Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1240751. John G. Whiteside, Scott Steffen and Charles V. Stone (retired Judge of the Stanislaus Sup. Court, assigned by the Chief Justice pursuant to Cal. Const., art. VI, § 6), Judges.
Judge Whiteside was the trial and sentencing judge; Judge Steffen heard defendant’s Pitchess motion; Judge Stone presided at the hearing at which defendant announced he wished to make a Marsden motion.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, J.
INTRODUCTION
Appellant/defendant Johnny Del Rio admitted ownership of a glass pipe which still contained methamphetamine. Defendant was charged and convicted of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) based on 0.04 grams of methamphetamine that was still in the pipe. The court found true the special allegation that he had one prior strike conviction (Pen. Code, § 667, subd. (d)). He was sentenced to the second strike term of four years.
On appeal, defendant contends his due process rights were violated because the arresting officer destroyed the glass pipe prior to trial, and the court should have instructed the jury that it could acquit him if it found the officer destroyed the glass pipe with the deliberate design to falsely convict him. Defendant also contends the court should have given the unanimity instruction as to the exact quantity of methamphetamine which was the basis for the charge of possession. Defendant raises several claims of ineffective assistance based on defense counsel’s alleged failure to make various evidentiary objections. Defendant also contends the court improperly denied his motion for disclosure of the arresting officer’s confidential personnel records, and the court failed to conduct a hearing on defendant’s request to discharge his appointed counsel. We will affirm.
FACTS
Around 2:20 p.m. on January 26, 2008, Modesto Police Officer Matthew Spurlock was on patrol in a marked vehicle when he saw a green Ford Taurus run a stop sign and almost cause a collision. The other cars swerved away from the Ford and traffic veered into other lanes. Officer Spurlock caught up to the Ford, activated the overhead lights on his patrol car, and tried to conduct a traffic stop. The driver did not stop and continued traveling for four blocks.
Officer Spurlock followed the Ford and observed a driver and front seat passenger. The driver was later identified as Jesus Diaz, and the passenger was defendant Johnny Del Rio. As Spurlock followed the vehicle, he observed “a lot of movement within the vehicle from both subjects. It appeared to me they were reaching down to the floor board, actually into the back seat back floor board area of the vehicle. It appeared they were looking at each other, possibly having a conversation, a lot of movement in the vehicle for that 3- to 4-block span.”
Spurlock called for backup assistance because of the activity inside the car. The Ford finally pulled over and Diaz immediately stepped out of the driver’s door. Spurlock ordered Diaz to get back into the car, and Diaz complied.
Officer Myers arrived as the backup officer and approached the front passenger door. Officer Spurlock walked up to the driver’s door. The driver’s door window was closed, and Diaz spoke through the closed window and said it did not open. Spurlock looked through the window and saw the handle of a pistol in a black nylon case, lying in plain view on the floorboard behind the driver. Spurlock called out to Myers about the gun. Diaz was still sitting inside the car and said the gun belonged to him, it was not loaded, and it did not have a firing pin.
Officer Spurlock asked Diaz for consent to search the car and Diaz agreed. Spurlock found two billy clubs under the driver’s seat, and a five-shot pistol cylinder on the front passenger seat near the center console. The cylinder contained one unexpended.32-caliber round, and the cylinder fit the gun found in the back seat. There was a black backpack in the back seat, which contained a red zippered bag. The red bag contained two syringes and two baggies of a white powdery substance.
Officer Myers asked defendant to step out of the front passenger door. Myers saw a glass pipe on the floorboard under the front passenger seat, and recognized it as similar to those used to smoke methamphetamine. Officer Spurlock also recognized the device as a glass methamphetamine smoking pipe. Spurlock testified, “You could clearly see that within the pipe there was still a lot of usable residue left in the pipe that was within the glass cylinder.” The officers also found a piece of defendant’s mail on the front passenger floorboard.
Officer Spurlock advised Diaz of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and Diaz agreed to answer questions. Diaz said he owned the two billy clubs and used them to intervene when his pit bulls got into fights with people or other dogs. Diaz said the gun belonged to a family member, and Diaz put the cylinder into the car two or three days earlier. Spurlock asked Diaz who placed the bullet in the cylinder, and Diaz did not answer the question. Spurlock asked Diaz about the glass methamphetamine pipe that was under the front passenger seat. Diaz said he did not know it was in the car. Spurlock asked why Diaz and defendant were moving around before they stopped for him. Diaz denied they were moving around.
Officer Spurlock advised defendant of the Miranda warnings and defendant agreed to answer questions. Spurlock asked defendant if he owned the methamphetamine pipe that was found on the front passenger floorboard. Defendant said yes. Spurlock asked defendant when he last used the methamphetamine smoking device. Defendant said he used the glass pipe earlier that morning. Spurlock asked defendant if he was the person who loaded the pipe prior to using it. Defendant said yes.
Spurlock did not conduct any tests to determine if Diaz and defendant were under the influence because “in my opinion, these guys were in enough trouble as it was and I did not see anything glaring as to anyone being under the influence.” He said if a regular methamphetamine user had ingested drugs earlier in the morning, it was common for that person not to show any symptoms of being under the influence later in the afternoon.
After the officers searched the car, a female walked up to the area of the traffic stop. Diaz started yelling at her and said she was his girlfriend, Elizabeth Newsome. Spurlock separately spoke to her across the street from the traffic stop scene. Newsome said she owned the car, and she also owned the black backpack and the red zippered case in the back seat. Spurlock asked Newsome what was inside the red bag. Spurlock did not show Newsome the bag or reveal the contents prior to asking the question. Newsome immediately replied there were two syringes and methamphetamine in the red case, and the items belonged to her.
As for the glass methamphetamine pipe, Officer Spurlock testified, based on his training and experience, that methamphetamine users pour the drug into the bowl of the pipe and smoke it, and leave the rest of the drug in the pipe bowl so they can smoke it later on. Spurlock explained that by leaving the methamphetamine in the pipe bowl, “it’s a lot easier to destroy the evidence of what’s in this pipe because basically all you have to do is take this pipe and crush it, and the evidence has been destroyed for the most part.” Officer Myers also testified that some methamphetamine smokers often “melt their methamphetamine into the pipe as a way of storing it and transporting it to and from as opposed to keeping methamphetamine in a plastic bag.” Myers explained such a practice was “one way to avoid possibly going to jail” because the methamphetamine was within a pipe and just looked like paraphernalia. Myers had collected methamphetamine out of burnt pipes on numerous occasions and retrieved usable amounts.
Spurlock testified he later retrieved a usable amount of substance from the glass pipe found under the front passenger seat. “What I did with this pipe is, as I do with most pipes that I find this much usable amount in, is took it back to the Modesto Police Department property evidence room where I scraped this pipe to retrieve the usable amount from the pipe.” Spurlock conducted a presumptive chemical test on a small amount of that substance and it tested positive for methamphetamine. He packaged the rest of the substance and sent it to the Department of Justice (DOJ) for further tests.
Spurlock testified the glass pipe was destroyed prior to trial pursuant to the Modesto Police Department’s standard policy on such matters. Spurlock testified he never submitted the glass pipe for fingerprints because “I had clear statements” from defendant “that the pipe belonged to him.” Spurlock had never taken fingerprints from a glass pipe.
In issue I, post, we will address defendant’s contentions that the pretrial destruction of the glass pipe violated his due process rights.
A DOJ analyst determined the substance removed from the pipe weighed 0.04 grams and was methamphetamine. Officer Myers testified a normal dose of methamphetamine was 0.01 grams, and 0.04 grams was a usable amount. It was stipulated that defendant was aware of the nature and character of methamphetamine as a controlled substance.
Officer Spurlock separately marked and preserved the two baggies of the off-white powdery substance found in the backpack, and that substance had a gross weight of 0.11 grams. The two separate quantities-from the pipe and from the backpack-were introduced as exhibits at trial.
Defense evidence
Jesus Diaz testified he pleaded guilty to possession of the gun that was found in the car during the traffic stop, and he was serving time for that offense. Diaz also admitted he had been “busted in the past” for selling controlled substances, he previously sold methamphetamine, and he had at least six to eight parole violations for drug sales.
Diaz testified he was driving Elizabeth Newsome’s car on the day of the traffic stop, and he was giving defendant a ride to a friend’s house. Defendant was carrying his cell phone and mail when he got into the car, but he did not have a glass pipe. Diaz testified defendant dropped his things on the floor when Diaz swerved the car to avoid an accident. Diaz denied that they were trying to hide anything before he stopped for the officer, and explained defendant was trying to pick up his papers from the floorboard.
Diaz confirmed that he consented to a search of the car, and he told Officer Spurlock that the gun and billy clubs belonged to him. Diaz testified he was with defendant during the entire traffic stop and car search. Diaz never heard defendant admit the pipe belonged to him, that he loaded the pipe with methamphetamine, or that he used the pipe.
Diaz knew Newsome both smoked and ingested methamphetamine. Diaz testified that about two weeks before the trial, Newsome admitted the glass pipe in the car belonged to her. Diaz admitted he talked to both defendant and Newsome about testifying in this case.
On direct examination, defense counsel asked Diaz about the type of questions asked by Officer Spurlock.
“Q. Now, what was Officer Spurlock asking you?
“A. He... asked me... what clique did I belong to, and I told him-I responded that I didn’t belong to any, I’m an NDO, that’s a Northern drop-out, and he said that’s bullsh-do I say it-well, he cursed and was more aggressive and saying that I was lying and that I need to tell him what clique did I belong to, a man with my tattoo doesn’t belong to-and I just stared at him, like, I can’t tell you something that’s not true, I mean, what do you want to hear, I have been compliant with you.
“
“Q. After he asked you about gang membership, you said you didn’t belong to a gang, did he ask you again at this point if you belonged to a gang?
“A. He asked me four or five times. He was aggressive on that.
“Q. Okay. And what was your response every time?
“A. I just kept telling him no. I mean, he was pretty much aggressive...”
In issue IV, post, we will discuss defendant’s ineffective assistance claim that defense counsel should have objected to these questions about Diaz and defendant being NDOs.
On cross-examination, the prosecutor asked Diaz about his friendship with defendant. Diaz testified they had only known each other for four months but they were good enough friends to give him a ride.
“Q. And does you-does your bond, your friendship with the defendant go beyond just being friends, I mean, you guys are both NDO’s, correct?
“A. Yes.
“Q. You share that in common?
“A. That’s what we share in common, yes.
“Q. What does NDO stand for?
“[Defense counsel]: I’ll object. Move to strike the final question. We talked about this
“THE COURT: Overruled.
“[The prosecutor]: Q. What does NDO stand for?
“A. Northern drop-out.
“Q. And does that give you guys kind of more of a bond? That’s something you guys have in common that goes beyond just friendship?
“A. No.”
The prosecutor asked Diaz if he would “rat out” a friend, and Diaz replied that defendant was “just a vague friend. He’s not someone that I have dinner with.”
Elizabeth Newsome, Diaz’s fiancée, testified that Diaz and defendant were using her car when they were stopped. Newsome testified she both smoked and injected methamphetamine, and the glass pipe under the seat, the syringes, and all the methamphetamine found in the car belonged to her. She believed another pipe was in the red bag. Newsome had driven the car earlier that morning, and she placed the glass pipe under the front passenger seat in case she was pulled over, so “it wouldn’t be underneath my seat.” She also hid the pipe because she did not want Diaz to know she was using methamphetamine again. She had to reach over “quite a bit” from the driver’s seat to put the pipe under the passenger seat.
Newsome testified that when she arrived at the scene of the traffic stop, the officer asked her whether the backpack and red bag belonged to her, and she said yes. However, the officer never asked her about the glass pipe, and she never volunteered the pipe belonged to her. Newsome was in an outpatient drug program at the time of the traffic stop, but she was still smoking and injecting methamphetamine. Newsome entered a plea in another case as a result of her admissions in this case and entered an inpatient program.
A defense investigator testified he was present during an interview between Newsome and defense counsel, which occurred the day before her trial testimony, and Newsome told them that she placed the glass pipe under the car’s front passenger seat.
As we will discuss post, the defense attempted to undermine Officer Spurlock’s credibility, and called Roy Georgeson to testify about an encounter with Spurlock that was unrelated to the instant case. In May 2008, Georgeson was on probation when Spurlock arrested him for possession of methamphetamine. Georgeson later pleaded guilty to the charges, and admitted he had a prior felony conviction for theft in 1998.
Georgeson testified that during the May 2008 incident, Spurlock advised him of the Miranda warnings and Georgeson said he did not want to incriminate himself. According to Georgeson, Spurlock told him to answer the questions truthfully “because if you don’t I will find other charges to bring you up on.” Georgeson testified Spurlock continued to ask him questions, Georgeson said he did not want to answer questions without an attorney, but Spurlock kept asking questions about his methamphetamine use.
Georgeson testified Spurlock’s police report contained false statements attributed to him, particularly Georgeson’s alleged admission that he purchased an eighth of an ounce of methamphetamine. The report also erroneously stated that Georgeson was on parole when he was really on probation.
On cross-examination, Georgeson admitted Spurlock responded to his residence on a domestic violence call, Georgeson dropped a plastic baggie and tried to hide it as he talked to Spurlock, and he later pleaded guilty to possession of methamphetamine. The prosecutor asked Georgeson about the accuracy of each statement that was attributed to him in Spurlock’s report. Georgeson admitted that nearly every statement was accurate, but refuted the report’s claim that he said he bought an eighth of an ounce so he could use it later. Georgeson clarified that Spurlock asked him whether the baggie contained an eighth of an ounce and Georgeson replied that he was not sure.
Officer Spurlock testified on redirect examination that his report mistakenly stated Georgeson was on parole instead of probation, but the rest of the report accurately recorded Georgeson’s statements. Spurlock testified his career would be over if he falsified a report.
DISCUSSION
I. Destruction of the glass pipe.
In California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood), the United States Supreme Court held that law enforcement agencies have a duty under the due process clause of the federal Constitution to preserve evidence “that might be expected to play a significant role in the suspect's defense.” (Trombetta, supra, 467 U.S. at p. 488; Youngblood, supra, 488 U.S. at pp. 56-58.)
Defendant contends Officer Spurlock violated his due process rights under Trombetta and Youngblood because he destroyed the glass pipe from which he removed the methamphetamine which was the basis for defendant’s conviction of possession of methamphetamine. Defendant asserts his fundamental constitutional rights were violated, the errors were structural, and his conviction must be reversed without any consideration of prejudice.
As we will explain, post, defendant failed to raise any trial objections based on due process, Trombetta, or Youngblood, which necessarily waives appellate review of these contentions. Moreover, defendant’s alternative ineffective assistance argument is meritless because defense counsel was well aware of the issues arising from the destruction of the glass pipe but employed a different strategy to raise the issue, and the destruction of the glass pipe did not violate defendant’s due process rights.
We will review the evidence regarding the destruction of the glass pipe, defendant’s requested instructions, and defense counsel’s strategic reliance on the destruction of the pipe as the basis for his defense theory.
A. Preliminary hearing and trial evidence
At the April 2008 preliminary hearing, Officer Spurlock testified about the search of the car, discovery of the glass pipe, and removal of a usable amount from the pipe bowl. Spurlock testified the pipe was photographed, “then the pipe was put in for destruction based on our policy, ” and the pipe no longer existed. Defense counsel did not ask additional questions about the matter.
Defendant did not make any pretrial motions as to whether destruction of the glass pipe violated his due process rights. During the trial, however, defense counsel raised the issue during his cross-examination of Officer Spurlock.
“[Defense counsel]:... Now, you mentioned during the preliminary hearing that the pipe has been destroyed?
“A. Correct.
“Q. All right. When did you destroy the pipe?
“A. It’s part of our procedure.
“Q. Part of your procedure to destroy evidence?
“A. To
“[THE PROSECUTOR]: Objection. Argumentative.
“THE COURT: Sustained.
[DEFENSE COUNSEL]: Q. When did you destroy the pipe?
“A. At the evidence building.”
On further cross-examination, Spurlock testified he never sent the glass pipe for fingerprints before it was destroyed. Spurlock conceded the evidence locker was about 16 feet by six feet, whereas the pipe was only three to four inches long. Spurlock also conceded he did not destroy the gun seized from the car and it was still in the evidence locker.
On redirect examination, Officer Spurlock explained the police department’s policy about destroying narcotics paraphernalia instead of leaving the items in the evidence locker:
“The policy is there because there is a huge risk for someone to take this pipe which has been placed into a paper bag and possibly break it. And if it breaks in their hand it can easily slice through the paper. If it slices through the paper, a lot of the addicts that you see on the street are positive for a lot of different diseases from hepatitis to HIV to you-name-it. There is all kinds of devices to lower that risk factor of someone being injured with the glass. The department decided to make the policy that we document what it is by photograph and then after photographing it, place it into a To Be Destroyed box where we also place other items for destruction.”
Spurlock was not aware of a similar policy to destroy firearms seized during arrests. The police department did not have plastic containers for glass pipes. Spurlock testified he had never sent a glass pipe for fingerprints in any case, and he did not send this glass pipe for fingerprints because “I had clear statements” from defendant “that the pipe belonged to him.” Defendant did not introduce any evidence to contradict Spurlock’s testimony about the department’s policies.
B. Defendant’s requested instructions
While defendant did not specifically raise any Trombetta/Youngblood due process issues about the destruction of the glass pipe, he requested three pattern instructions which would have instructed the jury to find whether the pipe was intentionally destroyed, the suppressed evidence would have demonstrated defendant’s innocence and the person who destroyed the evidence was aware the evidence would have helped exonerate defendant, and would have directed the jury to acquit defendant if it found the glass pipe was intentionally destroyed to falsely convict him. Defense counsel argued the instructions were supported by the evidence because Spurlock intentionally and willfully destroyed the glass pipe, and the jury could decide whether Spurlock acted to falsify evidence. In making these arguments, defense counsel did not assert that the destruction of the glass pipe violated Trombetta, Youngblood, or defendant’s due process rights.
The court refused to give defendant’s three requested instructions and found there was no evidence to support the conclusion that the glass pipe was willfully or deliberately destroyed with the intent to wrongfully or falsely convict defendant. However, the court modified defendant’s first requested instruction and read the following to the jury:
“You have heard testimony that certain items are not available for your inspection. This item is the glass smoking pipe. The question of what happened to this item is entirely a question for you to decide. If you conclude that the glass pipe is unavailable due to the failure of law enforcement to preserve this evidence and the destruction was done without the intent to falsely convict the defendant, you must disregard the unavailability of that item as another fact that you are to consider together with all the other evidence you have heard and seen during this trial.”
C. Closing argument
The prosecutor did not address the destruction of the glass pipe in his closing argument. However, defense counsel used closing argument to vigorously attack Officer Spurlock’s credibility, particularly as to whether defendant admitted the pipe belonged to him, and Spurlock’s failure to tape-record defendant’s alleged admission. Counsel cited to the contrary testimony of Diaz and Newsome, that Newsome admitted the pipe belonged to her. Counsel acknowledged that both Diaz and Newsome had prior records, but argued they were more credible than Spurlock, and asserted Spurlock’s credibility had been undermined by Roy Georgeson.
Defense counsel argued: “This entire case comes down to a statement that wasn’t recorded and a pipe that wasn’t even preserved for fingerprints.” Counsel continued: “Then there’s a pipe. [Defendant] has had one opportunity to prove conclusively beyond all doubt he’s not guilty of the crime and that opportunity was taken away from him and you need to consider that because none of you would like that if that was you in that position.”
“And your liberty is dependent upon a police officer who’s lied in the past. That’s not fair. [Defendant] shouldn’t have to pay for that. Okay. [¶ ] There was one opportunity for him to prove to everyone that he’s not guilty of the crime that’s charged and that was taken away from him, all right.... They have a huge evidence locker. The pipe is three or four inches. [Spurlock] testified we don’t want it to break in the plastic bag. You can put them in a plastic cup and they won’t break.”
In rebuttal, the prosecutor immediately addressed the destruction of the pipe.
“The Jury Instruction tells you that failure of law enforcement to preserve the evidence does not automatically lead to you having to exclude it or deciding something sinister was there. It’s just simply a factor you put together with all the evidence in the case the fact it was destroyed. Well, let’s look at it. I mean, is this something that the officer intentionally destroyed in order to falsify in order to frame [defendant] to this case? Absolutely not. We heard from the officer why they did that. No. 1, it’s pursuant to their policy. They don’t want these hazards, needles, pipes, these things that have hazardous material, clogging up their evidence locker. On top of that you couple with the fact that at the time he was booking all of this stuff into evidence he had a confession by the defendant saying that that’s my pipe. So at the time he booked this into evidence there was no doubt and there is still no doubt as to [whose] pipe that is.”
D. Trombetta/Youngblood -Forfeiture
Defendant contends Officer Spurlock’s destruction of the glass pipe violated his due process rights pursuant to Trombetta and Youngblood, because the glass pipe constituted exculpatory evidence, it could have been tested for fingerprints and DNA evidence to corroborate Newsome’s ownership claim, and Spurlock destroyed it in bad faith. Defendant further argues the destruction of the glass pipe prevented him from effectively cross-examining Spurlock, in violation of Davis v. Alaska (1974) 415 U.S. 308 (Davis), as to whether Spurlock could have removed methamphetamine from the pipe, since Spurlock’s credibility was “highly suspect.”
“Law enforcement agencies must preserve evidence only if it possesses exculpatory value ‘apparent before [it] was destroyed, ’ and not obtainable ‘by other reasonably available means.’ [Citations.] The state's responsibility is further limited when the defendant challenges the failure to preserve evidence ‘of which no more can be said than that it could have been subjected to tests’ that might have helped the defense. [Citation.] In such a case, unless the defendant can show ‘bad faith’ by the police, failure to preserve ‘potentially useful evidence’ does not violate his due process rights. [Citation.]” (People v. DePriest (2007) 42 Cal.4th 1, 41-42 (DePriest).)
If the defendant demonstrates that significant exculpatory evidence was lost, or establishes bad faith in connection with the loss of potentially useful evidence, the trial court has discretion to impose appropriate sanctions. (People v. Medina (1990) 51 Cal.3d 870, 894.) Such sanctions may include fashioning suitable cautionary instructions. (Ibid.) The reviewing court “must determine whether, viewing the evidence in the light most favorable to the superior court's finding, there was substantial evidence to support its ruling.” (People v. Roybal (1998) 19 Cal.4th 481, 510.) “[A] trial court's inquiry whether evidence was destroyed in good faith or bad faith is essentially factual: therefore, the proper standard of review is substantial evidence. [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 831.)
However, a defendant's failure to raise Trombetta and Youngblood issues below necessarily forfeits review of the due process contentions on appeal. (People v. Williams (1997) 16 Cal.4th 635, 661-662.) In addition, a defendant’s failure to object to the alleged restriction of his confrontation rights under Davis, supra, 415 U.S. 308, also forfeits review of the issue on appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 996.)
In the instant case, defendant learned at the preliminary hearing that the glass pipe had been destroyed, but he never raised the Trombetta/Youngblood issues before the trial court, he never argued that destruction of the pipe violated his due process rights or his ability to cross-examine Spurlock, and he did not request an evidentiary hearing as to whether the glass pipe constituted exculpatory evidence and was destroyed in bad faith. While defendant requested special instructions regarding the destruction of the glass pipe, that request was not part of a motion for sanctions brought for a purported violation of Trombetta and Youngblood. We thus conclude defendant’s failure to raise these contentions before the trial court forfeits appellate review.
E. Trombetta/Youngblood - Ineffective Assistance
Defendant acknowledges that he never raised any trial objections to the destruction of the glass pipe pursuant to Trombetta and Youngblood, and makes the alternative argument that defense counsel was prejudicially ineffective for failing to make these due process objections.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) The failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) We defer to counsel’s tactical decisions in examining ineffective assistance claims and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland v. Washington, supra, 466 U.S. at p. 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Defendant argues defense counsel did not have a valid strategic reason for failing to raise the Trombetta/Youngblood issue at trial, and counsel’s omission was prejudicial because the destruction of the glass pipe was structural error which requires reversal per se without any consideration of prejudice. However, the record demonstrates that defense counsel was well aware of the potential issues implicated by the destruction of the glass pipe, he raised those issues during cross-examination of Spurlock, he requested special instructions on that topic, and he extensively discussed the matter in closing argument and tried to assert that Spurlock completely lacked credibility since he destroyed the glass pipe.
Defense counsel was not ineffective for failing to directly move for sanctions under Trombetta and Youngblood because such a motion would have been meritless based on the instant record. As explained ante, the duty to preserve evidence arises only with regard to evidence “that might be expected to play a significant role in the suspect’s defense.” (Trombetta, supra, 467 U.S. at p. 488.) “To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id. at p. 489.) Trombetta does not require that the defendant have access to evidence identical to that which was lost or destroyed. Instead, a Trombetta violation occurs only when the defendant is unable to obtain “comparable” evidence by other reasonably available means. (Ibid.)
The state’s responsibility is further limited when the defendant’s challenge is based on the failure to preserve potentially exculpatory evidence-that is, “evidentiary material of which no more can be said than that it could have been subjected to tests, the result of which might have exonerated the defendant.” (Youngblood, supra, 488 U.S. at p. 57, italics added.) The mere “possibility” that information in the prosecution’s possession may ultimately prove exculpatory “is not enough to satisfy the standard of constitutional materiality.” (Id. at p. 56, fn. *; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8.) In that case, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Youngblood, supra, 488 U.S. at p. 58.)
“The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. [Citation.]” (Youngblood, supra, 488 U.S. at pp. 56-57, fn. *.) It is significant whether the state knew the evidence could form a basis for exonerating the defendant and failed to preserve it as part of a conscious effort to circumvent its constitutional discovery obligation. (Trombetta, supra, 467 U.S. at p. 488.) The negligent destruction of, or failure to preserve, potentially exculpatory evidence, without evidence of bad faith, will not give rise to a due process violation. (Youngblood, supra, 488 U.S. at p. 58.)
In People v. Roybal, supra, 19 Cal.4th 481, the police seized a doorjamb from a murder scene but did not preserve the item. The defendant argued the doorjamb contained an unprocessed fingerprint which might have cleared him. The defendant further argued the police department’s failure to preserve the doorjamb and process the fingerprint deprived him of exculpatory evidence and violated his due process rights. (Id. at pp. 509-510.) Roybal held the trial court properly found “the evidence at issue did not possess an exculpatory value that was apparent before it disappeared; the print may or may not have been defendant’s and may or may not have been the perpetrator’s. Nor did it err in concluding that the disappearance of the doorjamb was inadvertent and not the product of bad faith conduct by the police; indeed, nothing in defendant’s offer of proof disputed such a conclusion.” (Id. at p. 510.)
In People v. DePriest, supra, 42 Cal.4th 1, the defendant argued his due process rights were violated because the police released a homicide victim’s car before it was examined by the defense. (Id. at p. 40.) The police completely examined the car and found the defendant’s fingerprints, photographed the vehicle and released it before it was examined by the defense, and the car disappeared. (Ibid.) The defendant noted the car contained three fingerprints that the technicians could not identify. He argued further tests might have shown the prints were made by a culpable third party or undermined the prosecution’s other fingerprint evidence. (Id. at p. 41.) The defendant requested the court give three special instructions, that the jury could find that evidence which had not been removed from the car would have exculpated defendant. The court rejected the instructions and found no basis to conclude that material exculpatory evidence had been lost or suppressed in violation of due process, and found the police did not act in bad faith in handling the car. (Id. at p. 41 & fn. 13.) On appeal, the defendant argued the alleged due process violations required automatic reversal of his conviction. (Id. at p. 41.)
DePriest rejected the defendant’s due process argument and held the trial court properly found the car had no discernable value for the defense before it was released. The defendant had admitted being in possession of the murder victim’s car, and there was evidence he tried to disguise and hide the vehicle when the police were looking for him. Moreover, the prosecution’s fingerprint experts never said that the three unidentified prints belonged to someone other than the defendant or the victim. (DePriest, supra, 42 Cal.4th at p. 42.) “The three disputed fingerprints ‘may or may not have been defendant's and may or may not have been the perpetrator's.’ [Citation.]” (Ibid.)
DePriest also held the defendant failed to show bad faith, “that ‘the police knew [the car] would have exculpated him’ when it was released. [Citation.]” (DePriest, supra, 42 Cal.4th at p. 42, brackets in original.) The prosecution “scoured” the car for trace evidence and provided the results to the defense. (Ibid.) “Defendant has not argued at trial or on appeal that the prosecution failed to conduct necessary tests or performed any testing in a deficient manner. Rather, he claims only that the prosecution should have preserved the car from which forensic test results were obtained. Even assuming negligence on the prosecution’s part, no more can be said than that the car could have been subjected to further testing by the defense. Accordingly, no due process violation occurred, and no basis for giving defense instructions on the issue arose at trial.” (Ibid.)
In the instant case, defendant argues it is “undisputed” that Spurlock “intentionally” destroyed the glass pipe, the pipe’s evidentiary value was apparent because tests would have refuted Spurlock’s claim that he removed a usable amount from the pipe bowl, and the glass pipe had a “prime surface” from which fingerprints and DNA evidence would have been lifted to confirm Newsome’s testimony that the pipe belonged to her.
As in Roybal and DePriest, however, the glass pipe in this case had no discernable exculpatory value when it was destroyed because defendant had admitted the pipe belonged to him, Spurlock did not send the pipe for fingerprints because of defendant’s admission, there was no evidence that fingerprints were on the pipe or DNA could have been lifted from the surface, and Newsome did not claim ownership until the day before her trial testimony. Both Spurlock and Myers testified they saw the pipe under the front passenger seat when defendant stepped out of the car, and both officers were available for and subject to extensive cross-examination on that point. In addition, defendant had alternate means to introduce evidence as to the location and appearance of the pipe, since the police took photographs which showed the pipe under the seat and a closer view after it had been removed from the floorboard.
Defendant insists the prosecution’s case “began and ended” with Officer Spurlock because he “purportedly discovered” the glass pipe. This statement is erroneous. Officer Myers testified he saw the glass pipe when he asked defendant to step out of the passenger door. Spurlock also saw the glass pipe, but that was after Myers had already seen it.
At most, the glass pipe was potentially exculpatory because defendant claims additional tests might have revealed fingerprints or DNA evidence. (See, e.g., Youngblood, supra, 488 U.S. at p. 57.) As such, defendant would have been required to show the police destroyed the evidence in bad faith. (Id. at pp. 57-58.) Defendant asserts Spurlock destroyed the glass pipe in bad faith because his “purported purpose” was dubious and not credible. “The presence or absence of bad faith by the police for purposes of the Due Process Clause... necessarily turn[s] on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. [Citation.]” (Youngblood, supra, 488 U.S. at pp. 56-57, fn. *.) As explained ante, however, the determination of whether evidence was destroyed in good or bad faith “is essentially factual.” (People v. Memro, supra, 11 Cal.4th at p. 831.) Spurlock testified he submitted the pipe for destruction because defendant already admitted it belonged to him, he had never taken fingerprints off a glass pipe, and he explained the department’s policies on destroying dangerous narcotics paraphernalia. Defendant failed to introduce any evidence to refute Spurlock’s trial testimony about the police department’s policies on the destruction of hazardous narcotics paraphernalia, or that fingerprints or DNA evidence could have been found on the glass pipe.
The entirety of the record thus refutes defendant’s contentions that defense counsel was prejudicially ineffective for failing to directly raise the Trombetta/ Youngblood issue. Counsel was a vigorous advocate for defendant, and his tactical theory of the case was that the glass pipe belonged to Newsome, based on the trial testimony of Newsome and Diaz. However, counsel was faced with Spurlock’s testimony about defendant’s alleged admissions that the glass pipe belonged to him and he loaded methamphetamine into it. In order to deal with defendant’s admission, defense counsel attacked Spurlock’s credibility on nearly every aspect of his testimony. Counsel called Roy Georgeson to testify to the alleged inaccuracies in the police report about their encounter. Counsel extensively cross-examined Spurlock as to why he did not tape-record defendant’s admission and why he destroyed the glass pipe. Defense counsel attempted to show that Spurlock’s reliance on the police department’s policy to destroy the glass pipe was not credible, given the pipe’s small size relative to the large dimensions of the evidence locker.
Defense counsel likely realized a Trombetta/Youngblood motion for sanctions would not have been successful for the reasons discussed above, and instead requested special instructions similar to those requested in DePriest. In this way, counsel tried to get the court to impose sanctions without having to address the obvious deficiencies in a Trombetta/Youngblood motion.
Defense counsel’s strategic decisions were not ineffective, his failure to make a Trombetta/Youngblood motion was not prejudicial because it would have been denied on this record, and defendant’s confrontation rights were not violated because Spurlock testified and was subjected to extensive cross-examination as to why he destroyed the glass pipe.
F. The defense instructions
Defendant contends the court should have given the three requested defense instructions because Spurlock’s destruction of the glass pipe violated his due process rights under Trombetta and Youngblood. However, there was no basis for the trial court to give these defense instructions because there was no evidence that a due process violation occurred, and the court properly denied defendant’s request. (DePriest, supra, 42 Cal.4th at p. 42; People v. Cooper (1991) 53 Cal.3d 771, 811 [trial court not required to give jury instructions as sanction when there is no Trombetta/Youngblood violation]; People v. Huston (1989) 210 Cal.App.3d 192, 215 [trial court does not commit error when it fails to give cautionary instruction in absence of Trombetta violation].)
II. The unanimity instruction was not required
Defendant next contends the court had a sua sponte duty to give a unanimity instruction for the charged offense of possession of methamphetamine, because the jury could have found him guilty based on several different quantities of methamphetamine.
A criminal verdict must be unanimous with the members of the jury agreeing that the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (Ibid.) “When the prosecutor does not make an election, the trial court has a sua sponte duty to instruct the jury on unanimity. [Citation.].” (People v. Mayer (2003) 108 Cal.App.4th 403, 418.)
Defendant contends the unanimity instruction was required because Spurlock testified that defendant admitted he possessed and loaded methamphetamine into the glass pipe earlier that day. Defendant also admitted the glass pipe belonged to him and the pipe still contained methamphetamine. Defendant asserts that based upon Spurlock’s testimony, the jury could have found defendant guilty based on either “that earlier possession” when he loaded the methamphetamine into the pipe and smoked it, or based on his possession of the glass pipe at the time of the traffic stop since it still contained methamphetamine.
The trial court herein did not have a sua sponte duty to give the unanimity instruction because the prosecutor repeatedly clarified in closing argument that the charge of possession of methamphetamine was based on the narcotics that were still in the glass pipe at the time of the traffic stop. The prosecutor reviewed the elements of the offense and argued defendant possessed methamphetamine even though “the controlled substance was inside of this pipe and the pipe wasn’t physically on him. You heard that it was found on the floorboard.” The prosecutor noted the narcotics did not need “to be actually on the person, ” and it was “enough if the person has control over it or the right to control it either personally or through someone else.” The prosecutor cited Officer Spurlock’s testimony about the passenger’s furtive movements after the car was nearly in a traffic accident, and argued it was likely the glass pipe “was on [defendant’s] person before he dropped it right before the traffic stop, ” and he placed it under the seat.
The prosecutor further argued the evidence showed defendant knew of the glass pipe’s presence. “[H]ow do we know that the defendant knew that this pipe with methamphetamine was there?... [T]he pipe was found along the side of the seat he was sitting in and there was controlled substances within that pipe.” Defendant’s furtive movements showed he was “getting rid of this pipe” prior to the traffic stop, and defendant admitted “[t]hat’s my pipe, he goes into detail, he said, I loaded it up, I’m the one that put the dope in the pipe, I last used it this morning.”
The trial court did not have a sua sponte duty to give the unanimity instruction because the prosecutor clearly elected that the charge of possession of methamphetamine was based on the narcotics found in the glass pipe at the time of the traffic stop. (People v. Russo, supra, 25 Cal.4th at p. 1132; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.)
III. Ineffective assistance claims - failure to object
Defendant raises a series of ineffective assistance claims based on defense counsel’s alleged failure to object to several evidentiary issues. In reviewing defendant’s claims of ineffective assistance, the failure to object is generally considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) We defer to counsel's tactical decisions in examining ineffective assistance claims and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland v. Washington, supra, 466 U.S. at p. 689; People v. Lucas, supra 12 Cal.4th at pp. 436-437.) “‘Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 980.)
A. Spurlock’s testimony that Diaz said he did not know the glass pipe was in the car
Defendant contends defense counsel was prejudicially ineffective for failing to object to Officer Spurlock’s testimony that Diaz said he did not know the glass pipe was in the car. Defendant argues Spurlock’s testimony about Diaz’s statement constituted inadmissible hearsay, it was not admissible under any hearsay exception, and counsel’s failure to object was prejudicial.
Respondent concedes Spurlock’s testimony was hearsay but argues counsel’s failure to object was not prejudicial. We agree. Defense counsel intended to and did call Diaz as a witness. Diaz testified he did not know the glass pipe was in the car but Newsome later told him that it belonged to her. Newsome testified she drove that car earlier in the day, and she hid the glass pipe under the front passenger seat because she did not want Diaz to know that she was using methamphetamine again. Newsome’s defense testimony was subjected to extensive impeachment because she failed to claim ownership of the glass pipe at the scene of the traffic stop, and she only told the defense on the day before her trial testimony that the pipe belonged to her. However, her testimony was consistent with Diaz’s statement to Spurlock and Diaz’s trial testimony that he did not know the glass pipe was in the car at the time of the traffic stop.
Defense counsel’s failure to object to Spurlock’s testimony on this point was not prejudicial since Diaz testified and his trial testimony about the glass pipe was consistent with Spurlock’s account of Diaz’s prior statement. This was the only point on which defense counsel relied on Spurlock’s testimony to bolster the credibility of the defense witnesses-that Diaz consistently said he did not know the pipe was in the car, which was consistent with Newsome’s act of hiding the pipe so Diaz would not know she was using methamphetamine.
Defendant also contends that the admission of Spurlock’s testimony on this point violated his Sixth Amendment right to confront and cross-examine witnesses under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Crawford held that a witness’s testimonial out-of-court statements offered against a criminal defendant are inadmissible under the Sixth Amendment unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Id. at pp. 59, 68.) While defense counsel could have raised a Crawford objection when Spurlock testified about Diaz’s out-of-court statement, counsel’s failure to object was not prejudicial since Diaz later appeared as a defense witness, he was sworn and testified, and he confirmed the accuracy of his statement to Spurlock.
B. Spurlock’s testimony that Diaz admitted ownership of the weapons
Defendant next contends that defense counsel should have moved to exclude Spurlock’s testimony that a gun and billy clubs were found in the car, and that Diaz admitted the weapons belonged to him. Defendant argues such evidence was irrelevant and prejudicial to the question of whether defendant possessed drugs.
Defendant’s argument is based on the premise that defense counsel failed to take any steps to seek the exclusion of potentially prejudicial evidence in this case. The entirety of the record refutes this assertion and shows that defense counsel successfully obtained the exclusion of prejudicial evidence. According to the preliminary hearing transcript, Officer Spurlock found a United States Treasury check under the front passenger seat, directly next to the glass pipe. The check was for over $1,400, it was made out to someone other than defendant, and it was not endorsed to or by him. Spurlock testified he asked defendant about the check, and defendant said he got it from a house in Fresno and he only had it for one day.
On the first day of trial, the court granted defense counsel’s motion to exclude any evidence about this check. The court also excluded evidence about other prejudicial contraband found in the car, including a set of bolt cutters, a scanner tuned to the police department’s frequencies, and an apparent destructive device that required the bomb squad’s assistance at the scene of the traffic stop. The court and parties agreed to exclude evidence that defendant was a parolee and that he used a false name when he first spoke to the police, and they agreed to stipulate defendant knew the nature of methamphetamine as a controlled substance. Defense counsel thus successfully obtained the exclusion of extremely prejudicial evidence.
As for the weapons, the prosecutor stated at the pretrial hearing that he would introduce evidence about the inoperable gun and the billy clubs because Diaz took responsibility for those items. He also intended to introduce evidence about the backpack with the methamphetamine and syringes because Newsome claimed ownership of the contraband at the scene. Defense counsel stated he would probably get into these same matters himself and explained that “part of our defense is that the lady [Newsome] that took the blame for some of the dope in the car so I do intend on mentioning her and calling her.”
While defense counsel did not object to the admission of the weapons and Diaz’s statements, counsel’s omission was not prejudicial because the evidence was admissible. Evidence bearing on a witness’s credibility is always relevant. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) Diaz was going to be called as a defense witness, and the existence of the weapons in a car he was driving and his admissions that the weapons belonged to him were highly relevant and probative as to his credibility. Indeed, Diaz repeated his admissions during his trial testimony. Defense counsel was likely aware that an objection to this evidence would have been overruled since the court had already excluded the far more prejudicial evidence about the bolt cutters, police scanner, and destructive device. “It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court. [Citations.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 924.)
C. Diaz’s testimony about prior narcotics sales
Defendant contends defense counsel was ineffective for failing to object to the prosecutor’s questions to Diaz about his prior narcotics sales. As explained ante, Diaz was called as a defense witness and testified he pleaded guilty to possession of the gun that was found in the car during the traffic stop and was serving time for that offense.
“[THE PROSECUTOR]: You’re already doing time for your part of this case so it doesn’t matter what you come in here and say, right?
“[DIAZ]. I guess it does matter if I am here.
“Q. And you have been busted in the past for selling controlled substances, right?
“A. Yes.
“Q. And you’ve had at least six or seven, eight violations of parole for that, right?
“A. Yes.
“Q. And so at some point in time if someone wanted to score some methamphetamine they would come to you; is that correct?
“A. Yes.”
Defendant argues defense counsel should have objected to this sequence because Diaz could have only been impeached with a prior felony conviction for an offense of moral turpitude, his alleged arrests and parole violations were inadmissible, and there was no evidence he had a felony conviction for the sale of narcotics.
It is well settled that offenses involving narcotics sales and possession of narcotics for sale are crimes of moral turpitude “because they involve the intent to corrupt others. [Citation.]” (People v. Franco (2009) 180 Cal.App.4th 713, 722; People v. Rivera (2003) 107 Cal.App.4th 1374, 1381.) It is also well settled that a witness may be impeached by any prior felony conviction that necessarily involves moral turpitude. (People v. Feaster (2002) 102 Cal.App.4th 1084, 1091.)
While misdemeanor convictions themselves are not admissible for impeachment, evidence of the underlying conduct demonstrating moral turpitude is admissible to impeach a witness. (People v. Wheeler (1992) 4 Cal.4th 284, 296-297; People v. Chatman (2006) 38 Cal.4th 344, 373.) “Misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction. While the trial court may weigh proffered impeachment evidence on its individual merit, there is no basis for a ruling that the court's discretion may never be exercised to admit nonfelonious conduct.” (People v. Wheeler, supra, 4 Cal.4th at pp. 295-296.)
The admissibility of prior felony convictions or other past misconduct to impeach a witness is subject to the trial court’s discretion under Evidence Code section 352. (People v. Mendoza, supra, 78 Cal.App.4th 918, 924-925.) “[T]he court has broad discretion to admit acts of moral turpitude to impeach a witness's credibility.” (People v. Doolin (2009) 45 Cal.4th 390, 443, italics added.) When evidence other than a felony conviction is offered for impeachment, the trial court is confronted with “problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present.” (People v. Wheeler, supra, 4 Cal.4th at p. 296.) It is therefore particularly appropriate for the court to weigh “whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297.)
In People v. Doolin, supra, 45 Cal.4th 390, the trial court in a capital case permitted the prosecutor to impeach a defense alibi witness by asking whether she stole computer equipment from a high school. The witness denied doing so but confirmed she had been asked by an officer if she had taken the equipment. (Id. at pp. 442-443.) Doolin held the impeachment evidence was relevant to the witness’s credibility, and admissible as prior conduct demonstrating moral turpitude. (Id. at p. 443.)
In People v. Kennedy (2005) 36 Cal.4th 595, the court held the prosecution properly impeached a defense witness with the fact that he and the defendant were previously arrested while in possession of pistols in an incident unrelated to the charged offenses. Kennedy held such evidence was relevant to impeach the defense witness’s credibility and his claim that he had never seen defendant carry a gun, the evidence was admissible, and it was not designed to elicit inadmissible propensity evidence. (Id. at pp. 619-620.)
Defense counsel’s failure to object to the prosecutor’s impeachment of Diaz was not prejudicial because such evidence was admissible. The prosecutor was not limited to impeaching Diaz with the fact of a prior felony conviction for a moral turpitude offense. Diaz admitted he had been arrested for selling narcotics, he had suffered parole violations for selling narcotics, and, more importantly, that if “someone wanted to score some methamphetamine” they could come to him. The prosecutor did not simply impeach Diaz with the bare fact that he had prior arrests or parole violations in an attempt to introduce inadmissible propensity evidence. Instead, Diaz was impeached with his admitted conduct of selling methamphetamine and that he had regularly engaged in such conduct. As we have explained, narcotics sales is an act of moral turpitude because it involves “the intent to corrupt others. [Citation.]” (People v. Franco, supra, 180 Cal.App.4th at p. 722.) There were no problems of proof since Diaz readily admitted that he previously sold methamphetamine, and the impeachment evidence did not involve undue time, confusion, or prejudice. The impeachment evidence of Diaz’s prior acts of moral turpitude was admissible.
D. Diaz’s testimony about former gang membership
As set forth ante, Diaz testified that he and defendant were both “NDOs, ” and explained they were Northern dropouts. Defendant contends defense counsel was prejudicially ineffective for failing to move to exclude evidence that Diaz and defendant were formerly members of a Northern gang. Defendant argues evidence of their prior gang relationship was irrelevant because the instant offense was not gang related, and defense counsel failed “even to attempt meaningfully” to seek exclusion of this evidence.
Defendant’s ineffective assistance argument is based on the premise that defense counsel did not “meaningfully” try to exclude this evidence. The record refutes this assertion. As discussed ante, the court reviewed the parties’ evidentiary motions prior to trial, and defense counsel moved to exclude any mention of gang membership. The court initially agreed. The prosecutor objected and argued the evidence was admissible if Diaz testified for defendant, and “it comes up as a bias or a special link between him and the defendant.” The court reconsidered its ruling and held: “Well, if Mr. Diaz testifies, he’s entitled to be examined for bias if he has a specific link with the defendant.”
In any event, we have already explained that evidence bearing on a witness’s credibility is always relevant. (People v. Rodriguez, supra, 20 Cal.4th at p. 9.) “Evidence of a relationship between a witness and a party is logically relevant to show bias. [Citation.]” (People v. Ruiz (1998) 62 Cal.App.4th 234, 240.) “[A] witness’s common gang membership with a defendant on whose behalf he testifies is relevant to establish the witness’s bias. [Citations.]” (People v. Bojorquez (2002) 104 Cal.App.4th 335, 342.) Where other evidence shows “the witness’s association with the defendant, evidence of their gang membership should be excluded under Evidence Code section 352, in view of its inflammatory and prejudicial nature. [Citations.]” (Id. at p. 342.) However, “[e]vidence of gang membership has been admitted to prove bias, provided it is not cumulative to other properly admitted, and less inflammatory, evidence. [Citations.]” (People v. Ruiz, supra, at p. 240.)
The defense theory was that the glass pipe belonged to Newsome, and she hid the pipe under the front passenger seat earlier that day because she did not want Diaz to know that she was using methamphetamine again. Diaz was a critical defense witness because he testified that defendant got into the car with just his cell phone and some mail, defendant did not have a glass pipe, Diaz did not know the glass pipe was in the car, and Newsome later admitted to him that the pipe belonged to her.
Diaz’s credibility and the nature of his relationship with defendant were clearly relevant. Diaz testified that he had only known defendant for four months, he was just giving defendant a ride, and he described defendant as “just a vague friend. He’s not someone that I have dinner with.” In the absence of independent evidence about the nature of the relationship between defendant and Diaz, Diaz’s testimony about their former gang membership and the relationship between them was clearly relevant and admissible to establish Diaz’s possible bias. (See, e.g., People v. Bojorquez, supra, 104 Cal.App.4th at p. 343.) Such evidence was not cumulative to any other evidence tending to establish a relationship between defendant and Diaz, the evidence tended to impeach Diaz’s credibility in a material respect, and it was highly probative as to whether there was a bond between Diaz and defendant, and the impact of that bond on Diaz’s possible bias. (People v. Ruiz, supra, 62 Cal.App.4th at p. 241.)
While evidence of gang membership creates a risk of prejudice, the prosecutor did not rely upon this evidence to discuss street gangs in general, aspects of gang violence, fear, or retribution, or dwell on gang evidence in his closing argument. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Ruiz, supra, 62 Cal.App.4th at p. 241.) Indeed, the prosecutor’s only reference to this issue in closing argument was when he argued Diaz was not credible because he was defendant’s friend, but he did not discuss their NDO status in any way. Thus, the prejudicial impact of this evidence was mitigated and limited to issues of bias and credibility. Defense counsel was not prejudicially ineffective for failing to move for the exclusion of this evidence.
IV. Denial of the Pitchess motion.
Defendant filed a pretrial motion for disclosure of Officer Spurlock’s personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The court conducted an in camera review of Spurlock’s files, and found there was no information subject to discovery or disclosure under Pitchess. We have also learned that one of the confidential files reviewed by the superior court was routinely destroyed by the police department while this appeal was pending. As we will explain, we ordered the superior court to produce a settled statement to clarify the record as to all the confidential records it reviewed before it denied defendant’s Pitchess motion.
On appeal, defendant requests this court conduct an in camera review of the documents that were before the trial court, and determine whether the court abused its discretion when it denied his Pitchess motion. In light of the subsequent destruction of one of those reports, defendant further argues a settled statement is inadequate to cure the absence of that report, and his due process rights have been violated since there is an inadequate record to permit meaningful appellate review of the court’s denial of his Pitchess motion.
We begin with the well-settled principles concerning the Pitchess discovery procedure, which has two steps. First, the party must file a written motion describing the type of records sought, supported by “[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.” (Evid. Code, § 1043, subd. (b)(3); People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).)
Second, if the superior court finds good cause for discovery of personnel records, the court conducts an in camera review of the pertinent documents to determine which, if any, are relevant to the case, typically disclosing only identifying information concerning those who filed complaints against the officers. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) “The trial court may not disclose complaints more than five years old, the ‘conclusions of any officer’ who investigates a citizen complaint of police misconduct, or facts ‘so remote as to make [their] disclosure of little or no practical benefit.’ [Citations.]” (Ibid., italics added, brackets in original.) Even upon a showing of good cause, the defendant is only entitled to information that the court, after the in camera review, concludes is relevant to the case. (People v. Johnson (2004) 118 Cal.App.4th 292, 300.)
When the superior court conducts the in camera review, it must make a record that will permit future appellate review. (Mooc, supra, 26 Cal.4th at pp. 1229-1230; People v. Guevara (2007) 148 Cal.App.4th 62, 69.) The court may do so by either copying the documents and placing them in a confidential file, preparing a sealed list of the documents it reviewed, or “simply state for the record what documents it examined” and seal that transcript. (Mooc, supra, 26 Cal.4th at pp. 1229-1230.)
The trial court's determination of whether confidential personnel records are discoverable is subject to review for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.) If there is any uncertainty in the record as to which documents were reviewed by the trial court, this court may remand the matter to the trial court with directions to conduct a hearing and clarify the materials it reviewed in camera before it denied the Pitchess motion. (Mooc, supra, 26 Cal.4th at p. 1231.) If the appellate court determines the superior court erroneously denied disclosure under Pitchess, defendant must demonstrate a reasonable probability of a different outcome had the evidence been disclosed. (People v. Gaines (2009) 46 Cal.4th 172, 182-183 (Gaines).)
A. Defendant’s motion
Defendant’s pretrial Pitchess motion requested disclosure of any complaints filed against both Officer Spurlock and Officer Meyers related to acts of moral turpitude, including but not limited to writing false or misleading police reports, fabrication of evidence or charges, racial prejudice, false arrests, illegal searches and seizures, improper charging, and excessive force. Defendant sought the records to support the defense theory that Spurlock falsely reported that defendant admitted the glass pipe and methamphetamine belonged to him.
On July 14, 2008, Judge Steffen conducted the pretrial hearing in open court on defendant’s Pitchess motion, and did not seal the reporter’s transcript of this hearing. The court found good cause to conduct an in camera review of Officer Spurlock’s personnel records as to issues of his credibility, truth and veracity, and whether he made false reports. The court did not find good cause to review Officer Meyers’ personnel records.
Defendant has not challenged the court’s denial of his Pitchess motion as to Officer Meyers.
The court and Ms. Davis, the deputy city attorney, discussed the logistics of turning over Officer Spurlock’s confidential files for the court’s review. Ms. Davis stated the custodians of the records were present from “both from Modesto Police and from personnel, ” and there were “[s]even files altogether, but they’re not too thick.” The court decided to accept Spurlock’s personnel files from the custodians under seal, “look at them tonight and get them back to you tomorrow, ” and keep the materials in a locked filing cabinet.
B. The court’s denial of the Pitchess motion
On July 15, 2008, Judge Steffen convened the continued hearing on defendant’s Pitchess motion. The court again conducted the hearing in open court, in the presence of the deputy city attorney and the prosecutor, and it did not seal the reporter’s transcript. The court denied defendant’s motion and explained it had reviewed internal affairs investigative files, and city and police department personnel files, and there were no issues relating to truth and veracity in those records. Defendant argued that truth and veracity were not the only relevant issues, and asserted that complaints involving battery or “just any act of moral turpitude” were also relevant. The court replied there was one case of excessive force which was deemed unfounded based on the statements of independent third party witnesses, and there was no relevant evidence as to credibility.
Defendant again argued that any matter involving fabrication of evidence, illegal searches and seizures, racial prejudice, and dishonesty were discoverable when relevant to the charged offense. The court replied: “If you read that list though none of those apply to any of the things that I found in these files. [¶] … [¶] I looked broadly and I saw no credibility-type issues.”
C. The appellate record
This court requested and received confidential files from the custodians of records which the superior court reviewed when it denied defendant’s Pitchess motion. We have reviewed the entirety of these materials, and find there was nothing subject to disclosure under Pitchess, and conclude the court did not abuse its discretion when it denied defendant’s Pitchess motion. (Mooc, supra, 26 Cal.4th at p. 1232; People v. Prince (1997)40 Cal.4th 1179, 1286.)
During the course of this appeal, however, this court received a declaration from Sergeant Daniel Shrader, the supervisor and custodian of records for the Modesto Police Department’s Internal Affairs Unit, which stated that in addition to the confidential records already forwarded to this court, the superior court also reviewed a December 2003 internal affairs report about Spurlock at the July 2008 Pitchess hearing. Shrader declared that 2003 report was destroyed in January 2009 pursuant to the Modesto Police Department’s “Retention Policy, ” which states that that all Internal Affairs files “may be purged after a minimum of five (5) years from the date of their disposition, excluding special circumstances.” Shrader further declared that he could not reconstruct the contents of the purged file.
Based on Shrader’s declaration, this court ordered the superior court to conduct a confidential in camera hearing and file a sealed settled statement to clarify the confidential records it reviewed before it denied defendant’s Pitchess motion, particularly the 2003 report which was subsequently destroyed. The court complied with the order and the settled statement record has been filed under seal with this court.
The confidential settled statement record explains a statement made by Ms. Davis at the July 14, 2008, Pitchess hearing, when she stated that she had seven files to turn over for the court’s review. The settled statement record clarifies that some of those files were only for Officer Meyers, the court did not find good cause to review Meyers’ files, defendant has not challenged that ruling, and those files are not relevant to the instant appeal.
Our review of the confidential settled statement record leads to the conclusion that the purged file was the excessive force complaint which the superior court described at the July 15, 2008, Pitchess hearing as follows:
“I think that there was one case of excessive force. And in that case, reading through all of the witness statements, there was essentially no basis for the claim. They [sic] were independent third party witnesses, as I recall. But there is nothing that appeared to be-to me to be relevant... of truth and voracity [sic] in any of the files that I looked at.”
D. Analysis
Defendant has filed a supplemental brief and raises several issues regarding the destruction of the 2003 confidential internal affairs report about Spurlock. Defendant first contends that the destruction of that report violated his due process rights. (ASB 5-7) However, the California Supreme Court has held that “routine record destruction after five years” does not deny a defendant’s due process rights. (City of Los Angeles v. Superior Court, supra 29 Cal.4th at p. 12.) “Unless there is bad faith by the law enforcement agency, the destruction of records does not implicate a defendant’s constitutional right to a fair trial; routine destruction by a law enforcement agency ‘acting... “in accord with [its] normal practice”’ tends to indicate ‘“good faith”’ [citations].” (Ibid., brackets in original.) “[D]ue process does not prohibit a law enforcement agency from destroying records of citizen complaints that are more than five years old and whose exculpatory value to a specific case is not readily apparent.” (Ibid.) Such destruction “violates a defendant’s right to due process only when the complaint’s exculpatory value to a particular criminal case is readily apparent before its destruction. [Citation.] The mere ‘possibility’ that the complaint might be exculpatory in some future case is insufficient. [Citation.]” (Id. at pp. 11-12.)
Based on the entirety of the trial and settled statement records, we find the Modesto Police Department’s destruction of the 2003 report did not violate defendant’s due process rights. The report was from December 2003, the five-year retention policy triggered in December 2008, and the police department requested and received permission to destroy the file in January 2009. There is no evidence the 2003 report was destroyed in bad faith or that the police department’s record retention policy was suddenly enacted to enable the destruction of the report about Spurlock. While the superior court did not order the police department or city attorney to retain the records, it did not have any notice that the records might be slated for routine destruction.
Defendant surmises from this court’s order for a settled statement that the superior court may have failed to preserve an adequate record of the confidential materials it reviewed at the time of the July 2008 Pitchess hearing. Defendant argues the court’s failure to make an adequate record at the time of the Pitchess hearing prevents this court from reviewing the court’s ruling as to whether the purged file should have been disclosed. We acknowledge that once the superior court found good cause to review Spurlock’s confidential personnel files, it was required to make a record of the materials it reviewed for purposes of appellate review. (Mooc, supra, 26 Cal.4th at pp. 1229-1230; People v. Guevara, supra, 148 Cal.App.4th 62, 69.)
“If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer's privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with [statutory requirements], and the transcript of the in camera hearing and all copies of the documents should be sealed. [Citation.]” (Mooc, supra, 26 Cal.4th at pp. 1229-1230.)
Defendant asserts a settled statement is inadequate to address any omissions in the record of what the superior court reviewed at the Pitchess hearing and prevents him from obtaining meaningful appellate review of the superior court’s ruling, particularly as to the contents of the purged 2003 report. However, “[n]o presumption of prejudice arises from the absence of materials from the appellate record [citation], and defendant bears the burden of demonstrating that the record is inadequate to permit meaningful appellate review [citations].” (People v. Samayoa (1997) 15 Cal.4th 795, 820.) In addition, when there is an insufficient record or any uncertainty as to which documents were reviewed by a court before it ruled on a Pitchess motion, the reviewing court may order a limited remand with directions for the trial court to conduct a hearing and clarify the confidential materials it reviewed in camera. (Mooc, supra, 26 Cal.4th at p. 1231; Gaines, supra, 46 Cal.4th 172, 180-181.) We have already accomplished the same purpose by ordering the superior court to conduct the confidential settled statement hearing in the midst of this appeal.
In situations where confidential personnel files which were reviewed by the superior court at a Pitchess hearing are subsequently destroyed, and there is no evidence of bad faith in the destruction of those records, the appellate court may instead consider secondary evidence, including the superior court’s statements about the contents of the files, in order to determine whether the court abused its discretion when it denied disclosure. (People v. Jackson (1996) 13 Cal.4th 1164, 1221, fn. 10; People v. Memro (1995) 11 Cal.4th 786, 830, overruled on other grounds in Gaines, supra, 46 Cal.4th at p. 181, fn. 2; People v. Prince (2007) 40 Cal.4th 1179, 1285.)
The entirety of the record provides such an evidentiary basis and reveals that the purged file was the excessive force complaint. As we have explained, the superior court described that complaint on the record at the July 15, 2008, Pitchess hearing as follows:
“I think that there was one case of excessive force. And in that case, reading through all of the witness statements, there was essentially no basis for the claim. They [sic] were independent third party witnesses, as I recall. But there is nothing that appeared to be-to me to be relevant... of truth and voracity [sic] in any of the files that I looked at.”
Based on the superior court’s description of the excessive force complaint, we may conclude that the court did not abuse its discretion when it decided not to order discovery of that complaint. Defendant’s motion for discovery was based on his strategy of attacking Spurlock’s credibility and showing that he fabricated his report that defendant admitted possession of the pipe and methamphetamine. In reviewing confidential files for Pitchess disclosure, the court should only disclose “‘such information [that] is relevant to the subject matter involved in the pending litigation.’” (Mooc, supra, 26 Cal.4th at p. 1226, brackets in original.) An excessive force complaint that was refuted by independent third party witnesses and was not the basis for imposition of discipline would not have been relevant to impeach Spurlock’s credibility for truth, veracity, and whether he fabricated evidence. We can thus conclude that, based on the court’s description of the excessive force complaint, it did not abuse its discretion when it denied discovery of the confidential internal affairs report that was later purged.
Defendant argues this court cannot engage in any type of review or even remand the matter for a new trial because the destruction of the 2003 report implicated the critical trial issue of Officer Spurlock’s credibility, and it is impossible to “remedy the harm” from the destruction of that report. Defendant further argues that the destruction of the 2003 report violated his due process rights under Brady v. Maryland (1963) 373 U.S. 83, because that report may have contained evidence that undermined Spurlock’s credibility.
We disagree with the underlying basis for defendant’s argument. If the trial court erroneously denies disclosure of confidential records under Pitchess, defendant must demonstrate “a reasonable probability of a different outcome had the evidence been disclosed. [Citations.]” (Gaines, supra, 46 Cal.4th at pp. 182-183.) “The reasonable-probability standard of prejudice we have applied in Pitchess cases is the same standard we have applied generally to claims that the prosecution improperly withheld exculpatory evidence in violation of a defendant's right to due process” under Brady. (Gaines, supra, 46 Cal.4th at p. 183.) However, Pitchess and Brady “‘employ different standards of materiality.’ [Citation.]” (Gaines, supra, 46 Cal.4th at p. 183.)
“‘[The Pitchess] discovery scheme entitles a defendant to information that will “facilitate the ascertainment of the facts” at trial [citation], that is, “all information pertinent to the defense.”’ [Citation.] Consequently, a finding that material evidence was wrongfully withheld under Pitchess does not invariably mean that a defendant's right to due process was denied, ‘since “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.”’ [Citations.] To establish a due process violation, a defendant must do more than show that ‘helpful’ evidence was withheld [citation]; a defendant must go on to show that ‘“there is a reasonable probability that, had [the evidence] been disclosed to the defense, the result... would have been different.”’ [Citations.]” (Gaines, supra, 46 Cal.4th at p. 183.)
Even if we presume the purged excessive force report contained evidence casting doubt on Spurlock’s credibility, there are several reasons to support the conclusion that it is not reasonably probable the outcome of this case would have been different if such information had been disclosed to the defense. (See, e.g., People v. Marshall (1996) 13 Cal.4th 799, 842-843.) The defense theory was that Spurlock lied when he claimed that he questioned defendant at the scene of the traffic stop and defendant admitted he possessed both the pipe and the methamphetamine. Defendant’s theory was based on the testimony of Jesus Diaz, the driver of the vehicle, who testified that he was with defendant during the entire traffic stop and car search, and he never heard Spurlock ask defendant if the glass pipe belonged to him. Diaz testified he never heard defendant admit the pipe belonged to him, that he loaded the pipe with methamphetamine, or that he used the pipe.
The defense theory was supported by Elizabeth Newsome, Diaz’s fiancée and the owner of the car, who testified she arrived at the scene of the traffic stop while Diaz and defendant were still there, Spurlock showed her the backpack which contained a syringe, and she told Spurlock the backpack belonged to her. Newsome testified that the glass pipe under the front passenger seat also belonged to her, she had placed the methamphetamine in the pipe, and she hid it so Diaz would not know that she was using drugs again. Newsome testified that she did not tell Spurlock that the pipe belonged to her because he never asked her, and she did not want to volunteer any more information.
Defendant further sought to undermine Spurlock’s credibility by extensively cross-examining him about his decision to destroy the glass pipe prior to the preliminary hearing, but counsel failed to present any evidence to refute Spurlock’s testimony that he simply complied with the police department’s policy on this matter.
Defendant’s Pitchess motion was another tool to attack Spurlock’s credibility and bolster the defense theory that Spurlock lied about defendant’s alleged admission. Even if we presume the purged 2003 internal affairs report about the excessive force complaint contained relevant evidence on Spurlock’s credibility and possible fabrication of evidence, we may also conclude that such evidence would have been duplicative of what defendant actually introduced at trial. While the court denied the Pitchess motion, defendant still presented an important witness to undermine Spurlock’s credibility and investigatory techniques-Roy Georgeson, who testified that Spurlock arrested him for possession of methamphetamine in an unrelated case and falsified his report about the incident. Georgeson testified that Spurlock advised him of the Miranda warnings, Georgeson refused to answer questions, and Spurlock kept questioning him and threatened to charge him with something else if he did not cooperate. Georgeson further testified that Spurlock’s police report contained false statements attributed to him.
Georgeson’s testimony further bolstered the defense theory that Spurlock fabricated evidence and his testimony about defendant’s admission was not credible. Any additional information about Spurlock’s credibility or alleged fabrication of evidence, which might have been contained in the purged excessive force report, would have been duplicative and cumulative to Georgeson’s testimony on these points. While the impact of Georgeson’s testimony was undermined when he was impeached with his prior convictions and inconsistent statements, any testimony arising from the excessive force complaint would have also been subject to impeachment, since it is undisputed that Spurlock was not disciplined for that incident, and there were independent third party witnesses who disputed the excessive force allegations.
We thus conclude that it is not reasonably probable that a result more favorable to defendant would have occurred if the excessive force complaint included any evidence as to credibility, moral turpitude, or fabrication of evidence, given the existence of Georgeson’s trial testimony. (People v. Marshall, supra, 13 Cal.4th at pp. 842-843.)
V. The court was not required to conduct a Marsden hearing
Defendant contends that prior to the sentencing hearing, he moved to discharge his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and the court erroneously ignored the motion, failed to conduct the requisite hearing, and failed to appoint alternate counsel. The record refutes these arguments.
A. Background
On August 26, 2008, the court convened the scheduled sentencing hearing but it had not received the probation report, and the parties agreed to continue the matter. Defendant then asked to address the court. The court instructed him to do so through his attorney. Defendant stated that he wanted to “file a Marsden motion for appeal purposes.”
“THE COURT: I’m sorry?
“[DEFENSE COUNSEL]: He’d like to file a Marsden motion.
“THE DEFENDANT: For appeal purposes, your Honor.
“THE COURT: Go ahead and file it.”
There was no further discussion of the matter at that hearing.
On October 8 and November 6, 2008, the court again convened and continued the sentencing hearing. Defendant agreed to waive time, and he did not make any statements about a Marsden motion or request another attorney.
On December 8, 2008, the court finally conducted the sentencing hearing. After imposing sentence, the court informed defendant about his appellate rights, that he had a right to a lawyer on appeal, and a lawyer would be appointed to represent him free of charge if he could not afford to hire one. Defendant never filed a Marsden motion, he never complained about his attorney, and he did not ask for another attorney.
B. Analysis
“When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation … the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance.” (People v. Smith (2003) 30 Cal.4th 581, 604.) Substitution of counsel lies within the court’s discretion. (Ibid.) The trial court “‘cannot thoughtfully exercise its discretion in this matter without listening to [defendant's] reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request.… ‘Failure to inquire adequately into a defendant's complaints results “in a silent record making intelligent appellate review of defendant's charges impossible.” [Citation.]’ [Citation.]” (People v. Leonard (2000) 78 Cal.App.4th 776, 787, brackets in original.)
A defendant is not required to make a formal Marsden motion in order to trigger an inquiry obligation on the part of the trial court. “If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity.” (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) However, the trial court does not have a sua sponte obligation to initiate a Marsden inquiry, and the court’s duty to conduct the inquiry only arises when the defendant “‘asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.’ [Citation.]” (People v. Leonard, supra, 78 Cal.App.4th at p. 787, italics added in original.)
Defendant contends that his statement at the scheduled sentencing hearing triggered the court’s duty to conduct a Marsden hearing, and the court effectively denied his request without a hearing when it told defendant to file a Marsden motion. However, defendant said he wanted to file a Marsden motion “for appeal purposes, ” and he reiterated that purpose upon further questioning. Defendant never filed a Marsden motion and never said anything about it again, and the court was not obliged to conduct a Marsden hearing based on defendant’s bare assertion that he wanted another attorney to represent him on appeal. Defendant’s statement was not the culmination of prior complaints against defense counsel, and was not made in such a way as to indicate that he wanted to discharge his appointed counsel prior to the sentencing hearing. (Cf. People v. Mendez (2008) 161 Cal.App.4th 1362, 1367 [defendant’s request to make a new trial motion based on “competency of counsel” was sufficient to trigger the court’s duty to conduct a Marsden hearing].)
In addition, even if the court should have conducted a Marsden hearing in response to defendant’s statement, any error is harmless beyond a reasonable doubt. (People v. Leonard, supra, 78 Cal.App.4th at p. 787.) The court subsequently advised defendant that he was entitled to receive a court-appointed attorney to represent him on appeal, and an attorney other than his defense counsel has ably represented him in the instant appeal, such that he received exactly what he requested-a different attorney on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN Acting P.J., HILL, J.