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Filed 8/8/16 P. v. Sage CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v. CHRISTOPHER JEFFREY SAGE,

Defendant and Appellant. C080612 (Super. Ct. No. 15F2803)

Appointed counsel for defendant Christopher Jeffrey Sage has asked this court to
review the record to determine whether there are any arguable issues on appeal. ( People
v. Wende (1979) 25 Cal.3d 436 .) Defendant also filed a supplemental brief. Based on
our review of the record and defendant ’ s supplemental brief, we find no arguable error that would result in a disposition more favorable to defendant and will affirm the judgment

.2 FACTS AND PROCEEDING S We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) Defendant approached v ictim Lan don Kucharski, a postal worker, and accused
him of pouring rat poison into defendant ’ s bottle of whiskey . Kucharski said, “ I don ’ t know who you are, ” turned away and went to deliver the mail. When he return ed to his truck, defendant was sitting in the driver ’ s seat. Defendant asked Kucharski why he put rat poison in his whiskey and challenged Kucharski to fight him or call the police.
Kucharski retrieved his cell phone from the passenger side of the truck, then walked
across the s treet and called 911. After sitting in the truck for approximately 15 minutes,
d efendant took a water bottle out of Kucharski ’ s lunch bag, got out of the truck, held the bottle up, and said he was going to take it

. Defendant returned to the truck, sat back
down in the driver ’ s seat , and retrieved a sandwich from Kucharski ’ s lunch bag. He eventually got out of the truck and, as he walked away, held the sandwich up in the air. Kucharski did not confront defendant because he was afraid of defendant and thought he
was under the influe nce of drugs. Lori Johnson, an employee at one of the nearby offices, called 911 after she saw Kucharski standing in the flowerbed outside her office and defendant sitting in the mail
truck “ going through things. ” At one point, defendant got out of the truck and walked across the street towards where she and Kucharski were standing. Defendant was “ very agitated, very argumentative, ” and was babbling and using profanity. Johnson told him

to “ stay away. ” Defendant kept approaching her with a bottle of whiskey in one hand
and Kucharski ’ s water bottle in the other, rambling and swearing. Concerned for her safety, Johnson told defendant the police were coming and he needed to go away. Jeffrey Devish, another employee, went outside to assist Johnson. D evish saw defendant and yelled, “ Hey, are you taking stuff out of the mail tru ck? ” Defendant3

yelled, “ Fuck yes , ” and walked toward Devish, who yelled back , “ Hey, you can ’ t take
stuff out of there. You ’ ve got to

-- you know, did you take anything else? ” De fendant said, “ Fuck, yes, ” and then ran off into the bushes.
Police Officer s Eric Little and Christopher Hunt arrived and tracked down
defendant , who was still holding the bottle of w hiskey, waving his hands around and mumbling. Defendant refused the officers ’ instructions to sit down , and resisted when
the officers grabbed his arms

. Officer Little was able to handcuff one of defendant ’ s wrists but not the other. When defendant refused numerous commands to put his hands behind his back, Officer Littl e pepper sprayed him twice in the face. However, defendant
continued to resist their efforts to handcuff him . Believing defendant was under the influence of drugs or alcohol, both officers struck defendant with their baton s until they

were able to handcu ff him

. Once d efe ndant was handcuffed and laying face down on the ground, he continued to kick his legs and flail around

. Officer Little searched defendant
and found a concealed knife that appeared to have been made from a pair of scissors.
Kucharski ’ s manager, Jeffrey Clark, arrived on scene and observed defendant resisting officers ’ attempts to detain him. He saw the officers use pepper spray and striking defendant with batons in attempting to subdue him, and ask him numerous times

to “ stop re sistin g ” and “ get on the ground ” as defendant re fused and continued to struggle, even after being taken to the ground. Several other officers arrived and assisted Officers Little and Hunt in picking defendant up and placing him in the patrol car. Once in the patrol car, defendant began

“ moving about, very violently, ” fighting, kicking, and spitting, requiring the officers to remove him and place a spit hood and leg restraints on him. Defendant tried to bite and spit on the officers as they attempted to secure the hood and restraints. Once secured, defendant was placed back into the patrol car and transported to the hospi tal, where defendant continued to yell, scream, and thrash around.4

D efendant was charged by second amended information with second degree robbery ( Pen . Code , § 211

-- count 1 ; unless otherwise set forth, statutory references that
follow are to the Penal C ode ) , obstructing or resisting an officer ( § 69

-- count 2 ) , carrying a dirk or dagger (§ 21310

-- count 3 ) , and battery on an officer and emergency personnel ( § 243, subd. (b)

-- count 4)

. The amended information alleged defendant suffered a prior prison term

. (§ 667.5, subd. (b)

. )
D efendant was tried by jury and convicted as charged. In a bifurcated proceeding, the trial court found true the prior prison term allegation.
T he trial court denied probation and sentenced defendant to the middle term of
thr ee years on count 1, plus two consecutive eight

- month terms (one

- third the middle term) on counts 2 and 3 , plus one consecutive year for the prior prison term, for an aggregate term of five years four months in state prison. We note the court’s September 30, 2015 , minute order erroneously states an aggregate sentence of five years eight months. The court awarded defe ndant 154 days of presentence custody credit (134 actual days plus 20 cond uct credits). The court imposed fees and fines as recommended in the probation report, as
follows: a $4 , 5 00 restitution fine ( § 1202.4) and a $4,5 00 parole revocation restitution fine, stayed pending su ccessful completion of parole ( § 1202.45); a $16 0 court op erations assessment ( § 1465.8) ; a $12 0 criminal conviction assessment (Gov. Code , § 70373); and a crime prevention fine of $39, comprised as follows: $10 ( § 1202.5), $10 ( Pen. Code, § 1464), $1 (Gov. Code , § 76104.6), $4 (Gov. Code , § 76104.7), $5 (Gov. Code , § 70372, subd. (a)(1)), $7 (Gov. Code , § 76000, subd. (a)(1)), and $2 ( § 1465.7). The court reserved jurisdiction on the issue of victim restitution.
Defendant filed a timely notice of appeal

.5 

### D ISCUSSION Issues Raised by Defendant’s Supplemental Brief Counsel filed an opening brief that sets forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. ( People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief arguing his trial counsel was ineffective for failing to have a suff

icient number of meetings with him ; failing to consult with him on trial tactics; failing to investigate the case to find potential witnesses or obtain “ video footage several people recorded [and] sent to Channel 7 News ” showing the use of excessive force by the arresting officers; failing to file any pretrial motions or discuss
issue s with the district attorney; being unprepared an d uncomfortable during trial and failing to ask the witnesses e nough questions; maki ng a motion to dismiss for insufficient evidence which, “ based on the evidence against me at that point

. . . seemed pretty far [

- ] fetched ” and was denie d; and advising him against and discouraging him from te stifying
at trial

. As we explain, none of defendant ’ s claims, to the extent we can decipher them, has merit. As for those claims which refer to matters that are not part of the record on appeal, we decline to consider them. ( People v. Jenkins (2000) 22 Cal.4th 900, 952;
accord People v. Szeto (1981) 29 Ca l.3d 20, 35; Cal. Rules of Court, rule 8.204(a)(2)(C). )
The same is true for claims made in passing and without factual or legal analysis. (Cal.
Rules of C ourt, rule 8.204 (a)(1)(B) ; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 .)
Defendant ha s the burden of proving a claim of ineffective assistance of counsel

. ( People v. Ledesma (1987) 43 Cal.3d 171, 215

- 218.) To meet this burden, he must prove (1) counsel ’ s representation was deficient, i.e., it fell below an objective standard of6

reasonabl eness under prevailing professional norms, and (2) counsel ’ s deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability
that but for counsel ’ s failings, the result would have been more favorable. ( Strickland v.
Wa shington (1984) 466 U.S. 668, 687

- 688, 694 [80 L.Ed.2d 674, 693, 698] ; People v.
Bell (1989) 49 Cal.3d 502, 546.) On a silent record, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding than on appeal. ( People v.
Wi lson (1992) 3 Cal.4th 926, 936.) We conclude defendant has failed to show deficient performance and/or prejudice.
D efendant takes issue with defense counsel ’ s tactics both before and during trial

. Where, as here, the record fails to show why counsel acted or failed to act as he did, and counsel was not asked to provide an explanation, the c ontention fails unless there could be no satisfactory explanation. ( People v. Mendoza Tello (1997) 15 Cal.4th 264, 266

- 268 .) Defendant ’ s claim that defense counsel did not meet with him enough implicitly
concedes that counsel did in fact meet with him. I t is c ertainly possible counsel felt he
met with defendant a sufficient number of times to prepare his case and, because
defen dant is not a legal expert, did not feel compelled to consult with defendant as to trial tactics and strategy. With respect to finding and questioning potential witnesses, defense
counsel cross

- examined each of the law enforcement officers who testified, as well as witnesses Johnson, Devish, and Clark, and victim Kucharski, all of whom provided
similar accounts of defendant ’ s misconduct involving Kucharski and the mail truck and his subsequent violent attempts to avoid detention and arrest

. We decline to consider
defendant ’ s claim of “ video footage ” showing excessive force by the arresting officers , as it refers to matters not part of the appellate record. ( People v. Jenkins, supra, 22 Cal.4th at p. 952.) Defendant claims his attorney ’ s preparedness for trial, manner of questioning witnesses and lodging objections, and decisions regarding the making of motions on
defendant ’ s behalf, all demonstrate counsel ’ s incompetence

. The claim fails. “ The7

failure to impeach a witness or to object to evidence are matters which usually involve
tactical decisions on counsel ’ s part and seldom establish a counsel ’ s incompetence. As we recently observed, ‘ Matters involving trial tactics are matters “ as to which we will not ordinarily exercise judicial hindsight

. . . . ” [Citation.]

. . . “ In the heat of a trial,
defendant ’ s counsel is best able to determine proper tactics in the light of the jury ’ s apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second

- guess trial counsel

. . . .” [Citations.]

. . . “ The choice of when to object or not is inherently a matter of trial tactics not ordinarily reviewable on appeal; failure to object does not necessarily indicate incompetence

. . . .” ’ ( People v. Najera (1972) 8 Cal.3d 504, 516

- 517; see also People v. Pope (1979) 23 Cal. 3d 412, 424; People
v. Jenkins (1975) 13 Cal.3d 749, 754

- 755; People v. Beagle (1972) 6 Cal.3d 441, 458; People v. Floyd (1970) 1 Cal.3d 694, 709; People v. Thomas (1974) 43 Cal.App.3d 862,
868

- 869.) ” ( People v. Frierson (1979) 25 Cal.3d 142, 158.) Finally, defendant claims his attorney was prejudicially ineffective in advising him against and discouraging him from testifying at trial. The record belies the claim. During trial, outside the presence of the jury, t he court engaged in the following colloquy
with defendant and his attorney :

“ [DEFENSE COUNSEL]: I have had discussions with my client about his right to testify and h e has determined not to testify. .

. .

“ [THE COURT]: Only a couple of ques tions. And that is, sir, have you had an adequate chance to talk with your attorney about this issue?

“ [DEFENDANT]: Yes.

“ [THE COURT]: And do you understand that you have both a Constitutional right to get up here and testify if you wish and a Constitution al right not to testify, if that is what you wish. [¶] Do you understand those two choices?

“ [DEFENDANT]: Yes.8

“ [THE COURT]: You talked to him. Have you had enough time to talk to him? Do you need any more time?

“ [DEFENDANT]: No.

“ [T HE COURT]: And you ’ ve had a chance to talk about the case and what would happen maybe if you did take the stand?

“ [DEFENDANT]: Yeah.

“ [THE COURT]: I have no idea what those con versations are, but sometimes

-- I
don ’ t know what your history is. Perhaps there are priors that you just as soon didn ’ t come out. There might be lots of reasons and I ’ m not going to get into that with you. I just want to make sure that you ’ re comfortable that you know what you are doing right now. [¶] Do you?

“ [DEFENDANT]: Yes.

“ [THE COURT] : All right. And do you now

-- is it your statement that you give up your right to testify and choose to remain silent in this trial?

“ [DEFENDANT]: Yes.

“ [THE COURT]: Counsel, do you represent that the defendant understands the

natur e of what he ’ s just said and the consequences?

“ [DEFENSE COUNSEL]: Yes.

“ [THE COURT]: Very good. Counsel for the People or the Defense, do you believe there is anything further that needs to be put on the record?

“ [ DEFENSE COUNSEL ]: No.

“ [ PROSECUTI ON ]: Your Honor, the only thing I ’ ve heard in this context is that the defendant knows that it is his decision whether to testify or not and he can be advised by counsel, but ultimately it ’ s his decision.

“ [THE COURT]: I believe that is what my question was to you, sir, but I ’ ll state it again. After all the conversation with your attorney, do you give up your right to testify in this trial and elect to take your right to remain silent?9

“ [DEFENDANT]: Yes. ” Even assuming defense counsel advised defe ndant not to testify, d efendant was given ample opportunity to exercise his right to testify, or to express his concerns in that regard to the court. He elected not to. Accordingly, defendant has not established his
trial counsel was ineffective. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.


### D ISPOSITION
The judgment is affirmed.

HULL , Acting P. J.

We concur:

ROBIE , J.

MURRAY , J.