Filed 11/12/15 P. v. Daly CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. KENDRICK DALY,
Defendan t and Appellant. D066727

(Super. Ct. No. JCF32604)

APPEAL from a judgment of the Superior Court of Imperial County, Matias R. Contreras, Judge. Affirmed.

Sheila O ' Connor, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Defendant and appellant Kendrick Daly was convict ed of possessing a dirk or dagger while a prisoner of the state of California

. Defendant is a prisoner at Calipatria State Prison in Imperial County. During a strip search, defendant rem oved from his pants

a weapon constructed from plastic sharpened to a point for stabbing attacks

. Defendant ' s2

prison issued pants had been modified with an additional pocket in the crotch of the pants. Defendant denied ever ha ving the weap on in his possession and claimed the modifications made to his pants were for the purpose of smuggling apples out of the prison cafe teria

. Defendant ' s counsel ha s made no argument for reversal but filed a brief pursuant

to People v. Wende (19 79) 25 Cal.3d 436 asking that we review the trial record for error.
Pursuant to Anders v
. California (1 967) 386 U.S. 738, d efendant ' s counsel lists possible but not arguable issues: (1) Does sufficient evidence exist to prove d efendant was in possession o f the dirk/dagger?; (2) Did the court properly deny the defense motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531?; and (3) Did the court abuse its discretion in not striking the prior strike under People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497? We find the trial court did not commit any errors and affirm the judgment in full.
PROCEDURAL BACKGROUND The Grand Jury of Imperial County indicted d efendant on a charge of possessing a
dirk or dagger in late February 2014. ( Pen. Code, § 4502, subd. (a).) 1 The People further alleged that d efendant suffered four serious or violent felony priors and that
d efendant committed the instant offense while incarnated in a state prison. (§§ 1170.12,
subd s. (a)

– (d), 667, subd s. (b)

– (i) & 1170.1, s ubd. (c).) An Imperial County jury convicted d efendant in early July 2014. The court found true the allegations that d efendant suffered three prior convictions. The court sentenced

1 All further statutory references will be to the Penal Code unless ot herwise noted.3

d efendant to the middle term of three years and , based upon the prior strike, doubled his

sentence to six years.
FACTUAL BACKGROUND
Prosecution Evidence In late May 2013, Sergeant Juan Reyes, a correctional officer at Calipatria State
Prison , received an an onymous note. Acting based upon the contents of the note, Reyes instructed Officer Espinoza to escort d efendant to a holding cell and conduct an unclothed body inspection of d efendant

. Defendant was calm and cooperative. Before
d efendant entered the cell, Espinoza conducted a visual inspection of the holding cell fo r contraband. While Espinoza inspected the cell, d efendant stood behind him, un

handcuffed. Reyes testified that it was standard pro cedure to handcuff the prisoner while making a visual inspection of the holding cell. The holding cell had metal mesh wal ls
that were s ee
- through except for a bottom section that was solid. The mesh walls were painted in an off

- white, beige , or light brown color.
Defendant entered the cell and took off his clothes as instructed by Espinoza. Espinoza watched d efendant le an over his right shoe to untie it while reaching into his
waistb and with his left hand, removing an o bject from his pants, and placing the object on the ground. Initially, Espinoza did not recognize the object , but he later determined the object to be a weapon made out of plastic. Espinoza described the weapon as being
six and a half inches long and an inch wide with one end sharpened to a point

. The weapon was white, pink , and brown in color. Its color was similar to the detention cell ' s mesh walls. Upon spotting the object, Espinoza commanded d efendant to place his hands4

through a hole in the cell, allowing Espinoza to handcuff d efendant

. After handcuffing
d efendant , Espinoza entered the cell and retrieved the weapon. Espinoza then continued
the unclothed search of d efendant , which included examining d efendant ' s clothes. Espinoza found d efendant ' s pants had been modified by having a long piece of cloth
sewn into the waistband of d efendant ' s p ants, forming a sort of pocket. Espi noza showed
the we apon and altered pants to Reyes approximately two to five minutes after being
ordered to conduct the search

. Reyes identified the weapon as one that could cause great bodily injury or death via a stabbing motion. Reyes also testified that the pocket sewn into the pants was capable of holding the weapon and most likely designed for that
purpose
. Defense Evidence
Defendant testified that Espi noza patted him down before entering the cell for the strip search

. The pat

- down search revealed no contraband. Espinoza did not conduct a visual inspection of the cell before d efendant entered. Once in the cell, Espinoza
instructed d efendant to " strip out , " and he complied by removing his clothes. Espinoza
searched d efendant ' s clothes and returned them to d efen dant

. Finding nothing in
d efendant ' s clothing, Espinoza opened the cell door to let d efendant out. As d efendant was leaving, Espinoza said " what ' s that " and pointed at an objected sitting in the corner of the holding cell. The object was the plastic wea pon, sitting on its lef t side standing at a
30

– 45 degree angle. Defendant denied ever having the weapon in his possession or having seen it before Espinoza pointed to it.
Defendant acknowledged modifying his pants in violation of prison regulations,
but he denied using the extra pocket to carry a weapon. Instead, d efendant claimed he5

would tie a sock to the extra piece of cloth and fill the sock up with apples. Defendant testified he would smug gle as many as 10 to 15 apples at a time underneath his clot hes

. Defendant has suffered injuries that he claims caused nerve damage to his left arm. He claims this nerve damage makes it impossible to close his hand and extremely
difficult for him to pick something up with his left hand, such as the weapon.
Reb uttal Evidence Espinoza testified that he was aware that prisoners smuggle fruit out of the cafeteria to produce pruno, a type of alcoholic beverage commonly produced by prisoners

. However, he stated that , based upon his experience working as a correctio ns officer , it would be impossible for an inmate to smuggle as much fruit under his clothes

as d efendant claimed without being noti ced by corrections officers

. Espinoza denied conducting a pat

- down search of d efendant prior to the strip search

. He also t estified that he had never seen a modification to the pants such as d efendant made used to smuggl e fruit, but based upon his training he knew such modifications to clothing were commonly used to conceal weapons

. While observing d efendant in court, Espinoz a saw d efendant pick up a piece of paper with his left hand

. DISCUSSION
Defendant ' s counsel has failed to find any grounds for reversible error and has filed a brief pursuant to People v Wende , laying out the factual and procedural history of
the case and requesting that the court review the record for any reversible error it may have missed. Defendant has had the opportunity to provide us with supplemental briefing, but he has apparently declined to do so. Pursuant to Anders v. California , supra , 386 U. S. 738, d efendant ' s counsel has provided us with possible bu t not arguable issues6

that we address below.
A. Sufficiency of the Evidence that Defendant Possessed a Dirk or Dagger
When a d efendant challenges the sufficiency of the evidence presented at trial, the appellate court must review the record " to determine whether i t contains substantial
evidence

— i.e., evidence that is credible and of solid value

— from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. " ( People v

. Green (1980) 27 Cal.3d 1, 55.) The reviewing court must " presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation

. ] If the circumstances reasonably justify the trie r of fact ' s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. " ( People v

. Lindberg (2008) 45 Cal.4th 1, 27.) The testimony of a sing le witness is suffi cient t o prove any fact in dispute

. ( Evid

. Code , § 411 .) " ' [N]either conflicts in the evidence nor " ' testimony which is su bject to justifiable suspicion .

. . justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to d etermine the credibility of a witness and the truth or falsity of the facts upon which a determination d epends. ' " [Citations.] Testimony may be rejected only when it is inherently im probable or incredible, i.e., ' " unbelievable per

se , " ' physically imp ossible or ' " wholly unacce ptable to reasonable minds. " ' [Citation.] " ( Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 1150, 1155 .) Section 4502 prohibits prisoners from possessing or carrying any weapons including " any dirk or d agger or sharp instrument

. " The trial record reveals sufficient evidence to support conviction. The jury heard testimony that a corrections officer witnessed d efendant remove an object from his pants during a strip search , that the object7

turned out to b e a plastic object with a s harpened end , that this object was a weapon capable of causing great bodily injury or death, that the cell where d efendant was strip searched was visually inspected by the officer for contraband before d efendant was searched, and that d efendant ' s pants contained a modification that would allow him to
h ide the object on his person. Defendant offered his own testimony that contradicted much of the testimony from the state witness, but the assessment of a witness ' s credibility
is ge nerally up to the jury and not the reviewing court

. It is only when the testimony relied upon by a finder of fact is inherently improbable or fantastical that a reviewing court may reverse. Here, the testimony of the prosecution ' s witn esses describes eve nts that are at the very least plausible , and the jury ' s reliance on the testimony certainly does not justify reversal of d efendant ' s conviction. From the evidence presented at trial, the jury reasonably found that d efendant had a " dirk or dagger or sharp instrument " in his possession.
B. Denial of Pitchess 2 Motion Defendant filed a Pitchess motion with the trial court, requesting the production of any personnel records regarding Officer Espinoza from the Department of Corrections
and Reha bilitation th at could show Espinoza had a history of using excessive force, falsifying ev idence or making false reports. A pre trial hea ring was held in late May
2014. At the hearing, declarations stating that the Department of Corrections and
Rehabilitation (with the exception of one file) had no records containing evidence
relevant to d efendant ' s request were received by the c ourt. O ne file, a claim by an inmate

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ).8

claiming that a corrections officer harassed him by improperly ordering and conducting a
search of the in mate ' s cell and person was given to the court and examined in camera. The file related that Officer Espinosa had been interviewed as a wi tness because he participated in the disputed search on the orders of another corrections officer, but the inmate comp laint was not directed against Espinoza and the inmate reported that Espin oza treated him professionally. Espinoza reported that while in his presence, the subject of the complaint behaved pro fessionally toward the inmate. The court concluded
the documen t was not discoverable for the purpose of showing that Espinoza has a history of falsifying evidence.

" Pitchess , supra , 11 Cal.3d 531, and its statutory progeny are based on the premise
that evidence contained in a law enforcement officer ' s personnel file may be relevant to
an accused ' s criminal defense and that to withhold such relevant evidence from the
defendant would violate the accused ' s due process right to a fair trial. Pitchess and Evidence Code sections 1043 through 1047 also recognize that the o fficer in question has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily. Accordingly, both Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutral tria l judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations. In this manner, the Le gislature has attempted to protect the defendant ' s right to a fair trial and the officer ' s interest in privacy to the fullest extent possible. [Citation

. ] " ( People v. Mooc (2001) 26 Cal.4th 1216, 1227 .) The custodian of records is only required to hand over documents from the personnel files that9

are potentially relevant to the proceedings. ( Id. at p p. 1228

- 1229 .)

" ' Relevant evidence ' means evidence

. . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to th e determination of the action. " ( Evid

. Code , § 210 .) " [O] nly documentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery

. " ( California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021 .) In a case where accounts of the defendant and law enforcement officers differ, past complaints alleging falsification of evidence or falsification of reports would be relevant and may be discover able. ( People v. Hustead (1999) 74 Cal.App.4th 410, 418 .) " A trial court ' s decision on the discoverability of material in police personnel files is reviewable under an abuse of discretion standard. " ( People v. Jackson (199 6 ) 1 3 Cal. 4th 1164 , 1220 .) Abus e of discretion by the court may be demonstrated by showing the ruling was " ' arbitrary, capricious or exceeds the bounds
of reason. ' " ( People v. Martinez (2014 ) 226 Cal. App.4th 759 , 764 .)
We find the court acted within it s discretion. The custodian of records produced
for the court only one file that was poten tially relevant. This document did not contain any claims made against either Vazquez or Espinoza. I ndeed, the inmate who made the complaint claimed Espinoza behaved professionally towards him . The inmate and Espinoza did differ in their opinions as to whether the subject of the complaint behaved appropriately toward the inmate, but the inmate did not make any accusations against Espinoza of f

alsifying reports or evidence. An argument could b e made that the document was relevant as evidence of Espinoza falsifying evidence as his account of events differed slightly from the inmate ' s. However, given the lack of any claim of10

falsification made by the c omplaining inmate, the lack of any other cla ims against Espinoza himself, and the privacy interest of Espinoza, the complaining inmate, and the subject of the complaint, we find the court acted within the bounds of its discretion in finding that the document was not discoverable.
C. Refusal of Co urt to Strike Prior Conviction Under People v. Superior Court (Romero)
1. Relevant Facts
Defendant was convicted of attempted murder, mayhem, and assault with a deadly weapon in the Los Angeles County Superior Court in September 2008. At the trial for the 2014 weapon possession charge, d efendant ' s counsel requested the court on its own motion dismiss the allegation of the prior felonies as per People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ( Romero )

. Counsel filed a memorandum of points and

aut horities in support of his request. In the memorandum, counsel argued that d efendant did not deserve the prior felony se ntence enhancement because while d efendant ' s latest
offense was a felony , it was non violent and bo re no financial cost to anyone. Coun sel argued that d efendant was not a career criminal as the 2008 felony convictions were the only convictions on his re cord prior to 2014. Defendant ' s counsel also pointed to
d efendant ' s cooperation with police, corrections officials , and the courts as evi dence that
d efendant did not deserve the enhanced sentence. At the sentencing hearing, the court concluded that the enhancing and mitigating factors essentially cancelled each other out and sentenced d efendant to the mid term of three years imprisonment fo r the weapons possession charge. With respect to the prior felony enhancement, the court found that dismissing the allegations under a Romero11

motion would be improper.
The court stated: " What I do is I start with the actual felonies that he was
convict ed of initially. Now, that is attempted murder, 245 and 203, very serious offenses and violence involved, threats of violence. What is this offense? This offense is carrying a deadly weapon with some sophistication. That was the one aggravating thing. So there is sophistication planned, carrying a deadly weapon. The initial crimes were violent crimes, attempted murder, 245, 203. If this was a possession of marijuana in jail or prison, [Deputy District Attorney] Ms. Cavil, I think that, you know, that might warrant a
Romero , but it ' s not.

. . . This doesn ' t take him, I don ' t think, outside the scheme ' s spirit in whole or in part. " Declining to dismiss the allegations of prior violent felonies, the
court doubled d efendant ' s three year sentence to six years of imprisonment to be served consecutively to d efendant ' s 2008 sentence.
2

. Relevant Law
California ' s three strikes sentencing scheme provides for enhanced sentences for felons who have previously committed a felony defined as being either " violen t " or

" serious. " ( Romero , supra , 13 Cal.4th at pp. 504

- 506 .) Section 1385 permits a judge to
order an action dismissed " ' either of his or her own motion or upon the application of the prosecuting attorney

. ' " ( Romero , at p p
. 507

- 508 .) Our state high c ourt has construed
section 1385 " as permitting a judge to dismiss not only an entire case, but also a part thereof, including the allegation that a defendant has previously been convicted of a felony. " ( Romero , at p

. 508 .) Dismissing the allegation of a previous conviction does not undo the actual conviction but simply allows the court to avoid applying the enhancement
th at would otherwise be required by statute

. ( Ibid .)12

California ' s three strikes law consist s of two mostly identical statutes, one pas sed by the L egislature ( § 66 7, subd s . (b)

– (i)), and another passe d subsequently through ballot
initiative ( § 1170.12 ). ( Romero , supra , 13 Cal.4th at p. 504.) Both statutes provide that

" [t] he prosecuting attorney may move to dismiss or strike a prior fel ony conviction allegation in the furtherance of justice pursuant to Section 1385

. " ( Id. at p

. 508 .) Our state high court has construed the statutes as allowing a judge to dismiss a prior serious or violent felony conviction allegation on his or her own m otion in the interest of justice. ( Id. at pp. 529

- 530.)
A trial court ' s decision regarding dismissal of allegations of a prior felony is
reviewed for abuse of discretion. ( Romero , supra , 13 Cal.4th at p. 531 .) " The trial

court ' s power to dismiss an act ion under section 1385, while broad, is by no means
absolute. Rather, it is limited by the amorphous concept which requires that the dismissal
be ' in furtherance of justice. ' As the Legislature has provided no statutory definition of this expression, app ellate courts have been faced with the task of establishing the boundaries of the judicial power conferred by the statute as cases have a risen challenging
its exercise. Thus, in measuring the propriety of the court ' s action in the instant case, we are gui ded by a large body of useful precedent which g ives form to the above concept. [¶] From the case law, sev eral general principles emerge. Paramou nt among them is the
rule ' that the langua ge of that section, " furtherance of justice, " requires consideratio n both of the constitutional rights of the defendant, and the interests of society represented by the People , in determining whether there shou ld be a dismissal. [Citations.] ' [Citations

. ] At the very least, th e reason for dismissal must be ' that which wou ld motivate a reasonable judge. ' [Citations.] " ( People v. Orin (1975) 13 Cal.3d 937, 945

- 946 .)13

" From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely ' to accommo date judicial
convenience or because of court congestion. ' [Citation.] A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if ' guided solely by a personal antipathy for the effect that the three strikes l aw would have on [a] defendant, ' while ignoring ' defendant ' s background, ' ' the nature of his present offenses, ' and other

' individualiz ed considerations. ' [Citation.] " ( Romero , supra , 13 Cal.4th at p. 531 .)

" [I] n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three S trikes law, on its own motion, ' in furtherance of justice ' pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme ' s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more s erious and/or violent
felonies. If it is striking or vacating an allegation or finding , it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth. " ( People v. Williams (1998) 17 Cal.4th 148, 161 .)
3

. Discussion Case law requires a trial court to weigh the interest of society in incarcerating the defendant versus the interest of the defendant ' s constitutional rights b y considering14

whether the overall circumstances of the defendant ' s crimes fall outside the spirit of the

t hree strikes sentencing scheme. The trial court in this case evaluated d efendant ' s hist ory and concluded that his crimes were of the type that the three strikes sentencing scheme is designed to punish

. The court was correct and acted within the bounds of its discretion.
Defendant was previously convicted of attemp ted murder and related charges. Though d efendant ' s most recent conviction did not arise from an act of violence, it did
arise from d efendant carrying and perhaps manufacturing a de adl y weapon while
incarcerated. A weapon that if used would likely have resulted in the imposition of charges similar to those d efendant was convicted of in 1998. Given the clear similarity in the nature of the 1998 and 2014 convictions, the court was corre ct to find tha t d efendant ' s convictions fit into a pattern of violent or serious criminal behavior of the kind the three
strikes sentencin g scheme is designed to punish. In these circumstances, the interest of justice did not require the trial court to di smiss the allegations that d efendant had committed previous felonies.
DISPOSITION The judgment of the trial court is affirmed. BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. IRION, J.