P. v. Pickens

Filed 8/31/07 P. v. Pickens CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert George Spitzer, Judge. Affirmed.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Robert George Spitzer, Judge. Denied.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steven Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.

Terry Leslie Pickens, Jr., (hereafter defendant) asserts on direct appeal and in a petition for writ of habeas corpus that his conviction must be reversed because the prosecutor failed to provide impeachment evidence pertaining to the prosecutions drug expert, in violation of Brady v. Maryland (1963) 373 U.S. 83 (hereafter sometimes Brady), or alternatively because his attorney failed to obtain and introduce available impeachment evidence. We consolidated the habeas petition with the appeal for the sole purpose of determining whether an order to show cause should issue.

We find that defendant has failed to state a prima facie case on either his claim of ineffective assistance of counsel or his Brady claim. We therefore deny his petition for writ of habeas corpus. Finding no error with respect to defendants other contentions raised in his appeal, we otherwise affirm the conviction.

PROCEDURAL HISTORY

Defendant was convicted of possession of methamphetamine for sale and possession of marijuana for sale. (Health & Saf. Code, 11378, 11359, respectively.) He admitted three prison priors (Pen. Code, 667.5, subd. (b)) and one strike prior (Pen. Code, 667, subds. (b)-(e), 1170.12, subds. (a)-(c)). The court struck one prison prior and denied defendants motion to strike the strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court sentenced defendant to the middle term on count 1 (sale of methamphetamine), and doubled it pursuant to Penal Code sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1). The court imposed two one-year enhancements pursuant to Penal Code section 667.5, subdivision (b), for a total principal term of six years. The court imposed a concurrent middle term on count 2. Defendant filed a timely notice of appeal.

FACTS

On July 24, 2005, Riverside County Deputy Sheriff Martinez stopped a vehicle with no front license plate in Rubidoux, an area known for drug and gang activity. Defendant was sitting in the front passenger seat. At Martinezs request, defendant stepped out and submitted to a search. He was nervous, but cooperative. In defendants left front pocket, Martinez found six small baggies containing a substance which field-tested positive for methamphetamine. Defendants wallet was in his right front pocket. Defendant appeared surprised and nervous when Martinez found the methamphetamine. There were no pay-owe sheets, cash, scales or other indicia of sales on defendant or in the car. Martinez arrested him for simple possession of methamphetamine. At the Riverside County jail, two bags of marijuana were found in defendants socks.

The crime lab determined that three of the six baggies contained .22 grams, .15 grams and .21 grams of methamphetamine, respectively. It tested one of the two baggies of suspected marijuana and determined that it contained 1.10 grams of marijuana. The prosecutions drug expert, Riverside Police Detective Ronald Kipp, testified that in his opinion, both the methamphetamine and marijuana were possessed for sale. He based his opinion on the fact that each of the six baggies of methamphetamine contained a single dose. In his experience, a user would not purchase six individual doses. If the user could afford to purchase an amount suitable for multiple doses, he or she would buy a larger single quantity, which would cost less than multiple individual doses. In his experience as well, a small-time seller of methamphetamine who possessed two concealed baggies of marijuana would possess the marijuana for sale rather than for personal use.

Defendant testified that he had been working on his car with a coworker, Ed Williams. His clothing became dirty, and Williams lent him a pair of shorts when they went to buy gas. Defendant put his wallet in the right front pocket but did not check the left front pocket. He was unaware of the presence of the methamphetamine. He was surprised when Martinez found the methamphetamine and blurted out, Oh, shit, what is that? He told police that the shorts were not his, but did not tell them that the shorts belonged to Williams, who was driving the car at the time they were stopped. The marijuana in his socks was for his own use.

LEGAL ANALYSIS

POTENTIAL IMPEACHMENT EVIDENCE PERTAINING TO THE DRUG EXPERT WAS NOT SUPPRESSED WITHIN THE MEANING OF BRADY v. MARYLAND

On direct appeal and in a consolidated petition for writ of habeas corpus, defendant contends that the prosecution had actual or constructive knowledge that Detective Kipp had been investigated and reprimanded for improper conduct with respect to his use of drug informants. He contends that this information bears directly on Kipps credibility as a drug expert witness and that it is reasonably probable that the jury would have rejected Kipps opinion that defendant possessed the methamphetamine and marijuana for sale if it had been made aware of the investigation and reprimand.

In Brady v. Maryland, supra, 373 U.S. 83, the United States Supreme Court established that the prosecution has a duty, as a matter of due process, to disclose to the defense on request any favorable evidence which is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecutor. (Id. at p. 87.) The court later held that the duty to disclose such evidence does not depend on a request by the accused (United States v. Agurs (1976) 427 U.S. 97, 107), that the duty encompasses impeachment evidence as well as exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676), and that the duty extends to evidence known only to police investigators and not to the individual prosecutor (Kyles v. Whitley (1995) 514 U.S. 419, 438). Such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. (Id. at p. 433.) We review a Brady claim independently. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)

In order to comply with Brady, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the governments behalf in the case, including the police. [Citations.] (People v. Salazar, supra, 35 Cal.4th at p. 1042.) However, an element of a Brady claim is that the evidence must have been suppressed by the government. (Strickler v. Greene (1999) 527 U.S. 263, 282; People v. Salazar, supra, at p. 1048.) If the material evidence is in the possession of the defense or is available to it prior to trial through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. (People v. Salazar, supra, at p. 1049; see also People v. Morrison (2004) 34 Cal.4th 698, 715; United States v. Stuart (8th Cir. 1998) 150 F.3d 935, 937.) Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it by the exercise of reasonable diligence. [Citations.] (People v. Salazar, supra, at p. 1049.)

Defendant submitted a number of documents in support of his habeas petition which discuss or refer to the investigation into Kipps conduct with respect to drug informants. The documents consist of a printout of an internet website entitled Whos a Rat, with articles dated August 22, 2004 (Exh. A); an article from the Riverside Press Enterprisedated May 16, 2003 (Exh. B); two articles from the Los Angeles Daily Journaldated May 14, 2003 (Exhs. C, D); an article from the Los Angeles Daily Journal dated September 30, 2003 (Exh. E); an excerpt from a deposition given by Detective Kipp in an unrelated civil case on November 18, 2002 (Exh. F); a Pitchess^[1]motion filed in an unrelated criminal prosecution on March 18, 2003, and a minute order issued in that case allowing that defendant access to Detective Kipps confidential personnel files (Exhs. G, H); and a Pitchess motion filed in another unrelated criminal case on August 11, 2005 (Exh. I).

The internet and newspaper articles, all of which long predated the trial in this case, were as accessible to the defense as they were to the prosecution. The two Pitchess motions were filed by the office of the Riverside County Public Defender. (Exhs. G, I.) Defendant was represented by that office. Although any information disclosed as a result of the Pitchess motions was subject to a protective order, limiting its use to the proceeding for which the material was sought (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039-1043), the fact that Pitchess motions were made and granted is reflected in the court minutes. These documents, too, could have been discovered by the defense in the exercise of reasonable diligence, and would have caused competent counsel to consider the possibility that Kipps personnel file contained potentially impeaching information.

In her declaration in support of defendants motion for judicial notice of these exhibits, defendants appellate counsel states that she discovered the civil deposition (Exh. F) in the course of investigating impeaching information about Officer [sic] Kipp. She states that the matters stated under oath in the deposition were reported in the news articles submitted as exhibits A through E. Clearly, then, Kipps deposition was also available to defendants trial attorney in the exercise of reasonable diligence.^[2] Because all of these documents were discoverable by the defense in the exercise of reasonable diligence, none of the documents was suppressed within the meaning of Brady. Accordingly, there was no Brady violation. (People v. Salazar, supra, 35 Cal.4th at p. 1049.)^[3]

DEFENDANT HAS FAILED TO MAKE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL

Alternatively, defendant contends that his trial attorney rendered constitutionally deficient representation by failing to exercise reasonable diligence to discover the evidence which could have been used to impeach Detective Kipp.

An attorney provides deficient representation, in violation of the defendants state and federal constitutional right to the effective assistance of trial counsel, if the attorneys performance fell below an objective standard of professional competence. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) Reversal requires a showing of prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, 466 U.S. at p. 687; In re Wilson (1992) 3 Cal.4th 945, 950.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, at p. 694.)

A claim of ineffective assistance of trial counsel cannot be reviewed on direct appeal unless the record discloses the reason for the attorneys action, or unless there simply could not be a rational explanation for the attorneys action. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Defendant contends that there could be no possible tactical reason for trial counsel to fail to conduct an investigation and/or file discovery motions to obtain the evidence which could have been used to impeach Kipp, and therefore urges us to address the issue in his appeal. This assumes, of course, that trial counsel did not investigate. The appellate record does not disclose whether trial counsel did or did not investigate. And, we cannot say unequivocally that trial counsel could have had no rational reason not to attempt to introduce the evidence which has been provided in defendants motion for judicial notice. It is possible, for example, that trial counsel was aware that the investigation into Kipps conduct had exonerated Kipp: Exhibit B in support of the habeas petition states that although Kipp had been disciplined, he was contesting the discipline and denied the factual basis for the complaint against him. That news item was reported in May 2003. Defendants trial took place in December 2005. Indeed, all of the news reports and other habeas exhibits were one to two years old at the time of defendants trial. It is certainly possible that subsequent developments persuaded trial counsel that there was no evidence she could use to impeach Kipp. Therefore, in the absence of a statement from trial counsel on the appellate record, we cannot assess the basis for her actions. Relief, if any, must be obtained through habeas corpus proceedings. (People v. Mendoza Tello, supra, at pp. 266-267.) We therefore turn to defendants petition for writ of habeas corpus.

We do agree that defendants habeas corpus petition makes a prima facie showing that trial counsels failure to investigate the allegations against Kipp caused his performance to fall below an objective standard of professional competence. (Strickland v. Washington, supra, 466 U.S. at p. 687.) The essence of defense counsels function is to make the adversarial testing process work in the particular case. (Id. at p. 690.) To discharge this function, trial counsel has a duty to conduct a reasonable investigation to obtain evidence which may help to exonerate the defendant and to pursue diligently those leads indicating the existence of evidence favorable to the defense. (In re Neely (1993) 6 Cal.4th 901, 919-920.) Impeachment of a witness can make the difference between acquittal and conviction. (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 52.) Trial counsel therefore has a duty to conduct a reasonable investigation to determine whether a basis for impeaching prosecution witnesses exists.

An expert witness is subject to cross-examination on the same basis as any other witness. (Evid. Code, 721, subd. (a).) The credibility of any witness and the truthfulness of his or her testimony is always in issue, and may be attacked by means of any evidence, not otherwise precluded by statute, which will establish a fact that has a tendency in reason to disprove the truthfulness of the witnesss testimony. (Evid. Code, 780; People v. Humiston (1993) 20 Cal.App.4th 460, 479.) Matter which has a tendency in reason to prove or disprove the truthfulness of testimony includes, but is not limited to, the witnesss character for honesty or veracity or their opposites, the existence or nonexistence of a bias, interest or other motive, and the witnesss attitude toward the action in which he testifies or toward the giving of testimony. (Evid. Code, 780, subds. (e), (f), (j).) A party can offer evidence, by proferred extrinsic evidence or by cross-examination of a witness, to attack the credibility of a witness, if such evidence tends reasonably to establish that the witness has a motive to fabricate, or some other motive, that tends to cause the giving of untruthful testimony, even though there may be no reasonable basis for the existence of such a motive. (See People v. Lent (1975) 15 Cal.3d 481, 484-485 . . . .) (People v. Allen (1978) 77 Cal.App.3d 924, 931, fn. omitted.) The documents of which we have taken judicial notice demonstrate that Kipp had been investigated and reprimanded for allowing a confidential informant to steal money from a suspect in a drug case, and that there were allegations that he planted evidence in another case. Kipp was apparently also involved in a scheme to use confidential informants to create pretexts for stopping cars driven or occupied by drug suspects. Information contained in Kipps personnel file might have provided additional ammunition for impeaching his veracity.^[4] Evidence that Kipp used drug informants to create pretexts for stopping vehicles to allow searches of drug suspects and thus willingly subverted justice, that he aided and abetted theft by an informant, and that he planted evidence in order to obtain a conviction certainly has a tendency in reason to demonstrate the existence of bias, interest or other motive to testify untruthfully. It is arguable that impeachment of Kipps veracity might have caused jurors to distrust his opinion, particularly with respect to his opinion that a person who possessed several small doses of methamphetamine for sale would necessarily possess any marijuana found on his person for the purpose of sale rather than for personal use. We therefore agree that, given the notoriety of the investigation into the conduct of a number of Riverside police officers, including Kipp, discussed in the preceding section, reasonably competent counsel would have investigated to determine whether admissible impeachment evidence existed. Defendants appellate attorney states, in her verified habeas corpus petition, that she reviewed trial counsels file and found no reference to any investigation of Detective Kipp or to consideration of a Pitchess motion. Defendants habeas corpus petition therefore makes a prima facie showing that trial counsels failure to investigate caused his performance to fall below objective standards of professional competence.

The more difficult question is whether counsels failure to investigate and obtain the potentially impeaching evidence was prejudicial within the meaning of Stricklandv. Washington that there is a reasonable probability that the outcome would have been more favorable to defendant in the absence of counsels error or omission. (Strickland v. Washington, supra, 466 U.S. at p. 687.) Defendant has not made a prima facie showing of prejudice. If defense counsel had made a Pitchess motion, the district attorney would have received notice of the motion. (Alford v. Superior Court, supra, 29 Cal.4th at pp. 1044-1045.) Even if the district attorney was not provided with information disclosed as a result of the motion, if the motion were granted, the district attorney could file his own Pitchess motion or question Kipp as to what impeaching information his personnel file contained. (Id. at pp. 1045-1046.) The district attorney could then determine whether to use Kipp or use a different expert witness. Kipp was certainly not the only such expert available to the Riverside County District Attorney; many police officers have the expertise to offer opinions as to whether illegal drugs were possessed for sale or for personal use. We note that defendant does not challenge the sufficiency of the evidence that he possessed the methamphetamine for sale, and, as we discuss below, Kipps opinion that the marijuana was possessed for sale was supported by an adequate factual basis. Thus, we have no doubt that the district attorney could readily have found another officer who would testify that the drugs in this case were possessed for sale. Similarly, if the defense had not made a Pitchess motion but sought to impeach Kipp with his admission in his deposition in the civil case that he had been investigated and reprimanded for his activities with informants, the district attorney could have called a different expert on rebuttal to offer the same opinion that Kipp offered. Thus, although we believe that trial counsel had a duty to investigate, defendant has failed to show how the omission was prejudicial within the meaning of Strickland v. Washington.

Because the object of an ineffectiveness claim is not to grade counsels performance, a reviewing court may decide an ineffectiveness claim on the ground of lack of sufficient prejudice, regardless of any deficiency in counsels performance. (Strickland v. Washington, supra, 466 U.S. at p. 697.) The absence of an affirmative showing of prejudice dooms defendants claim on habeas corpus.

SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTION FOR POSSESSION OF MARIJUANA FOR SALE

Defendant contends that the sole evidence that he possessed the marijuana for sale rather than for personal use, i.e., the testimony of Detective Kipp, did not constitute substantial evidence which could support his conviction on that charge. He contends that Kipps testimony did not constitute substantial evidence for two reasons: first, because Kipps veracity was highly impeachable; and second, because Kipp failed to state an adequate factual basis for his opinion.

Substantial evidence is evidence which is reasonable, credible and of solid value, on the basis of which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) In determining whether evidence is substantial, we do not weigh the evidence, resolve evidentiary conflicts or resolve credibility issues; such determinations are the jurys exclusive province. (People v. Young (2005) 34 Cal.4th 1149, 1181.) We can determine that a witnesss testimony is not substantial evidence only if the witness asserted something which is physically impossible or inherently improbable. Otherwise, the testimony of a single witness is sufficient to support a conviction. (Ibid.)

Here, Kipp concluded that it was more probable that defendant possessed the marijuana for sale rather than for personal use because he possessed two baggies, each weighing about one ounce. Each constituted a useable amount and a common amount in which marijuana is sold. That, combined with the fact that (in Kipps opinion), defendant possessed the methamphetamine for sale, persuaded him that defendant also possessed the marijuana for sale. He acknowledged that it is possible that a dealer of methamphetamine might also possess marijuana for personal use, but the totality of the circumstances caused him to conclude that it was not probable that defendant possessed the marijuana for personal use. Kipps conclusions were neither based on a physical impossibility nor inherently improbable. Based on Kipps testimony, jurors could reasonably conclude beyond a reasonable doubt that defendant possessed the marijuana for sale. (People v. Young, supra, 34 Cal.4th at p. 1181.)

Even if defendant is correct that Kipps veracity could have been impeached, in fact it was not impeached. Moreover, even if impeachment evidence had been admitted, it would still be exclusively within the province of the jury to determine whether that evidence undermined its confidence in Kipps testimony; we cannot deem his testimony not to be substantial evidence on that basis. (People v. Young, supra, 34 Cal.4th at p. 1181.)

THE COURT DID NOT PRECLUDE THE ADMISSION OF CORROBORATING EVIDENCE

Next, defendant contends that the trial court violated his constitutional rights to due process and to confront witnesses when it precluded his attorney from asking the arresting officer, Officer Martinez, about statements defendant made when the methamphetamine was found in the pocket of his shorts.

According to the police report, when the methamphetamine was found, defendant immediately said, Its not mine or Its for my personal use. Trial counsel asserted that these statements qualified as spontaneous statements under Evidence Code section 1240. The trial court ruled that defense counsel could not ask Martinez about the statements on cross-examination during the prosecutions case-in-chief. However, if defendant testified as to the statements he made and explained his state of mind, then defense counsel could recall the officer to corroborate that defendant made the statements. Defendant did testify, but his attorney did not recall Officer Martinez.

On appeal, defendant contends that the statements were admissible because they fell within several exceptions to the hearsay rule. However, trial counsel relied exclusively on the spontaneous exception rule pursuant to Evidence Code section 1240. Defendant cannot assert different grounds for admissibility for the first time on appeal. (People v. Fauber (1992) 2 Cal.4th 792, 854.) Moreover, even if we assume, without deciding, that the statements were admissible under one or more of the theories defendant now asserts, any error in precluding defense counsel from inquiring about the statements during cross-examination of Officer Martinez during the prosecutions case-in-chief did not deny defendant due process or deprive him of the right to confront adverse witnesses, as he contends.

Defendants defense was that he borrowed the shorts he was wearing and did not know that there was contraband in the pocket, and that the marijuana he was carrying was for his own use. He asserts that Officer Martinezs testimony that defendant blurted out a denial that the methamphetamine was his as soon as the officer found it was crucial to corroborate defendants own testimony and to bolster his credibility. However, the trial courts ruling did not deprive the defense of the opportunity to obtain corroboration. On the contrary, the court explicitly ruled that if defendant testified as to his statements at the time of his arrest and to the state of mind they reflected, he would be permitted to recall Officer Martinez and have him corroborate that defendant made such statements. Thus, the courts ruling simply did not have the effect that defendant asserts. Accordingly, the error, if any, did not deprive him of his constitutional rights.

CALJIC No. 2.21.2 WAS PROPERLY GIVEN

Over defense objection, the trial court gave CALJIC No. 2.21.2, which states, A witness who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars. Defendant now contends that because there was no evidentiary basis for the instruction, it was prejudicial error to give it.

CALJIC No. 2.21.2 and its companion, CALJIC No. 2.21.1, which was also given in this case, have long been held to be appropriate tools for jurors use in assessing the credibility of testimony.^[5]Taken together, the two instructions inform jurors that they should refrain from rejecting the whole of a witnesss testimony, despite possible willful falsehoods, if they believe that the probability of truth favors any other part of it. (People v. Maury (2003) 30 Cal.4th 342, 428-429.) CALJIC No. 2.21.2 does not single out the defendant or defense witnesses for special scrutiny, but rather applies to all witnesses. (People v. Allison (1989) 48 Cal.3d 879, 895.) The instruction is generally appropriate where [t]he jury could reasonably conclude that one or more witnesses had been willfully false in their testimony. (People v. Lang (1989) 49 Cal.3d 991, 1024.) The instruction is proper in any case in which there is conflicting testimony, or where the testimony of a single witness, including the defendant, is internally inconsistent or when his efforts to explain away undisputed circumstances are inherently implausible. (People v. Turner (1990) 50 Cal.3d 668, 699.)

Here, it was undisputed that defendant had six baggies of methamphetamine in his pocket. He testified that his coworker inadvertently left the six baggies in the pocket of a pair of shorts that he lent to defendant because defendant got his clothes dirty while working on his car. Detective Kipp testified that a user or seller of methamphetamine would be highly unlikely to leave the drug where it could be found by others. Because this point was central to the credibility of defendants defense, this conflict alone, which jurors were required to resolve, justifies giving the instruction. (See People v. Allison, supra, 48 Cal.3d at p. 895.)

Defendants testimony was also internally inconsistent with respect to a key point. On direct examination, he testified that when Officer Martinez found the methamphetamine, defendant immediately denied that it was his. He did not testify that he said anything else to Martinez. On cross-examination, he claimed that he had told Martinez that the shorts werent his. He did not, however, tell Martinez or any other police officer that the shorts belonged to Williams because he did not know for sure that the methamphetamine in Williamss shorts belonged to Williams. This testimony is inconsistent and arguably implausible, and it too raises a credibility issue the jury was required to resolve. The instruction was also proper because defendant accused several police officers of lying when they testified that he was calm during the search, arrest and booking. He claimed that he was scared and acting hysterical.

In any event, even if the court had erred in giving the instruction, there is no reasonable likelihood that the jury would have reached a more favorable conclusion in its absence. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant contends that the instruction was prejudicial because it unfairly highlighted the prosecutors questioning as to why defendant did not call witnesses, including Williams, to corroborate his story. He notes that although the jury was instructed that he had no duty to call all witnesses who had knowledge of the events, the prosecutor commented in his closing argument on defendants failure to call witnesses who could have corroborated his story. He contends that CALJIC No. 2.21.2 misled the jury to believe that his failure to call those witnesses was a basis to distrust his testimony. However, as we have discussed, the instruction did not single out defendants testimony for scrutiny; rather, it applied to all witnesses. And, it did not require the jury to disbelieve his testimony as a whole even if the jury did find that parts of it were willfully false. Moreover, the prosecutor was entitled to comment on defendants failure to call witnesses whose testimony might have been helpful to him (People v. Mincey (1992) 2 Cal.4th 408, 446), and the instruction did nothing to focus improper attention on that argument.

THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE ROMERO MOTION

Finally, defendant argues that the court abused its discretion in denying his motion to strike his strike prior pursuant to Romero, supra, 13 Cal.4th 497.

As defendant notes, denial of a Romero motion is reviewed for abuse of discretion, i.e., to determine whether the trial courts ruling exceeded the bounds of reason under the applicable law and relevant facts. (People v. Carmony (2004) 33 Cal.4th 367, 374-375, 377; People v. Williams (1998) 17 Cal.4th 148, 162.) The burden is on the party attacking the reasonableness of the trial courts rationale. (People v. Carmony, supra, at pp. 376-379.) Denial of a Romero motion is an abuse of discretion only if the decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony, supra, at p. 377.)

Applying these precepts, it is clear that the trial court did not abuse its discretion. Striking a strike prior is appropriate only if the defendant in light of the nature and circumstances of his present felonies and prior serious and/or violent convictions, and the particulars of his background, character, and prospects, . . . may be deemed outside the [Three Strikes] schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams, supra, 17 Cal.4th at p. 161.) The spirit of the Three Strikes scheme is, of course, imposition of punishment commensurate with the defendants recidivism as well as the protection of society from repeat offenders. (People v. Williams, supra, at pp. 160-161; see Pen. Code, 667, subd. (b); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979.) Here, the trial court took into account the fact that in the eight years since defendant was convicted of the felony which was alleged as a strike a residential burglary defendant had suffered two additional felony convictions, both of which were committed while he was on probation or parole. Defendants failure to lead a law-abiding life between his qualifying prior conviction and his current conviction is a legitimate consideration. (People v. Williams, supra, at p. 163.) The court also disagreed with the defense contention that the current offense was a relatively minor one and thus outside the spirit of the Three Strikes law, in that defendant was convicted of possession of multiple controlled substances for sale. The seriousness of the current offense, too, is a valid basis for denying a Romero motion. (People v. Williams, supra, at pp. 162-163.)

Defendant contends that the court contradictorily found that the current offense was separated by a substantial period of time from the strike offense and that the crime involved a relatively small amount of contraband. We disagree with defendants interpretation of the remarks the court made in connection with the Romero motion. In the section cited by defendant, what the court actually said was that it disagreed with the defense contention that the two offenses were substantially separated in time because of the two intervening felony convictions. It also disagreed with the defense that the current offense was minor because, rather than involving only a small amount of controlled substances for personal use, it involved possession of multiple controlled substances for sale. In the context of stating its reasons for running defendants sentence on count 2 concurrently, the court did say that the amount of marijuana was relatively small, and that in the courts own opinion, it is more probable that defendant possessed it for personal use rather than for sale. The courts personal view that the marijuana was most likely possessed for personal use rather than for sale does not render its decision on the Romero motion an abuse of discretion. As the court noted in that context, the jury determined that defendant possessed the marijuana for sale, and in its later remarks, the court noted that there was substantial evidence to support that conclusion. Moreover, even if defendant had been convicted of simple possession of marijuana, the fact that he was convicted of possession of methamphetamine for sale only eight years after his strike conviction, following two additional convictions for felonies committed while he was on probation or parole, amply justified the courts refusal to strike the strike prior.

DISPOSITION

The petition for writ of habeas corpus in case No. E041329 is denied. Having found no reversible error with respect to any of the claims raised in the appeal in case No. E039779, we affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

^[2]For the reasons stated in footnote 3, below, we cannot take judicial notice of the deposition transcript. For purposes of the habeas corpus petition, however, we accept the exhibit as supplementing the allegation that evidence existed which, if it had been introduced at trial, might have impeached Kipps credibility. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 675 [exhibits to habeas petition supplement the petitions allegations].)

^[3]We grant defendants motion for judicial notice as follows:

We take judicial notice of exhibits G, H and I pursuant to Evidence Code section 452, subdivision (d) as records of a court of this state. We take judicial notice of the contents of exhibit H, a certified copy of a minute order. We do not take judicial notice of the contents of exhibit G or exhibit I (Pitchess motions), but only of the fact that they exist. (See Bennett v. Regents of University of California(2005) 133 Cal.App.4th 347, 358, fn. 7.)

We take judicial notice of exhibits A through E only to the extent that they demonstrate that a controversy concerning Detective Kipp has arisen in the popular press. (Evid. Code, 452, subd. (h), 459, subd. (a); Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408.) We do not take judicial notice of the truth of the contents of any of those documents. (Norgart v. Upjohn, supra, at p. 408.)

We deny the motion as to exhibit F, which purports to be the transcript of a deposition given by Detective Kipp in a civil case. Defendant contends that it is a court record subject to judicial notice pursuant to Evidence Code section 452, subdivision (d). We may take judicial notice of the existence (but not the contents) of a deposition transcript which has been filed as part of a court record. (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21-22.) Exhibit F, however, has no filing stamp, and we therefore cannot determine that it is part of a court file subject to judicial notice.

^[4]The Attorney General contends that a Pitchess motion would have been futile because discovery of Kipps personnel file would have been barred by Evidence Code section 1047 because Kipp was not involved in defendants arrest or booking. This is incorrect.

Evidence Code section 1047, along with Evidence Code section 1046, bars discovery of the file of a peace officer or custodial officer who was not present at the defendants arrest or booking, if the file is sought in conjunction with a claim of excessive force in connection with the defendants arrest. (Alt v. Superior Court (1999) 74 Cal.App.4th 950, 953-959 & fn. 4.) The statutory scheme pertaining to the discovery of police officer personnel files reflecting misconduct as a whole, however, is not limited to claims arising from altercations between police officers and arrestees. (People v. Memro (1985) 38 Cal.3d 658, 679.) Where the officers file is sought in connection with any other claim of misconduct, Evidence Code section 1047 does not apply. (Alt v. Superior Court, supra, at pp. 958-959.)

^[5]CALJIC No. 2.21.1 provides, Discrepancies in a witnesss testimony or between a witnesss testimony and that of other witnesses, if there were any, do not necessarily mean that a witness should be discredited. Failure of recollection is a common experience and innocent misrecollection is not uncommon. We also know from our day-to-day experience as human beings that two persons witnessing an incident or a transaction often will see or hear or remember it differently. You should consider whether a discrepancy relates to an important matter or only to something trivial.