destroyed someone else’s driver’s license in an effort to “set[] up” defendant. The court, which was in the best position to evaluate the credibility of witnesses, accepted Officer Turner’s testimony, testimony which provides substantial evidence to support the court’s determination that officers did not destroy identification information.
Defendant also contends that had the syringes been retained and tested for DNA, “such tests may have shown that someone other than appellant injected drugs . . . . [¶] This would have supported the inference that appellant was not the owner of the drugs and in turn, the inference that appellant had no knowledge of their presence in the vehicle.” Again, the test is not whether the evidence supports the inferences defendant draws from the evidence, but whether substantial evidence supports the trial court’s conclusion.
Here, defendant was charged with possession and not use of the drugs found in the bag. DNA evidence was not relevant to a possession count. That someone else may have used a syringe does not preclude a finding that defendant possessed the drugs. Nor did defendant establish bad faith on the part of officers in disposing of the syringes; officers simply complied with the department’s disposal policy. Substantial evidence supports the trial court’s finding that the disposal of the syringes did not violate Trombetta.

Ineffective Assistance of Counsel

Defendant contends counsel performed ineffectively in failing to introduce evidence that defendant had no valid license at the time of the incident. Defendant argues this omission prejudiced him because conclusive proof that he did not have a valid driver’s license would have undermined the officer’s credibility on the question of whether he recovered a valid driver’s license from defendant.

Background

Defendant filed a motion to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, arguing counsel failed to introduce evidence that defendant lacked a valid driver’s license at the time he was stopped by Officers Turner and Durham.
At the hearing, defense counsel stated he had subpoenaed a dispatch officer who provided confirmation to Officer Turner that defendant possessed a valid California driver’s license, and had the “CAD” recording transcribed. However, for tactical reasons, defense counsel did not call the dispatch officer at trial because he essentially corroborated Officer Turner’s testimony that defendant had a valid license.
Defense counsel later learned defendant did not have a valid license and that it had been suspended in May 2004. Defense counsel stated he could have called a representative from the Department of Motor Vehicles at trial, and acknowledged his failure to do so was “a mistake.” Defendant was issued a valid California identification card in March 2007.
Defense counsel pointed out that, at the time of the incident, defendant could have been in possession of his suspended license and “an officer wouldn’t know it [was suspended] by just looking at it.” Under those circumstances, the officer would have relied on the dispatch officer’s statement that defendant had a valid license.
Defendant brought up the Carolyn Stout inquiry, but the court stated: “I’m sorry. Your sister was on the stand. And she testified she never gave the car or permission to any Carolyn Stout, had no idea who Carolyn Stout was. So Carolyn Stout, that was just, as we say in the law, a red herring. That was going nowhere. And you, basically, by having the sister testify, you know, kind of wrap[ped] that issue up. [¶] So you pretty much were the only one in possession of that bag. So whether or not the police saw an ID card or out-of-date license, really doesn’t matter.”
In denying the motion, the court noted defense counsel raised some good points: “[T]o introduce the transcripts would have, in fact, just corroborated the officer and, in fact, I’m surprised that the prosecution didn’t introduce that evidence because it would have just put a giant hole in your case. And I do think producing the DMV [Department of Motor Vehicle] records would, number one, just establish that you were given an ID card fairly recently after you left prison. [¶] So this argument that you went to prison and, therefore, didn’t have a card, plus you didn’t really want to introduce the fact that you had been in prison. And the very fact that DMV had on its records suspended your license for some nondriving related issues doesn’t mean you weren’t in physical possession of a license.” The court concluded: “You got my attention in this motion. You really did. But I am really very, very satisfied with [defense counsel’s] responses.”

Discussion

To establish ineffective assistance of counsel, defendant must show that counsel’s representation fell below an objective standard for reasonableness under prevailing professional norms and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698].) Defendant must establish these elements by a preponderance of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
We defer to counsel’s reasonable tactical decisions, since there is a strong presumption that counsel’s conduct falls within the wide range of reasonable tactical decisions. We reverse only if the record affirmatively demonstrates no rational tactical purpose for counsel’s actions. (People v. Zapien (1993) 4 Cal.4th 929, 980.)
Defendant contended he did not give his driver’s license to the officers. Therefore, defense counsel performed ineffectively by failing to introduce evidence that defendant’s license was suspended. We disagree.
As the trial court pointed out, even if defendant’s license had been suspended, he could still have had physical possession of it. In addition, the officer relied on the dispatcher’s information when he assumed defendant’s license was valid. Introducing DMV testimony would have had little impact and could also have revealed that defendant was issued a California identification card shortly after being released from prison. The trial court correctly denied defendant’s claim of ineffective assistance of counsel.

Second Trombetta Motion

Following his trial, defendant moved the court to reconsider its ruling on his Trombetta motion given the additional facts that came to light during the trial. The court denied the motion, stating: “I’ve actually considered that, and I don’t see any basis for it. I think there is no new evidence that [defendant] has presented that would warrant rehearing the Trombetta motion. That was really more tied in to the Marsden motion, it seems to me. So I guess I’ll just, for clarity, deny that motion at this point.” (Italics added.)
On appeal, defendant argues the trial court erred in denying his renewed Trombetta motion based on new evidence introduced at trial. Defendant contends new evidence included Officer Turner’s acknowledgement that defendant’s denial of knowledge of the drug paraphernalia gave the discarded syringes evidentiary value, defendant’s lack of a valid driver’s license, and Officer Turner’s lack of an explanation for his warrant check on Carolyn Stout.
At trial Officer Turner admitted the syringes might have had evidentiary value, but also testified he was required by departmental policy to discard them. Under Trombetta, officers have a duty to preserve evidence if the evidence possesses exculpatory value that was apparent before the evidence was destroyed. (Trombetta, supra, 467 U.S. at pp. 488-489.) Nothing in Turner’s trial testimony established that he believed the syringes were valuable evidence prior to discarding them.
As for defendant’s lack of a valid driver’s license, as noted, Officer Turner relied on the dispatcher’s representation that defendant possessed a valid driver’s license. As discussed, this evidence was of minimal relevance.
The trial court found Officer Turner’s difficulty in remembering why he ran the Carolyn Stout warrant check a “red herring.” Officer Turner testified he could not remember the details of the incident, which had happened over a year before. The officer also stated he often worked on multiple cases at the same time.
None of the trial evidence cited by defendant supports his assertion that the court erred in denying his renewed Trombetta motion.

DISPOSITION

The judgment is affirmed.



RAYE , P. J.



We concur:



ROBIE , J.



DUARTE , J.



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