P. v. Dennis

Filed 6/25/07 P. v. Dennis CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.

Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Defendant Jeremy Dewayne Dennis was arrested after he sold $40 of rock cocaine to an undercover police officer on two occasions. The police initiated the undercover operation based on a confidential informants tip.

After a jury trial, defendant was convicted of two counts of selling cocaine base. (Health & Saf. Code, 11352, subd. (a).) He was sentenced to the midterm of four years on count one and the low term of three years on count two, to be served concurrently. Defendant filed a notice of appeal with this court.

We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendants behalf. We examine the entire record ourselves to see if any arguable issue is present.

Counsel briefly stated that the following issues were considered or investigated, but he determined they were not arguable. Nonetheless, we reviewed the issues, summarized as follows. First, counsel asks whether there was substantial evidence, given that two of defendants friends testified he had been with them on the dates the police alleged defendant had sold rock cocaine to the undercover officer.

We must view the evidence in the light most favorable to the judgment, drawing all reasonable deductions from the evidence in the judgments favor. We must accept all assessments of credibility as made by the trier of fact, then determine if substantial evidence exists to support each element of the offenses. (See People v. Carpenter (1997) 15 Cal.4th 312, 387.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support it. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Bolin (1998) 18 Cal.4th 297, 331.)

We find there was no arguable issue as to substantial evidence. The undercover officer testified unequivocally about the dates and circumstances under which he purchased rock cocaine from defendant. Further, the district attorney raised significant doubts as to the credibility of each witnesss testimony. Thus, under the applicable standard of review, not even an arguable issue exists as to substantial evidence.

Counsel next asks whether the trial court erred by failing to dismiss a juror for cause for lack of impartiality. The trial court found that the juror would follow instructions and had not said that any particular outcome was desirable. The defense used a peremptory challenge to dismiss the juror.

We find no arguable issue here. There is no indication the defense exhausted its peremptory challenges or justifiably failed to do so, and thus, any error would not require reversal. Moreover, a trial courts determination as to a jurors true state of mind is binding on an appellate court. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1089.)

Counsel next suggests that prosecutorial misconduct might have occurred. After the prosecutor made his opening statement, the court told the prosecutor he should discuss with any and all of your witnesses about the C.I. hearsay and how to answer questions . . . . Without more, however, we find no arguable issue. There were no objections to the prosecutors opening argument. The defendant bears the burden of both objecting and seeking an admonition to the jury if he believes the prosecutor overstepped the lines of proper argument. Where an admonition would have cured any harm, the failure to request an admonition renders the claim unreviewable. (People v. Silva (2001) 25 Cal.4th 345, 374.)

Even if a reviewable issue existed here, we find nothing improper in the prosecutors opening statement. The prosecutor neither referred to the confidential informant or indicated an expectation that the informant would testify, and therefore, there was no variance in proof creating a potential constitutional issue. (People v. Barajas (1983) 145 Cal.App.3d 804, 809-810.) Indeed, the informants testimony would not have been particularly important or relevant in this particular case.

Finally, counsel suggests that defendant might have received ineffective assistance of counsel because the defense attorney stipulated that a probation report need not be prepared, but at sentencing, she requested the court consider probation. We do not find this amounted to ineffective assistance; it was a tactical decision that was reasonable under the circumstances. (Strickland v. Washington (1984) 466 U.S. 668, 688-689.) We further find no possibility of prejudice. Defendant was already on formal probation at the time of his offense; the trial court indicated that it had no inclination to again give defendant probation rather than a jail term, and we find no reasonable probability that a probation report would have altered this outcome. (Id. at pp. 691-692.)

We have examined the record and found no other arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given 30 days to file written argument on his own behalf, followed by a subsequent extension of time to file a supplemental brief. That period has passed, and we have not received a supplemental brief from defendant.

The judgment is affirmed.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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