Filed 10/9/18 P. v. Henderson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi and James E. Oakley, Judges.

Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Stephen G. Herndon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Deputies with the Madera County Sheriff’s Department, acting on a tip concerning a suspect in an attempted murder, tried to stop a vehicle driven by defendant Eric Cyrus Henderson. By the time the incident was over, two deputies had fired a total of five shots at the car and defendant drove off, avoiding detention or arrest. Defendant was arrested two days later and, relevant to his second jury trial at issue in this appeal, charged with one felony count of resisting an executive officer by use of force or violence, in violation of Penal Code section 69, subdivision (a),[1] and one misdemeanor count of resisting a peace officer, in violation of section 148, subdivision (a)(1)).[2] The jury was unable to reach a verdict on the felony count, but convicted defendant of the misdemeanor count. The prosecutor dismissed the felony count after the trial court declared a mistrial, and the court sentenced defendant to 365 days in jail, with credit for time served, and imposed a $100 restitution fine.

On appeal, defendant claims his conviction should be set aside because it is not supported by substantial evidence that Sergeant Pace’s actions in attempting to detain him were lawful. Defendant challenges the attempted detention as unreasonable under the totality of the circumstances and he asserts he was entitled to use reasonable force to resist in the face of the deputies’ use of excessive force. Defendant also claims the trial court erred when it denied his motion for self-representation pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta) and when it denied his motion for relief following the destruction of his vehicle made pursuant to Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood) and California v. Trombetta (1984) 467 U.S. 479 (Trombetta); and he claims his trial counsel rendered ineffective assistance of counsel in failing to move to preserve the vehicle as evidence. Finally, defendant claims that under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), the trial court abused its discretion in denying his request for review of deputies’ personnel records for excessive force complaints, and he requests we conduct an independent review of the Pitchess material and trial court proceedings. (People v. Hughes (2002) 27 Cal.4th 287, 330.)

The People dispute defendant’s entitlement to relief in all respects except for his request for an independent review of the Pitchess material and proceedings, with which they agree. (People v. Hughes, supra, 27 Cal.4th at p. 330.)

We conclude defendant’s conviction for resisting a peace officer is supported by substantial evidence and reject his claims to the contrary. With respect to the loss of defendant’s vehicle, we also reject his claims that the trial court erred in denying his Trombetta/Youngblood motion and that defense counsel’s failure to file a motion to preserve the evidence resulted in any prejudice to him. We agree with defendant, however, that the trial court erred in denying his Faretta motion between his first and second trials, compelling reversal. In light of this reversal, we do not reach defendant’s Pitchess claim. In the event the prosecutor elects to retry defendant for resisting a peace officer, defendant may renew his request for Pitchess material in the trial court.

FACTUAL SUMMARY

I. Prosecution Case

A. Background

The crime in this case occurred the night of March 25, 2010. At the time, the Madera County Sheriff’s Department had been looking for another man named Donald A. for several weeks. Donald was suspected of running, or trying to run, someone over with his vehicle and was wanted for attempted murder. He was considered armed and dangerous, he was known to run from law enforcement, and deputies had information that a gun was involved in the attempted murder.

On March 25, 2010, the sheriff’s department received a tip from a confidential informant that Donald might be at a specific residential address on Wood Street in Madera and that there were lookouts at the house. A detective and the informant drove by the residence, at which time a red car was parked in the driveway. The informant’s tip was communicated to deputies, who were also told that a red car was present at the address.

Approximately 45 minutes to one hour after the receipt of the tip on Donald’s possible whereabouts, four deputies and two sergeants met in the parking lot of a convenience store down the street from the residence.[3] It was approximately 10:00 p.m. and dark outside. The deputies left their patrol cars in the parking lot and planned to approach the residence on foot so as not to alert Donald to their presence. They began to walk toward the residence and, from a vantage point behind a fence, they observed two individuals moving quickly back and forth between the house and a red car in the driveway. They could not tell who the people were, however, given the distance and general darkness. One of the deputies testified that one of the two individuals, identified as the female passenger, appeared to be holding something wrapped in a blanket, possibly a child.

The two individuals got into the car and the driver started it. Deputy Lutz began heading back for his patrol car while the other five deputies hurried toward the house to stop the car so they could determine whether Donald was inside. Lutz heard five gunshots and ran back toward the residence. The deputies were unsuccessful in stopping the car and, several hours later, it was located, unoccupied, on a nearby street. The right front tire had a large hole in the sidewall, consistent with one of the two shots fired into the tire by Pace. There was also damage to the rear bumper, top of the trunk, and rear window, consistent with the three shots fired by Deputy Davis. A DMV paper in the car’s window bore defendant’s name.

Two days later, the sheriff’s department received another tip on Donald involving the same residential address. Deputies surrounded the house and made a “call out using the patrol car public address system.” Several individuals, including defendant, came out of the residence and defendant was arrested based on the events of March 25, 2010.

B. Sergeant Pace’s Testimony

Pace testified that the confidential informant said there were lookouts at the residence and he started running toward it as the red car, headlights on, began backing up. He was in full uniform and had his firearm drawn and his flashlight out. The other deputies were following behind. Pace came to a stop at the very beginning of the residence’s driveway and the car backed out past him. He testified he made eye contact with the female passenger. The car stopped in the roadway at an angle. Pace was standing in front of the car approximately one or two feet away. He yelled, “Sheriff’s Department,” “stop the car,” and “[p]ut your hands up.” The driver was wearing a baseball cap and had his head down trying to get the car into gear. Pace heard the engine revving and the gears grinding. Pace took two steps to the side, which put him near the tire. Pace told the jury he felt threatened by the car, which he assumed was driven by Donald, and he fired two shots at the tire as the car moved forward and left the scene.

Pace testified he thought Donald was driving based on the tip and he would not have tried to stop the car if he had known the driver was not Donald. He would have, however, attempted to interview any individuals at the house. On cross-examination, he testified that in his report, he wrote there was a 70 percent possibility that the driver of the car was Donald. Pace also testified on cross-examination that he might have shot the driver if the female passenger had not been in his line of fire.

C. Deputy Davis’s Testimony

Davis testified that on the night of the incident, he was wearing jeans, a white T-shirt, and a tan vest with a badge on it and the word “Sheriff” on the front and the back. He also had his flashlight on. Davis testified the deputies ran toward the residence to stop the car from leaving because they wanted to investigate whether or not Donald was inside the car. Davis said he shined his flashlight and yelled, “Stop. Sheriff’s Office.” He also said others were yelling and they were shining their flashlights on the vehicle. He conceded it could have been difficult to see him behind his flashlight but stated they were yelling, “Sheriff’s Department.”

The car, headlights on, paused in the driveway and then accelerated backward into the roadway, where it stopped.[4] Pace was standing in front of the vehicle by the right front corner and Davis was behind him. Davis testified they were yelling for the driver to stop, but his head was down looking toward the gearshift and his hand was on the gearshift. Davis heard the gears grinding and the vehicle accelerating. Davis testified the vehicle eventually went into gear and moved forward and to the right, where Pace was located. Davis stated Pace was walking backward and it looked like the car was going to hit him. They both had their weapons drawn and after Pace fired and the car was past him, Davis fired three shots into the back of the car. Davis testified he could not tell who was in the car, although there were two people, a male and a female. He stated he fired at the car because it almost ran Pace over and he believed Pace and the other deputies were in danger.

D. Sergeant Clark’s Testimony

Sergeant Clark was wearing regular clothes and a vest with a sheriff’s badge on the back that night. He turned on his flashlight as deputies approached the residence. Clark testified the car backed out of the driveway “at a pretty good speed” and into the street toward him, stopping approximately six to eight feet from where he was standing. Once the vehicle stopped, Pace yelled loudly, hit the passenger side window and told the driver to shut the car off. Clark testified there was a streetlight and the car’s headlights were on, and he was able to make out Pace’s uniform from where he was standing. Pace moved in front of the car and could clearly be seen, illuminated by the headlights. Clark heard a grinding sound like the driver was trying to force the car into gear. Pace was at the front right corner of the car when it started to move forward. Clark then heard two gunshots followed by three gunshots but did not know who fired. The car took off at a high rate of speed. Clark testified he did not shoot because he did not have a target to fire at, although he perceived the vehicle to be a threat.

E. Deputy Bangerter’s Testimony

Deputy Bangerter testified that as they were observing the residence, someone said the car was leaving so they rushed toward the residence. Someone yelled, “Sheriff’s Department,” and “Stop the vehicle.” Bangerter, who was wearing a patrol uniform and carrying an illuminated flashlight, saw reverse lights and the car backing toward them. He testified he had to jump out of the way to avoid being hit and the car probably would have struck them if they had not moved. Pace was in front of the car. Bangerter testified he could not remember if the car’s headlights were on or off but he thought they were off. Although it was dark, he said he could make out the other individuals and could make out the uniforms. He heard Pace say something and tires skidding. Pace stepped out of the way and fired two rounds at the tire. Davis also fired four or five times. Bangerter, who was seven to ten feet from Pace, testified the car was only a couple inches away from Pace when it passed. He also testified he had his gun out and would have fired at the car because it was trying to run Pace over. However, he was at one end of the car and Pace was at the other, and he did not want to shoot Pace.

F. Deputy Swengel’s Testimony

Deputy Swengel testified that there was a light on either inside or outside of the house and streetlights so he did not consider the area one of their darker patrol areas. He was wearing a uniform and testified he could clearly see the other deputies around him.

Once the vehicle began moving, the deputies sprinted toward the residence. Swengel testified that as they got close to the driveway, the car briefly stopped and then backed up more rapidly, “[breaking] traction.” Swengel testified he had to get out of the way and felt he was in danger. He said Pace pounded on the passenger window and yelled, “Sheriff’s Department, stop!” The vehicle kept backing up until Pace was in front of the car, illuminated by the right headlight. Swengel testified the other deputies were clearly visible to him and multiple people, including he, were yelling, “Sheriff’s Department” and “Stop.” Pace could hear the gears grinding and the vehicle moved forward. Pace stepped aside and shot once into the tire and once into the sidewall. Davis then fired. After the car took off, the headlights were turned off.

Swengel testified it looked like Pace was about to get hit by the vehicle and he believes it was intentional and directed at Pace given the grinding gears, the revving engine, and the way the car lunged toward Pace. Swengel was a K-9 officer and he had his dog with him. He testified he contemplated firing but explained it would not have been safe for him to do so because it was not possible for him to hold still enough while also holding his dog.

G. Defendant’s Statements to Sergeant Thomas and Officer Bushey

Sergeant Thomas arrested defendant at the same residence on March 27, 2010. During the transport ride, defendant made a comment about a detective having been at his house and asked if anyone was hurt two nights before. During the booking process, Thomas removed a set of keys from defendant’s pocket. Thomas later successfully locked and unlocked the passenger door of the red car with one of the keys.

Officer Bushey, with the Madera Police Department, interviewed defendant at the jail in early 2011 regarding defendant’s report of identity theft. Defendant told Bushey that on March 25, 2010, he and his girlfriend were living at the Wood Street address and she received a call that the cops were coming, which she relayed to him. Defendant said that as they got in the car, they noticed deputies pointing guns at them and they sped away. Defendant stated he lost his wallet during the incident, resulting in the identity theft crime he reported.

II. Defense Case

Gary Cortner, a forensics consultant and criminalist, testified for the defense regarding ballistics evidence. He testified that probes, lasers and strings can be used to analyze bullet trajectory, although he uses lasers rather than string for long distances because string sags. However, he explained that distance is much more difficult to determine than angle, and it is better to have two or three entry and exit holes because that allows the insertion of a probe for more accuracy. The presence of only one hole allows for manipulation of the probe and it is harder to estimate trajectory. Cortner testified that in one of the photos of the car he was shown, the string was not lined up with the probe.

Cortner explained that a shooter’s distance cannot be determined from the bullet’s trajectory, but bullet holes can be tested for gunshot residue (GSR). He further explained that nothing would be obtained through GSR testing if the shooter was more than five feet away, but if the shooter was only one to two feet away, it was very possible to obtain results. He also testified GSR does not stay on hard surfaces, such as paint, as well as it does on clothing.

The parties stipulated that the sheriff’s department released defendant’s car to a towing company, which later released the car for sale at auction. On cross-examination, Cortner testified he was retained by the defense in 2013 and was unable to examine the car himself because it had already been disposed of by the towing company. He stated, however, that examination of the car would not have revealed its speed or angle at the time of the incident, and he probably would not have been able to determine where the nonfiring deputies were standing.

DISCUSSION

I. Sufficiency of the Evidence: Resisting Peace Officer

A. Background

Defendant was convicted of misdemeanor resisting a peace officer—Sergeant Pace—under section 148, subdivision (a)(1). To sustain a conviction, the prosecutor was required to prove: “‘(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.’” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329; accord, Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894–895; In re Chase C. (2015) 243 Cal.App.4th 107, 113.) Relevant to defendant’s claims, “‘when a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed.’” (People v. Cruz (2008) 44 Cal.4th 636, 673, quoting People v. Jenkins (2000) 22 Cal.4th 900, 1020; accord, In re Chase C., supra, at p. 114.) “Disputed facts relating to the question whether the officer was acting lawfully are for the jury to determine when such an offense is charged.” (People v. Jenkins, supra, at p. 1020.)

B. Standard of Review

On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (Ibid.) “‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt .…’” (People v. Nguyen, supra, at pp. 1055–1056.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio, supra, at p. 357.)

C. Analysis

1. Lawfulness of Attempted Detention

First, defendant challenges the attempted stop as unlawful because deputies “had no reason to stop [him] or his vehicle.”[5] He also contends, as we interpret his argument, that the deputies’ assumption he was or may have been Donald was an insufficient basis on which to detain him, absent their possession of additional facts. We do not agree.

“The Fourth Amendment protects against unreasonable searches and seizures.” (People v. Casares (2016) 62 Cal.4th 808, 837.) The United States Supreme Court has long held that “consistent with the Fourth Amendment, police may stop persons in the absence of probable cause under limited circumstances.” (United States v. Hensley (1985) 469 U.S. 221, 226 (Hensley), citing Terry v. Ohio (1968) 392 U.S. 1 (Terry).) Brief investigatory stops are permissible “when a law enforcement officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ [Citations.) The ‘reasonable suspicion’ necessary to justify such a stop ‘is dependent upon both the content of information possessed by police and its degree of reliability.’ [Citation.] The standard takes into account ‘the totality of the circumstances—the whole picture.’ [Citation.] Although a mere ‘“hunch”’ does not create reasonable suspicion, [citation], the level of suspicion the standard requires is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable cause, [citation].” (Navarette v. California (2014) 572 U.S. ___, ___ [134 S.Ct. 1683, 1687] (Navarette); accord, People v. Brown (2015) 61 Cal.4th 968, 981 (Brown); People v. Casares, supra, at p. 838.)

There is no dispute that deputies were not looking for defendant that night; they had no information there were any outstanding warrants for his arrest and they did not suspect he was involved in any criminal activity. Defendant’s focus on these uncontested facts, however, overlooks the following: deputies had been looking for Donald, who was a suspect in an attempted murder; they received a tip Donald was at the residence and responded within one hour; they were told there was a red car at the residence; they did not know who was leaving the residence in the red car as they approached that night; and they were attempting to detain the car to determine whether Donald was inside.[6] Contrary to defendant’s assertion, an investigatory stop such as this neither necessarily required a warrant nor necessarily required any predetermination that Donald was in fact in the car. Rather, the focus is on whether the deputies’ attempted investigatory stop of the vehicle was justified by reasonable suspicion. (Navarette, supra, 572 U.S. at p. ___ [134 S.Ct. 1683, 1687]; Brown, supra, 61 Cal.4th at p. 981.) As to that point, defendant argues that the confidential informant’s tip was, without more, insufficient.

Defendant cites no direct authority for his position regarding the unlawfulness of the attempted detention but, in his opening brief, he cites Hill v. California (1971) 401 U.S. 797 (Hill) and asserts “there was no indication that officers mistakenly confused [defendant] with Donald based on similar appearance.” In the Hill case, the police intended to arrest Hill and search his apartment. (Id. at pp. 802–803.) When they entered the apartment, they mistook Miller for Hill and arrested him. (Id. at pp. 803–804.) Police then searched the apartment and seized items connecting Hill to the robbery for which he was charged and convicted. (Id. at pp. 799–801.) The United States Supreme Court, affirming the California Supreme Court, found the police reasonably mistook Miller for Hill under the circumstances and upheld the arrest and subsequent premises search. (Id. at pp. 801–805.) Hill concerns, in relevant part, probable cause to make an arrest and we do not find the decision of any assistance to defendant in demonstrating that the attempted investigatory stop at issue here was unreasonable under the totality of the circumstances.

Regarding the absence of any suspicion that defendant was involved in criminal activity, in Hensley, the high court rejected a federal appellate court’s interpretation of the law as restricting so-called Terry stops to the investigation of ongoing crimes. (Hensley, supra, 469 U.S. at pp. 225–226.) The court held that “if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.” (Id. at p. 229, italics added; accord, Brown, supra, 61 Cal.4th at p. 984, fn. 5; People v. Letner and Tobin (2010) 50 Cal.4th 99, 149; see Navarette, supra, 572 U.S. at p. ___, fn. 2 [134 S.Ct. 1683, 1690, fn. 2] [declining to decide, in a case involving a traffic stop based on a 911 call, what circumstances would justify stop to investigate a completed crime].) As well, tips by confidential informants are recognized as generally more reliable than anonymous tips, but even anonymous tips may suffice (Florida v. J.L. (2000) 529 U.S. 266, 270), and “[a]n officer may arrest or detain a suspect ‘based on information received through “official channels”’” (Brown, supra, at p. 983).

Here, the evidence established that the sheriff’s department received a tip from a confidential informant that Donald, who was wanted for the completed felony of attempted murder and known to be armed and dangerous, was at the residence. A detective drove the informant by the residence and they saw a red car present. This information was passed on to deputies, who responded to the residence within 60 minutes and saw the red car. Deputies could see two people going back and forth between the residence and the car, but from a distance and at night, they could not determine whether one of the figures they saw outside was Donald. Nor were they able to make that determination as they approached the departing car because the driver was wearing a baseball cap and had his head down.

Defendant’s unsupported assertion that it was unlawful to detain him unless he personally had committed a crime is simply incorrect. (Hensley, supra, 469 U.S. at pp. 225–226.) The point of the attempted detention was to investigate whether Donald, an attempted murder suspect, was in the car and deputies were entitled to stop defendant to briefly investigate whether he was Donald, so long as they had “a reasonable suspicion, grounded in specific and articulable facts, that” he might be. (Id. at p. 229.)

“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time” (Adams v. Williams (1972) 407 U.S. 143, 146; accord, Brown, supra, 61 Cal.4th at p. 986), and we conclude that under the totality of the circumstances as established by the evidence at trial, Pace’s attempt to stop the red car to investigate whether Donald was inside was reasonable. Accordingly, the jury’s finding as to the lawfulness of the attempted detention is supported by substantial evidence.

2. Alleged Use of Excessive Force

Next, it is unlawful for an officer to use excessive force during an arrest or a detention (People v. Sibrian (2016) 3 Cal.App.5th 127, 133, citing People v. Olguin (1981) 119 Cal.App.3d 39, 45 & People v. White (1980) 101 Cal.App.3d 161, 167), and defendant also challenges the lawfulness of the attempted stop on the ground that he was entitled to use reasonable force in the face of Pace’s excessive force. “The reasonableness of a particular use of force is judged from the perspective of a reasonable officer on the scene, not by the 20/20 vision of hindsight. The inquiry is an objective one: Was the officer’s action objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation? [Citation.] It is a pure question of fact whether a police officer used reasonable force in detaining a defendant, so reviewing courts determine if there is sufficient evidence in the record for a reasonable trier of fact to conclude that the force used in effectuating a detention was reasonable.” (In re Joseph F. (2000) 85 Cal.App.4th 975, 989.)

To this end, the trial court instructed the jury, pursuant to CALCRIM No. 2670 and in relevant part, as follows: “If a peace officer uses unreasonable or excessive force while arresting or attempting to arrest, or detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself. [¶] The person being arrested uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes [is] reasonably necessary to protect himself or herself from the officer’s use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.”

Defendant focuses on the shots fired at his car by Pace and Davis. However, the evidence shows the shootings occurred after the crime was completed; that is, after defendant resisted Pace’s lawful attempt to stop the vehicle. (People v. Williams (2018) 26 Cal.App.5th 71, 73 [“[I]f a defendant delays, obstructs, or resists an officer who is engaged in the lawful performance of his or her duties, the defendant may be convicted of violating section 148[, subdivision ](a)(1) even if the officer uses excessive force subsequent to the completed violation.”].) Whether or not the deputies’ subsequent use of force was reasonable is irrelevant to the issue of whether, during the initial attempted stop, defendant had the right to resist, as he claims. (Id. at p. 87.) To the extent defendant is also arguing that Pace’s act of pounding on his window, coupled with the deputies’ shouting, use of flashlight and visible weapons, constituted excessive force, as his reply brief indicates, we reject the argument.

Viewed in the light most favorable to the prosecution, the evidence shows defendant knew deputies were coming to the house, and he and his girlfriend were hurrying to leave as a result. The evidence also shows that defendant was aware deputies had arrived and were trying to detain his vehicle, but he nevertheless refused to comply with Pace’s lawful order to stop the vehicle. We already concluded that the jury’s finding as to the reasonableness of the attempted detention was supported by substantial evidence. We find no merit to the argument that a visible, uniformed deputy’s act of pounding on the passenger window of a departing car, identifying the agency he was with, and yelling for the vehicle to stop constitutes excessive force, rendering the attempted detention unlawful.

In this case, the deputies were looking for an attempted murder suspect who was armed and dangerous, and known to run from law enforcement. They were tasked with attempting to stop a moving vehicle that was possibly being driven by a man suspected of running, or trying to run, his victim over with a vehicle. Under these circumstances, it was reasonable for the jury to conclude that Pace did not use excessive force when he pounded on the window and yelled.

In summary, the evidence in this case was not so lacking that the jury was compelled to conclude that the attempted detention was unlawful, either because it was unreasonable or because Pace used excessive force in attempting to stop the departing vehicle. To the contrary, the jury’s determination that defendant resisted Pace’s lawful attempt to detain the vehicle he was driving is supported by substantial evidence and we reject defendant’s challenge to his conviction on this basis.

II. Denial of Faretta Motion

A. Background

On May 20, 2014, the jury in defendant’s first trial acquitted him of assault on a peace officer with a deadly weapon (§ 245, subd. (c)) (count 1) and of the two lesser included offenses of assault with a deadly weapon (§ 245, subd. (a)(1)) and simple assault (§ 240). The jury was unable to reach a verdict on the lesser included offense of assault against a peace officer (§ 241, subd. (c)),[7] or on the felony count of resisting an executive officer by use of force or violence (§ 69, subd. (a)) (count 2) and the misdemeanor count of resisting a peace officer, in violation of section 148, subdivision (a)(1) (count 3).

During the subsequent trial setting hearing held on June 6, 2014, defendant made a Marsden motion.[8] On June 14, 2014, the trial court heard and denied defendant’s Marsden motion. After defendant withdrew his time waiver, a hearing was set on July 7, 2014, for further trial confirmation and jury trial was set for August 18, 2014. (See People v. Martinez (2000) 22 Cal.4th 750, 766–767 [discussing speedy trial right].) After defendant failed to appear, a bench warrant was issued for his arrest and the trial date was vacated. Defendant then contacted the court and a hearing was scheduled for July 21, 2014, during which defendant made a motion to represent himself in this case pursuant to Faretta.

During the August 6, 2014, hearing set for trial confirmation and the Faretta motion, defendant stated he wanted to represent himself in his “misdemeanor matters,” and he needed additional time to complete the Faretta forms. !(RT 4803)! Defendant waived time and the trial court set the trial confirmation hearing for August 20, 2014. It also set a trial setting hearing and a Faretta motion hearing for October 20, 2014, and jury trial in this case for October 21, 2014.

The August 20, 2014, hearing was continued to August 22, 2014, and the trial court ruled on the Faretta motion as follows: “This is on [defendant’s] request to represent himself in the misdemeanor matters, CCR matters and MCR0945453.… [¶] … [¶] I have read the form [defendant] has submitted. However, I am going to deny the request based on [defendant’s] many complaints and statements about his—in the past, shows a complete lack of understanding of the law especially search and seizure and arrest and therefore, I don’t feel he is capable of representing himself, so the motion is denied.”

Defendant’s second trial commenced thereafter on October 21, 2014.

B. Legal Standard

Defendant claims the trial court erred in denying his motion to represent himself, in violation of his rights under the Sixth Amendment of the United States Constitution. The applicable legal standard is well established. “A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] ‘A trial court must grant a defendant’s request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers.’ [Citation.] Erroneous denial of a Faretta motion is reversible per se. [Citation.]

“However, the right of self-representation is not absolute. ‘[The] government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.’ [Citation.] ‘The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.’ [Citations.] ‘Thus, a trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation. The trial court possesses much discretion when it comes to terminating a defendant’s right to self-representation and the exercise of that discretion “will not be disturbed in the absence of a strong showing of clear abuse.”’” (People v. Williams (2013) 58 Cal.4th 197, 252–253 (Williams); accord, People v. Becerra (2016) 63 Cal.4th 511, 517–518; People v. Lynch (2010) 50 Cal.4th 693, 721–722, abrogated in part on another ground by People v. McKinnon (2011) 52 Cal.4th 610, 637.)

C. Analysis

As an initial matter, we briefly address an issue raised by the Deputy Attorney General who represented the People during oral argument. Counsel posited that defendant did not make a request to represent himself in this case. However, this issue was not raised in the People’s opening brief and, therefore, should not be raised for the first time during oral argument. (People v. Thompson (2010) 49 Cal.4th 79, 110, fn. 13; People v. Dixon (2007) 153 Cal.App.4th 985, 995–996; see People v. Carrasco (2014) 59 Cal.4th 924, 990; Webber v. Clarke (1887) 74 Cal. 11, 12–13). Given no showing of good cause for failing to raise the argument earlier and under the circumstances, we find it forfeited. (People v. Rangel (2016) 62 Cal.4th 1192, 1218–1219.) As well, the point is unpersuasive when viewed in the context of the record as a whole.

The People’s argument overlooks the existence of court records contradicting their position. In addition, where there is an ambiguity or a contradiction in the record, it “will be harmonized if possible. [Citation.] If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case.” (People v. Harrison (2005) 35 Cal.4th 208, 226; accord, People v. Holzmann (2018) 18 Cal.App.5th 1241, 1243, fn. 1.)

We recognize that defendant had multiple pending cases and the hearing transcript cited by the People is not a model of clarity. However, the record also includes multiple case-specific minute orders referring to relief requested under Faretta; the trial court’s express ruling on August 22, 2014, refers to search and seizure issues at the heart of this case; and that ruling is memorialized in a minute order specific to this case. Acceptance of the People’s position would require exclusive focus on arguable ambiguities in a portion of the record and disregard of other relevant court records that are not ambiguous on their face. We must consider the record in totality and, in doing so, we conclude it indicates defendant raised a claim for relief under Faretta in this case. (People v. Harrison, supra, 35 Cal.4th at p. 226; accord, People v. Holzmann, supra, 18 Cal.App.5th at p. 1243, fn. 1.)

Turning to the merits, defendant contends it was error to deny his Faretta motion based on lack of legal understanding. He points out the motion, made two months before his second trial and unaccompanied by a request for a continuance, was timely and the trial court did not find otherwise. He also points out the motion was unequivocal, knowing and voluntary. The People do not contend otherwise but characterize the court’s concern as focused on disruption of the proceedings.

It is impermissible for a trial court to deny a Faretta motion based on a criminal defendant’s lack of legal knowledge or skills. (Godinez v. Moran (1993) 509 U.S. 389, 399–400; People v. Johnson (2012) 53 Cal.4th 519, 531; People v. Butler (2009) 47 Cal.4th 814, 824.) “Defendants untrained in the law may well provide themselves with inept representation[, b]ut Faretta gives them the right to make a thoroughly disadvantageous decision to act as their own counsel, so long as they are fully advised and cognizant of the risks and consequences of their choice.” (People v. Butler, supra, at p. 828.)

In Godinez v. Moran, the United States Supreme Court explained, “[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself. In Faretta[, supra,] 422 U.S. 806, we held that a defendant choosing self-representation must do so ‘competently and intelligently,’ id., at 835, but we made it clear that the defendant’s ‘technical legal knowledge’ is ‘not relevant’ to the determination whether he is competent to waive his right to counsel, id., at 836, and we emphasized that although the defendant ‘may conduct his own defense ultimately to his own detriment, his choice must be honored,’ id., at 834. Thus, while ‘[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts,’ ibid., a criminal defendant’s ability to represent himself has no bearing upon his competence to choose self-representation.” (Godinez v. Moran, supra, 509 U.S. at pp. 399–400, fns. omitted.)

Likely recognizing the trial court’s express reason for denying defendant’s Faretta motion would not withstand scrutiny on review (Godinez v. Moran, supra, 509 U.S. at p. 400; People v. Butler, supra, 47 Cal.4th at p. 824), the People argue “it appears that the court’s concern was that [defendant] wanted to push his strategy, which he had argued in his prior Marsden motion, in a way that would be disruptive to the court proceeding. In other words, the court did not question [defendant’s] legal knowledge; it questioned [defendant’s] ability to follow courtroom protocol given his demonstrated desire to advance a narrative that was legally irrelevant.”

As the People intimate, we may uphold the trial court’s ruling even though it expressly denied the Faretta motion on an improper ground “if the record as a whole establishes defendant’s request was nonetheless properly denied on other grounds .…” (People v. Dent (2003) 30 Cal.4th 213, 218.) As well, disruptive behavior may result in termination of the right of self-representation. (Faretta, supra, 422 U.S. at p. 834, fn. 46; People v. Butler, supra, 47 Cal.4th at pp. 825–826.) In Faretta, the United States Supreme Court observed, “We are told that many criminal defendants representing themselves may use the courtroom for deliberate disruption of their trials. But the right of self-representation has been recognized from our beginnings by federal law and by most of the States, and no such result has thereby occurred. Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” (Faretta, supra, at p. 834, fn. 46.)

We have carefully reviewed the record in this case, however, and are unable to find any support for the People’s suggestion that the trial court’s concern lay with disruptive behavior. The record, including the Marsden proceedings, is devoid of indication that defendant had engaged in or would engage in misbehavior constituting an “abuse [of] the dignity of the courtroom.” (Faretta, supra, 422 U.S. at p. 834, fn. 46.) Notably, in briefing, the People cite to no such disruptive conduct in the record.[9]

The People attempt to bolster their argument by referencing the Marsden proceedings and pointing out defendant’s unwavering belief that the deputies did not have a lawful basis to detain him. They argue, “Self-representation places a heavy burden on the administration of criminal justice. [Defendant’s] desired defense, and his belligerence in presenting it, would have disrupted the orderly process of the trial at every juncture.” (Fn. omitted.) The law recognizes that in most instances, it will be more efficient for the trial court and the defendant will be better served if represented by counsel, but that is not the test. (Godinez v. Moran, supra, 509 U.S. at pp. 399–400; Faretta, supra, 422 U.S. at pp. 834–836; People v. Johnson, supra, 53 Cal.4th at p. 531; People v. Dent, supra, 30 Cal.4th at p. 217.) Here, the People’s contrary assertion notwithstanding, the record does not reflect that defendant was disruptive or behaved in any way that may be fairly described as “serious and obstructionist misconduct.” (Faretta, supra, at p. 834, fn. 46.)

The same is true for defendant’s request for a certificate of probable cause, filed June 20, 2014, and cited by the People as an example of defendant’s “attack on law enforcement and the justice system.” The filing merely evidences the argument defendant advanced in support of the legal relief he was requesting. Whether it was unmeritorious or not goes to defendant’s legal knowledge or skills, which is immaterial here. Trial courts routinely determine which arguments, advanced by licensed attorneys, are meritorious and which are not. Neither merely advancing a losing argument nor merely arguing zealously for the relief one seeks equates to engagement in misbehavior so disruptive it would support the denial or termination of the right to self-representation.

Regarding the Marsden motions, defendant was charged in 2010 and both trials occurred in 2014. Between 2012 and 2014, defendant brought six Marsden motions against a total of four attorneys. The fifth and sixth motions were brought against counsel who represented him during both trials. It is clear from the record that defendant was focused on specific aspects of his defense but, as we have stated, the record does not suggest defendant was disruptive or otherwise behaved in any manner that would justify denying his Faretta motion. Nor did defendant cause any delay in the proceedings or seek to delay the proceedings. (Williams, supra, 58 Cal.4th at pp. 254–255.) To the contrary, delays in the case formed part of the basis for his dissatisfaction in his first Marsden motion. Furthermore, this is not a case in which defendant was playing “‘the Faretta game,’” a description assigned to those criminal defendants who engage in gamesmanship through the exploitation of their right to self-representation. (People v. Williams (1990) 220 Cal.App.3d 1165, 1170 [the defendant “able to delay the trial date for eight months by juggling his Faretta rights with his right to counsel interspersed with Marsden motions”]; People v. Lopez (1981) 116 Cal.App.3d 882, 889–890 [Faretta request “at best equivocal and hardly an unqualified waiver since he only wanted to represent himself if the court would not give him another attorney”].) The People do not contend otherwise.

In short, while a criminal defendant’s misbehavior may result in termination of the right of self-representation, the record in this case does not support a finding that defendant engaged in any disruptive conduct or that gamesmanship factored into defendant’s request to represent himself. Further, the trial court did not find defendant’s Faretta motion untimely or determine that it was not knowing, intelligent and unequivocal, nor does the state of the record permit us to make such findings on independent review. (People v. Dent, supra, 30 Cal.4th at p. 218.) The express reason given by the trial court for denying the motion—in essence, defendant’s lack of legal knowledge—is not a permissible basis upon which to deny a Faretta motion. (Godinez v. Moran, supra, 509 U.S. at p. 400; People v. Butler, supra, 47 Cal.4th at p. 824.) Accordingly, we are constrained to conclude the trial court erroneously denied defendant’s motion, which compels reversal of defendant’s conviction. (People v. Becerra, supra, 63 Cal.4th at p. 520; see Williams, supra, 58 Cal.4th at p. 253; People v. Bush (2017) 7 Cal.App.5th 457, 474–477 [discussing when Faretta error requires reversal and when it does not].)

III. Destruction of Evidence: Loss of Defendant’s Vehicle

Finally, the sheriff’s department photographed the gunshot damage to defendant’s vehicle and conducted some analyses of the bullet holes with string and a dowel. The parties stipulated that the department thereafter released the vehicle to a towing company, which held it and then sold it at auction. The details of how, when and why these events unfolded as they did are unclear. Defendant claims that the physical vehicle constituted exculpatory evidence and the sheriff’s department acted in bad faith when it released it to the towing company, after which it was lost to defendant. On this basis, defendant challenges the trial court’s denial of his Trombetta/Youngblood motion regarding the loss of the evidence. He also faults defense counsel for failing to file a motion to preserve the evidence prior to its loss.

A. Trombetta/Youngblood Claim

1. Legal Standard

Turning first to defendant’s Trombetta/Youngblood claim, the United States Supreme Court has held that law enforcement agencies have a duty under the due process clause of the Fourteenth Amendment 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; accord, People v. Beeler (1995) 9 Cal.4th 953, 976 (Beeler).) To fall within the scope of this duty, the 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.” (Trombetta, supra, at p. 489; accord, Beeler, supra, at p. 976.) The state’s responsibility is further limited when the defendant’s challenge is to “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Youngblood, supra, 488 U.S. at p. 57.) In such cases, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Id. at p. 58; accord, Beeler, supra, at p. 976.)

In California, the Trombetta and Youngblood standards are applied in tandem. If evidence has an exculpatory value that is apparent before the evidence is destroyed, the Trombetta approach applies and the state has a duty to preserve it. But “[t]he state’s responsibility is [more] limited when” the evidence is merely potentially useful. (Beeler, supra, 9 Cal.4th at p. 976.) In that case, the state breaches its duty only if it acts in bad faith. (Ibid.) Negligent destruction or failure to preserve potentially exculpatory evidence, without evidence of bad faith, will not give rise to a due process violation. (Youngblood, supra, 488 U.S. at p. 58.)

A finding as to “whether evidence was destroyed in good faith or bad faith is essentially factual: therefore, the proper standard of review is substantial evidence.” (People v. Memro (1995) 11 Cal.4th 786, 831, overruled in part on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) On review, this court must determine whether, viewing the evidence in the light most favorable to the trial court’s finding, there was substantial evidence to support its ruling. (People v. Carter (2005) 36 Cal.4th 1215, 1246.)

2. Analysis

At some point before August 11, 2011, defendant’s vehicle was disposed of.[10] As previously set forth, the parties stipulated that the sheriff’s department released it to a towing company, which then sold it at auction. Prior to defendant’s first trial, trial counsel filed a Trombetta/Youngblood motion, which the court denied.[11]

The court stated it had before it no evidence of good faith or bad faith. After hearing argument, the court ruled, “[A]t this point what I have is possibly exculpatory evidence, which I feel is insufficient. In addition, you know, this case has been bungled from—from day one, mostly by the district attorney, though. Not—not [the current prosecutor], but the fact of the matter is I have no evidence of bad faith either. And for those reasons, the motion is denied.”

We find this ruling supported by substantial evidence. (People v. Carter, supra, 36 Cal.4th at p. 1246; People v. Memro, supra, 11 Cal.4th at p. 831.) First, we do not agree with defendant’s assessment of the vehicle as exculpatory evidence. Defendant asserts the vehicle’s loss precluded him from having it examined by a defense expert, who would have conducted GSR testing in an effort to show how close Pace and Davis were to the vehicle when they fired their guns. This testing would have allowed defendant to refute the deputies’ testimony regarding their need for self-defense. Defendant also contends that further testing would have allowed him to refute the deputies’ claims that he intentionally tried to hit Pace.

These assertions lack support. Cortner, defendant’s expert, testified that he would not have been able to determine the speed or angle of the car and that distance is much more difficult to determine than a bullet’s angle but with one bullet hole, even angle is difficult to determine. Although Cortner testified he might have been able to determine via GSR testing whether a shooter fired within five feet of the car, he explained that while it is “very possible” to obtain results if shots are fired within only one to two feet of a vehicle, the test will not yield any results if the shooter is more than five feet away and GSR does not stay on hard surfaces such as paint as well as it stays on clothing.

As Davis was five to eight feet away from the vehicle when he fired, it is unclear how GSR testing would be of any benefit to defendant. With respect to Pace, he fired at the tire and at least one shot blew a hole in the tire. Cortner did not testify that GSR testing could have been conducted on the tire and nothing he said can be reasonably construed as supporting an inference that GSR testing could have been successfully conducted on the damaged tire, which necessarily made repeated contact with the roadway as it rotated by virtue of defendant’s flight in the vehicle. We also note that relevant to the GSR testing testimony, Cortner was discussing gunshot holes to the body of the car while viewing photographs of the damage inflicted by Davis’s gunshots.

The foregoing practical problems notwithstanding, even at best, the evidence would not be exculpatory. As we discussed when we resolved defendant’s substantial evidence claim, the crime of resisting a peace officer was completed prior to the point in time at which Pace and Davis shot at defendant’s vehicle. As such, any evidence undercutting the deputies’ testimony regarding Pace’s proximity to the car and need to shoot in self-defense would not have been exculpatory as to defendant’s resistance of Pace’s initial attempt to detain him. (See People v. Williams, supra, 26 Cal.App.5th at p. 87.) Accordingly, we agree with the trial court that, at most, the evidence was only potentially exculpatory.

Where the evidence at issue is only potentially exculpatory and the crux of the defendant’s grievance is his desire to have conducted additional testing, the defendant must show that government officials acted in bad faith. Defendant argues, in essence, that the fact law enforcement erroneously disposed of his vehicle without notice is sufficient to evidence bad faith. Even if we assume the sheriff’s department erred in disposing of private property belonging to defendant without notice to him, there must be evidence they did so in bad faith; mere negligence will not suffice.[12]

Nor do we agree with defendant that the destruction of evidence in this case is akin to that in United States v. Zaragoza-Moreira (2015) 780 F.3d 971 (Zaragoza-Moreira), on which he relies. The defendant in Zaragoza-Moreira pleaded guilty to importing drugs into the United States. (Id. at p. 974.) On appeal, she challenged the district court’s denial of her motion to dismiss the indictment based on the government’s destruction of a video recording of her border crossing. (Ibid.) The Ninth Circuit Court of Appeals agreed with the district court’s finding that the border crossing recording was potentially useful to the defendant’s duress defense, as she claimed she was doing everything she could to draw attention to herself but she could not speak up directly because she was standing right next to one of the people who had pressured her into transporting the drugs. (Id. at pp. 977–978.) The court disagreed, however, with the district’s court’s finding that the exculpatory value of the recording was not apparent to the agent who failed to preserve it. (Id. at p. 978.) It concluded the transcript of the agent’s interview with the defendant, during which she spoke about the foregoing attempts to draw attention to herself while walking right next to the person who had pressured her, established the agent knew the destroyed recording was potentially exculpatory before it was destroyed. (Id. at pp. 979–980.) As such, the court found bad faith on the part of the agent. (Id. at p. 980.) There is no such evidence establishing the requisite knowledge on the part of the sheriff’s department in this case, however, and we find Zaragoza-Moreira inapt.

“‘The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.’” (Beeler, supra, 9 Cal.4th at p. 976, quoting Youngblood, supra, 488 U.S. at pp. 56–57, fn. *.) As the trial court determined, there is simply no evidence one way or the other regarding the intent behind the disposal of the vehicle. Accordingly, we find no error in the trial court’s ruling on this issue. (People v. Carter, supra, 36 Cal.4th at p. 1246; People v. Memro, supra, 11 Cal.4th at p. 831.)

B. Ineffective Assistance of Counsel

1. Legal Standard

“In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687–692.) To demonstrate deficient performance, defendant bears the burden of showing that counsel’s performance ‘“‘“fell below an objective standard of reasonableness … under prevailing professional norms.”’”’ (People v. Lopez (2008) 42 Cal.4th 960, 966.) To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. (Ibid.; In re Harris (1993) 5 Cal.4th 813, 833.)” (People v. Mickel (2016) 2 Cal.5th 181, 198.)

2. Analysis

Defendant cites no authority for the proposition that counsel’s failure to file a motion for preservation of the vehicle was unreasonable under the circumstances of this case, and defendant acknowledges “counsel may have reasonably assumed law enforcement would preserve the only physical evidence against [defendant], thus no motion to preserve would be necessary.”[13] Notably, Youngblood and Trombetta recognized a duty on the part of the government to preserve exculpatory evidence. (Youngblood, supra, 488 U.S. at pp. 57–58; Trombetta, supra, 467 U.S. at pp. 488–489.) We need not determine whether defendant has satisfied the first prong of the test, however, because he fails to show prejudice. (Strickland v. Washington, supra, 466 U.S. at p. 697; accord, In re Welch (2015) 61 Cal.4th 489, 516.)

As a threshold matter, we reject defendant’s conflation of wrongful destruction of personal property with the failure to preserve evidence. In arguing he was prejudiced by ineffective assistance of counsel, defendant cites People v. Lamonte (1997) 53 Cal.App.4th 544 for the proposition that the car was his private property and he was entitled to its return. In relevant part, People v. Lamonte involved a petition for writ of mandate following the trial court’s partial denial of a nonstatutory motion for the return of specific property. (Id. at p. 546.) The Court of Appeal determined the trial court erred in denying the motion and it issued a writ of mandate directing the court to vacate its order and issue a new order granting return of the property. (Id. at p. 553.) While the destruction of evidence is necessarily relevant to defendant’s Trombetta/Youngblood issue, he fails to explain how the separate issue of wrongful destruction of private property is relevant and we find People v. Lamonte of no assistance to defendant.[14]

As the Court of Appeal explained in People v. Hopkins (2009) 171 Cal.App.4th 305 at page 308, “A motion for return of property is a separate procedure from the criminal trial and is not reviewable on an appeal from an ultimate judgment of conviction. [Citation.] If the ‘separate proceeding’ of a motion for return is regarded as a criminal proceeding, for which the right to appeal is governed by … section 1237, an order denying the motion is nonappealable because such an order is not listed among any of the matters for which an appeal is authorized by … section 1237. [Citations.] [¶] The proper avenue of redress is through a petition for writ of mandate, not an appeal. [Citations.] Alternatively, the individual may seek return of his or her property in a civil action for recovery of property with an attendant right to appeal from any adverse civil judgment.” Thus, the instant appeal from defendant’s judgment of conviction is not the proper vehicle by which to challenge either the failure to return private property or, as is the case here, redress for the destruction of private property. (Id. at pp. 307–309.)

Turning to the relevant inquiry, there is no reasonable probability the outcome of the trial would have been different but for counsel’s asserted error. (Strickland v. Washington, supra, 466 U.S. at p. 695; accord, Harrington v. Richter (2011) 562 U.S. 86, 104.) Defendant argues “the vehicle was the only physical evidence that would have refuted the deputies’ claims that [defendant] intentionally attempted to hit Pace and justified their firing at him.” As we have already discussed, however, preservation of the vehicle would have provided defendant with the opportunity to conduct additional testing, but it is extremely unlikely that GSR testing of the bullet holes would have netted any useful information given Davis’s stated distance of five to eight feet from the vehicle. Additionally, there is no indication in the record that testing could have been conducted on the tire and, in any event, the crime of resisting Pace’s attempted detention of defendant was completed by the time the shots were fired, rendering the benefit of any evidence obtainable even more tangential. This falls well short of demonstrating a reasonable probability of a different outcome, which is fatal to defendant’s ineffective assistance of counsel claim.

DISPOSITION

The conviction and sentence are reversed based on the trial court’s erroneous denial of defendant’s motion pursuant to Faretta v. California (1975) 422 U.S. 806, and the matter is remanded for further proceedings.

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MEEHAN, J.

WE CONCUR:

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HILL, P.J.

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POOCHIGIAN, J.