Filed 8/8/17 P. v. Roark CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT LEE ROARK II,

Defendant and Appellant.
C080172

(Super. Ct. No. 62-131705)





Defendant Robert Lee Roark II was convicted of bringing a controlled substance into county jail, possession of that substance, resisting a peace officer, and disturbing the peace. On appeal, he contends the trial court prejudicially erred (1) by declining to conduct an in camera review as requested in defendant’s motion to compel discovery of the arresting officer’s personnel records, and (2) by denying his motion for a new trial premised on an asserted showing of ineffective assistance of counsel. We conclude counsel did not render ineffective assistance, but we agree the trial court erred in declining to conduct an in camera review of the arresting officer’s personnel records. Therefore, we conditionally reverse the judgment for the purpose of conducting a discovery hearing in camera.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 7:00 p.m. on July 14, 2014, Deputy Eric Lopin was flagged down by a couple of citizens who informed him there was a group of intoxicated transients asking for money and being disruptive in front of a business within the same shopping center where he was on patrol. Lopin looked in the direction of the business, saw the group in front, and drove towards them. Lopin recognized the group of transients, having had contact with most of them before. As he got out of his patrol car, most members of the group dispersed. Only defendant remained.
Deputy Lopin recognized defendant and knew defendant was not welcome at the shopping center where the store was located, as he had previously been instructed to tell defendant he was not welcome there either by a store manager or the property manager, and had told defendant he was not welcome at that shopping center a half dozen times. As Lopin approached defendant, defendant appeared angry and very agitated. Lopin asked defendant to leave, and in response defendant lifted his fists and demanded that Lopin have his captain respond to their location. Defendant refused to leave despite Lopin’s repeated requests that he do so, and yelled profanities at Lopin. Defendant, who appeared to Lopin to be upset, challenged Lopin to fight, saying, “You think you have what it takes? I fucking doubt it. Let’s see.”
Based on defendant’s behavior, Deputy Lopin decided to arrest him. Lopin wielded his baton and directed defendant to sit down, and defendant complied. As Lopin attempted to handcuff defendant, defendant continued to yell and be disruptive, and he tried to pull away from Lopin. Ultimately, Lopin was able to handcuff defendant, but defendant then refused to stand when directed to do so by Lopin. So, Lopin had to physically lift defendant to his feet and walk him to the patrol car. After securing defendant, Lopin contacted the assistant store manager of the store outside of which Lopin encountered defendant. The assistant store manager told Lopin that defendant could not be in front of the store. Thereafter, Lopin transported defendant to county jail.
At the county jail, in the process of booking defendant into custody, Deputy Lopin directed defendant to read a sign hanging outside the entrance to the jail. The sign warns that any person who knowingly brings drugs or controlled substances into the county jail is guilty of violating the law. Defendant did not alert Lopin to any contraband on his person. During the booking process, another officer conducted an inventory of defendant’s property. Inside defendant’s wallet, among the bills of money, one of the booking officers located a small baggie containing approximately 0.88 grams of methamphetamine.
At trial, defendant testified on his own behalf. He stated that he was outside the store that day because he was going to get some things for other homeless persons who are not allowed into the stores, whereas he was able to shop there. He said he was speaking to another homeless man to see if he needed anything when Deputy Lopin approached and told defendant he was not allowed there, as the officer has done many times before at other locations because he “loathes the homeless.” Defendant indicated he had spoken to managers of the locations who assured him he was welcome in the stores because he does not steal or panhandle, and that he shops at that particular store frequently, sometimes more than once a day. Defendant testified Lopin always tells him he is not allowed at any given store, but that no other deputies do, and denied that any other deputy had told him he could not come back to a store before. Defendant did acknowledge having been told he could not return to a bank by another deputy, however, and that yet another had told him he had to move his camp from another location.
When defendant told Deputy Lopin he was going to buy something to drink, Lopin told him he had to leave, and when he refused, Lopin told him to sit down because he was under arrest for loitering. Defendant stated Lopin directed defendant to place his hands on his head, which defendant did, and then he took one of defendant’s hands and “dropped it” stating, “ ‘Oh, you’re going to resist.’ ” Defendant denied clenching his fists or challenging Lopin to a fight. Defendant also disputed that Lopin directed him to read any sign at the jail, and he stated that he did not recall that the baggie of methamphetamine was in his wallet, though he did acknowledge that the methamphetamine was his. Defendant indicated it was Lopin who was mad and aggressive, not defendant.
The jury found defendant guilty as charged with knowingly bringing a controlled substance into county jail (Pen. Code, § 4573—count one), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)—count two), misdemeanor willful and unlawful resistance of a peace officer (Pen. Code, § 148, subd. (a)(1)—count three), and misdemeanor disturbing the peace (Pen. Code, § 415, subd. (3)—count four). Thereafter, the trial court sustained, as to counts one and two, previously bifurcated allegations that defendant had two prior strike convictions and had served two prior prison terms. It also deemed defendant’s conviction on count two a misdemeanor. The trial court sentenced defendant to six years (double the midterm of three years) in state prison for bringing methamphetamine into county jail, plus two one-year terms for prior prison terms, and concurrent terms of six months for possession of methamphetamine, 180 days for resisting a peace officer, and 90 days for disturbing the peace.
Additional background is provided as relevant in the ensuing discussion.
DISCUSSION
Defendant contends the trial court erred on two fronts: (1) by denying his motion to compel discovery of personnel records without conducting an in camera review of the records, and (2) by denying his motion for new trial based on a claim of ineffective assistance of trial counsel. We conclude defendant has not shown ineffective assistance warranting a new trial, but that the trial court did err in failing to conduct an in camera review of the arresting officer’s personnel records.
1.0 Pitchess Motion
Defendant moved pursuant to Evidence Code section 1043 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to compel discovery of personnel records of Deputy Lopin. Specifically, defendant sought “[a]ll materials, complaints, and reports relevant to [Lopin’s] credibility and veracity,” including, inter alia, “(1) all reports, records or complaints involving the filing of false or misleading police reports by the officer(s), (2) all felony convictions, and misdemeanor convictions, involving a crime of moral turpitude, and (3) all records and reports of complaint or accusations involving criminal or non-criminal acts or conduct evidencing moral turpitude on the part of the named officer(s),” and “[c]omplaints of illegal or unwarranted arrest.” On appeal, he contends the trial court erred in denying his motion to compel discovery of personnel records without conducting a review of records in camera. We agree.
“[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. (Evid. Code, § 1043, subd. (b).) Good cause for discovery exists when the defendant shows both ‘ “materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ ” (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines).) The standard for measuring good cause is “ ‘relatively relaxed’ ” to allow for production of “ ‘all potentially relevant documents.’ ” (Ibid.) To make such a showing, the “defendant need demonstrate only ‘a logical link between the defense proposed and the pending charge’ and describe with some specificity ‘how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.’ ” (Id. at p. 182.) If such a showing is made, “the court must review the requested records in camera to determine what information, if any, should be disclosed.” (Id. at p. 179.) We review a trial court’s ruling on a motion for discovery of peace officer personnel records for an abuse of discretion. (People v. Cruz (2008) 44 Cal.4th 636, 670.) If the defendant shows the trial court erred in denying him discovery, he “must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed.” (Gaines, supra, at p. 182.)
Here, in support of the Pitchess motion, counsel for defendant declared on information and belief that Lopin “has been harassing transients in the Auburn area,” that Lopin has “made false or misleading statements in [his] incident reports in order to camouflage the harassment of Mr. Roark,” that “it is unlikely that the situation unfolded as it was described by” Lopin, that Lopin had been “either untruthful or misleading” in reporting that defendant had been “prohibited from entering various business[es] in the area.” Counsel also averred that “[s]everal substantial issues in the trial of this case will be the officers’ pattern of illegal arrests, distortion of events, and the character, habits, customs and credibility of the officers. The material sought may contain complaints of a like nature by other citizens against [Lopin].” Finally, counsel declared that she expected to show that “the version of events of [Lopin] is contrary to that of the defense and it is the position of the defense that the version of the officer is untruthful.”
Deputy Lopin’s version of events, as recounted in the sheriff’s report, was that Lopin was flagged down by two citizens and advised there was a group of transients in front of a particular store “asking for money, obviously intoxicated and being vulgar and rude.” Lopin recognized defendant among the group as “an ongoing problem with trespassing and disturbing the peace at businesses in North Auburn” who was “no longer welcome at most business complexes in North Auburn as a result,” and that “[d]ue to his previous behavior and actions, . . . neither the store manager [n]or the property manager want [defendant] on the property.” As Lopin got out of his patrol car, defendant “immediately began raising his arms with clenched fists in an aggressive manner and yelling profanities.” He refused Lopin’s demands that he leave, becoming irate and challenging Lopin to a fight. Lopin noted that defendant’s refusal to comply with his orders greatly delayed his investigation, and that defendant was also physically uncooperative with Lopin—he pulled away while Lopin tried to handcuff him, refused to stand when directed, and continually yelled profanities at Lopin. Lopin indicated that the store manager recognized defendant and stated that “[h]e is often loitering in front of the store and involved in altercations and disturbances outside the store. He is always outside yelling profanities and yelling at his girlfriend. He is not welcome at the location and needs to leave.” The sheriff’s report also detailed the discovery of methamphetamine in defendant’s wallet during the jail intake process.
At the hearing on the Pitchess motion, the trial court asked defense counsel how the allegation of untruthfulness would relate to a defense in the case. Counsel for defendant explained that defendant claimed Deputy Lopin had been untruthful when saying that defendant was prohibited from entering the store or other businesses; claimed Lopin frequently harassed transients, including defendant; and disputed the People’s allegation that Lopin had been flagged down by two citizens. The trial court denied defendant’s motion, finding that the allegation of harassment did not have any connection to the charges in the case. Specifically, it noted “the allegations are that the officer was flagged down by two citizens and directed towards Mr. Roark and another group who were outside, not inside, the Dollar Tree. Whether he had been prohibited going inside the Dollar Tree or not frankly is not relevant. The Court does not find there’s a good cause to order an in camera review and denies the motion.”
However, with respect to counts three and four—misdemeanor willful and unlawful resistance of a peace officer and misdemeanor disturbing the peace—the allegations are based almost entirely on the statements of Deputy Lopin that defendant yelled profanities at him, challenged him to a fight, clenched his fists at him, pulled away when he tried to arrest him, and that Lopin knew defendant was not supposed to be there. Thus, defendant’s claim that Lopin had a history of harassing transients, like defendant, and of being untruthful in his reports would be relevant to the defense that defendant was not disturbing the peace or resisting a peace officer. Additionally, if Lopin had no viable basis to detain or arrest defendant for those charges, perhaps defendant would have been able to suppress evidence of the methamphetamine in defendant’s wallet discovered as a result of his arrest. Therefore, we find defendant did show a logical connection between the sought discovery and his defense sufficient to warrant a review in camera of Lopin’s confidential personnel records. Contrary to the People’s contention, defendant did not need to allege more to “establish a plausible factual foundation” for his defense. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86; see People v. Hustead (1999) 74 Cal.App.4th 410, 416-418 [good cause for requested discovery relative to untruthfulness based on denial that events occurred as reported in the police report].) Therefore, it was error for the trial court to fail to provide an in camera review.
However, that does not end our inquiry because defendant must also demonstrate that he was prejudiced by the denial of discovery. On the record before us, we are unable to conclude there is a reasonable probability the discovery sought would have led to admissible evidence helpful to defendant. There may not have been any complaints lodged against Deputy Lopin for harassing transients or falsifying police reports. If that is the case, defendant would not have been prejudiced by the denial of discovery. Nonetheless, there remains the possibility that admissible evidence does exist in the personnel records. Therefore, we must remand the case to the trial court to conduct an in camera review of documents sought in defendant’s discovery motion. (Gaines, supra, 46 Cal.4th at p. 180.) If the review reveals no discoverable information, the trial court is directed to reinstate the original judgment and sentence. (Id. at pp. 178, 180.) If, however, there is discoverable information in Lopin’s personnel file, the trial court must order disclosure and allow defendant the opportunity to demonstrate prejudice. (Ibid.) If defendant makes the requisite showing of prejudice, the court shall order a new trial.
2.0 Motion for New Trial
Following entry of the verdicts but prior to sentencing, defendant moved to dismiss his counsel and for appointment of new counsel, claiming trial counsel provided ineffective assistance. The trial court appointed conflict counsel to determine whether there was a basis for a motion for new trial. Conflict counsel ultimately did move for new trial on the basis of ineffective assistance of trial counsel. In the motion, defendant asserted trial counsel was deficient in (1) failing to adequately investigate the case, (2) failing to present meritorious defenses, (3) failing to object to evidence, and (4) failing to impeach witnesses. Defendant contends the trial court erred in denying his motion because, contrary to the trial court’s findings, he had demonstrated that trial counsel rendered ineffective assistance.
Specifically, aside from the contention that trial counsel was ineffective in pursuing the Pitchess motion, which is here raised as trial court error instead, defendant purports to reassert all the claimed instances of ineffective assistance he raised in his motion for new trial. He claims that he “is arguing for a finding of reversible incompetence of counsel, based on everything in this briefing, and everything in the record. This includes the whole context provided by the pretrial motions, and the trial evidence, set forth above, and incorporated here by reference. It includes the parties’ legal memoranda and attachments, and the testimony at the motion for new trial, and the judge’s findings and ruling, set forth above.” However, it is incumbent on the appealing party to demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) We are not obliged to examine undeveloped perfunctory claims. (See People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10; People v. Mitchell (2008) 164 Cal.App.4th 442, 467 (Mitchell).) Neither is it sufficient for a party to incorporate by reference issues or arguments raised in the trial court without presenting a legal argument based on those documents. (People v. Abilez (2007) 41 Cal.4th 472, 536; People v. Meyer (2010) 186 Cal.App.4th 1279, 1282, fn. 6.) Indeed, when the appealing party fails to present an adequate legal analysis, an issue may be deemed forfeited. (See People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 33.)
Here in his opening brief, defendant presents an argument only as to his trial counsel’s (1) alleged failure to investigate based on her failure to contact the store manager and to review the receipts in defendant’s wallet; (2) failure to object during the People’s opening statement and during Deputy Lopin’s and the assistant store manager’s testimony based on hearsay that defendant was banned from the store, mall, and area; and (3) failure to impeach Lopin with evidence of defendant’s injuries during the arrest. Thus, those are the only claims we consider on appeal. (Mitchell, supra, 164 Cal.App.4th at p. 467.) As to those claims, we conclude defendant has failed to show ineffective assistance of counsel.
2.1 Standard of Review
Generally, we review a denial of a motion for new trial for abuse of discretion. But where, as here, the trial court has denied a motion for a new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court’s factual findings to the extent they are supported by substantial evidence, and reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
Nevertheless, defendant has the burden of proving a claim of ineffective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) To do so, he must show (1) that his counsel’s representation was deficient, i.e., that it fell below a standard of reasonable competence, and (2) that prejudice resulted, i.e., that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 698]; People v. Bell (1989) 49 Cal.3d 502, 546.) “If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
If a defendant shows “that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates . . . [and] that counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense,” we “must look to see if the record contains any explanation for the challenged aspect of representation.” (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope).) If so, and the explanation demonstrates counsel’s act or omission “resulted from an informed tactical choice within the range of reasonable competence,” we must affirm the conviction. (Ibid.) We also affirm if a reason does not appear in the record, unless counsel was asked and could not supply a reason or if any reasonable attorney would not have made the same choice. (Id. at p. 426; see People v. Zapien (1993) 4 Cal.4th 929, 980 [to be deemed inadequate, there must be “ ‘no rational tactical purpose for [counsel’s] act or omission’ ”].) Additionally, “[t]here is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 109 [178 L.Ed.2d 624, 645].)
2.2 Failure to Investigate Adequately
Defendant asserts trial counsel failed to investigate adequately because she did not interview the store manager, who could have testified defendant was not banned from the store, and did not review the receipts in defendant’s wallet, which would have shown that he frequently shopped at the store. We conclude that even if it was unreasonable for trial counsel to not review the receipts or interview the store manager, defendant has not shown the requisite prejudice to support a finding of ineffective assistance of counsel based on the failure to investigate.
Defendant told trial counsel that he was allowed to shop at the store and that he had receipts in his wallet showing that he regularly shopped at the store. The assistant store manager also told counsel that it was possible defendant had been shopping in the store legitimately earlier that day and that he was not prohibited from the store at all times, but could enter and shop if he did not cause any issues. Defendant wanted trial counsel to interview the store manager as well, but trial counsel did not do so. Neither did she review the receipts in defendant’s wallet.
At trial, Deputy Lopin testified he recognized defendant and knew he was not welcome at that location based on prior instructions from the store manager or property manager. The assistant store manager’s testimony at trial was rather unclear. When asked whether defendant was not welcome at the store, she responded, “I have not personally said that, but I do believe so.” And, when asked whether she had told other officers defendant was not welcome, she replied, “We tell many people they’re not welcomed.” She would also say only that it was “possible” that other employees had told defendant he was not welcome but that it was “probabl[e]” defendant had shopped in the store earlier that day. Ultimately, she explained, whether he can shop in the store depends on “management” and defendant’s behavior. She did confirm, however, that she did tell Lopin that defendant could not be in front of the store on the afternoon of defendant’s arrest.
At the hearing on the motion for new trial, the store manager testified that she recognized defendant as a customer and that she had not told defendant or anyone else that defendant could not shop at the store. Neither did she recall telling the prosecutor’s investigator that defendant was a “problem person,” as the investigator had reported. There were approximately 30 receipts in defendant’s wallet showing that he had purchased something from this particular store on multiple occasions, and as recently as the day prior to his arrest.
Counsel was asked but did not recall why she chose not to review defendant’s receipts. However, she did express that she believed there was sufficient evidence that defendant was allowed to shop in the store based on the assistant store manager’s anticipated testimony. Counsel was not asked why she did not contact the store manager; however, with respect to why she did not contact managers of other stores, she stated that she “did not choose to go that route.” Additionally, she explained that because defendant’s felony charges were related to his possession of methamphetamine, her “primary focus [wa]s defending those charges and focusing on that and less so focused on the misdemeanor [charges].” Neither did she believe it would be an effective argument to the jury to attack the basis for the initial arrest.
Defense counsel does have an obligation “ ‘to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” (In re Edward S. (2009) 173 Cal.App.4th 387, 407.) And the failure to engage in such an investigation of “potentially exculpatory evidence, including evidence that might be used to impeach key prosecution witnesses, renders deficient representation.” (Ibid.) That does not mean, however, that such failure is prejudicial. Here, even assuming trial counsel unreasonably failed to review defendant’s receipts and to contact the store manager, defendant has not made an adequate showing of prejudice to permit a finding of ineffective assistance of counsel.
With respect to the receipts in his wallet, defendant argues that they would impeach Deputy Lopin by showing that defendant was allowed to shop at the store and that he had not been “banned,” which would mean that “Lopin had no right to order [defendant] to leave the scene on sight.” So, he contends, “with proper impeachment of Deputy Lopin, the jury might have found Deputy Lopin was overstepping[] by presuming he had the right to peremptorily order [defendant] from the scene. The jury might equally have doubted [defendant] was disturbing the peace[] with fighting words likely to provoke a violent reaction, from a trained peace officer, baton fully deployed, facing an unarmed, dehydrated homeless man.” And had counsel contacted the store manager, defendant argues she would have found out “that the manager never banned [defendant],” and would have obtained contact information for other employees “who, if timely interviewed, might have shed light on the ban issue.” Even if this is true, this does not demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694.)
Whether defendant has been categorically prohibited from the shopping center or store is not relevant to the crimes of which he was convicted. It is relevant, as defendant argues, only in ascertaining Deputy Lopin’s veracity and credibility based on Lopin’s report that he recognized defendant as “an ongoing problem with trespassing and disturbing the peace at businesses in North Auburn” who is “no longer welcome at most business complexes in North Auburn as a result.” For if, contrary to Lopin’s report and testimony, defendant was welcome at the shopping center, that may have cast doubt on the accuracy of Lopin’s testimony about the remainder of his encounter with defendant, including whether defendant disturbed the peace or resisted a peace officer.
In this case, however, neither the receipts demonstrating that defendant shops at the store frequently nor the store manager’s testimony that she had not told defendant or anyone that defendant was unwelcome are sufficiently contrary to the evidence to render counsel’s failure to investigate them prejudicial. Even if defendant did shop at the store frequently and on the day of his arrest, that does not mean that Deputy Lopin was lying or incorrect when he testified he had been told on a half dozen instances by a store manager or the property manager that defendant was not welcome at the shopping center. The assistant store manager’s testimony confirms this; though she believed defendant was not welcome in the store, he shopped there regularly, and he was only asked to leave when he did not comport himself properly. Thus, that employees of this store did not call the police every time defendant shopped there does not mean that other store managers or the property manager did not tell Lopin defendant was unwelcome at the shopping center based on other incidents. The receipts and the store manager’s testimony are simply inadequate to contradict Lopin’s testimony to the extent necessary to make their omission sufficient to support a finding of prejudice.
2.3 Failure to Object
Defendant also contends trial counsel was deficient in failing to object to hearsay statements by the prosecutor and Deputy Lopin that defendant was not allowed at the store, the strip mall, or the area, because those statements violated the trial court’s prior ruling. On this record, we conclude defendant has not demonstrated ineffective assistance based on trial counsel’s failure to object.
Defendant moved in limine to prevent the introduction, via witnesses or counsel, of statements made by civilian witnesses who do not testify at trial. The People argued the statements were admissible to show the effect on the listener, as the statements caused Deputy Lopin to engage defendant. The trial court granted defendant’s motion in limine, but allowed statements made to Lopin alerting him to conduct outside the store. Specifically, the trial court ordered that the People could briefly summarize “what the officer was told by the citizen or citizens when he was originally contacted, but not to get into details or try to quote the parties.”
In his argument on appeal, defendant highlights the following instances as occasions on which trial counsel ought to have objected on hearsay grounds based on the trial court’s in limine ruling.
During her opening statement at trial, the prosecutor stated that Deputy Lopin told defendant to leave the area outside the store because he is “not welcome at this location, [and] he needs to move on.” However, counsel’s statement did not introduce statements of civilian witnesses, but conveyed Lopin’s state of mind. Thus, it is not an out-of-court statement being introduced for the truth of the matter asserted (Evid. Code, §1200, subd. (a)), and neither does it violate the trial court’s ruling in limine. Therefore, counsel was not ineffective for failing to object to the prosecutor’s statement. (People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.”] (Price).)
Next, at the beginning of Deputy Lopin’s testimony he was asked what his attitude was when he got out of his patrol car to approach defendant. Lopin replied, “I just got out of the car, we had the same conversation we were about to have many times before and was just going to ask him to leave.” No out-of-court statement is actually being introduced in this testimony; Lopin simply says they had a conversation. Whether they had it before or not is not hearsay; what would be hearsay would be the content of the conversation. Thus, counsel is not ineffective for failing to object to this portion of Lopin’s testimony. (Price, supra, 1 Cal.4th at p. 387.) Prior to that, when asked what he knew about whether defendant was welcome outside the store, Lopin stated that “[h]e is not welcomed at that location.” Again, this is not objectionable on hearsay grounds, and so it was not ineffective assistance for counsel to not object. (Ibid.)
Later in his testimony, Deputy Lopin confirmed that he had previously “contacted the defendant in the shopping center . . . and informed him that he is not welcomed at that location,” and that he had done so on a half dozen occasions based on either a store manager’s or the property manager’s telling him that defendant was not welcome. Trial counsel was not asked at that hearing on defendant’s motion for new trial to explain why she did not object to Lopin’s testimony on the basis of hearsay. Thus, we will not find ineffective assistance of counsel unless any reasonable attorney would not have made the same choice. (Pope, supra, 23 Cal.3d at p. 426.) In our analysis, we keep in mind that the decision whether to object to testimony is “highly tactical” and may depend on an evaluation of whether objecting would highlight undesirable testimony. (People v. Catlin (2001) 26 Cal.4th 81, 165.) Here, the testimony would have been properly admitted as evidence of Lopin’s state of mind when he contacted defendant on this date and asked him to leave the shopping center. Additionally, we cannot say it would be unreasonable for counsel to have preferred to discredit this testimony on cross-examination rather than highlighting it to the jury by objecting. Therefore, defendant has not shown trial counsel was ineffective for failing to object to Lopin’s testimony on hearsay grounds.
2.4 Failure to Impeach
Finally, defendant contends trial counsel was inadequate in failing to impeach Deputy Lopin with evidence that defendant had been injured during his arrest. We are not persuaded.
There was no dispute that defendant had been injured. Deputy Lopin testified defendant pulled away as Lopin handcuffed him, that Lopin loosened defendant’s handcuffs when he determined they were too tight, and that Lopin pulled defendant up to standing when defendant did not stand as directed. Defendant testified Lopin “pulled [him] up with [his] arms behind [his] back to the point where [his] wrist [wa]s bleeding.”
Counsel was not asked at the hearing on the motion for new trial why she did not present photographs of defendant’s injuries to impeach Deputy Lopin. In another context, however, she explained that because defendant’s felony charges were related to his possession of methamphetamine, her “primary focus [wa]s defending those charges and focusing on that and less so focused on the misdemeanor [charges].” Further, she did not believe that disputing Lopin’s credibility would be the strongest argument before the jury, and she believed if she argued both that and the lack of knowledge, it would fail overall, so she elected to focus on the knowledge element for the felony.
Contrary to defendant’s argument, it is not clear that photographs showing defendant’s injured wrists would have served to impeach Deputy Lopin or necessarily “cast him in a fundamentally different light” since he never testified that defendant was not injured. Additionally, we cannot say it was unreasonable for trial counsel to make the tactical decision to focus on defendant’s felony charges, and to that end to not focus the defense on disputing Lopin’s credibility to the detriment of another defense. Thus, defendant’s claim of inadequate counsel on this basis fails as well.
DISPOSITION
The judgment is conditionally reversed. The cause is remanded to the trial court with directions to conduct a new Pitchess hearing in which it shall either conduct its own review of the relevant records or obtain a list of the documents that the custodians reviewed. If the trial court finds there is in fact discoverable evidence, it shall then determine whether defendant was prejudiced from the denial of discovery. If the court confirms the lack of discoverable evidence or finds that defendant was not prejudiced from the denial of discovery, the judgment shall be reinstated as of the date of its ruling to that effect. Otherwise, the trial court shall conduct further proceedings as are warranted.



BUTZ , J.



We concur:



HULL , Acting P. J.



RENNER , J.