Filed 6/27/13 P. v. Meraz CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR




THE PEOPLE,                                                                   B242496

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. VA111663)
          v.

EDWARD MERAZ,

          Defendant and Appellant.



          APPEAL from an order of the Superior Court of Los Angeles County,
Michael A. Cowell, Judge. Affirmed.
          Linn Davis, under appointment by the Court of Appeal, and Edward Meraz,
in pro. per., for Defendant and Appellant.
          No appearance for Plaintiff and Respondent.
       Defendant Edward Meraz appeals from a jury verdict finding him guilty of
kidnapping (Pen. Code, § 207, subd. (a)1); attempted willful, deliberate, and premeditated
murder (§§ 187, subd. (a), 664, subd. (a)); assault with a deadly weapon (§ 245, subd.
(a)); and conspiracy to commit murder (§ 182, subd. (a)(1)). Our independent review of
the record reveals no arguable issue that would aid defendant. We affirm the judgment of
conviction.


                      FACTUAL AND PROCEDURAL SUMMARY
       Defendant was convicted of crimes stemming from attacks on victim Christina M.
committed in concert with Jose Ayala (Mike) and Vincent Mendoza. Christina agreed to
accompany the three men, whom she knew, to the beach. Instead, she was kidnapped and
driven to a remote canyon area. While in the kidnappers’ car, her hands were tied and
she was injected in the neck several times, causing her to feel numb, choke and gag.
Once the car stopped at the canyon, she was pulled from the car and beaten. A blow to
her head caused her to briefly lose consciousness. Then two of the attackers threw
Christina over a cliff. The attackers followed her down, and her neck was slashed three
times by Ayala. The three attackers climbed back up the hill to their car. When
defendant heard Christina exclaim that she was bleeding, he told the others that Christina
was still talking. Mendoza went back down the hill to Christina and stabbed her twice
behind her ear. At that point, she played dead and the attackers drove away.
Surprisingly, Christina survived these multiple attacks and was able to go for help. She
identified the attackers and the car they used.
       Samantha Montgomery testified that the three conspirators came to her house at
4:00 a.m., shortly after the attack on Christina. They gave her a bag which she threw
away. The next day, she took police officers to the dumpster where she had thrown the
bag. Police officers recovered the bag and a photograph of it was admitted as Exhibit 30.




       1   Statutory references are to the Penal Code unless otherwise indicated.

                                               2
It contained a number of syringes, both used and unused, as well as gloves, and other
items.
         After the jury convicted him of multiple offenses, defendant filed a motion for
new trial based on newly discovered evidence. It was supported by a declaration of
Stephanie Crotty. She said on the night Christina was attacked, she was at codefendant
Mendoza’s residence and that defendant joined them later that evening. She said that
Ayala and Mendoza planned to confront Christina, but that defendant did not know about
this plan. She urged defendant not to accompany the other two men, but he ignored the
request and left with them. Defendant submitted his own declaration stating that he told
his defense attorney about Crotty several times during trial and was told that she could
not be located. He argued that Crotty’s evidence established that he did not act with
specific intent. The trial court denied the motion, finding that defendant actively
participated in the plan, even if he was initially unaware of it. Defendant was sentenced
to an aggregate term of 33 years to life in state prison.
         Defendant appealed. His appointed counsel found no arguable issues to raise and
asked us to independently review the record on appeal pursuant to People v. Wende
(1979) 25 Cal.3d 436, 441–442 (Wende). We advised defendant that he had 30 days
within which to submit any arguments he wished this court to consider. In response, he
filed a supplemental brief, in which he raises a number of contentions regarding the
proceedings below. We have reviewed his brief and the record on appeal in accordance
with Wende and People v. Kelly (2006) 40 Cal.4th 106, 119–120.


                                       DISCUSSION
                                               I
         Defendant’s first contention is that his convictions should be reversed based on
ineffective assistance of counsel. “Generally, a conviction will not be reversed based on
a claim of ineffective assistance of counsel unless the defendant establishes both of the
following: (1) that counsel’s representation fell below an objective standard of
reasonableness; and (2) that there is a reasonable probability that, but for counsel’s

                                              3
unprofessional errors, a determination more favorable to defendant would have resulted.
[Citations.] If the defendant makes an insufficient showing on either one of these
components, the ineffective assistance claim fails.” (People v. Rodrigues (1994)
8 Cal.4th 1060, 1126.) Defendant contends counsel was ineffective for failing to secure a
defense witness. But he does not identify this person, nor does he explain how the
witness would have provided testimony leading to a determination more favorable to
him. We conclude defendant failed to establish either prong of an ineffective assistance
of counsel claim.


                                               II
       Defendant argues the trial court erred in denying his motion for a new trial based
on the newly discovered evidence of Crotty’s statements.
       “A trial court may grant a new trial motion ‘[w]hen new evidence is discovered
material to the defendant, and which he could not, with reasonable diligence, have
discovered and produced at the trial.’ (§ 1181, subd. (8).) In ruling on such a motion, the
trial court considers several factors: ‘“‘1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That
it be such as to render a different result probable on a retrial of the cause; 4. That the
party could not with reasonable diligence have discovered and produced it at the trial; and
5. That these facts be shown by the best evidence of which the case admits.’”
[Citations.]’ (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)” (People v.
Mehserle (2012) 206 Cal.App.4th 1125, 1151 [affirming denial of new trial motion based
on newly discovered evidence on ground that evidence added little to trial and would not
have rendered a different result probable on retrial.].) “A new trial motion based on
newly discovered evidence is looked upon with disfavor. We will only disturb a trial
court’s denial of such a motion if there is a clear showing of a manifest and unmistakable
abuse of discretion. [Citations.]” (Ibid.)
       Christina’s testimony established defendant’s active role in the crimes committed
against her. Defendant was seated in the back seat of the car with Christina when she

                                               4
was kidnapped. He grabbed her hands and tried to tie them and, with help from a
codefendant, succeeded in doing so. While still in the car, he moved Christina across him
so that Mendoza, who was in the front passenger seat, could stab her in the neck
repeatedly with a needle to inject her from a syringe. When the car stopped at a canyon,
defendant grabbed Christina by the hair so another defendant could pull her out of the
car. After throwing her down the cliff, all three defendants followed. Defendant was
present when one of the others slashed Christina’s throat three times. The three men
returned to the parked car at the top of the hill. Christina exclaimed that she was
bleeding. Defendant said, “‘She’s still talking.’” At that point, codefendant Mendoza
went back down to Christina and stabbed her twice in the neck.
       Whatever defendant knew before the three men picked up Christina, he chose to
become an active participant in the crimes against her, including the conspiracy to
commit murder. The new evidence provided by Crotty was not sufficient to render a
different result probable on retrial. (People v. Mehserle, supra, 206 Cal.App.4th at
p. 1151.) We conclude the trial court did not err in denying the new trial motion.


                                             III
       Defendant argues that the prosecution violated his fundamental due process rights
because it failed to disclose possible exculpatory or mitigating evidence regarding “the
Chemical Analysis report of the CHEMICAL, BIOLOGICAL and/or FORENSIC
TESTING, CONFIRMATORY TESTING results of the liquid that was found in the
alleged syringes that was allegedly used to attack the victim in this case?[]” Defendant
cites Brady v. Maryland (1963) 373 U.S. 83, regarding the right of a criminal defendant
to present exculpatory evidence. He contends the prosecution never disclosed this
evidence at trial.
       Whittier police officer Mark Goodman testified to recovering the syringes, marked
as trial exhibits 38 and 39. He was not questioned about analysis of the syringe contents.
Chris Kraft, a forensic specialist for the Whittier Police Department, testified that he
recovered the syringes from the bag discarded by Montgomery. He was not asked by

                                              5
either the prosecutor or defense counsel whether he had analyzed any liquid in or on
them. No defense objection to his testimony on discovery grounds was raised.
        “‘The federal due process clause prohibits the prosecution from suppressing
evidence materially favorable to the accused. The duty of disclosure exists regardless of
good or bad faith, and regardless of whether the defense has requested the materials.
[Citations.] The obligation is not limited to evidence the prosecutor’s office itself
actually knows or possesses, but includes “evidence known to the others acting on the
government’s behalf in the case, including the police.” [Citation.] [¶] For Brady
purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by
impeaching a prosecution witness. [Citations.] Evidence is material if there is a
reasonable probability its disclosure would have altered the trial result. [Citation.]
Materiality includes consideration of the effect of the nondisclosure on defense
investigations and trial strategies. [Citations.] Because a constitutional violation occurs
only if the suppressed evidence was material by these standards, a finding that Brady was
not satisfied is reversible without need for further harmless-error review. [Citation.]’
[Citation.]” (People v. Whalen (2013) 56 Cal.4th 1, 64.)
        Here, defendant has not met his burden of showing that the evidence to which he
refers was either favorable or material. While the syringes used in the attack on Christina
were recovered and entered into evidence at trial, there was no testimony that the liquid
on and in some of them was analyzed. No reference to a forensic report was made by any
witness. Under these circumstances, we find no due process violation because defendant
did not demonstrate that an analysis of the contents of the syringes would have altered the
trial result.
        Defendant’s argument also implicates the duty of law enforcement agencies,
“under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that
might be expected to play a significant role in the suspect’s defense.” (California v.
Trombetta (1984) 467 U.S. 479, 488; [citation].)”’ (People v. Carter (2005) 36 Cal.4th
1215, 1246.) Where a defendant argues the State failed to preserve evidentiary material
which could have been subjected to tests, the results of which might have exonerated the

                                              6
defendant, no denial of due process is established unless a criminal defendant can show
bad faith on the part of the police. (Ibid.) Defendant has not argued or demonstrated bad
faith in this investigation.
       Defendant also complains that the prosecution violated the discovery rule of
Brady, supra, 373 U.S. 83, because “[n]o evidence was ever entered as to the fact that
pertains to the Criminal case, Such evidence/discovery will include all of the following;
DNA, blood, urine, Finger prints, voice prints, walk, stride, and Chemical Analysis of
any chemical used against any person or controlling factor used against any and/or all
victim[s] in this case.” Brady “does not stand for the proposition that a defendant has a
federal constitutional right . . . generally to compel certain kinds of investigation.”
(People v. Mena (2012) 54 Cal.4th 146, 160.) In People v. Cook (2007) 40 Cal.4th 1334,
a search of the defendant’s home disclosed a discarded pair of tennis shoes in a trash bag
with blood spatters consistent with one murder victim’s blood, but not with the blood of
another victim or the defendant. The defendant argued that the prosecution destroyed
evidence, including the trash bag in which the tennis shoes were found, in violation of his
due process right to view all evidence of an apparent material and exculpatory nature
under Arizona v. Youngblood (1988) 488 U.S. 51, 58 and California v. Trombetta, supra,
467 U.S. 479, 488–489. (People v. Cook, supra, at p. 1348.) The Supreme Court
rejected the argument as speculative because the defendant failed to show the trash bag
actually contained possibly exculpatory evidence, or that the officers exercised bad faith
in destroying it. (Id. at p. 1349.) Similarly, here defendant fails to show any of the items
specified contained possibly exculpatory evidence or that the investigating officers acted
in bad faith in failing to preserve those items, if any were present at the relevant crime
scenes.


                                              IV
       Defendant claims prosecutorial misconduct based on a grant of immunity to
witness Montgomery. He asserts that she was never charged with tampering or disposing
of “serious mitigating evidence.” As we understand the argument, defendant contends

                                              7
his fundamental rights to due process and under the Sixth Amendment of the United
States Constitution were violated because Montgomery was given immunity and allowed
to testify despite possibly tampering with the bag given her by defendant and his
accomplices by throwing it into a dumpster.
       Montgomery was granted use immunity by the prosecution. Counsel for
defendant’s only objection was that Montgomery had not received the advice of
independent counsel regarding the difference between use and transactional immunity.
With that observation, he submitted. The court indicated that Montgomery would not
likely be prosecuted because she had cooperated, and accepted the immunity agreement.
       No objection was made on the grounds of prosecutorial misconduct. Failure to
make a timely and specific objection, and to request that the jury be admonished, forfeits
a claim of prosecutorial misconduct. (People v. Clark (2011) 52 Cal.4th 856, 960.)
Defendant does not suggest that such an objection would be futile, excusing the failure to
object. (Ibid.)
       In any event, defendant’s claim fails on the merits. “‘A prosecutor’s misconduct
violates the Fourteenth Amendment to the United States Constitution when it “infects the
trial with such unfairness as to make the conviction a denial of due process.” [Citations.]
In other words, the misconduct must be “of sufficient significance to result in the denial
of the defendant’s right to a fair trial.” [Citation.] A prosecutor’s misconduct that does
not render a trial fundamentally unfair nevertheless violates California law if it involves
“the use of deceptive or reprehensible methods to attempt to persuade either the court or
the jury.” [Citations.]’ [Citations.]” (People v. Clark, supra, 52 Cal.4th at p. 960.)
Defendant has failed to demonstrate how a grant of immunity to Montgomery violated
his right to fair trial. Granting Montgomery use immunity was neither deceptive nor
reprehensible. Counsel for defendant had a full opportunity to examine Montgomery
about her disposal of the bag. No prosecutorial misconduct is demonstrated.




                                              8
                                             V
       Defendant claims that his constitutional rights were violated because he was not
advised that he was entitled to counsel at a live lineup or photographic lineup.
       “[T]here is no Sixth Amendment right to counsel at a photographic lineup.
(United States v. Ash (1973) 413 U.S. 300, 321.)” (People v. Virgil (2011) 51 Cal.4th
1210, 1250.) A criminal defendant does have a Sixth Amendment “right to have counsel
present at a live lineup held after criminal proceedings have commenced. [Citations.]
When a live lineup violates a defendant’s Sixth Amendment rights, evidence of
identifications made at the lineup is subject to a per se exclusionary rule [Citations.]”
(People v. Yokely (2010) 183 Cal.App.4th 1264, 1271–1272.)
       We have found no evidence in the record that defendant participated in a live
lineup. There was no mention of a live lineup during Christina’s testimony, either on
direct or cross-examination. During opening statements, the prosecutor told the jury it
would hear Detective David Yoshitake, one of the investigating officers, testify that
Christina identified defendant from photographic six packs. At trial, Christina identified
the photographic six pack from which she selected a photograph of defendant as one of
her attackers. Detective Yoshitake was not asked about the photographic lineups during
his testimony.
       The only evidence of a lineup on this record was the photographic lineup shown to
Christina. As noted, defendant did not have a right to counsel at that point. Defendant
has not demonstrated that a live lineup was held, and thus has not established a
deprivation of counsel.
                                             VI
       Defendant argues the trial court committed prejudicial misconduct by allowing
testimony regarding a bulletproof vest found in the vehicle used in the commission of
these crimes. He argues that the trial court was required to weigh the probative value of
this evidence against the risk of prejudice if admitted. He contends that this evidentiary
error amounts to a denial of due process.



                                              9
       “The application of ordinary rules of evidence like Evidence Code section 352
does not implicate the federal Constitution. (People v. Marks (2003) 31 Cal.4th 197,
227.)” (People v. Arauz (2012) 210 Cal.App.4th 1394, 1403.) We review a ruling
admitting evidence over an Evidence Code section 352 objection for abuse of discretion.
(People v. Pearson (2013) 56 Cal.4th 393, 457.) A ruling under that statute “‘“will not
be overturned on appeal in the absence of a clear abuse of . . . discretion, upon a showing
that the trial court’s decision was palpably arbitrary, capricious, or patently absurd, and
resulted in injury sufficiently grave as to amount to a miscarriage of justice.” [Citation.]’
(People v. Lamb (2006) 136 Cal.App.4th 575, 582.)” (People v. Nguyen (2013) 212
Cal.App.4th 1311, 1331–1332.)
       On Friday, December 9, 2011, Whittier police officer Mark Goodman testified that
he went to a tow yard and searched the vehicle used in the commission of these offenses.
Among the items he recovered was a bullet-proof vest. There was no objection to this
testimony. The following Monday, Chris Kraft, a forensic specialist for the Whittier
Police Department, testified that he assisted the detectives with recovery of evidence
from the vehicle at the tow yard. During his testimony about items found in the vehicle,
counsel for codefendant Mendoza, joined by counsel for defendant, objected to the
relevance of the bullet-proof vest. She argued there was no evidence that a gun was used,
or about the identity of the person who owned the vest. She contended that the evidence
was irrelevant and prejudicial.
       The prosecutor argued that the evidence corroborated the testimony of Officer
Goodman about extraction of various items from the vehicle. He contended this was
necessary in part because no photograph was taken of the vest. The court said it agreed
with defense counsel, and that if the question of admissibility had been presented in a
motion to suppress under section 1538.5 before trial, the motion would have been
granted. But the court stated that the officer’s (Goodman’s) testimony about the vest had
been received without objection, and that Kraft’s testimony corroborated it. The court
concluded that evidence of the vest was probative for that reason.



                                             10
       It is likely that the issue regarding the vest was forfeited because no objection was
raised when Officer Goodman testified about its recovery from the vehicle. (People v.
Robertson (2012) 208 Cal.App.4th 965, 994, fn. 7.) Assuming the issue was preserved,
there was no reversible error. The bullet-proof vest was of limited probative value,
particularly since Christina did not mention it in describing the attack upon her.
Admission of that evidence, in the context of the overwhelming evidence of defendant’s
guilt, did not amount to a miscarriage of justice.


                                             VII
       Defendant argues the prosecutor committed misconduct because he “knowingly
entered prejudicial/prejudice evidence into discovery to be used against [him] at his
criminal trial . . . .” He contends this amounted to a violation of his due process rights.
But defendant fails to identify the evidence which is the basis for this claim. Under these
circumstances, his claim cannot be resolved on the present record.


                                            VIII
       Defendant argues his appointed appellate counsel was ineffective because she filed
a brief pursuant to Wende, supra, 25 Cal.3d 436. He argues that the brief was a clear and
direct violation of his due process rights. Under Wende and People v. Kelly, supra, 40
Cal.4th at p. 118, appellate counsel may file a brief seeking our independent review when
no arguable issues are found. In Wende, the Supreme Court “recognize[d] that under this
rule counsel may ultimately be able to secure a more complete review for his client when
he cannot find any arguable issues than when he raises specific issues, for a review of the
entire record is not necessarily required in the latter situation. [Citations.]” (Wende,
supra, 25 Cal.3d at p. 442.) This procedure was approved by the United States Supreme
Court in Smith v. Robbins (2000) 528 U.S. 259, 280–281, which recognized that this
procedure provides two tiers of review to a criminal appellant.
       A claim of ineffective assistance of counsel requires a defendant to establish
“‘(1) that counsel’s representation fell below an objective standard of reasonableness;

                                             11
and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors,
a determination more favorable to defendant would have resulted. [Citations.] If the
defendant makes an insufficient showing on either one of these components, the
ineffective assistance claim fails.’ [Citation.]” (People v. Homick (2012) 55 Cal.4th 816,
893, fn. 44.) Defendant failed to satisfy either prong of this test. Appellate counsel for
defendant followed the approved Wende procedure. More importantly, we have reviewed
each of the contentions raised by defendant which he claims should have been raised by
his counsel and have found no basis for reversal.
       Defendant also contends that counsel was ineffective in failing to present
potentially mitigating evidence, but does not identify the nature of that evidence, which
appears to concern matters outside the record on appeal. (See People v. Black (2009)
176 Cal.App.4th 145, 153.)


                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
We concur:



       WILLHITE, J.



       MANELLA, J.




                                             12
