P. v. Elliot

Filed 10/27/08 P. v. Elliot CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Darlene Schempp, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Darion Bernard Elliot appeals his conviction for one count of possession for sale of cocaine base (Health & Saf. Code,  11351.5). His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). The Wende brief raises no issues but requests review of the in camera hearing that was held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Appellant was notified that he could file his own brief and did so.

In addition to the Health and Safety Code section 11351.5 violation, appellant was charged with three prior strike convictions, a robbery and two counts of false imprisonment, all of which occurred in 1984. The robbery and three more convictions were alleged for the purpose of Penal Code section 1203, subdivision (e)(4). Those other convictions were a violation of Health and Safety Code sections 11351.5 in 1991 and 11350 (possession of a controlled substance) in 1996 and 2002. Some of the prior convictions were also alleged for the purposes of Health and Safety Code sections 11370, subdivisions (a) and (c) and 11370.2, subdivision (a).

At the Pitchess hearing, the court considered records of falsity regarding two police officers. After meeting in chambers with the custodian of records and a representative of the city attorneys office, the court concluded that there was no discoverable material in the officers files.

At a separate pretrial hearing, the trial court denied appellants motion to suppress evidence.^[1]

At appellants trial, there was testimony from three police officers (Brandy Arzate, Timothy Grabe, and Armando Monarrez) and a criminalist.

While working in an undercover capacity, Officer Arzate received information about narcotics activity at an apartment building. She went there with other officers. Appellant walked out of the building while talking on his cell phone. Arzate knew that narcotics dealers often use cell phones for transactions. She watched as appellant walked to a parked SUV, spoke to its driver, reached inside of it with both hands, and walked away.

The officers detained appellant and searched him. They found a set of keys and $116, but no narcotics. Similarly, the officers did not find narcotics when they searched the SUV and its driver.

Appellant was not under the influence of narcotics. His cell phone rang constantly while the officers spoke with him. Officer Grabe answered the cell phone. The caller, a male, requested three for 40. Those words meant the caller wanted to purchase three amounts of narcotics for $40. The caller said he was coming there. Grabe replied that he would be waiting outside.

Officer Grabe took a second call on the cell phone from the same caller. This time the caller said, I am here. I am outside. And I need three for $40. Grabe told the caller he would send his girl to meet him. Officer Arzate walked outside the gate of the building and spoke to a man who was waiting there. The man said he wanted three for $40. Arzate handed him a fake bindle she had prepared. He gave her $40, and was arrested.

The officers used one of the keys they took from appellant to unlock a car that was parked nearby. Inside the car, they found numerous individually wrapped packages of rock cocaine. They also found photographs of appellant, his social security card, and a check in his name. The car was not registered to appellant, however. The rock cocaine was in a usable amount and was possessed for sale.

The jury found appellant guilty of possession for sale of cocaine base. The prior conviction allegations were found true at bifurcated proceedings. At the sentencing hearing, the court determined that the appropriate sentence was a total of 13 years in prison, based on the midterm of four years for the offense, doubled for one strike, plus a three-year enhancement under Health and Safety Code section 11370.2, subdivision (a), plus two 1-year enhancements under Penal Code section 667.5, subdivision (b). This appeal followed.

We have reviewed the confidential transcript of the Pitchess hearing and find no abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1232.)

In his supplemental briefing in propria persona, appellant argues his trial counsel should have investigated whether the car was impounded after his arrest, and counsels failure to do so resulted in a violation of his Sixth and Fourteenth Amendment rights of the United States Constitution to the effective assistance of counsel.

The problem concerns certain testimony by Officer Arzate during cross-examination about the car in which the narcotics were found. She testified that there were numerous cars parked in the immediate area. The person who described appellant to her also told her that appellant frequently drove a gray Nissan or Toyota. After the keys were taken from appellant, Arzate observed a car of that description, parked nearby. She learned the name of the cars registered owner but never contacted that person. [T]elephon[i]c contact was attempted, and a letter was sent to the persons address, informing them of the vehicle impound. She did not know if anyone picked up the car from the impound lot and was not interested in its registered owner.

Appellant asserts in his supplemental briefing that he told his counsel that the car was not impounded, and counsel should have investigated that fact, as it would have shown that Officer Arzate was lying. We cannot consider what appellant told his counsel or whether the car was not in fact impounded, as those facts are not in the record.

Assuming, arguendo, that the car was not impounded, appellant still could not prevail on his claim of ineffective assistance of counsel. To succeed, he would have to show that (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. (People v. Dennis (1998) 17 Cal.4th 468, 540, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694; see also In re Wilson (1992) 3 Cal.4th 945, 950.) Appellant ignores the facts that he was caught making narcotics transactions near the car and had its key in his pocket. The car contained his photo and social security card along with the narcotics. He was overwhelmingly linked with the car, regardless of who owned it, and regardless of whether it was impounded after his arrest. Therefore, investigation of whether the car was impounded would not have led to a more favorable result for appellant.

From our review of the record, we are satisfied that appellants counsel on appeal has fully complied with her responsibilities, and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d at p. 441; People v.Kelly (2006) 40 Cal.4th 106, 123-124.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur: COOPER, P. J. BIGELOW, J.

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^[1] At the suppression hearing, Officer Brandy Arzate testified that, while working as an undercover narcotics officer, she received information that caused her to go to an apartment building with other officers. The information was that an African-American male named Dee was selling narcotics to buyers there, while he came in and out of the apartment complex and walked up and down the street. The informant further stated that Dee was presently there, and was wearing a white baseball hat, white shirt, and blue jeans. When Arzate arrived at the building, she saw appellant walking out of it, wearing the described clothing, and talking on a cell phone. Appellant approached a parked sports utility vehicle (SUV) and spoke with the person in the driver seat. He leaned toward the vehicle, put his head and arms inside of it briefly, and then walked away.

Officer Arzate believed she had just witnessed a narcotics transaction. She and three other officers approached appellant, identified themselves, and asked him if he was on probation or parole. He said he was on probation for burglary. The cell phone in his hand was ringing constantly. One of the officers, Officer Graves, took the phone and answered a call. The caller requested Dee. Graves identified himself as Dee. The caller wanted three bindles of narcotics for $40. Graves said he would meet with the caller at that location. After the telephone call, appellant was placed under arrest.