Filed 6/2/16 P. v. Read CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
v.                                                                       A143253
TONY READ,
                                                                         (Humboldt County
         Defendant and Appellant.                                         Super. Ct. No. CR1305988)

In re TONY READ,
                                                                         A146123
         on Habeas Corpus.


         This is a consolidated direct appeal from judgment and petition for writ of habeas
corpus (habeas petition) brought by defendant Tony Read. The issues raised on direct
appeal and by way of the habeas petition are essentially the same, and thus may be
considered collectively herein: (1) whether defendant was irreparably harmed by the
prosecutor’s failure to disclose and retain information relating to the victim’s
identification of a third party as the perpetrator of the crime in a pretrial photo lineup, and
by the prosecution’s subsequent remark in closing argument that this unidentified third
party had “nothing to do” with the crime; and (2) whether defendant’s trial attorney
violated his constitutional right to effective assistance from counsel by, among other
things, failing to object to this purportedly improper prosecutorial argument and to direct
the trial court to on-point legal authority. We affirm the judgment and summarily dismiss
the petition for writ of habeas corpus.


                                                             1
                 FACTUAL AND PROCEDURAL BACKGROUND
       On March 18, 2014, a first amended information was filed in Humboldt County
charging defendant with the following crimes: carjacking (Pen. Code, § 215, subd. (a))
(count one), and (2) assault with a firearm (Pen. Code, § 245, subd. (a)(2) (count two)).1
In addition, the information alleged with respect to count one that defendant personally
used a firearm within the meaning of section 12022.53, subdivision (b), section 1192.7,
subdivision (c)(8), and section 667.5, subdivision (c)(8).
       A jury trial began March 18, 2014. However, after several days of testimony, on
March 26, 2014, defense counsel moved for dismissal or, alternatively, a mistrial after
discovering the prosecution had failed to timely produce evidence that the victim had
identified someone other than defendant as the perpetrator of the crime during a photo
lineup that took place on September 29, 2013. Specifically, defense counsel made this
discovery on March 25, 2014, when he requested a copy of the actual photo lineup from
the prosecution in order to prepare for cross-examination of the officer that administered
the lineup procedure. After hearing from both counsel, the trial court ordered a mistrial
under the authority of Brady v. Maryland (1963) 373 U.S. 83 (Brady) with defense
counsel’s consent. In doing so, the trial court found that the untimely discovery had
indeed occurred, but was not “so egregious that it requires dismissal.”2 The court also
granted a continuance to allow the defense to “obtain further information regarding the
photo lineup and its composition and related issues.”
       On June 13, 2014, prior to the second trial, defense counsel filed another motion
for dismissal or mistrial under Brady, arguing defendant’s case had been irreparably
harmed by the prosecution’s continued failure to turn over a copy of a police document
containing both the photo lineup itself, as well as information regarding the identity and
location of the suspect identified by the victim as the perpetrator of the crime. According


1
        Unless otherwise stated, all statutory citations herein are to the Penal Code.
2
        The trial court denied defendant’ motion for dismissal without prejudice “so that
these issues can be further litigated.”


                                             2
to the prosecution, this document, referred to as the “key sheet,” had been inadvertently
lost or destroyed by the police department.
       On July 30, 2014, the trial court denied the defense’s second motion, reasoning
that the prosecution had produced all the information regarding the photo lineup to the
defense prior to the second trial with the exception of the key sheet. As such, the trial
court concluded no further relief was warranted because the appropriate remedy under
Brady – to wit, a new trial – had already been provided. Thus, on August 26, 2014, a
second trial began, at which the following evidence was presented.
       In the afternoon of September 27, 2013, Kevin Chapman (hereinafter, the victim)
drove a friend to the Blue Lake Casino near Eureka. At about 6:00 p.m., after dropping
his friend off, the victim stopped at a nearby gas station to use the restroom. On his way
out, a young man approached him and requested a ride to McKinleyville. The victim
acquiesced, and the man got into the front passenger seat, telling the victim his two
friends (a male and a female) were still inside the store. Once the man’s friends left the
store, they likewise got into the back seat of the victim’s car and requested a ride to
McKinleyville. When the victim responded that he was driving to Arcata, they asked to
be dropped off at the “off-ramp right there,” and the man in the front seat offered to pay
$10 for the ride.
       The victim proceeded to drive toward Arcata, making a brief stop along the way.
As the victim took the exit at McKinleyville, he noticed the front-seat passenger appeared
“kind of nervous.” Shortly thereafter, the man placed a pistol at the victim’s head and
told him to “get the fuck out of the car.” The victim attempted to grab the pistol to push
it away from his head, but the man in the backseat behind him put him in a chokehold.
Meanwhile, the man and woman in the backseat began punching the victim in the back of
his head. As a result of this struggle, the pistol fired a round inside the car, causing the
victim to let go of the gun. The front-seat passenger began to “pistol-whip” the victim
over his head about three times. In response, the victim put his car in park, and told
them: “Take everything. It’s not worth getting killed over. Take the car.” He then
“flopped” out of the car and ran to some nearby bushes to hide. After waiting for the


                                              3
three individuals to leave in his car, the victim flagged down a motorist and the police
were called. An ambulance eventually transported the victim to a nearby hospital, where
he was treated with staples to the three lacerations to his head.
       Del Norte Deputy Sheriff Richard Griffin subsequently located the victim’s car
outside of the residence at 369 Butte Street in Crescent City. When Deputy Griffin
advised the resident, Judith Watson (defendant’s mother), that this car was stolen and
asked whether she had any information, she responded: “Yea, they’re all inside.” Upon
entering the residence, officers located Watson’s husband, Ernest, as well as Romeo
Glaze and Jennifer Steinoff. Shortly thereafter, while searching the residence, officers
located defendant hiding in the laundry room between the wall and a washing machine
with the keys to the victim’s car in his left-front pocket.
       Officers later searched the victim’s car and found the following: a loaded firearm
inside a holster in the driver’s side door with a few shells missing and some expended
rounds; a cardboard box on the rear passenger seat containing 23 .22-caliber live bullets;
another box on the rear window ledge with a tax refund check issued to “Tony Read” by
the State of South Carolina; a metal fragment consistent with a bullet fragment on the
driver’s floorboard; and damage to the left-hand side of the dashboard vent consistent
with bullet entry.
       When police interviewed defendant, he acknowledged getting a ride to
McKinleyville from “a guy at the Blue Lake Gas Station.” Defendant further
acknowledged that, during this ride, he was seated in the front passenger seat. He
insisted, however, the driver had dropped him off at “Sonny Bono’s house,” where he
was later picked up. After being jailed, defendant made several phone calls in which he
expressed worry that “they [are] probably telling on me.”
       At trial, Ernest and Judith Watson testified that, on the day in question, they had
seen defendant and “another young man and a girl” near the river in the same car that was
later found outside their residence.
       Humboldt County Sheriff’s Investigator Todd Fulton, in turn, testified that he
presented the victim with a photo lineup on or about September 30, 2013 and, although


                                              4
defendant’s photograph was included in the lineup card, the victim did not identify him
as the person who pistol-whipped him on the day in question.
       Further, Deputy Sheriff Gregory Berry testified that he met with the victim on or
about September 29, 2013 to show him a photo lineup. During this procedure, the victim
identified the suspect in the fifth position (hereinafter, Suspect No. 5) on the lineup card
as “the guy who pulled the pistol on me and hit me in the head.” Defendant’s photograph
was not included on this lineup card.
       In closing argument, defense counsel thereafter argued to the jury that the victim’s
identification of a third party as a perpetrator of the crime gave rise to a reasonable doubt
as to defendant’s guilt. The prosecutor, in turn, argued that the third party identified by
the victim “could be somebody from Sacramento for all we know. He had nothing to do
with this case.”
       On September 5, 2014, the jury found defendant guilty as charged and found true
the allegation of personal use of a firearm with respect to the carjacking count. On
October 3, 2014, following a hearing, the trial court denied probation and sentenced
defendant to state prison for a total term of 19 years. This appeal and habeas petition
followed.

                                        DISCUSSION
       Defendant raises the following arguments for our consideration. Defendant
contends his constitutional right to due process was violated by the prosecution’s failure
to disclose and to retain information relating to the victim’s identification in a photo
lineup of someone other than him. Defendant further contends the prejudice from these
failures was exacerbated by the prosecutor’s improper remark in closing argument that
this individual, who was never identified, had “nothing to do with this case.”
Additionally, defendant contends in his habeas petition that his constitutional right to
effective assistance from counsel was violated by his trial attorney’s failure to cite key
legal authority when moving for dismissal in the trial court, to thoroughly investigate the
facts relating to the prosecution’s suppression of evidence, and to make a timely and



                                              5
appropriate objection to the aforementioned improper remark by the prosecutor in the
trial court. We address each argument in turn below.
I.     Failure to Disclose and Retain Exculpatory Evidence.
       Defendant’s initial claim is that the trial court erred by denying his motion to
dismiss this case based on the prosecutor’s failure to properly disclose and retain key
exculpatory evidence that someone other than him may have committed the charged
crime. Specifically, defendant claims as constitutional error the prosecution’s failure to,
first, disclose and, later, to prevent the loss of, information that the victim identified
someone other than him as the perpetrator of the crime in a pretrial photo lineup. This
information was reflected in the following four documents: (1) the photo lineup card;
(2) the victim’s handwritten statement identifying Suspect No. 5 (to wit, not defendant)
on the photo lineup card as the perpetrator; (3) a separate photo lineup card, referred to as
the “key sheet,” that included the name and residence of each of the suspects on the card;
and (4) a police narrative report prepared by the officer that conducted the lineup
procedure. By defendant’s own account, the prosecution had, prior to the start of the
second trial, produced each of these documents with the exception of the “key sheet,”
which the prosecution acknowledged had gone missing from police records due to
inadvertence or mistake within the police department.
       In arguing these circumstances require dismissal of this case, defendant relies
upon the constitutional principles set forth in three cases: Brady, California v. Trombetta
(1984) 467 U.S. 479 , 488-489 (Trombetta), and Arizona v. Youngblood (1988) 488 U.S.
51, 56 (Youngblood). Based upon this authority, defendant reasons that, where, as here,
exculpatory evidence subject to disclosure under Brady has been destroyed or otherwise
lost such that the defendant has “no way to effectively utilize the information provided by
the evidence, the proper remedy is dismissal. (People v. Alvarez (2014) 229 Cal.App.4th
761, 778-779).” The relevant law is as follows.3

3
       As the People note, below, defendant relied upon only Brady when moving for
dismissal of the charges against him. As such, the People contend defendant has waived
the right to challenge his conviction on appeal under Trombetta and Youngblood. We,

                                               6
       Under Brady, “suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” (373 U.S. at
p. 87.) “The mere possibility that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the trial, does not establish
“materiality” in the constitutional sense.” [Citation.]’ [Citations.]” (People v. Superior
Court (Meraz) (2008) 163 Cal.App.4th 28, 52 (Meraz).) “As we have described it in
terms of posttrial analysis of nondisclosure, ‘ “[m]ateriality . . . requires more than a
showing that the suppressed evidence would have been admissible [citation], that the
absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using
the suppressed evidence to discredit a witness’s testimony ‘might have changed the
outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable
probability of a different result.” ’ [Citation.]’ [Citation.]” (Meraz, supra, 163
Cal.App.4th at p. 52.) Further, in this context, the “requisite ‘reasonable probability’ is a
probability sufficient to ‘undermine[] confidence in the outcome’ on the part of the
reviewing court.” (In re Sassounian (1995) 9 Cal.4th 535, 544.) “Although the term
‘Brady violation’ is often broadly used to refer to any failure on the part of the
prosecution to disclose favorable information to the defense, a true violation occurs only
if three components coexist: ‘The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.’ (Strickler v. Greene (1999) 527 U.S. 263, 281-282 . . . .)” (People v. Uribe
(2008) 162 Cal.App.4th 1457, 1474.)


however, agree with defendant that the gist of his argument in seeking dismissal was
made clear to the trial court, notwithstanding the failure of defense counsel to cite the
aforementioned cases. As such, we decline to find defendant has forfeited the right to
review of this issue on appeal and, instead, proceed to the merits. We further note that
our conclusion in this regard disposes of any need to address defendant’s ancillary
argument that his trial attorney failed to provide effective legal assistance by failing to
directly cite Youngblood or Trombetta below.


                                              7
       Also relevant in this case is a related set of principles that likewise implicates a
criminal defendant’s due process rights: “Closely related to the Brady rule requiring the
prosecution to disclose material evidence favorable to the defense is the prosecution’s
obligation to retain evidence. With respect to retention, however, the prosecution’s
obligation is narrower. Its failure to retain evidence violates due process only when that
evidence ‘might be expected to play a significant role in the suspect’s defense,’ and has
‘exculpatory value [that is] apparent before [it is] destroyed.’ (California v. Trombetta
(1984) 467 U.S. 479 , 488-489 [81 L.Ed.2d 413, 104 S.Ct. 2528].) In that regard, the
mere ‘possibility’ that information in the prosecution’s possession may ultimately prove
exculpatory ‘is not enough to satisfy the standard of constitutional materiality.’ (Arizona
v. Youngblood (1988) 488 U.S. 51, 56 [109 S.Ct. 333, 336, 102 L.Ed.2d 281].) And
whereas under Brady, supra, 373 U.S. 83, the good or bad faith of the prosecution is
irrelevant when it fails to disclose to the defendant material exculpatory evidence (id.
[373 U.S.] at p. 87 [83 S.Ct. at pp. 1196-1197]), a different standard applies when the
prosecution fails to retain evidence that is potentially useful to the defense. In the latter
situation, there is no due process violation unless the accused can show bad faith by the
government. (Arizona v. Youngblood, supra, 488 U.S. at p. 58 [109 S.Ct. at pp. 337-
338].)” (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8.)
       Relying on these principles here, defendant contends, first, that the missing photo
lineup evidence is “manifestly exculpatory, not merely ‘potentially’ so” within the
meaning of Trombetta/Youngblood; and second, that, in the absence of any “good faith”
explanation for the prosecution’s failure to preserve this evidence, dismissal is the
appropriate remedy. We disagree with both contentions.
       First, as to the nature of the missing evidence, we reject defendant’s claim that it is
manifestly exculpatory. Indeed, this is not a case where all information on the subject of
third-party culpability was lost. Rather, after a five-plus month delay between the first
and second trials, the prosecution produced – and the jury heard – a plethora of evidence
and argument relating to the victim’s identification of Suspect No. 5 (and non-
identification of defendant) on the photo lineup card. In particular, defense counsel


                                              8
presented to the jury a copy of the lineup card with the photograph of Suspect No. 5. In
addition, defense counsel presented evidence that the victim was quite adamant in his
statement to police that the perpetrator of the crime was Suspect No. 5 on the lineup card,
and not any of the other suspects. Defense counsel then cross-examined the officers who
prepared and presented the photo lineup to the victim regarding the one piece of
information that was missing – to wit, the name of the suspect and County in which he
resided. Finally, defense counsel emphatically advised the jury in closing argument
about the significance of this missing evidence, including the fact that defendant was
precluded from finding and questioning Suspect No. 5 to determine whether he was in
fact the perpetrator. These circumstances belie defendant’s claim that, due to the
prosecution’s failure to retain the key sheet, he was left “with no way to effectively
utilize the information provided by the evidence.”
       Further, as the People explain, the photo lineup card was randomly derived from a
search of a computer database created and maintained by the California Department of
Justice. This database contains information and photographs of individuals collected
from several state and county sources, including the California Department of Motor
Vehicles and the California prison system. As Officer Todd Fulton, the Sheriff’s
Department investigator who prepared the lineup card, testified:
“A.    It’s a computer program within the computer itself. . . . [W]e present [defendant’s]
photograph, and then the computer itself would pick up through its search images that
resemble him. [¶] So there’s kind of a random selection of people that are of that same
ethnic group, facial hairs, body styles. It’s to eliminate having a guy with a red shirt with
five other guys in blue shirts.
“Q.    So the pictures of each individual should kind of resemble each other?
“A.    That’s correct.
“Q.    And, if I may, that’s specifically to make it so it’s not suggestive? You’re not
suggesting any one individual over the other?
“A.    That’s correct.”



                                              9
       As this testimony reflects, the exculpatory value of the missing information
identifying Suspect No. 5 was far from manifest. To the contrary, Suspect No. 5, like all
suspects on the photo lineup card aside from defendant, was randomly selected in a
computerized search of a statewide criminal justice system database, making the
exculpatory value of his identifying information, at best, uncertain. As a result, we
conclude defendant has failed to make the requisite showing under Trombetta and
Youngblood that the missing evidence possessed such exculpatory value that it would
have been apparent to the prosecution at the time of the evidence’s disappearance or
destruction. (Youngblood, supra, 488 U.S.at p. 56 [the mere possibility that information
in the prosecution’s possession may ultimately prove exculpatory “is not enough to
satisfy the standard of constitutional materiality”].)
       Further, even assuming for the sake of argument the missing evidence could be
deemed manifestly exculpatory, we reject defendant’s insistence that the prosecution’s
failure to retain it was in bad faith, such that dismissal of all charges should be ordered.
“Bad faith” in this context means “malice” or acting with the “design to seek an
unconscionable advantage over the defendant.” (People v. Coles (2005) 134 Cal.App.4th
1049, 1055.) Or, as explained in Youngblood, the existence of bad faith by a police
officer for purposes of the Due Process Clause “must necessarily turn on the police’s
knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”
(Youngblood, supra, 488 U.S. at p. 56.) Yet in our case, defendant, in essence, reasons
the District Attorney’s Office must have acted in bad faith, to wit, intentionally failing to
retain the key sheet with knowledge of its exculpatory value, because, according to
defendant, there is no evidence they acted in good faith. Specifically, defendant argues
the prosecution’s explanation for the missing evidence – that police inadvertently lost it –
was inadequate. In addition, defendant relies upon on a posttrial declaration submitted by
his trial attorney, stating that, in the attorney’s opinion and based upon his professional
experience in Humboldt County courts, someone in the District Attorney’s Office must
have deliberately removed the key sheet from the case file and destroyed it. We conclude



                                              10
defendant’s showing in this regard fails to establish bad faith, particularly in light of other
relevant evidence in the record, which defendant mostly disregards.
       In particular, the record, much of which has already been set forth, reflects the
following: Deputy Sheriff Gregory Berry, the officer who presented the lineup card to
the victim, testified that he had no memory of having seen the key sheet in this case;
Deputy Scott Aponte, the officer who helped prepare the lineup documents, testified
similarly that he had no idea what happened to the key sheet; Officer Fulton testified that
the photo lineups used by Humboldt County were randomly generated from the
aforementioned California Department of Justice database, which contains “[t]housands
to millions” of potential lineup photos; and defendant’s trial counsel attested in his
posttrial declaration that he personally believed someone in the District Attorney’s office
deliberately removed and destroyed the key sheet (a belief he did not disclose earlier for
fear of personal and professional harassment and retaliation). Having considered the
totality of this evidence, we conclude defendant has failed to meet his burden to prove
bad faith. First, with respect to the attorney declaration, defense counsel ultimately offers
no more than his own personal belief that misconduct occurred. In the absence of any
actual facts as to who, what, when or how this purported misconduct by the District
Attorney’s Office occurred, we find counsel’s opinion to be speculative. Further, while
defendant insists the “selective destruction” of key exculpatory evidence by the
prosecution could only mean bad faith, the record, reasonably read, does not support his
claim. Quite simply, there is a missing document, and the individuals who did or should
have handled the document do not know why it is missing. These circumstances, while
unfortunate, are not necessarily uncommon in the investigative realm. In any event,
whatever the frequency of such an occurrence, we decline defendant’s invitation to
assume from these facts alone that something sinister occurred, notwithstanding his
attorney’s contrary personal opinion.
       Accordingly, we reject defendant’s due process challenge. Whether considered
under the Brady or Trombetta/Youngblood standards, defendant’s challenge fails given
the absence of any manifest exculpatory value of the missing evidence, and the absence


                                              11
of any proof of bad faith by the prosecution in handling it. (Trombetta, supra, 467 U.S.
at pp. 488-489 [if the suppressed evidence is only potentially useful, there is no due
process violation absent bad faith]; People v. Sixto (1993) 17 Cal.App.4th 374, 397-398
& fn. 9 [in the absence of a showing by defendant that the police acted in bad faith,
failure to preserve potentially useful evidence does not amount to a denial of due
process].) While we sympathize with defendant’s frustration at the untimely disclosure
of this evidence of possible third-party culpability, as well as the subsequent inability to
produce the lineup key card, the law is clear that criminal defendants have no right to a
perfect trial, but simply a fair one. (People v. Sixto, supra, 17 Cal.App.4th at p. 393.)
Here, we conclude the trial court took appropriate steps to remedy this unfortunate
situation by declaring a mistrial in defendant’s first trial, and then providing the defense
ample time to complete appropriate discovery and investigation of relevant facts prior to
his second trial. No more was required under the given circumstances. (People v. Wright
(1985) 39 Cal.3d 576, 591 [“ ‘Not every suppression of evidence requires dismissal of
charges . . . . The remedies to be applied need be only those required to assure the
defendant a fair trial’ ”]; § 1054.5, subd. (c) [“court shall not dismiss a charge [for the
prosecution’s failure to disclose] unless required to do so by the Constitution”].)
       And finally, we simply note with respect to defendant’s claim of irreparable harm,
we agree the Chapman v. California (1967) 386 U.S. 18 (Chapman) test would apply to
any constitutional error under Brady or Trombetta/Youngblood. However, even assuming
for the sake of argument such error occurred, we would not find reversible error on this
record. Defendant was seen by witnesses driving the victim’s car with the other two
suspects following the carjacking. Police later found defendant hiding behind the
washing machine in his parent’s house with the keys to the victim’s car in his pocket.
Inside the victim’s car was, among other things (including live ammunition), a tax refund
check from the State of South Carolina made out to defendant. And, once in jail,
defendant expressed concern that others were “telling on” him in recorded phone
conversations.



                                              12
       Defendant insists this evidence may have sufficed to support a conviction for
receiving stolen property, but did not suffice to support his conviction for felony
kidnapping and robbery. But, in so arguing, defendant ignores his own admission that,
on the day in question, he not only received a ride in the victim’s car, he sat in the front
seat next to the victim – to wit, the same seat occupied by the person who pistol-whipped
the victim. To this record, we hasten to add the fact, already discussed at length above,
that the exculpatory value of the missing evidence was, at best, ambiguous. Under these
circumstances, we are left to conclude that any error regarding the prosecution’s failure to
preserve or prevent destruction of the key sheet from the photo lineup must be deemed
harmless beyond a reasonable doubt. (See People v. Wright, supra, 39 Cal.3d at p. 591
[concluding that, in light of the remedial procedure used by the trial court to address the
prosecution’s suppression of evidence, any error was harmless beyond a reasonable
doubt].)

II.    Ineffective Assistance from Counsel.
       In a separate (but related) claim, defendant insists that, had his trial attorney
worked more diligently to investigate what happened to the missing key sheet, or to
cross-examine individuals in the District Attorney’s Office with access to or information
about it, the harm to his case engendered by the missing document would have been
reduced. Accordingly, he seeks reversal on the ground of having received ineffective
assistance from counsel. (See In re Jackson (1992) 3 Cal.4th 578, 601 [to prevail on a
claim of ineffective legal assistance, defendant must show both deficient performance
and that, but for such deficiency, a reasonable probability exists that defendant would
have achieved a more favorable result] overruled on another ground in In re Sassounian,
supra, 9 Cal.4th at p. 545, fn. 6.) However, for essentially the same reasons we have
already rejected defendant’s due process claims, we likewise reject his ineffective
assistance claim.
       To briefly rehash the relevant facts, there is not only a wealth of evidence linking
defendant directly to these crimes, but undisputed evidence that the suspects on the
missing key sheet were mere random selections. Pulled from a centralized Statewide

                                              13
computer database by a search engine based upon physical characteristics shared with
defendant, the individuals in the key card photographs were chosen for wholly superficial
reasons rather than for any reason suggestive of their possible involvement in these
crimes. As such, there is no basis for this court to conclude that any failure by
defendant’s trial attorney to more thoroughly investigate Suspect No. 5, the individual
identified by the victim as the perpetrator, caused defendant undue prejudice in this case.
While perhaps more could have been done by counsel on this front, the likelihood that it
would have resulted in a better outcome for defendant in this case is indeed minimal. As
stated above, “a criminal defendant is entitled to a fair trial, not a perfect one.” (People v.
Sixto, supra, 17 Cal.App.4th at p. 393.)
       Accordingly, defendant’s claim of ineffective assistance from counsel must be
rejected given the lack of any reasonable probability that he would have achieved a more
favorable result had his attorney conducted a more thorough investigation of the facts
surrounding the missing document. (Strickland v. Washington (1984) 466 U.S. 668, 687,
693 [to warrant reversal for ineffective assistance, counsel’s errors must be “so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable”]; see also People v.
Kipp (1998) 18 Cal.4th 349, 366 [“if “a defendant has failed to show that the challenged
actions of counsel were prejudicial, a reviewing court may reject the claim on that ground
without determining whether counsel’s performance was deficient”].)

III. Prosecutorial Misconduct.
       And finally, turning to defendant’s claim that the prosecutor made an improper
comment to the jury to the effect that Suspect No. 5, the person identified by the victim
as the perpetrator of the crime, was irrelevant to the case, the applicable law is clear. “A
prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution
when it infects the trial with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves the use of deceptive
or reprehensible methods to attempt to persuade either the trial court or the jury.”
(People v. Morales (2001) 25 Cal.4th 34, 44 (Morales). See also People v. Samayoa

                                               14
(1997) 15 Cal.4th 795, 841 [federal Constitution violated where prosecutorial misconduct
is “so egregious that it infects the trial with such unfairness as to make the conviction a
denial of due process”].) When the alleged prosecutorial misconduct stems from the
prosecutor’s remarks or comments made before the jury, “the question is whether there is
a reasonable likelihood that the jury construed or applied any of the complained-of
remarks in an objectionable fashion.” (Morales, supra, 25 Cal.4th at p. 44.)
       Assuming the claim was properly preserved, the question becomes whether the
prosecutorial misconduct was prejudicial, that is, whether it is reasonably probable a
result more favorable to the defendant would have occurred if the prosecutor had
refrained from the misconduct.4 (People v. Haskett (1982) 30 Cal.3d 841, 866.)
Prosecutorial misconduct requires reversal under federal law unless the misconduct was
harmless beyond a reasonable doubt. (People v. Cook (2006) 39 Cal.4th 566, 608.)
       Here, defendant acknowledges his counsel did not properly preserve his claim of
prosecutorial misconduct by failing to make a timely objection in the trial court. In his
habeas petition, defendant challenges his trial attorney’s failure in this regard as
ineffective assistance in violation of his constitutional right to counsel. Putting aside the
issue of forfeiture, however, we conclude defendant’s claim lacks merit.
       To summarize what has already been discussed at length, defendant contends the
prosecutor’s statement that Suspect No. 5 “had nothing to do” with this case was a
misstatement of fact because, in actuality, the prosecutor had no way of knowing this
person’s involvement or noninvolvement in the crime. However, as the People point out,
the prosecutor, when he made this purported misstatement, also explained to the jury that
Suspect No. 5 was a person “randomly pulled out of a Cal photo generator” by police for
use in the photo lineup. This line of argument accurately reflects the testimony of Officer

4
       To preserve a claim of prosecutorial misconduct for appeal, the defendant is
generally required to make a timely objection at trial, as well as a “request[] that the jury
be admonished to disregard the perceived impropriety.” (People v. Thornton (2007) 41
Cal.4th 391, 454; see People v. Hill (1998) 17 Cal.4th 800, 820-821 [counsel’s failure to
timely object or to request a curative admonition may be excused if such action by
counsel would have been futile].)


                                              15
Todd Fulton regarding the California Justice System database, set forth above. (See p. 9,
ante.) Defendant does not contend otherwise. Thus, considered in proper context, the
prosecutor’s argument was reasonable. Given that Suspect No. 5 was indeed randomly
included in the photo lineup in this case, even assuming the defense had been able to
identify and locate him, it would be pure speculation to suggest this person was in any
way involved in this crime. As such, we conclude the prosecutor’s statement did not
amount to prosecutorial misconduct under California law.5 (People v. Welch (1999) 20
Cal.4th 701, 752-753 [“ ‘ “[t]he prosecution has broad discretion to state its views as to
what the evidence shows and what inferences may be drawn therefrom” ’ . . . and . . .
‘may “vigorously argue his case” . . ., “[using] appropriate epithets warranted by the
evidence” ’ ”]; People v. Hill (1998) 17 Cal.4th 800, 819 [prosecutors are “not limited to
‘Chesterfieldian politeness’ ” and may “ ‘use appropriate epithets’ ”].) Accordingly,
defendant’s final challenge fails and the judgment stands.

                                     DISPOSITION
       The judgment is affirmed and the petition for writ of habeas corpus is summarily
dismissed. No order to show cause shall issue.
///
///
///



                                                  _________________________
                                                  Jenkins, J.


We concur:


_________________________

5
       Our conclusion in this regard likewise disposes of defendant’s claim that his trial
attorney’s failure to object on prosecutorial misconduct grounds violated his right to
effective assistant from counsel.

                                             16
McGuiness, P. J.


_________________________
Siggins, J.




People v. Tony Read, A143253; and In re Tony Read on H/C, A146123




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