Opinion
NOT TO BE PUBLISHED
McINTYRE, J.
APPEAL from a judgment of the Superior Court of Riverside County, and petition for writ of habeas corpus, Roger A. Luebs, Judge. Super. Ct. No. RIF129255
A jury found Donald D. Bryant guilty of possessing cocaine while in a California prison facility. Bryant appeals from the judgment and has filed a companion petition for writ of habeas corpus. On appeal, he argues that: (1) the trial court erred in denying his fifth pretrial Marsden motion (People v. Marsden (1970) 2 Cal.3d 118); (2) the trial court prejudicially erred in admitting evidence of his prior drug conviction; (3) the prosecution committed misconduct during closing argument by shifting the burden of proof; (4) the trial court erred in declining to dismiss one of his prior strike convictions; and (5) the resulting sentence of 25 years to life constitutes cruel and unusual punishment. In his petition for writ of habeas corpus and in his appeal, Bryant contends his trial counsel provided ineffective representation.
We reject Bryant's arguments on appeal and hold that he has failed to make a prima facie showing for relief in his habeas corpus petition. Accordingly, we affirm the judgment and deny the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
An information filed by the Riverside County District Attorney charged Bryant with possessing cocaine while in prison. The information further alleged that Bryant had previously been convicted of two serious or violent felonies.
During trial, Joe Monge, a correctional officer at the California Rehabilitation Center (CRC) in Norco, testified that on October 27, 2005, he searched a two-person dormitory room containing a bunk bed and two lockers. Bryant was not present for the search. Monge opened one of the lockers and found a privilege card belonging to Bryant. Inmates were supposed to carry the privilege cards with them at all times. Monge also found some tissue paper under the lip of a shelf that contained cellophane and a white rock that he thought was methamphetamine. Although there was nothing on the outside of the locker to identify who used it, Monge confirmed that the locker belonged to Bryant by consulting his roster, which listed Bryant's bed as corresponding to that particular locker.
Monge weighed the substance with an electronic scale that indicated it weighed 0.10 grams with packaging material. However, Monge had never used the scale before and did not know how often the scale had been calibrated or checked for accuracy. He tested three samples of the substance, but obtained inconclusive results for methamphetamine, PCP, and cocaine. Monge photographed the substance, placed it in an envelope that he sealed and signed, and secured the envelope in a box in an evidence locker. Monge wrote a report about the incident later that day, where he described the substance as a white powdery rock. He failed to mention finding Bryant's privilege card inside the locker in his report; however, he claimed that he told his supervisors of the find and testified about it at Bryant's preliminary hearing approximately 18 months after the incident.
Javed Khan, a criminalist for the California Department of Justice, later tested and weighed the substance on an electronic scale that had been calibrated and periodically checked for accuracy. The substance weighed 0.13 grams without its packaging and tested positive for cocaine. Mario Derado, a narcotics detective, opined that the cocaine found in Bryant's locker was a "usable quantity" and indicated that the substance had separated into small rocks.
A jury convicted Bryant and, in a bifurcated proceeding, he admitted the truth of the prior conviction allegations. The trial court denied Bryant's motion to dismiss one of his prior strike convictions and sentenced him to 25 years to life in prison. We ordered Bryant's petition for writ of habeas corpus consolidated with the appeal.
DISCUSSION
I. Alleged Marsden Error
A. Facts
Bryant made five pretrial Marsden motions; the first motion challenged Attorney Samra Roth and the other motions challenged Attorney Nicole Williams. Although Bryant challenges only the denial of his fifth Marsden motion in this appeal, we have reviewed the prior motions as they provide the necessary context for the challenged ruling.
The first two motions focused on defense counsel's inability to obtain subpoenaed documents from the CRC and Bryant's frustration in getting the matter to trial. At the hearing on Bryant's third Marsden motion, Williams stated that the CRC appeared to be in compliance with the court's order regarding the subpoena, but that she needed to look at one or two items in greater detail to verify that she had obtained all the material she had requested. The trial court denied the Marsden motion, informing Bryant that another attorney would not be able to process the information faster than his current attorney and that Williams would speak to Bryant about the documents she had received from the CRC.
At the hearing on the fourth Marsden motion, Bryant claimed that the CRC had given him a urine test on the date of the incident and that documentation of the urinalysis was still missing and critical to his defense because it revealed he had not taken any drugs. The trial court told Bryant that he was "on the wrong track" because the officers could have taken the drugs away from him before he used them and a clean urinalysis would not help his defense. Williams informed the court that she had obtained a large stack of subpoenaed material and that she and a defense investigator had spoken to Bryant to ascertain what matters he wanted counsel to explore. She also stated that she had subpoenaed the CRC's policies and procedures with respect to searches and chain of custody issues and the officers' personnel files to look for any complaints against the officers. Other than needing this material, Williams indicated that she was ready for trial.
After the trial court remarked that it was "highly unlikely" that the personnel records would provide any useful information, Bryant expressed his desire to go to trial with the material already in Williams's possession. Williams, however, reiterated her belief that any policy and procedure materials, if they existed, were important to the defense based on Bryant's claim that the prison did not properly handle the search. The court told Bryant that it would give Williams about three weeks to obtain this information and that the trial date would need to be delayed. When the court asked Bryant if he wanted to wait for the material, Bryant stated that he wished to go to trial. The trial court denied the Marsden motion and indicated it would try to set an early trial date.
On the first day of trial about a month later, Bryant again sought to remove Williams as his counsel claiming that she had failed to fully investigate his case. When the court asked for specifics, Bryant asserted that Williams had failed to obtain urinalysis results for tests he took on the date of the incident and on January 28, 2006. He also told the court that he was on the fire crew at the CRC and claimed that Williams failed to speak to his fire captain and a counselor and that these witnesses would have told her that he was never under the influence of drugs. When the court asked if there was anything else, Bryant stated that CRC officers were extorting prisoners, and that the officers placed the drugs in his locker because he refused to give them information about tobacco smuggling at the facility.
Williams stated that she requested the records that Bryant wanted, but that the CRC had responded that no records existed for the dates that Bryant claims he had been tested. Williams acknowledged that she and Bryant had a disagreement on the best way of presenting the case to a jury, but claimed that the information he wanted either did not exist or was not relevant to the defense theory that she would be presenting at trial. She explained Bryant's proposed defense, namely, that a tobacco bust took place at the CRC around the time of the incident, that CRC officials believed that the tobacco came into the facility through the fire crew and that the officers planted the drugs in Bryant's locker to punish him because he refused to provided information about the people bringing tobacco into the facility.
Williams believed she would lose credibility with the jury if she argued a conspiracy theory and stated that she planned to attack how the officers conducted the locker search and tested the drugs. She characterized the disagreement as relating to legal strategy and explained that she had requested information from the CRC on a tobacco bust, but received no material corroborating Bryant's claims. As to the witnesses that Bryant wanted to call, Williams indicated that she spoke with some of these people, received some information about Bryant's behavior on the fire crew, but no specific information regarding the incident. Ultimately, Bryant stated that he wanted to go to trial. Accordingly, the court denied the Marsden motion, concluding that any problem between Bryant and his counsel related to legal strategy.
B. Analysis
Bryant contends the trial court erred when it denied his fifth Marsden motion because his conflict with Williams was not over "tactics" to be employed in his defense, but involved the fundamental decision over whether he or counsel had ultimate control over the defense to be presented to the jury. We disagree.
A defendant is entitled to have the court relieve appointed attorney and appoint new counsel if the record clearly shows that the first appointed attorney is not providing adequate representation, or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Memro (1995) 11 Cal.4th 786, 857.) A conflict over the tactical decisions or the trial strategy to pursue does not constitute the type of "irreconcilable conflict" that demonstrates counsel's representation has become inadequate. (People v. Welch (1999) 20 Cal.4th 701, 728-729 (Welch), overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89.) Once a defendant is represented by counsel, a defendant "surrenders all but a handful of 'fundamental' personal rights to counsel's complete control of defense strategies and tactics." (People v. Hamilton (1989) 48 Cal.3d 1142, 1163, italics in original.) Fundamental matters within the defendant's decisional control are essentially limited to the decisions whether to testify, plead guilty, or waive a jury trial, the right to counsel, privilege against self-incrimination, and the right to present a defense at the guilt phase of a capital trial. (In re Horton (1991) 54 Cal.3d 82, 95.)
We review the denial of a Marsden motion for abuse of discretion. (Welch, supra, 20 Cal.4th at p. 728.) Denial of such a motion is not an abuse of discretion unless the defendant has shown that the failure to replace counsel would substantially impair the defendant's right to assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604.)
Here, the transcripts of the various Marsden hearings reveal that Williams was aware of Bryant's proposed extortion defense, had subpoenaed documents and talked to some of Bryant's proposed witnesses, but ultimately obtained no evidence to support the defense. Thus, the trial court could have reasonably concluded that Bryant's right to make "fundamental" decisions regarding his defense was not violated because Williams elected to pursue "the only strategy with any chance of success." (People v. Jones (1991) 53 Cal.3d 1115, 1139-1140 (Jones).) Accordingly, we conclude there was no abuse of discretion in the trial court's denial of his Marsden motion.
Bryant's reliance on People v. Frierson (1985) 39 Cal.3d 803 (Frierson) is misplaced. In Frierson, counsel was found ineffective for refusing to present any defense at all in the guilt phase of a capital trial. (Id. at pp. 814-815.) Frierson, however, is limited to situations in which "'the defendant openly expresses a desire to present a defense at that stage and when there exists credible evidence to support that defense.' [Citation.]" (Jones, supra, 53 Cal.3d at p. 1139.)
II. Alleged Evidentiary Error
A. Facts
The prosecution moved to admit Bryant's 1997 and 2000 convictions for selling or transporting cocaine to show his knowledge of cocaine as a controlled substance. After hearing argument, the trial court granted the motion. To minimize the impact of the evidence, the parties stipulated that in 2000 Bryant was convicted of selling or transporting cocaine. The trial court later instructed the jury that it could consider the evidence to show Bryant's knowledge that the substance was a controlled substance, but could not consider the evidence for any other purpose. (CALCRIM No. 375.)
B. Analysis
Evidence of other crimes is inadmissible to prove propensity or bad character (Evid. Code, § 1101, subd. (a)), but is admissible when relevant to prove some fact such as intent and knowledge (Evid. Code, § 1101, subd. (b)); however, such evidence may still be excluded if potential prejudice outweighs the probative value of the evidence. (Evid. Code, § 352.) We review the court's evidentiary rulings for an abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149.)
Bryant contends it was prejudicial error to admit evidence of his 2000 conviction because the slight probative value of the evidence was greatly outweighed by its prejudicial impact. We disagree.
To sustain a conviction for possessing cocaine while in prison, the prosecution was required to show that Bryant had knowledge of the illegal character of the substance. (People v. Carrasco (1981) 118 Cal.App.3d 936, 947.) Although Bryant claims that he did not dispute the element of knowledge, he did not offer to stipulate to this element and his not guilty plea placed all of the elements of the offense in dispute. (People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4; People v. Ellers (1980) 108 Cal.App.3d 943, 953 ["It is not necessary for the defendant to raise an issue as to his knowledge before the People can introduce such evidence"].) Since Bryant's knowledge of the illegal nature of the substance was at issue, evidence of his prior narcotic offense was admissible to show his guilty knowledge and the trial court properly instructed the jury on the limited effect of the evidence. (People v. Ellers, supra, at p. 953.)
Moreover, Evidence Code section 352 is concerned only with the potential for "substantial danger of undue prejudice." (Evid. Code, § 352, italics added; People v. Carpenter (1997) 15 Cal.4th 312, 380, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107 ["Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect"].) "'Evidence is not prejudicial, as that term is used in a[n Evidence Code] section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant.... "'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues....'"'" (People v. Branch (2001) 91 Cal.App.4th 274, 286.)
Here, the evidence of the prior conviction damaged Bryant's defense because it tended to prove he knew cocaine was an illegal substance, an element of the crime. (People v. Branch, supra, 91 Cal.App.4th at p. 286 [all evidence that tends to prove guilt is damaging to the defendant's case].) There was no unfair prejudice, however, because the evidence was not of the nature to inflame the emotions of the jury such that the jury would misuse it. Additionally, the court cautioned the jury as to the limited use of the evidence. We presume the jury followed these instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107.)
Even accepting Bryant's argument that the prejudicial effect of the prior conviction evidence substantially outweighed its probative value, the error "does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. [Citations.]" (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.) A more favorable result is not reasonably probable in this case. Bryant did not testify at trial. Instead defense counsel argued in closing that the locker containing the cocaine did not belong to him and that Monge's testimony was not trustworthy based on inaccuracies in Monge's written report. Accordingly, the primary issue for the jury to resolve was whether they believed Monge's testimony. Based on this record, it is unlikely the jury returned a verdict in order to punish Bryant for this past misconduct.
Given the probative value of the evidence, the discretion conferred upon the trial court under Evidence Code section 352, and the jury instruction given by the trial court on the limited use of the prior conviction evidence, we hold the court did not abuse its discretion in admitting evidence of the 2000 conviction. (People v. Pijal (1973) 33 Cal.App.3d 682, 691.)
III. Alleged Prosecutorial Misconduct
During rebuttal argument, the prosecutor argued that Monge saw Bryant's privilege card in the locker and that "[t]here has been absolutely no evidence that that card wasn't in that locker." The trial court overruled defense counsel's objection to the argument on the ground it shifted the burden to the defense. Bryant now claims the prosecutor committed prejudicial misconduct that violated his fundamental constitutional right to a jury trial and to due process of law and therefore the "harmless beyond a reasonable doubt" standard applies. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) We disagree.
Prosecutorial misconduct that "'so infect[s] the trial with unfairness'" may render the resulting conviction a denial of federal due process. (People v. Valdez (2004) 32 Cal.4th 73, 122, quoting Darden v. Wainwright (1986) 477 U.S. 168, 181.) However, conduct that does not render a criminal trial fundamentally unfair violates a defendant's state law due process rights only if the prosecutor used deceptive or reprehensible methods to persuade the jury. (People v. Earp (1999) 20 Cal.4th 826, 858.) When, as here, the claim focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) The trial court ordinarily grants a prosecutor wide latitude during argument (People v. Wharton (1991) 53 Cal.3d 522, 567), and the allegedly improper remark must be viewed in the context of the closing argument as a whole (People v. Lucas (1995) 12 Cal.4th 415, 475 (Lucas)).
Here, the prosecutor's statement simply responded to defense counsel's argument that the prosecution failed to prove that the locker belonged to Bryant and emphasized the undisputed nature of the evidence showing that the locker containing the cocaine belonged to Bryant. This does not amount to misconduct. Even assuming the trial court erred in overruling defense counsel's objection, it is not reasonably possible that the jury construed the statement in an objectionable fashion. The prosecutor later told the jury that she had the burden of proving each element of the crime beyond a reasonable doubt. The court also instructed the jury of the prosecution's burden of proof (CALCRIM Nos. 103, 220, 355, 375) and that the jury must follow the court's instructions if counsel's comments on the law conflicted with the instructions (CALCRIM No. 200). Accordingly, we conclude there was no prosecutorial misconduct. Even assuming there was some misconduct, it was harmless under any legal standard.
IV. Motion to Strike a Prior Conviction
Bryant contends that the trial court abused its discretion in refusing to strike his attempted robbery and robbery convictions from 1989 and 1992. A trial court has limited discretion to strike prior convictions in Three Strikes cases (Pen. Code, § 1385; People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 530) and we will not disturb the trial court's ruling absent an abuse of that discretion (People v. Gillispie (1997) 60 Cal.App.4th 429, 434). In reviewing under this standard, we are guided by two principles. First, the party attacking the sentence must clearly show that the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Without such a showing, we presume that the trial court acted to achieve legitimate sentencing objectives and we will not set aside its discretionary determination to impose a particular sentence. (Ibid.) Second, we are not authorized to substitute our judgment for the judgment of the trial court and we will not reverse the trial court's decision merely because reasonable people might disagree. (Ibid.) We see no abuse of discretion.
As the trial court noted, Bryant's current offense was not serious or violent, it involved a modest amount of drugs, and his prior strike offenses were "somewhat old." Bryant was otherwise doing well in custody and two individuals that supervised Bryant's activity on the fire crew indicated they can recognize whether a person was under the influence of drugs and that Bryant caused no problems.
On the other hand, Bryant had an extensive criminal history starting at age 16 and began having drug related problems in 1986 when he was 29-years old. Starting in 1986, Bryant perpetrated a number of uncharged crimes, including violent assaults, but the victims either could not be found or refused to prosecute the matter. Ultimately, in 1989, Bryant suffered his first strike when he pleaded guilty to attempted robbery in exchange for dismissal of battery and assault charges. He admitted to a probation officer that he was addicted to cocaine. Bryant received probation, but less than a year later he was convicted of receiving stolen property, being under the influence of a controlled substance, possessing drug paraphernalia and burglary.
While serving a two-year prison term for those offenses, Bryant was convicted for attempting to escape from a prison work furlough center. He was paroled in 1991 and committed a robbery two months later, resulting in his second strike conviction and a six-year prison term. Bryant blamed the crime on his need for money to support his cocaine habit. He was paroled in 1997, violated parole several times, and was ultimately charged in 1999 with selling cocaine to an undercover officer. Bryant pleaded guilty and the court sentenced him to ten years in prison after exercising its discretion to strike one of his prior convictions. While in prison, Bryant committed the instant offense.
The trial court admitted that its decision on the motion was "a close call" because the offense was not serious or violent, but noted that Bryant had a propensity for violence and the instant offense suggested Bryant was "back to his old ways." After balancing all of the factors, the trial court denied the motion to strike the prior convictions.
Striking a prior serious felony conviction is an extraordinary exercise of discretion, reserved for extraordinary circumstances. (People v. Strong (2001) 87 Cal.App.4th 328, 332.) The trial court's comments indicate that it properly considered all relevant factors in exercising its discretion, and Bryant does not argue that the court considered any impermissible factors. On this record, we conclude the trial court did not abuse its discretion in refusing to strike one or both of Bryant's prior convictions.
V. Cruel and Unusual Punishment
Bryant contends that his sentence of 25 years to life for the current offense constitutes cruel and unusual punishment under the federal and California Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Although Bryant did not raise this claim below and therefore waived it, we will exercise our discretion to consider his claim on appeal. (See People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
Under the California Constitution, punishment is disproportionate if it "shocks the conscience" considering the offender's history and the seriousness of his offenses. (In re Lynch (1972) 8 Cal.3d 410, 424.) In analyzing a disproportionality claim under the state Constitution, we examine (1) "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society" (id. at p. 425), (2) the sentence compared to the sentences for more serious offenses in California (id. at p. 426), and (3) the sentence compared to sentences for the same offense in other states (id. at p. 427; see also People v. Dillon (1983) 34 Cal.3d 441, 479). If a particular punishment is proportionate to the defendant's individual culpability, there is no requirement it be proportionate to the punishments imposed in other similar cases. (People v. Webb (1993) 6 Cal.4th 494, 536.) Accordingly, a determination of whether a punishment violates the state constitutional prohibition against cruel and unusual punishment may be based solely on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
While Bryant correctly argues that his offense did not involve violence and concerned a small amount of cocaine, he fails to acknowledge that he is being punished not merely for his current offense but for his recidivism. (Rummel v. Estelle (1980) 445 U.S. 263, 284.) As noted above, Bryant has a lengthy criminal history that was not deterred by probation or parole and was interrupted only by periods of incarceration. Additionally, despite a long history of cocaine abuse and his own admission that cocaine abuse caused him to commit many of his offenses, Bryant has not changed his behavior. While Bryant's sentence is harsh, it is not cruel and unusual under the California Constitution. (People v. Stone (1999) 75 Cal.App.4th 707, 715 [25 years to life sentence for a nonviolent drug offense is constitutional].)
Similarly, we cannot say that Bryant's three strikes sentence violates the federal Constitution based on his present felony offense and past recidivism. The Eighth Amendment of the federal Constitution also includes a narrow proportionality protection against grossly disproportionate sentences, but the constitutional protection against such sentences applies only in the "exceedingly rare" and "extreme" case. (Ewing v. California (2003) 538 U.S. 11, 17-18, 20, 21, 29-30 (plur. opn. of O'Connor, J.) [affirming a sentence of 25 years to life under the Three Strikes law for a recidivist who had shoplifted golf clubs worth $1,200, and whose prior convictions were for theft, grand theft of an automobile, burglary, robbery, and battery]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [two consecutive 25-years-to-life terms for two petty thefts not grossly disproportionate].) Bryant's sentence is the same as the one imposed in Ewing and the absence of any gross disproportionality is at least as strong in light of Bryant's current conviction and his pattern of recidivism. We therefore conclude that Bryant's sentence is not cruel and unusual punishment under the federal Constitution.
VI. Alleged Ineffective Assistance of Counsel
In his brief and in an accompanying petition for writ of habeas corpus, Bryant argues he was denied the effective assistance of counsel. He contends trial counsel, Williams, did not challenge the chain of custody for the cocaine, conducted inadequate discovery and failed to subpoena certain witnesses. The petition included supporting declarations and evidence. At this court's direction the Attorney General filed an informal response to the petition making legal arguments but supplying no additional declarations.
As discussed below, Bryant has failed both on appeal and in his petition for habeas corpus to demonstrate the ineffective assistance of counsel.
A. Legal Principles
To prove inadequate trial representation, the defendant must establish that counsel's representation fell below an objective standard of reasonableness and resulted in prejudice. (People v. Bolin (1998) 18 Cal.4th 297, 333.) To establish prejudice, defendant must show that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense or that there is a reasonable probability the result would have been different in the absence of the alleged ineffectiveness. (Strickland v. Washington (1984) 466 U.S. 668, 694.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
In a habeas corpus proceeding, the defendant must initially plead, and then later prove, sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.) To satisfy this initial burden of pleading adequate grounds for relief, the habeas corpus petition must plead the facts with particularity and should "include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations." (Ibid.) We presume the truth, accuracy and fairness of the conviction and the petitioner "bears a heavy burden" to plead sufficient grounds for relief. (Id. at p. 474.) If the petition fails to state a prima facie case for relief, we may summarily deny the petition. (Id. at p. 475.)
B. Failure to Challenge Chain of Custody
1. Facts
After testing and weighing the substance he found in Bryant's locker, Monge photographed it, wrote a report, took it to investigations, put the substance in an evidence envelope that he then placed inside a larger envelope. Monge sealed and signed the envelope and placed Bryant's name and other information on the envelope and secured it in a box in an evidence locker. At trial, Monge identified People's Exhibit 3A as the large envelope containing the smaller envelope with the substance he found in Bryant's locker.
Khan later tested and weighed the substance. He testified that substances to be tested are delivered to the laboratory by a professional courier service or a representative from the agency requesting the test. Substances arrive for testing in a sealed envelope and marked with the submitting agency's information, defendant's name, date of arrest and other relevant information. When the laboratory receives evidence from an agency, it enters the information into a computer, generates a case number and transfers the evidence to a locker that is accessible to the laboratory for analysis. After the substance is tested, the technician re-seals the envelope and places it in an out-going locker for return to the agency that asked for the test.
Khan recognized People's Exhibit Number 3A as an envelope the laboratory gives to client agencies for submission of controlled substances, and identified his handwriting and initials on the envelope. He stated that he personally tested the substance and then re-sealed the envelope.
2. Analysis
"In a chain of custody claim, '"[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." [Citations.]' [Citations.]" (People v. Catlin (2001) 26 Cal.4th 81, 134.)
Bryant claims defense counsel deprived him of a meritorious defense because she did not challenge the admissibility of the cocaine on the grounds that the prosecution failed to establish the necessary foundational facts supporting an unbroken chain of custody. Specifically, Bryant asserts the prosecution did not present evidence showing (a) that Monge found the cocaine in Bryant's locker and (b) how the cocaine got from the evidence locker at the CRC to the crime lab.
We summarily reject Bryant's first assertion because Monge testified that he found Bryant's privilege card in the locker and confirmed that the locker belonged to Bryant by referencing his roster. Although Bryant correctly asserts that no one explained whether a professional courier service or a CRC agent took the sealed envelope from the CRC evidence locker and delivered it to the crime lab, review of the remaining evidence establishes virtually no possibility that someone could have tampered with the substance during that process.
Monge identified the substance found in Bryant's locker and described how he sealed the substance in an envelope and secured the envelope in an evidence locker. Khan recognized the envelope and testified how he tested the substance found inside the envelope and re-sealed it inside the envelope. Accordingly, even if Williams had objected, it is unlikely she would have prevailed in excluding the cocaine on chain of custody grounds. (People v. Lucas, supra, 12 Cal.4th at pp. 445-446 ["Flaws in the chain are often mere technical omissions that competent counsel may consider unworthy of extended debate"].)
In any event, "[t]he decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent." (Lucas, supra, 12 Cal.4th at p. 444.) Had Williams objected to the evidence it is probable that the prosecutor would have elicited further testimony to fill the gap in the chain of custody by asking Khan whether a professional courier service or a CRC agent had delivered the sealed envelope to the crime lab. (See People v. Diaz (1992) 3 Cal.4th 495, 559-560 [failure to object to chain of custody did not constitute ineffective assistance where it was probable the prosecutor could elicit further testimony establishing chain of custody].) This conclusion is bolstered by the fact defense counsel had subpoenaed and obtained the chain of custody documentation for the substance. (Lucas, supra, 12 Cal.4th at p. 445 [if there was any rational reason supporting counsel's failure to make a timely evidentiary objection, we must reject any claim of incompetence of counsel].)
Finally, we reject Bryant's suggestion that the evidence elicited at trial shows that the cocaine had been tampered with because it weighed more at the crime lab, and Monge and Derado were inconsistent in their descriptions of the substance. Williams cross-examined Monge and Khan on the discrepancies regarding the weight of the substance and pointed them out to the jury during closing argument. Review of the evidence also revealed no inconsistencies in the descriptions of the substance. Monge described it as a white powdery rock and Derado stated that it had separated into small rocks.
In summary, we reject Bryant's claim that he received ineffective assistance based on counsel's failure to object to the substance on chain of custody grounds because there exists a satisfactory explanation for counsel's failure to object. (See People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) Additionally, any deficiencies in the chain of custody affected the weight of the evidence and not its admissibility. (People v. Diaz, supra, 3 Cal.4th at p. 559.)
C. Adequacy of Discovery
Bryant notes that the subpoena Roth issued requested all incident reports for the date of the incident and that the CRC replied that no such reports existed. He asserts that Williams provided ineffective assistance because she did not seek reports for a broader time period. To support this assertion, Bryant provided a declaration from Attorney Rich Pfeiffer, a criminal law specialist and former prison inmate, indicating that correctional officers often use threats and favors to gain information. Pfeiffer opined that Williams provided ineffective assistance because she limited her subpoena to the date of the incident and did not request all reports of investigations or tobacco seizures from September to December 2005.
Review of the subpoena reveals that defense counsel not only sought all incident reports relating to tobacco seizures on the date of the incident, but also "all other information pertaining to cell searches, evidence/contraband seizures and chain of custody." Additionally, the subpoena sought all of Bryant's medical testing records and urine test results and all CRC incident reports pertaining to Bryant, including those prepared by Officers Garza, Jenkins, Carrasco, Bandholtz and York.
Williams informed the court at the Marsden hearings that she had received several inches of material from the CRC, that she understood Bryant's proposed defense and that there was no evidentiary support for it. She also told the court that she believed she would lose credibility with the jury if she argued a conspiracy theory. Williams reiterated this concern in a conversation with Bryant's appellate counsel.
In order to establish ineffective assistance based on an alleged failure to investigate, a defendant "must prove that counsel failed to make particular investigations and that the omissions resulted in the denial of or inadequate presentation of a potentially meritorious defense." (In re Sixto (1989) 48 Cal.3d 1247, 1257.) Bryant fails to meet this burden because the record shows that Williams requested and reviewed all material that could have supported Bryant's proposed defense and that the material did not corroborate it. Presumably, appellate counsel had access to all of these materials and confirmed that they did not support Bryant's proposed conspiracy defense. Accordingly, defense counsel's tactical choice not to present Bryant's proposed defense was not unreasonable, and Bryant fails to demonstrate ineffective assistance of counsel on this ground.
D. Failure to Subpoena Witnesses
1. Facts
Bryant appended his own declaration and a declaration from his appellate counsel to the petition for writ of habeas corpus, in addition to Pfeiffer's declaration. Bryant asserts that on the date of the incident he was working on the fire crew when correctional officers took him to the office of Watch Commander Bandholtz. Bandholtz questioned him in front of Correctional Officers Rodriguez, Garza and Martinez about individuals bringing tobacco into the facility, showed him a large quantity of tobacco, and suggested that the incident regarding the cocaine in his locker would "'go away'" if he cooperated in providing information. After Bryant informed Bandholtz that he had no information to provide, Officer Garza took him to the hospital for a urine test.
Bryant also asserts that in January 2006, Officers Gardner and York again questioned him about tobacco smuggling and had him provide another urine sample for analysis. Bryant informed attorneys Roth and Williams about the interrogation on tobacco smuggling and gave them the names of officers to question. The officers, however, refused to speak to the defense investigator. Williams stated that she would not subpoena the officers to appear at trial unless she could interview them prior to trial.
In her declaration, appellate counsel stated that Williams refused to provide a declaration and recounted her conversation with Williams. Williams indicated that she did not disbelieve Bryant's claim that correctional officers had led him to believe he could avoid prosecution for the cocaine if he provided information about tobacco smuggling, but that discovery revealed no information supporting Bryant's claims. Attorney Pfeiffer opined that no reasonable attorney would have abandoned Bryant's proposed defense based on the inability to interview the correctional officers before trial because it is unlikely that all of the officers would be willing to perjure themselves in front of a jury.
2. Analysis
The decision whether or not to call a witness is peculiarly a matter of trial tactics, unless the decision results from the unreasonable failure to investigate. (People v. Bolin, supra, 18 Cal.4th at p. 334.) Here, Williams attempted to interview officers to corroborate Bryant's proposed defense, but they refused to be interviewed. Additionally, although Williams subpoenaed all of Bryant's urine test results and all incident reports pertaining to Bryant, she indicated that the subpoenaed material did not corroborate Bryant's proposed defense. These facts weigh against the potential success of Bryant's defense and support Williams's decision not to present the defense and lose credibility with the jury. Thus, Williams had a reasonable tactical basis for not calling the correctional officers as witnesses.
Similarly, we cannot say counsel was deficient for failing to call witnesses to testify that Bryant worked well on the fire crew and appeared sober. As noted by the trial court, evidence of Bryant's sobriety was of little value because the prosecutor would have simply argued that the correctional officers had found the drugs before Bryant had the opportunity to use them. Defense counsel made a reasonable judgment call that evidence of Bryant's sobriety was of little value and that Bryant was better served by questioning whether the locker containing the substance belonged to him.
The record reveals William investigated the case and reasonably concluded that the testimony of the trial witnesses suggested by Bryant would not have advanced Bryant's defense. Thus, counsel had a reasonable tactical basis for not calling each of the witnesses.
In summary, we conclude that Bryant has not made a prima facie showing of ineffective assistance of counsel and therefore we will reject his arguments made on appeal and deny the petition for writ of habeas corpus.
DISPOSITION
The judgment is affirmed; the petition for writ of habeas corpus is denied.
WE CONCUR: BENKE, Acting P. J., IRION, J.