Filed 11/26/18 P. v. Thompson CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Appointed counsel for defendant Travis Ray Thompson filed an opening brief setting forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.

BACKGROUND

On April 21, 2016, around 11:45 a.m., Correctional Officers Seth Mohr, Marcus Jordan and Charles Pierce were walking in a yard at the California State Prison, Folsom, and headed in the direction of their assigned cell block. They saw defendant, an inmate at the prison, conduct a “pass”—the transfer of an object through a handshake—with an inmate named Avila. The officers suspected this was a drug transaction, the only reason inmates of different races would mix. There was insufficient staff to investigate the matter in the yard, so the officers continued to observe the inmates. Officers Mohr and Jordan saw defendant bend over and put something in his left sock. Officer Mohr notified the observation tower there would be a patdown search of two inmates.

The three officers, accompanied by Correctional Officer Michael Burkhart, went to the yard and detained defendant and an unidentified inmate who was accompanying him. Officer Mohr conducted a patdown of defendant and found nothing. The other inmate was released after his patdown revealed nothing. Defendant was then searched by Officer Jordan, who detected an item in defendant’s left sock and asked defendant what was there. Officer Jordan was bent over and his hand was on defendant’s back area as a precautionary measure. Defendant spun around and punched Officer Jordan twice in the head. Officer Pierce pushed defendant to the ground, but defendant was on top of Officer Jordan and continued to strike him.

Officer Burkhart, who was on top of defendant, punched defendant several times in an attempt to subdue him. Officer Pierce punched defendant as well. Officer Burkhart eventually assisted Officer Jordan in separating himself from defendant, and then placed defendant in restraints.

As a result of the attack, Officer Jordan suffered scars to his hand, wrist, eyebrow, and knee, as well as a fat lip and cut cheek. During a search of defendant after the attack, a manufactured plastic stabbing weapon was found in his sock.

Following a jury trial, defendant was convicted of battery by a prisoner on a nonconfined person (Pen. Code, § 4501.5)[1] while armed with a deadly weapon (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)) and possession of a sharp instrument by an inmate (§ 4502, subd. (a)). The trial court sustained two strike allegations. (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2).) The trial court sentenced defendant to serve 25 years to life in state prison, and imposed various fines and fees.

Defendant appeals.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.)

Defendant filed a supplemental brief in which he contends he was the victim of discriminatory prosecution, there is a code of silence that violates his due process rights, he was improperly forced to represent himself, the denial of a corrections expert witness violated his right to due process, and a correctional officer committed perjury to avoid qualifying as an expert witness for the defense.

Defendant filed a pretrial motion pursuant to Murgia v. Municipal Court (1975) 15 Cal.3d 286 (Murgia) for discovery of evidence of discriminatory prosecution, alleging the prison administration selectively prosecutes inmates for weapons possession and assaults while not prosecuting guards for unnecessary or excessive force, or for deliberately provoking incidents. As evidentiary support for his motion, defendant attached case law, a newspaper from 2005 regarding excessive force charges filed by California prison inmates against correctional officers, and excerpts from a California Senate hearing on California State Prison, Folsom. The trial court denied the motion, finding defendant failed to make an adequate showing that would justify discovery.

The showing required to invoke the discovery rights that Murgia, supra, 15 Cal.3d 286 provides is set forth in United States v. Armstrong (1996) 517 U.S. 456 [134 L.Ed.2d 687]: defendants must produce some evidence of differential treatment of similarly situated members of other races or protected classes along with evidence of discriminatory motivation. (Id. at p. 470.) Defendant’s Murgia motion alleged discrimination between inmates and guards.[2] This alleged discrimination did not involve race, a protected class, or similarly situated class members. We conclude defendant’s Murgia motion was properly denied.

Defendant’s next claim alleges a “code of silence” prevented him from presenting a defense, a violation of his due process rights. The record contains no evidence supporting this claim. The fact that defendant could not get witnesses to support his theory of defense does not support an inference that his right to present a defense was violated.

Defendant made a People v. Marsden (1970) 2 Cal.3d 118 motion in which he alleged trial counsel was deficient in failing to file or investigate motions he suggested for suppressing evidence of his search and to enjoin or dismiss the prosecution based on equal protection and code of silence grounds. Counsel responded that she reviewed and researched his claims and determined they did not support any viable motion. The trial court denied the motion. Defendant subsequently exercised his Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] right to represent himself. Defendant now claims he was forced into exercising his Faretta rights by the allegedly erroneous denial of his Marsden motion.

“Once a defendant is afforded an opportunity to state his or her reasons for seeking to discharge an appointed attorney, the decision whether or not to grant a motion for substitution of counsel lies within the discretion of the trial judge. The court does not abuse its discretion in denying a Marsden motion ‘ “unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.” ’ [Citations.] Substantial impairment of the right to counsel can occur when the appointed counsel is providing inadequate representation or when ‘the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].’ [Citations.]” (People v. Clark (2011) 52 Cal.4th 856, 912.)

None of the motions defendant wanted trial counsel to file or investigate had any merit. Prison inmates have a significantly reduced expectation of privacy, including the privacy interest in their own bodies that must bow to the prison administrator’s interest in checking the flow of drugs, dangerous weapons, or other contraband into prison. (People v. King (2000) 82 Cal.App.4th 1363, 1374.) Any suppression motion would therefore lack merit. As we have already discussed, defendant’s contentions regarding discriminatory prosecution and the “code of silence” are also without merit. “Counsel’s failure to make a futile or unmeritorious motion or request is not ineffective assistance. [Citations.]” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.) Since there is no evidence of a breakdown in communications or ineffective assistance, the trial court did not err in denying the Marsden motion.

Defendant contends the trial court deprived him of his due process right to present a defense by denying his motion to appoint an expert on corrections to establish an affirmative defense to the weapons charge and self-defense to the battery charge. However, defendant’s motion did not identify such an expert, and he has not identified one on appeal. We are not surprised defendant could not identify a corrections expert who would testify to support his affirmative defenses. However, the fact he was not able to call an expert does not mean he was deprived of his due process right to present a defense.

Defendant sought to present Kevin Steele, a sergeant with the Department of Corrections and Rehabilitation, as an expert in support of his “code of silence” claim. At the Evidence Code section 402 hearing, Sergeant Steele testified he was not familiar with a “Hagar report” on the use of force in state prisons, a “Madrid” case regarding the use of force, or how the “code of silence” came into play following the “Madrid” case. The court denied defendant’s motion to allow Sergeant Steele to testify as an expert witness. He contends on appeal that Sergeant Steele perjured himself to avoid testifying as a defense expert.

“ ‘Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the [defendant’s] burden to affirmatively demonstrate error.’ [Citation.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) There is nothing in the record supporting defendant’s perjury claim. Also, defendant fails to establish how any such perjury, if it existed, deprived him of a fair trial or established prejudicial error.

Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

MURRAY, Acting P. J.

/s/

DUARTE, J.