Filed 5/16/13 P. v. Hernandez CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B241037

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA384613)
         v.

ERIC ANTHONY HERNANDEZ,

         Defendant and Appellant.




THE COURT:*
         Defendant and appellant Eric Anthony Hernandez appeals his judgment of
conviction of possession of narcotics. His appointed counsel filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On January 15, 2013,
we notified defendant of his counsel’s brief and gave him leave to file, within 30 days,
his own brief or letter stating any grounds or argument he might wish to have considered.
Defendant submitted a letter seeking review of the testimony of the investigating
detective, the canine search evidence, discovery regarding another detective, and alleged
juror misconduct. We have reviewed the entire record and considered the issues raised
by defendant, and finding no error or other arguable issues, we affirm the judgment.


______________________________________________________________________
*BOREN, P.J., ASHMANN-GERST, J., CHAVEZ, J.
       Defendant was charged in count 1 with possession of methamphetamine for sale in
violation of Health and Safety Code section 11378, with the special allegation that he was
personally armed with a firearm in the commission of the offense within the meaning of
Penal Code section 12022, subdivision (c). In count 2 defendant was charged with
possession of cocaine while armed with a loaded, operable firearm, in violation of Health
and Safety Code section 11370.1, subdivision (a).
       Prior to trial defendant filed a motion to disclose the identity of a confidential
informant, as well as two Pitchess motions.1 After in camera hearings, the trial court
denied the motion to disclose the identity of the informant, but ordered that certain
information be turned over to the defense pursuant to the Pitchess motions.
       The evidence showed that after an investigation and search, which included the
use of a narcotics detection dog, Los Angeles County Sheriff’s deputies found
methamphetamine, cocaine, loaded firearms, $1000 in cash, a scale, 200 one-by-one inch
unused plastic zipper bags and other items under a floorboard in the closet of a bedroom
occupied solely by defendant.
       A jury convicted defendant of both counts as charged and found true the firearm
enhancement alleged as to count 1. After the verdicts, defendant sought release of
confidential juror information based upon one juror’s claim that he was pressured to vote
guilty. The trial court heard the testimony of the juror and found an insufficient showing
of good cause. Defense counsel did not dispute the court’s finding and was granted time
to prepare a motion for new trial. That time elapsed and no motion was filed. On May 1,
2012, the trial court sentenced defendant to a total prison term of six years, comprised of
the middle term of two years as to count 1, plus a firearm enhancement of four years. As
to count 2, the court imposed a concurrent middle term of three years. The court ordered
defendant to pay mandatory fines and fees, and to provide DNA and print impressions.



1      See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Penal Code
sections 832.7 and 832.8; Evidence Code sections 1043 through 1045.

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Defendant was awarded 351 days of actual presentence custody credit and 351 days of
conduct credit, for a total of 702 days. Defendant filed a timely notice of appeal.
       Pointing to various conflicts in the testimony of Detective Raymond Hwang,
defendant concludes the detective gave false testimony. It was the function of the jury to
resolve conflicts and evaluate Detective Hwang’s credibility. (See People v. Young
(2005) 34 Cal.4th 1149, 1175, 1181.) As defendant does not claim that the testimony
was physically impossible or inherently improbable, we accept the jury’s resolution of
such issues. (Ibid.)
       Defendant also seeks review of the testimony of the canine handler, Deputy
Dorsey Marchello, regarding the narcotics dog’s search of his residence. He contends
that Deputy Marchello should have presented her log book during testimony, as she
testified that it briefly “documented . . . the finds.” Defendant argues the log book would
show that only marijuana was found, not methamphetamine.
       Assuming defendant is claiming error under Brady v. Maryland (1963) 373 U.S.
83, we reject the claim. As defense counsel did not claim the material was not made
available to her and did not object to the log book’s absence, the issue has not been
preserved for appeal. (See People v. Morrison (2004) 34 Cal.4th 698, 714.) Regardless,
reversal would not be required, as there is no basis, other than defendant’s speculation, to
believe that the log book contained any materially exculpatory or impeachment evidence.
(See Brady v. Maryland, supra, at p. 87.) Deputy Marchello was asked only to describe
the areas to which her dog alerted, not what drugs were found or even whether drugs
were found. She did not testify that her log book would provide any additional
information.
       Next, defendant notes that one of the detectives on the search team, Detective
Kalassay, was the subject of Pitchess discovery ordered by the trial court. Defendant
states his belief that Detective Kalassay had been terminated for dishonesty, although he
does not suggest that this evidence affected his trial. The trial court determined that the
investigation concerning Detective Kalassay was still open and the detective had been


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neither disciplined nor terminated. Detective Kalassay did not testify and defense
counsel was kept informed of the investigation.
       Finally, there is no merit to defendant’s contention that evidence of juror
misconduct requires a new trial. After the verdicts Juror Rolando Pardo (Pardo)
submitted a declaration and testified he felt pressured to vote guilty, but did not think
defendant was guilty. Pardo’s testimony was confusing and contradictory in parts, but
after much questioning by both counsel and the court, he made clear that he felt pressured
though none of the other jurors applied pressure to him or threatened him in any way.
Pardo acknowledged that he did not participate in jury room discussions and never
expressed his opinion, but merely listened and then voted as everyone else did, because
he did not want to have to explain his position and he assumed that everyone just wanted
to go home. Further, Pardo thought the unanimity instruction required him to vote like
the others. As all of Pardo’s reasons were based on his own, unexpressed thoughts rather
than the actions or words of other jurors, they would not have been admissible to impeach
the verdict. (Evid. Code, § 1150, subd. (a); cf. People v. Stevenson (1970) 4 Cal.App.3d
443, 444 [juror voted guilty due to belief that unanimous verdict was only option].)
       We have examined the entire record and are satisfied that defendant’s appellate
counsel has fully complied with his responsibilities and that no arguable issue exists. We
conclude that defendant has, by virtue of counsel’s compliance with the Wende procedure
and our review of the record, received adequate and effective appellate review of the
judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278;
People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




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