P. v. Fletcher

Filed 8/29/07 P. v. Fletcher CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Harold I. Cherness, Judge. Affirmed.

Teresa R. Barrera, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Shawn Allen Fletcher appeals the judgment entered following a jury trial which resulted in his conviction of the sale or transportation of cocaine base (Health & Saf. Code, 11352, subd. (a)), and the trial courts findings he had previously been convicted of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), had suffered a prior narcotics related conviction (Health & Saf. Code, 11370.2, subd. (a)), and had previously served five prison terms (Pen. Code, 667.5, subd. (b)). The trial court sentenced Fletcher to six years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. The Peoples Case.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that for the last seven years Los Angeles Police Officer Michael Saragueta (Saragueta) has worked undercover in the Departments narcotics division buy team. His duties in that capacity include purchasing drugs from individuals and having them arrested by backup uniformed officers immediately after the sale. Saragueta believed he had effected over 500 arrests from his work as an undercover officer.

On January 25, 2006, Saragueta was working undercover at the intersection of Fifth and Crocker Streets in Los Angeles. He was the officer designated to make actual narcotics purchases. In preparation for being the buy officer, Saragueta had prerecord[ed] the money he would be using to make purchases by photocopying the six, five and ten dollar bills he intended to use that day, writing his name and serial number on the copy and dat[ing] and time stamp[ing] that [copy] in a date and time stamp machine . . . in [the] office. Saragueta then made additional copies of the stamped and dated photocopies and gave them to his supervisors. Saragueta kept the original time and date stamped document.

Saragueta went to the intersection of Fifth and Crocker Streets at approximately 7:40 p.m. He was dressed in plain clothes and wearing a one-way transmitter. On the other end of the transmitter were Saraguetas supervising officers, Detectives Green, Mossman and Kanchanamanko. After arriving at the intersection, Saragueta went to the northeast corner where between eight and ten people were milling about. Fletcher was standing with a woman who was later identified as Latoya Davis (Davis). When Saragueta was approximately two feet from Fletcher and Davis, Davis asked Saragueta,
How much? Saragueta told Davis he wanted a twenty. Fletcher then asked Saragueta, How much? Saragueta again responded, A twenty. Fletcher took from Saraguetas right hand a prerecorded ten dollar bill and two prerecorded five dollar bills. Davis then handed to Saragueta three off-white solids resembling rock cocaine. Saragueta turned around, began to walk away from Fletcher and Davis, gave a description of Fletcher and Davis to his supervisors over his one-way transmitter, then gave predetermined physical and audible signals to his partners and supervisors indicating a narcotics transaction had taken place. When Saragueta returned to the area
a few minutes later, Fletcher and Davis were being placed under arrest. No narcotics and none of the money given to Fletcher by Saragueta was recovered from Fletcher. However, fifteen of the 20 dollars given to Fletcher was later recovered from Davis.

Saragueta was of the opinion Fletcher and Davis were working together. He testified that frequently two or more individuals work in concert to sell narcotics; one collects the money while the other handles the drugs. In addition, at times one individual will use one or more others to conduct narcotics transactions for him or her. In this way, the individual avoids being found holding any contraband [or buy money] on their person. If detained by a police officer, they dont have anything on their person that would get them to go to jail that night. Saragueta also indicated it is not uncommon for police officers to fail to recover all of the buy money when a narcotics seller is taken into custody. Saragueta stated, Ive seen individuals ball up the money and throw it when uniformed police arrive at the location. Ive seen people, on more than one occasion, physically eat the money so that its not able to be recovered by officers. Saragueta had also observed dealers make[] change for people who are purchasing narcotics from them.

After Fletcher and Davis were taken into custody, Saragueta booked into evidence the rock cocaine he had purchased from Fletcher and Davis, $176 recovered from Davis, and additional rock cocaine . . . which had been recovered from . . . Davis[s] crotch.

Los Angeles Police Officer Mario Barillas (Barillas) was also working undercover at the corner of Fifth and Crocker on the evening of January 25, 2006. Barillass job that evening was to watch over Officer Saragueta, who was the designated buy officer. Barillas was approximately 15 feet away from Saragueta when he saw Saragueta walk up to a man and a woman and have what appeared to be a conversation. Saragueta then held out his hand, which appeared to contain currency. Fletcher, the man standing next to the woman, grab[bed] the money and just [stood] there holding [it]. The woman, who was later identified as Davis, manipulat[ed] a small item in her hands, extended her arm, and handed the item to Saragueta. As Saragueta then walked away from Davis and Fletcher, he gave the predetermined signal indicating a narcotics transaction had just taken place. Barillas also turned and walked away and, as he did so, used his two way wire to give a description of Fletcher and Davis to officers arriving to make the arrests.

Los Angeles Police Officer Jennifer Mak (Mak) was working with the narcotics buy team at the corner of Fifth and Crocker on the evening of January 25, 2006. Mak was assigned to a chase car[]. Once an undercover officer indicated a narcotics transaction had taken place, Mak, who was in uniform and driving a marked patrol car, would go in and arrest the suspects. At approximately 7:40 p.m., Mak arrested Davis. A search of Davis revealed some money and a plastic bag containing a white substance resembling cocaine. Mak gave the narcotics to her supervisor, Detective Green, and the money to another officer, Pedroza.

On the evening of January 25, 2006, Los Angeles Police Officer Mike Pedroza (Pedroza) was to respond to arrest scenes and start paperwork, process and/or detain suspects [and] process evidence. Pedroza was in an unmarked vehicle parked north of the intersection at Fifth and Crocker and was monitoring the scene along with Detectives Green and Kanchanamanko. Before arriving at the location, Pedroza had received from Saragueta a photocopy of the money Saragueta had received to use to make undercover purchases of narcotics. After receiving from Officer Mak the money she recovered from Davis, Pedroza compared the bills to those on the photocopy. Two
of the bills matched. After analyzing the bills, Pedroza gave them to Detective Green. Detective Rickey Green (Green) was parked in an undercover vehicle approximately three or four blocks from the intersection of Fifth and Crocker and was monitoring Saraguetas one-way wire. After Davis and Fletcher had been taken into custody, Green was given the narcotics recovered by Officer Mak and the currency initially given by Mak to Pedroza. Green kept the narcotics and currency until he later returned to the police station. There, he gave them to Saragueta, who booked them into evidence.

Mandel Medina (Medina) is a criminalist for the City of Los Angeles. On January 27, 2006, and again on September 10, 2006, Medina analyzed the off-white substances purchased from Davis by Saragueta and recovered from Davis by Mak. Medina determined the substances contained cocaine in the form of cocaine base.

b. Defense Evidence.

In late 2001 and early 2002, Darrell Allums was homeless and spent time hanging out and panhandling with other homeless persons near the intersection of Wilshire Boulevard and Federal. Saragueta approached Allums and his companions and inquired about some rock cocaine. When Allums and the others told Saragueta they did not have any cocaine, Saragueta left the area, only to return approximately 20 minutes later. Saragueta again asked if anyone had any cocaine or marijuana, and was again told no one had any drugs to sell. Approximately 25 minutes later, Saragueta returned. This time Saragueta offered Allums $40 to get him some rock cocaine. Although he actually had no access to the drug, Allums told Saragueta that he [could] maybe get him some, and that he could make a phone call for [him]. Saragueta went to get some change from a nearby parking lot attendant, then returned to Allums and gave him the change and a $20 bill.

After Allums told Saragueta he might have to wait a little while, Allums went
to a nearby telephone booth as if to make a call. He secreted the $20 in a flower bed, intending to return at a later time to retrieve the money. When Allums next saw Saragueta, he told Saragueta that he saw the guy and . . . gave him [Saraguetas]
$20 bill. Saragueta then left the area.

A short time later, a marked police car arrived and an officer asked Allums where the money was. When Allums told the officer he did not have the money, the officer took Allums into custody. Allums believed he was going to be charged with taking the $20. Instead, he was charged with possession or sales . . . of cocaine. When asked if he had been in possession of any drugs, Allums replied, None whatsoever. Allums then stated, At the scene, there were no drugs. Later on, when I came to court, all of
a sudden there was some drugs.

As a result of the incident, Allums filed a complaint with the Los Angeles Police Department Internal Affairs Division. Allums believed Saragueta had produced [the] drugs falsely.

On cross-examination, Allums admitted having previously been convicted of robbery and burglary.

2. Procedural History.

On March 3, 2006, Fletcher was charged by felony information with the sale or transportation of cocaine base in violation of Health and Safety Code, section 11352, subdivision (a). It was further alleged he had suffered a prior conviction for robbery (Pen. Code, 211) within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), that he had suffered a prior conviction for the sale or transportation of a controlled substance (Health & Saf. Code, 11352) within the meaning of Health and Safety Code, section 11370.2, subdivision (a), and that he had served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).

At proceedings held on May 17, 2006, Fletcher made a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). After reviewing the relevant files, the trial court found responsive and discoverable evidence of several complaints regarding the falsification of evidence, including at least one made against Officer Saragueta.

Fletchers motion to bifurcate the trial on the substantive offense from that on his prior convictions and prison terms was granted on May 17, 2006.

On September 11, 2006, Fletcher made a motion to dismiss the case against him, asserting there was insufficient evidence to hold him to answer to the charge of the sale or transportation of cocaine base. Fletcher argued all the physical evidence was recovered from Davis and that without the original money . . . and with [only] a photocopy of some drugs, without the actual drugs in question, the prosecution had no case. The trial court denied the motion. At the same proceedings, the trial court denied Fletchers motion to have excluded pursuant to Evidence Code section 402 the testimony of various police officers.

On September 12, 2006, at the conclusion of the prosecutions case, Fletcher renewed his motion to dismiss the case pursuant to Penal Code, section 1118.1. Fletcher again asserted the evidence was insufficient to support the charge. The trial court denied the motion.

After the jury returned its verdict, the trial court found true allegations Fletcher had previously been convicted of possession of a controlled substance (Health & Saf. Code, 11350), robbery (Pen. Code, 211), the theft and unlawful driving or taking of a vehicle (Veh. Code, 10851), the sale or transportation of a controlled substance (Health & Saf. Code, 11352) and the manufacture, sale or possession of a weapon or explosive (Pen. Code, 12020).

At proceedings held on October 13, 2006, the trial court denied Fletchers motion for a new trial. After hearing argument from the parties, the trial court then denied Fletchers motion to strike his Three Strikes prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

The trial court sentenced Fletcher to the low term of three years in prison for his conviction of the sale or transportation of cocaine base, then doubled the term to six years pursuant to the Three Strikes law. The court stayed imposition of sentence as to the remaining allegations. Fletcher was awarded presentence custody credit for 259 days actually served and 129 days of good time/work time, for a total of 388 days.

Fletcher filed a timely notice of appeal on October 13, 2006.

This court appointed counsel to represent Fletcher on January 16, 2007.

CONTENTIONS

After examination of the record, appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed May 8, 2007, the clerk of this court advised Fletcher to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On June 28, 2007, Fletcher filed a supplemental brief in which he asserted:
(1) his trial counsel had been ineffective; (2) Officer Saragueta committed perjury and his testimony should have been disregarded; (3) the trial court showed bias when considering his Pitchess motion; (4) the prosecutor committed discovery violations; (5) the trial court erred in denying his request to give as an instruction to the jury CALJIC No. 2.28; (6) the jurys verdict was contrary to the evidence; (7) failure to join him as a codefendant to be tried with Davis caused him prejudice; and (8) the prosecutor improperly withheld exculpatory evidence.

DISCUSSION

1. Fletcher has failed to show his trial counsel was ineffective.

Fletcher asserts his trial counsel was ineffective for various reasons including that counsel was unprepared, failed to procure evidence (a police procedure manual) requested by Fletcher, failed to interview the prosecutions witnesses, failed to successfully argue that the photocopy of the money used by Saragueta to purchase the cocaine base should have been excluded, failed to call Davis as a witness, violated his right to testify in his own defense, and failed to argue that he, Fletcher, had been entrapped. In essence, Fletcher argues that, rather than being adequately prepared, counsel essentially just played it by ear.

To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsels performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsels performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. [Citation.] (People v. Benavides (2005) 35 Cal.4th 69, 92-93; see Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Carter (2003) 30 Cal.4th 1166, 1211.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.) In addition, as a reviewing court, we defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a strong presumption that counsels conduct [fell] within the wide range of reasonable professional assistance. [Citation.] (People v. Hinton (2006) 37 Cal.4th 839, 876.)

In the present matter, it cannot be said counsel was unprepared. A review of the record indicates, although most were denied through no fault of counsel, counsel made numerous motions on Fletchers behalf. In addition, counsel thoroughly cross-examined the prosecutions witnesses, presented a defense witness and arduously argued the evidence could not support a conviction of the sale or transportation of cocaine base.

With regard to Fletchers claim his counsel failed to procure evidence requested by Fletcher, we defer to counsels reasonable decision such evidence was not necessary to adequately defend Fletcher against the alleged charges.

Fletchers assertion his counsel was ineffective for failing to call Davis as a witness is without merit. Had she been called, it is most likely she would have exercised her Fifth Amendment right against self-incrimination and refused to testify.

As to Fletchers assertion his counsel violated his right to testify in his own defense, nowhere in the record is it indicated Fletcher expressed a desire to testify. In any event, if counsel advised Fletcher it was not in his best interest to testify, such advice was sound. Had Fletcher testified, he could have been impeached with his numerous prior convictions.

Fletchers assertion his counsel should have argued he was entrapped has no merit. [T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, [it is presumed] that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspectfor example a decoy programis therefore permissible . . . . (People v. Barraza (1979) 23 Cal.3d 675, 689-690, footnote omitted.) Here, it was not Saragueta who initiated the contact with Fletcher. As Saragueta approached Fletcher and Davis, it was Davis who initially asked the officer, How much? After Saragueta responded
to Davis question, Fletcher then asked him, How much? There is absolutely no evidence Fletcher was entrapped by Saragueta. Accordingly, counsel properly declined to make such an argument.

2. Fletcher has failed to show Officer Saragueta committed perjury.

Fletcher asserts Officer Saragueta is a liar and did so on the stand. Accordingly, Fletcher argues Saraguetas testimony should be considered invalid and without merit.

Our review of the record on appeal fails to indicate Saraguetas testimony was anything less than truthful. His testimony at trial was consistent with his testimony given at the preliminary hearing and was corroborated by that of other officers and the physical evidence. On the record before us, Fletchers contention Saragueta committed perjury at trial is without merit.

3. There is no evidence the trial court was biased when considering Fletchers Pitchess motion.

In Pitchess v. Superior Court, supra, 11 Cal.3d at p. 537, the court determined a criminal defendant is entitled to a law enforcement officers disciplinary and other records if the defendant can show the records are necessary as character evidence to show the officers tendency to commit unlawful or improper acts. Even upon a showing of good cause, however, the right of an accused to obtain discovery is not absolute. In criminal cases, the court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest. (Id. at p. 538.)

We have reviewed the transcript of the Pitchess proceedings in the present case and conclude the trial court properly exercised its discretion when it ordered disclosed to Fletcher numerous records regarding allegations of the falsification or fabrication of evidence or police reports with regard to six officers, including Saragueta, who participated in the operation conducted at the intersection of Crocker and Fifth Streets
on January 25, 2006. Fletchers allegation the trial court was somehow biased is completely unfounded.

4. There is no evidence the prosecutor committed discovery violations.

Fletcher appears to be asserting the prosecutor committed misconduct by failing
to provide Fletcher and his counsel with police reports from each of the officers the prosecutor called to testify at trial. Fletcher refers us to the transcript of pretrial proceedings which occurred on September 11, 2006. At those proceedings, Fletchers counsel made a motion pursuant to Evidence Code section 402, stating, The . . . 402
has to do with the anticipated testimony of certain other officers in the case, an Officer Barillas, Officer Pedroza and an Officer Mak, . . . who are going to testify about certain aspects of the event that led to Mr. Fletchers arrest. [] For example, Officer Barillas is going to testify that he, at least ostensibly, saw Mr. Fletcher and Officer Saragueta interact, and that he saw Officer Saragueta . . . give Mr. Fletcher some money. [] This is the first time I have gotten any indication that this officer was going to testify about this subject matter. [] There are no . . . police reports [other than Saraguetas] that have been given to the defense. . . . Counsel then objected to any testimony other than [that given by] Officer Saragueta, because [the defense] got no other police report[s] [and] no other statements by any of the other officers. In response, the prosecutor stated, . . .
I dont believe theres any legal requirement for the officers to each produce a written police report independently, and my understanding from Officer Saragueta is, in all of these cases, theres one officer appointed and he writes the report on behalf of everyone. Any observations those officers make are incorporated into that one single report. [] Other agencies may do it different ways, but the Los Angeles Police Department apparently, the Central Narcotics Unit, as far as I know, does not. Thats not a legal basis for excluding their testimony. [] Additionally, I told [defense] counsel last week that he was free to call them and speak with them. Theyre here, actually present today. Hes more than welcome to speak with them and question them. The prosecutor continued,
I have spoken to Officer Barilla[s] this morning. His anticipated testimony does not go past what is documented in the report, and each [officers] actions, all of their participation in this case is well documented in Officer Saraguetas report. The trial court then denied defense counsels motion to exclude the testimony of officers other than Saragueta.

On this record, it cannot be concluded the prosecutor committed discovery violations. She could not provide Fletcher and his counsel with police reports that did not exist. Moreover, Fletcher was not prejudiced by the lack of reports. It appears the prosecutor revealed to the defense the existing report and the names of the witnesses she intended to call in a timely manner. She then made the witnesses available to defense counsel for questioning.

5. The trial court properly declined to give CALJIC No. 2.28.

The trial court denied defense counsels request that the jury be instructed with CALJIC No. 2.28. As requested, that instruction read: The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. [Concealment of evidence] [and] [or] [D][d]elay in the disclosure of evidence] may deny a party a sufficient opportunity
to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying partys evidence. [] . . . [] . . . [] [If you find that the [concealment] [and] [or] [delayed disclosure] was by police officers, and relates to a fact of importance rather than something trivial, and does not relate to subject matter already established by other credible evidence, you may consider that [concealment] [and] [or] [delayed disclosure] in determining the [believability] [or] [weight] to be given to that particular evidence[.] . . . .

Defense counsel argued the instruction should be given with regard to the [buy] money not being produced at trial. The prosecutor responded, I dont believe that this is appropriate. . . . [M]y understanding is that with any kind of destruction of evidence there would have to be a showing that the evidence was not only exculpatory but that the officers destroyed the evidence in bad faith neither of which counsel can prove here in this case or theres any evidence of that. [] And this CALJIC mostly refers to discovery violation, which there has not been. . . . After further argument by the parties, the trial court denied defense counsels request that it give CALJIC No. 2.28.

We conclude the trial court acted within its discretion in refusing the requested instruction. The trial court could properly conclude the instruction, which essentially pertained to nonexistent discovery violations, was both argumentative and inapplicable. (See People v. Kraft (2000) 23 Cal.4th 978, 1063 [The trial court acted within its discretion in refusing as argumentative the requested instructions. A defendant has the right, on request, to instructions that pinpoint the theory of the defense, not specific evidence[, or the lack of it,] as such.].)

6. Substantial evidence supports the jurys verdict.

Fletcher asserts the jurys verdict in this matter was contrary to the evidence.

When determining whether the evidence was sufficient to sustain a conviction, our role on appeal is a limited one. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) [T]he test of whether evidence is sufficient to support a conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] (People v. Holt (1997) 15 Cal.4th 619,667, italics omitted.) We draw all reasonable inferences in support of the judgment . (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

In the present case, apart from whether Fletcher believes it was reliable, Saraguetas testimony, corroborated by that of Barillas, established Fletcher participated in the sale of cocaine base. Drawing all reasonable inferences in support of the jurys verdict, Saraguetas and Barillass testimony substantially supports Fletchers conviction of the sale or transportation of cocaine base.

7. Fletchers case was properly severed from Daviss.

Fletcher asserts, although they were originally to be tried jointly, he was prejudiced when his case was severed from Daviss. The contention is without merit.

Fletcher decided to go to trial. According to Fletcher, Davis decided to enter into a negotiated plea agreement under the terms of which she pleaded guilty to possession
of cocaine. Under these circumstances, Fletcher and Davis could not have been tried together. (Contra, People v. Lewisand Oliver (2006) 39 Cal.4th 970, 998 [Denial of severance motion appropriate when [b]oth defendants denied committing the crimes, faced essentially the same charges and allegations, bore equal criminal responsibility,
and relied on a defense of mistaken identity.].)

8. The prosecutor did not withhold exculpatory evidence.

Fletcher asserts the prosecution caused him prejudice when it provided as evidence at trial, not the actual currency allegedly handed to him, but photocopies of the bills.

The state has a duty to preserve evidence that both possesses an exculpatory value that was apparent before the evidence was destroyed, and is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. (California v. Trombetta (1984) 467 U.S. 479, 489 [81 L.Ed.2d 413, 104 S.Ct. 2528] . . . .) Moreover, a constitutional violation is not established unless the authorities acted in bad faith in failing to preserve potentially useful evidence. (Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d 281, 109 S.Ct. 333] . . . .) (People v. Schmeck (2005) 37 Cal.4th 240, 283.)

Here, Fletcher fails to explain how the actual bills he received from Saragueta could be used to his benefit. The bills would most likely have proven inculpatory rather than exculpatory. Accordingly, any failure on the part of the prosecution to produce them did not constitute a violation of Fletchers right to due process of law. (See People v. Schmeck, supra, 37 Cal.4th 240, 283 [[T]he trial court properly found that because the bloodstain evidence was inculpatory rather than exculpatory . . . , the Trombetta test was not satisfied.].)

REVIEW ON APPEAL

We have examined the entire record and are satisfied Fletchers counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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