Filed 12/12/17 P. v. Shaw 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

EDWARD SHAW,

Defendant and Appellant.
C082003

(Super. Ct. No. 15F04568)


On the evening of February 12, 2014, Joseph Faggan returned home to find many of his belongings missing, as the result of an apparent burglary. The missing property included a video game console that had been plugged into Faggan’s living room television. Faggan’s television had layers of dust on it, which had been disturbed by what appeared to be latent fingerprint impressions. The latent prints were lifted, processed, and found to substantially match defendant. Faggan testified that he dusted the back of the television, at least once a month.
Faggan testified that he dated defendant’s sister for approximately five to six years, up until 2010 or 2011. In that time, he had seen defendant in front of his house, but never invited him in. Defendant’s sister testified that the relationship with Faggan ended in 2013, and that defendant had been inside Faggan’s house.
Defendant was charged with felony first degree residential burglary. The information alleged defendant had a prior strike conviction and had served a prior prison term.
The jury found defendant guilty of burglary. The trial court sentenced defendant to an aggregate term of 13 years and awarded defendant 526 days of presentence custody credits.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. Defendant filed a supplemental brief contending: 1) Faggan’s testimony was not credible, 2) we should review the statements of the juror who expressed uncertainty about his ability to be impartial due to past experiences, including having been the victim of a burglary, and 3) various claims of ineffective assistance of counsel, including not admitting witness statements into evidence, not cross-examining witnesses as defendant wanted, not explaining things to defendant, and not allowing defendant to testify.
On appeal, we do not reweigh evidence or evaluate a witness’s credibility. (People v. Nelson (2011) 51 Cal.4th 198, 210.) Accordingly, we will not review defendant’s claims regarding the credibility of Faggan’s testimony.
As to the juror statements during jury selection, a juror informed the court that he was unsure he would not be influenced by the fact that his organization had been the victim of numerous burglaries and his car had been previously been broken into. He was hesitant to state he would not be influenced by those experiences. When defense counsel asked the entire venire panel if they could be impartial and fair, the juror indicated he could be. When defense counsel asked the entire venire panel if they would have a hard time being fair or had any feelings about the case one way or another, the juror indicated he would not have a hard time. When the prosecutor asked the entire venire panel if they promised to just listen to the evidence that came in from the witness stand, the juror indicated he would. After defense counsel accepted the jury, the trial court again asked if any of the panel could think of a reason they could not try the case fairly and impartially. The juror reiterated his concerns about remaining impartial given his past experiences. Neither the defense, nor the prosecution, sought to have the juror removed. After exercising one peremptory challenge, defense counsel accepted the jury and the juror was sworn in. Defendant did not challenge any of the seated jurors for cause; nor did he exhaust his peremptory challenges or object to the jury as constituted at the completion of jury selection. Accordingly, his claim fails unless he can establish actual bias. (People v. Foster (2010) 50 Cal.4th 1301, 1325, 117.) “ ‘Actual bias’ is ‘the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.’ ” (Foster, at p. 1325, quoting Code Civ. Proc., § 225, subd. (b)(1)(C).) Defendant has made no claim of actual bias, and the juror’s statements and demeanor on voir dire satisfied the court and counsel that he could be fair despite having been the victim of a crime and his personal experiences. On this record, we find no evidence the juror was actually biased against defendant.
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) As a reviewing court, we defer to counsel’s reasonable tactical decisions, including what evidence to admit or object to. Tactical errors are not generally deemed reversible, and where the reasons for counsel’s decision do not appear in the record, we will not find ineffective assistance of counsel unless there could be no conceivable reason for the acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) To support a claim of ineffective assistance of counsel, defendant must prove that counsel had no such reasonable tactical purpose. (People v Jones (2003) 30 Cal.4th 1084, 1122.) The admission of evidence, cross-examination of witnesses, and advising defendant on testifying, fall within the purview of trial tactics. (See, e.g., People v. Bolen (1998) 18 Cal.4th 297, 334.) Defendant has not claimed, and the record does not establish that counsel lacked any rational tactical basis for these tactical decisions. Moreover, defendant has not alleged or established any errors were prejudicial to his case. Similarly, defendant has not indicated what matters counsel did not explain to him or how that lack represented prejudice. Accordingly, his claims of ineffective assistance of counsel fail.
DISPOSITION
The judgment is affirmed.
/s/
Robie, J.
We concur:


/s/
Nicholson, Acting P. J.


/s/
Hull, J.