P. v. Pinks
Filed 10/3/13 P. v. Pinks CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LENNOX
PINKS,
Defendant and
Appellant.
H038922
(Monterey
County
Super. Ct.
No. SS110802A)
I.
introduction
Male
inmates in the Salinas Valley State Prison are expected to disrobe in their
cells, bend over, and spread their buttocks at the direction of correctional
officers outside their cells. During
such a routine search for contraband on December 30, 2010, Correctional Officer Troy Miller
noticed some lubricant in the rectal area of defendant Lennox Pinks and a
plastic ball protruding from his rectum.
Miller handcuffed defendant after having him dress and brought him to a
more secure area in a health annex for a further search. Although defendant denied having any
contraband on his person, Miller confirmed his observation during a repetition
of the earlier examination. On further
questioning by Miller, defendant admitted it was drugs and clarified that it
was heroin. At Miller’s request, defendant
removed a plastic-wrapped bindle and dropped it behind himself. Subsequent analysis by a
defendant’s rectum were four plastic-wrapped bindles of black tar heroin
totaling .35 grams in weight.
Facing
charges of unauthorized possession of
heroin in prison (Pen. Code, § 4573.6
with a prior robbery conviction (§ 1170.12), defendant agreed to waive a jury
trial on the condition that if convicted, his maximum sentence would be the
lower term doubled to four years. The
same day, August 20, 2012,
defendant was convicted as charged after a court trial based on the above
evidence with no testimony from defendant.
He requested immediate sentencing and was sentenced the same day to
prison for four years consecutive to any other sentence he was already
serving. Defendant filed a handwritten
notice of appeal on October 11, 2012
that explained that his attorney had breached a promise to mail him a
By
letter dated May 2, 2013,
this court notified defendant that his appellate counsel filed a brief inviting
us to identify any arguable appellate issues.
Defendant has responded with a half-page handwritten letter
acknowledging our letter and asking for assistance in arguing that his trial
counsel was ineffective because defendant was not allowed to call specific
witnesses. For the reasons stated below,
we will affirm the judgment.
II. standard of review
We
review the entire record to determine whether appointed counsel has correctly
determined that there are no arguable
issues. (People v. Wende (1979) 25 Cal.3d 436, 441.) In performing our review, we are required to
give a brief description of the facts, the procedural history, the crimes of
which the defendant was convicted, and the punishment imposed, and to address
any contentions personally raised by the defendant. (People
v. Kelly (2006) 40 Cal.4th 106, 124.)
III. trial
court proceedings
On
April 25, 2011, defendant
was charged by complaint with unauthorized possession of heroin while in
Salinas Valley State Prison on December
30, 2010. The complaint also
alleged that he had previously been convicted of two robberies using a firearm
in April 2007. (§ 1170.12.) On April
28, 2011, defendant was arraigned and waived a speedy trial. On May
19, 2011, defendant waived a preliminary examination and was held
to answer on the charges. An information
conforming to the complaint was filed on May 23, 2011.
On
July 7, 2011, defendant filed a request for information from the personnel
files of four correctional officers including Troy Miller pursuant to
Cal.3d 531, sections 832.7, 832.8, and Evidence Code sections 1043 -1045. The request was based on a declaration by
defendant’s attorney on information and belief, but no statement from
defendant. The request also included the
prison incident reports (CDCR form 837-A) filed by four correctional officers
including Miller and Ronaldo Salao. The
Attorney General, representing the California Department of Corrections and
Rehabilitation, filed written opposition.
After argument at a hearing on August
10, 2011, the court denied the request due to lack of “specific
citations as to any inaccuracies, falsehoods, misstatements in the officers’
reports†and the claims of falsification being too conclusory.
After
several continuances, the case returned for jury trial setting on January 11, 2012. On that date, defendant asked to file a
v. Marsden (1970) 2 Cal.3d 118.) At a closed hearing the same day, defendant
expressed concern that his attorney was not working hard enough for him and was
“doing certain investigations, but just not the ones . . . that
are really relevant to this case.â€
name="_ftnref2" title="">[2] The attorney explained what work he and a
defense investigator had done. The
investigator had met with defendant at least five times. Without a defense motion, the prosecutor had
agreed to strike one of the strikes. The
trial court denied defendant’s request to appoint a substitute counsel.
After
several continuances, the case was eventually called for trial on August 20, 2012. Defendant agreed to waive jury trial on the
understanding that he would receive a four-year sentence if found guilty. The prosecutor asked the court to dismiss one
of defendant’s two charged strikes, explaining that the dismissal was “not part
of any plea bargain.â€
As
we have previously summarized, the evidence at trial consisted of testimony
from Correctional Officer Troy Miller, Correctional Officer Ronaldo Salao (the
evidence officer at Salinas Valley State Prison who received the bindle from
Miller), and a criminologist who weighed the bindles and subjected the contents
to chemical tests.
After
the close of evidence, defense counsel submitted the case without argument,
noting only that defendant contends he is not guilty. The court found defendant guilty. Defendant waived time for sentencing and preparation
of a probation report, and requested immediate sentencing. The court sentenced him to four years in
prison, representing the lower term doubled due to the prior strike. The court also imposed the minimum
restitution fund fine of $240 and “$70 in court assessments.â€
IV. defendant’s letter
Defendant
has asked for assistance in presenting his claim on appeal that trial counsel
was ineffective for failing to call unspecified witnesses. He does not mention whether he asked his
appointed appellate counsel for such assistance. The initial incident report recorded
defendant’s admission to having heroin in his rectum. Defendant has not disavowed this admission,
and he has not offered an alternative explanation of Officer Miller’s
observations. We do not see what other
witnesses could have said that might have affected the outcome of defendant’s
court trial.
We
have reviewed the entire record and have found no
V. disposition
The
judgment is affirmed.
____________________________________
Grover,
J.
WE CONCUR:
____________________________
Rushing,
P.J.
____________________________
Márquez, J.
Penal Code.
this hearing.
