Filed 3/3/14 P. v. Cappiello CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B246214

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA056199)
         v.

ANTHONY JOSEPH CAPPIELLO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Carol S.
Koppel, Judge. (Retired Judge of the San Bernardino Mun. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
         Anthony Joseph Cappiello, in pro. per.; and Jamie Lee Moore, under appointment by
the Court of Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
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                                          SUMMARY
       An Information charged appellant Anthony Cappiello with possession of a controlled
substance (methamphetamine), in violation of Health and Safety Code section 11377,
subdivision (a). The Information also alleged that Cappiello had previously suffered a strike,
pursuant to Penal Code sections 667, subdivisions (b)–(i), and 1170.12, subdivisions (a)–
(d),1 for a 2005 felony robbery conviction (§ 211), and that he had previously served three
prison terms (§ 667.5, subd. (b)).
       Cappiello filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531,
seeking personnel records for the arresting deputies. The trial court found good cause for in
camera inspection for materials concerning “fabrication of charges, fabrication of evidence,
fabrication of reasonable suspicion and/or probable cause, false arrest, perjury and
dishonesty” and, after an in camera inspection, determined there were discoverable materials.
       A jury trial was held. Cappiello waived jury and court trial for the priors, after being
advised of his constitutional rights.
                                 FACTUAL BACKGROUND
Prosecution case
       On May 12, 2012 at about 2:45 a.m., uniformed Los Angeles Sheriff Department
(LASD) Deputies Jason Goedecke and Russell DeLoof responded to a call about a fight in
Lancaster. The officers drove their patrol car toward Cappiello and Julie Davis, who were
walking on a sidewalk in a parking lot of an apartment complex in the vicinity of the alleged
fight to ask if they were aware of a fight in the area, and parked near them.
       When the patrol car was about 30 feet from Cappiello, Deputy Goedecke called out
to him as he got out of the passenger side, and asked Cappiello if he had seen a fight.
Cappiello quickly moved behind Davis facing her back, and put his hands in his pockets.
Deputy Goedecke ordered Cappiello to take his hands from his pockets two or three times.




       1   All further statutory references are to the Penal Code unless otherwise indicated.


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When Cappiello finally did, he “flicked his wrist, opened his hand, and a clear plastic baggie
fell to the ground.”
       Deputy DeLoof picked the baggie up from the sidewalk or adjacent grass area, as
Deputy Goedecke handcuffed Cappiello. Deputy DeLoof had not seen Cappiello drop
anything. He saw only that the baggie was about a foot away from Cappiello, on his right
hand side. No drug paraphernalia was found on Cappiello, he was not under the influence of
any drug, and his fingerprints were not on the baggie. When asked, Cappiello did not admit
that the baggie was his. Deputy DeLoof put the baggie in his shirt pocket to transport to the
sheriff station where it was later booked into evidence.
       Deputy DeLoof testified that Davis spoke with him after Cappiello was in the patrol
car and asked if she could “put it on her and say that it was her narcotics and not”
Cappiello’s.2
       In May 2012, Deputies Goedecke and DeLoof had each been deputies for about six
years. Each testified that, in his training and experience, a useable amount of
methamphetamine is .02 grams. A senior LASD criminologist testified the baggie contained
.08 grams of methamphetamine.
Defense Case
       Cappiello did not testify.
       Davis testified she and Cappiello were in the carport area of her previous residence
when they were stopped on May 12, 2012. They were on the way to the store to get some
coffee when they were stopped. Davis had the baggie of methamphetamine in her left front
pocket and planned to put some of it in her coffee. Davis got the drug from a neighbor.
Cappiello did not know she had it. Davis used methamphetamine occasionally, but not with
him. She and Cappiello had been dating about three and a half months when he was
arrested. They were no longer dating.



       This information was not in Deputy Goedecke’s incident report, which Deputy
       2
DeLoof affirmed.


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       Davis had not heard any cars pull up, but she saw Deputies Goedecke and DeLoof,
and heard yelling and screaming as she turned around and saw three or four patrol cars and
guns pointing at her. At the same time, Cappiello pulled her back protectively. Davis was
not sure whether the deputies had told her to put her hands inside or outside her pockets, so
she kept putting her hands in and out of her shorts. That is when she thinks the baggie fell
out of her pocket. Davis also had other drugs in her possession at the time, but was not
searched. At first, the deputies had not really paid attention to her. They went toward
Cappiello, and Davis was able to kick the baggie from the sidewalk to the curb. The deputies
picked up the baggie after they handcuffed her and put her in the patrol car.
       Initially, Davis had not confessed that the methamphetamine was hers because, as a
“professional person” she had “a lot to lose.” But, when the deputies asked if the baggie
belonged to her, she told them “it was not ours” but “if you need to charge someone, charge
me.” Davis told the deputies the methamphetamine belonged to her after she learned they
were charging Cappiello. On cross-examination, Davis admitted she had not told the defense
investigator that the methamphetamine had been hers because she did not want to
incriminate herself. In an addendum to her witness statement Davis admitted later telling the
investigator the drugs were hers. Davis claimed to have told the two deputies, three or four
public defenders, and two private attorneys that the drugs were hers. She also contacted
Cappiello’s attorney and admitted the drugs were hers.
       Davis had spoken with Cappiello since his arrest. She cared about him, and did not
“want to see him get into trouble for something he didn’t do.” Davis said she testified that
the drugs were hers because she had tried to kill herself over this, and needed to ease her
conscience.
       The court instructed the jury regarding the elements of a possession of a controlled
substance, in violation of Health and Safety Code section 11377, subdivision (a), as follows:
“The usable amount is a quantity that is enough to be used by someone as a controlled
substance.” (Italics added.) The standard jury instruction reads: “A useable amount is a
quantity that is enough to be used by someone as a controlled substance.” (CALCRIM
No. 23041 (2013 ed.), first italics added.)

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       During deliberations, the jury requested read back of these portions of Deputy
Goedecke’s testimony: “when approaching suspects,” “regarding discussing the case with
DeLoof,” and “of approach to suspects on foot to through flicking of item from suspect[’]s
pocket.”
       After the jury returned a guilty verdict, Cappiello waived court trial for the priors.
Cappiello was advised of his rights to confront and cross-examine witnesses, to present
evidence for his defense and against self-incrimination, before and after he admitted the prior
strike and prior prison terms.
       Cappiello admitted an April 2005 conviction for robbery, pursuant to sections
1170.12, subdivisions (a)–(d) and 667, subdivisions (b)–(i). He also admitted two prior
prison terms, from 2005 and 2008, respectively, pursuant to section 667.5, subdivision (b).
       Cappiello’s motion for a new trial was denied, as were his motions to strike the strike
and the prison priors pursuant to section 1385 and People v. Superior Court (Romero) (1996)
13 Cal.4th 497, and his motion to reduce the conviction to a misdemeanor. The prosecutor
conceded that only two prison priors could be alleged, pursuant to section 667.5, subdivision
(g). Cappiello was sentenced to eight years in state prison: three years for count 1, doubled
for the strike (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)), plus two years for two prison
priors (§ 667.5, subd. (b)). Cappiello was awarded 200 days pre-sentence custody credit,
including 100 actual days, and imposed fees and fines.
       We appointed counsel to represent Cappiello on appeal. After examination of the
record, Cappiello’s counsel filed an opening brief raising no issues, and asking this court
to independently review the record, including the reporter’s transcript of the in camera
hearing conducted by the trial court in connection with Cappiello’s Pitchess motion. On
July 5, 2013, we advised Cappiello he had 30 days within which to personally submit any
contentions or issues he wished us to consider. Cappiello was granted permission to file
a supplemental reply brief by November 7, 2013. Cappiello filed a supplemental brief on
November 14, 2013, in which he makes various allegations about judicial and police
misconduct, constitutional violations and ineffective assistance of counsel.



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       Under People v. Kelly (2006) 40 Cal.4th 106, we find that Cappiello’s
supplemental brief does not raise any arguable issues. The contentions in the
supplemental brief that the trial court erred by excluding exculpatory evidence from
Cappiello’s girlfriend that the drugs belonged to her, and made biased or derogatory
statements during jury deliberations and sentencing find no support in the record. To the
extent Cappiello raises issues with regard to the exclusion of exculpatory evidence that
are not apparent from the record, such matters are not cognizable in this appeal. (See
People v. Smith (2007) 40 Cal.4th 483, 507.)
       The supplemental brief cites Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct.
1194, 10 L.Ed.2d 215] as to willful suppression of evidence and the obligation to furnish
favorable evidence to the defense. The case has no application here.
       We also find no arguable claim that trial counsel was ineffective for failing to file
a Romero motion or for failing to object to “key prosecution witness statements” by the
arresting officers. Cappiello’s trial counsel filed a Romero motion; it was denied. It is
unclear what Cappiello means by “key prosecution witness statements.” In any event, for
an ineffective assistance of counsel claim to be sustained, the defendant must show that
counsel’s performance fell below an objective level of reasonableness and defendant was
prejudiced by counsel’s failings. (People v. Williams (1997) 16 Cal.4th 153, 214–215.)
The defendant must also demonstrate from the record “‘the lack of a rational tactical
purpose for the challenged act or omission.’” (Id. at p. 215.) The jury heard the officers’
testimony, and requested read back before reaching its verdict. The duty to determine
witness credibility or weigh evidence relevant to such credibility rests solely with the
jury. To the extent that Cappiello claims his trial counsel should have conducted some
further investigation as to the arresting officers, we cannot ascertain what investigation
counsel engaged in. “Where the record does not illuminate the basis for the challenged
acts or omissions, a claim of ineffective assistance [of counsel] is more appropriately
made in a petition for habeas corpus.” (People v. Pope (1979) 23 Cal.3d 412, 426,
overruled on another ground by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)



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Nothing in the record suggests any failure by Cappiello’s counsel contributed to the
verdict.
       We have completed our independent review of the record, including the reporter’s
transcript of the in camera hearing conducted by the trial court in connection with the
Pitchess motion. We are satisfied that Cappiello’s counsel fully complied with her
responsibilities, and find no arguable issues. (People v. Kelly, supra, 40 Cal.4th at
pp. 109–110; People v. Wende (1979) 25 Cal.3d 436, 441.)
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                 JOHNSON, J.


We concur:


       ROTHSCHILD, Acting P. J.


       CHANEY, J.




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