Filed 11/12/15 P. v. Daly CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066727

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF32604)

KENDRICK DALY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Imperial County, Matias R.

Contreras, Judge. Affirmed.



         Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Kendrick Daly was convicted of possessing a dirk or

dagger while a prisoner of the state of California. Defendant is a prisoner at Calipatria

State Prison in Imperial County. During a strip search, defendant removed from his pants

a weapon constructed from plastic sharpened to a point for stabbing attacks. Defendant's
prison issued pants had been modified with an additional pocket in the crotch of the

pants. Defendant denied ever having the weapon in his possession and claimed the

modifications made to his pants were for the purpose of smuggling apples out of the

prison cafeteria.

       Defendant's counsel has made no argument for reversal but filed a brief pursuant

to People v. Wende (1979) 25 Cal.3d 436 asking that we review the trial record for error.

Pursuant to Anders v. California (1967) 386 U.S. 738, defendant's counsel lists possible

but not arguable issues: (1) Does sufficient evidence exist to prove defendant was in

possession of the dirk/dagger?; (2) Did the court properly deny the defense motion

pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531?; and (3) Did the court

abuse its discretion in not striking the prior strike under People v. Superior Court

(Romero) (1996) 13 Cal.4th 497? We find the trial court did not commit any errors and

affirm the judgment in full.

                               PROCEDURAL BACKGROUND

       The Grand Jury of Imperial County indicted defendant on a charge of possessing a

dirk or dagger in late February 2014. (Pen. Code, § 4502, subd. (a).)1 The People

further alleged that defendant suffered four serious or violent felony priors and that

defendant committed the instant offense while incarnated in a state prison. (§§ 1170.12,

subds. (a)–(d), 667, subds. (b)–(i) & 1170.1, subd. (c).)

       An Imperial County jury convicted defendant in early July 2014. The court found

true the allegations that defendant suffered three prior convictions. The court sentenced



1      All further statutory references will be to the Penal Code unless otherwise noted.
                                             2
defendant to the middle term of three years and, based upon the prior strike, doubled his

sentence to six years.

                               FACTUAL BACKGROUND

       Prosecution Evidence

       In late May 2013, Sergeant Juan Reyes, a correctional officer at Calipatria State

Prison, received an anonymous note. Acting based upon the contents of the note, Reyes

instructed Officer Espinoza to escort defendant to a holding cell and conduct an

unclothed body inspection of defendant. Defendant was calm and cooperative. Before

defendant entered the cell, Espinoza conducted a visual inspection of the holding cell for

contraband. While Espinoza inspected the cell, defendant stood behind him, un-

handcuffed. Reyes testified that it was standard procedure to handcuff the prisoner while

making a visual inspection of the holding cell. The holding cell had metal mesh walls

that were see-through except for a bottom section that was solid. The mesh walls were

painted in an off-white, beige, or light brown color.

       Defendant entered the cell and took off his clothes as instructed by Espinoza.

Espinoza watched defendant lean over his right shoe to untie it while reaching into his

waistband with his left hand, removing an object from his pants, and placing the object

on the ground. Initially, Espinoza did not recognize the object, but he later determined

the object to be a weapon made out of plastic. Espinoza described the weapon as being

six and a half inches long and an inch wide with one end sharpened to a point. The

weapon was white, pink, and brown in color. Its color was similar to the detention cell's

mesh walls.

       Upon spotting the object, Espinoza commanded defendant to place his hands

                                             3
through a hole in the cell, allowing Espinoza to handcuff defendant. After handcuffing

defendant, Espinoza entered the cell and retrieved the weapon. Espinoza then continued

the unclothed search of defendant, which included examining defendant's clothes.

Espinoza found defendant's pants had been modified by having a long piece of cloth

sewn into the waistband of defendant's pants, forming a sort of pocket. Espinoza showed

the weapon and altered pants to Reyes approximately two to five minutes after being

ordered to conduct the search. Reyes identified the weapon as one that could cause great

bodily injury or death via a stabbing motion. Reyes also testified that the pocket sewn

into the pants was capable of holding the weapon and most likely designed for that

purpose.

       Defense Evidence

       Defendant testified that Espinoza patted him down before entering the cell for the

strip search. The pat-down search revealed no contraband. Espinoza did not conduct a

visual inspection of the cell before defendant entered. Once in the cell, Espinoza

instructed defendant to "strip out," and he complied by removing his clothes. Espinoza

searched defendant's clothes and returned them to defendant. Finding nothing in

defendant's clothing, Espinoza opened the cell door to let defendant out. As defendant

was leaving, Espinoza said "what's that" and pointed at an objected sitting in the corner of

the holding cell. The object was the plastic weapon, sitting on its left side standing at a

30–45 degree angle. Defendant denied ever having the weapon in his possession or

having seen it before Espinoza pointed to it.

       Defendant acknowledged modifying his pants in violation of prison regulations,

but he denied using the extra pocket to carry a weapon. Instead, defendant claimed he

                                                4
would tie a sock to the extra piece of cloth and fill the sock up with apples. Defendant

testified he would smuggle as many as 10 to 15 apples at a time underneath his clothes.

       Defendant has suffered injuries that he claims caused nerve damage to his left arm.

He claims this nerve damage makes it impossible to close his hand and extremely

difficult for him to pick something up with his left hand, such as the weapon.

       Rebuttal Evidence

       Espinoza testified that he was aware that prisoners smuggle fruit out of the

cafeteria to produce pruno, a type of alcoholic beverage commonly produced by

prisoners. However, he stated that, based upon his experience working as a corrections

officer, it would be impossible for an inmate to smuggle as much fruit under his clothes

as defendant claimed without being noticed by corrections officers. Espinoza denied

conducting a pat-down search of defendant prior to the strip search. He also testified that

he had never seen a modification to the pants such as defendant made used to smuggle

fruit, but based upon his training he knew such modifications to clothing were commonly

used to conceal weapons. While observing defendant in court, Espinoza saw defendant

pick up a piece of paper with his left hand.

                                      DISCUSSION

       Defendant's counsel has failed to find any grounds for reversible error and has

filed a brief pursuant to People v Wende, laying out the factual and procedural history of

the case and requesting that the court review the record for any reversible error it may

have missed. Defendant has had the opportunity to provide us with supplemental

briefing, but he has apparently declined to do so. Pursuant to Anders v. California, supra,

386 U.S. 738, defendant's counsel has provided us with possible but not arguable issues

                                               5
that we address below.

       A. Sufficiency of the Evidence that Defendant Possessed a Dirk or Dagger

       When a defendant challenges the sufficiency of the evidence presented at trial, the

appellate court must review the record "to determine whether it contains substantial

evidence—i.e., evidence that is credible and of solid value—from which a rational trier of

fact could have found the defendant guilty beyond a reasonable doubt." (People v. Green

(1980) 27 Cal.3d 1, 55.) The reviewing court must "presume in support of the judgment

the existence of every fact the trier of fact reasonably could infer from the evidence.

[Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of

the judgment is not warranted simply because the circumstances might also reasonably be

reconciled with a contrary finding." (People v. Lindberg (2008) 45 Cal.4th 1, 27.) The

testimony of a single witness is sufficient to prove any fact in dispute. (Evid. Code,

§ 411.) " '[N]either conflicts in the evidence nor " 'testimony which is subject to

justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive

province of the [trier of fact] to determine the credibility of a witness and the truth or

falsity of the facts upon which a determination depends.' " [Citations.] Testimony may

be rejected only when it is inherently improbable or incredible, i.e., ' "unbelievable per

se," ' physically impossible or ' "wholly unacceptable to reasonable minds." ' [Citation.]"

(Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 1150, 1155.)

       Section 4502 prohibits prisoners from possessing or carrying any weapons

including "any dirk or dagger or sharp instrument." The trial record reveals sufficient

evidence to support conviction. The jury heard testimony that a corrections officer

witnessed defendant remove an object from his pants during a strip search, that the object

                                                6
turned out to be a plastic object with a sharpened end, that this object was a weapon

capable of causing great bodily injury or death, that the cell where defendant was strip

searched was visually inspected by the officer for contraband before defendant was

searched, and that defendant's pants contained a modification that would allow him to

hide the object on his person. Defendant offered his own testimony that contradicted

much of the testimony from the state witness, but the assessment of a witness's credibility

is generally up to the jury and not the reviewing court. It is only when the testimony

relied upon by a finder of fact is inherently improbable or fantastical that a reviewing

court may reverse. Here, the testimony of the prosecution's witnesses describes events

that are at the very least plausible, and the jury's reliance on the testimony certainly does

not justify reversal of defendant's conviction. From the evidence presented at trial, the

jury reasonably found that defendant had a "dirk or dagger or sharp instrument" in his

possession.

       B. Denial of Pitchess2 Motion

       Defendant filed a Pitchess motion with the trial court, requesting the production of

any personnel records regarding Officer Espinoza from the Department of Corrections

and Rehabilitation that could show Espinoza had a history of using excessive force,

falsifying evidence or making false reports. A pretrial hearing was held in late May

2014. At the hearing, declarations stating that the Department of Corrections and

Rehabilitation (with the exception of one file) had no records containing evidence

relevant to defendant's request were received by the court. One file, a claim by an inmate



2      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
                                              7
claiming that a corrections officer harassed him by improperly ordering and conducting a

search of the inmate's cell and person was given to the court and examined in camera.

The file related that Officer Espinosa had been interviewed as a witness because he

participated in the disputed search on the orders of another corrections officer, but the

inmate complaint was not directed against Espinoza and the inmate reported that

Espinoza treated him professionally. Espinoza reported that while in his presence, the

subject of the complaint behaved professionally toward the inmate. The court concluded

the document was not discoverable for the purpose of showing that Espinoza has a

history of falsifying evidence.

       "Pitchess, supra, 11 Cal.3d 531, and its statutory progeny are based on the premise

that evidence contained in a law enforcement officer's personnel file may be relevant to

an accused's criminal defense and that to withhold such relevant evidence from the

defendant would violate the accused's due process right to a fair trial. Pitchess and

Evidence Code sections 1043 through 1047 also recognize that the officer in question has

a strong privacy interest in his or her personnel records and that such records should not

be disclosed unnecessarily. Accordingly, both Pitchess and the statutory scheme

codifying Pitchess require the intervention of a neutral trial judge, who examines the

personnel records in camera, away from the eyes of either party, and orders disclosed to

the defendant only those records that are found both relevant and otherwise in

compliance with statutory limitations. In this manner, the Legislature has attempted to

protect the defendant's right to a fair trial and the officer's interest in privacy to the fullest

extent possible. [Citation.]" (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) The

custodian of records is only required to hand over documents from the personnel files that

                                                8
are potentially relevant to the proceedings. (Id. at pp. 1228-1229.)

       " 'Relevant evidence' means evidence . . . having any tendency in reason to prove

or disprove any disputed fact that is of consequence to the determination of the action."

(Evid. Code, § 210.) "[O]nly documentation of past officer misconduct which is similar

to the misconduct alleged by defendant in the pendinglitigation is relevant and therefore

subject to discovery." (California Highway Patrol v. Superior Court (2000) 84

Cal.App.4th 1010, 1021.) In a case where accounts of the defendant and law

enforcement officers differ, past complaints alleging falsification of evidence or

falsification of reports would be relevant and may be discoverable. (People v. Hustead

(1999) 74 Cal.App.4th 410, 418.) "A trial court's decision on the discoverability of

material in police personnel files is reviewable under an abuse of discretion standard."

(People v. Jackson (1996) 13 Cal.4th 1164, 1220.) Abuse of discretion by the court may

be demonstrated by showing the ruling was " 'arbitrary, capricious or exceeds the bounds

of reason.' " (People v. Martinez (2014) 226 Cal.App.4th 759, 764.)

       We find the court acted within its discretion. The custodian of records produced

for the court only one file that was potentially relevant. This document did not contain

any claims made against either Vazquez or Espinoza. Indeed, the inmate who made the

complaint claimed Espinoza behaved professionally towards him. The inmate and

Espinoza did differ in their opinions as to whether the subject of the complaint behaved

appropriately toward the inmate, but the inmate did not make any accusations against

Espinoza of falsifying reports or evidence. An argument could be made that the

document was relevant as evidence of Espinoza falsifying evidence as his account of

events differed slightly from the inmate's. However, given the lack of any claim of

                                             9
falsification made by the complaining inmate, the lack of any other claims against

Espinoza himself, and the privacy interest of Espinoza, the complaining inmate, and the

subject of the complaint, we find the court acted within the bounds of its discretion in

finding that the document was not discoverable.

       C. Refusal of Court to Strike Prior Conviction Under People v. Superior Court

(Romero)

       1. Relevant Facts

       Defendant was convicted of attempted murder, mayhem, and assault with a deadly

weapon in the Los Angeles County Superior Court in September 2008. At the trial for

the 2014 weapon possession charge, defendant's counsel requested the court on its own

motion dismiss the allegation of the prior felonies as per People v. Superior Court

(Romero) (1996) 13 Cal.4th 497 (Romero). Counsel filed a memorandum of points and

authorities in support of his request. In the memorandum, counsel argued that defendant

did not deserve the prior felony sentence enhancement because while defendant's latest

offense was a felony, it was nonviolent and bore no financial cost to anyone. Counsel

argued that defendant was not a career criminal as the 2008 felony convictions were the

only convictions on his record prior to 2014. Defendant's counsel also pointed to

defendant's cooperation with police, corrections officials, and the courts as evidence that

defendant did not deserve the enhanced sentence.

       At the sentencing hearing, the court concluded that the enhancing and mitigating

factors essentially cancelled each other out and sentenced defendant to the midterm of

three years imprisonment for the weapons possession charge. With respect to the prior

felony enhancement, the court found that dismissing the allegations under a Romero

                                             10
motion would be improper.

       The court stated: "What I do is I start with the actual felonies that he was

convicted of initially. Now, that is attempted murder, 245 and 203, very serious offenses

and violence involved, threats of violence. What is this offense? This offense is carrying

a deadly weapon with some sophistication. That was the one aggravating thing. So there

is sophistication planned, carrying a deadly weapon. The initial crimes were violent

crimes, attempted murder, 245, 203. If this was a possession of marijuana in jail or

prison, [Deputy District Attorney] Ms. Cavil, I think that, you know, that might warrant a

Romero, but it's not. . . . This doesn't take him, I don't think, outside the scheme's spirit

in whole or in part." Declining to dismiss the allegations of prior violent felonies, the

court doubled defendant's three year sentence to six years of imprisonment to be served

consecutively to defendant's 2008 sentence.

       2. Relevant Law

       California's three strikes sentencing scheme provides for enhanced sentences for

felons who have previously committed a felony defined as being either "violent" or

"serious." (Romero, supra, 13 Cal.4th at pp. 504-506.) Section 1385 permits a judge to

order an action dismissed " 'either of his or her own motion or upon the application of the

prosecuting attorney.' " (Romero, at pp. 507-508.) Our state high court has construed

section 1385 "as permitting a judge to dismiss not only an entire case, but also a part

thereof, including the allegation that a defendant has previously been convicted of a

felony." (Romero, at p. 508.) Dismissing the allegation of a previous conviction does not

undo the actual conviction but simply allows the court to avoid applying the enhancement

that would otherwise be required by statute. (Ibid.)

                                              11
       California's three strikes law consists of two mostly identical statutes, one passed

by the Legislature (§ 667, subds. (b)–(i)), and another passed subsequently through ballot

initiative (§ 1170.12). (Romero, supra, 13 Cal.4th at p. 504.) Both statutes provide that

"[t]he prosecuting attorney may move to dismiss or strike a prior felony conviction

allegation in the furtherance of justice pursuant to Section 1385." (Id. at p. 508.) Our

state high court has construed the statutes as allowing a judge to dismiss a prior serious or

violent felony conviction allegation on his or her own motion in the interest of justice.

(Id. at pp. 529-530.)

       A trial court's decision regarding dismissal of allegations of a prior felony is

reviewed for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.) "The trial

court's power to dismiss an action under section 1385, while broad, is by no means

absolute. Rather, it is limited by the amorphous concept which requires that the dismissal

be 'in furtherance of justice.' As the Legislature has provided no statutory definition of

this expression, appellate courts have been faced with the task of establishing the

boundaries of the judicial power conferred by the statute as cases have arisen challenging

its exercise. Thus, in measuring the propriety of the court's action in the instant case, we

are guided by a large body of useful precedent which gives form to the above concept.

[¶] From the case law, several general principles emerge. Paramount among them is the

rule 'that the language of that section, "furtherance of justice," requires consideration both

of the constitutional rights of the defendant, and the interests of society represented by

the People, in determining whether there should be a dismissal. [Citations.]' [Citations.]

At the very least, the reason for dismissal must be 'that which would motivate a

reasonable judge.' [Citations.]" (People v. Orin (1975) 13 Cal.3d 937, 945-946.)

                                             12
       "From these general principles it follows that a court abuses its discretion if it

dismisses a case, or strikes a sentencing allegation, solely 'to accommodate judicial

convenience or because of court congestion.' [Citation.] A court also abuses its

discretion by dismissing a case, or a sentencing allegation, simply because a defendant

pleads guilty. [Citation.] Nor would a court act properly if 'guided solely by a personal

antipathy for the effect that the three strikes law would have on [a] defendant,' while

ignoring 'defendant's background,' 'the nature of his present offenses,' and other

'individualized considerations.' [Citation.] " (Romero, supra, 13 Cal.4th at p. 531.)

       "[I]n ruling whether to strike or vacate a prior serious and/or violent felony

conviction allegation or finding under the Three Strikes law, on its own motion, 'in

furtherance of justice' pursuant to Penal Code section 1385(a), or in reviewing such a

ruling, the court in question must consider whether, in light of the nature and

circumstances of his present felonies and prior serious and/or violent felony convictions,

and the particulars of his background, character, and prospects, the defendant may be

deemed outside the scheme's spirit, in whole or in part, and hence should be treated as

though he had not previously been convicted of one or more serious and/or violent

felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons

in an order entered on the minutes, and if it is reviewing the striking or vacating of such

allegation or finding, it must pass on the reasons so set forth." (People v. Williams (1998)

17 Cal.4th 148, 161.)

       3. Discussion

       Case law requires a trial court to weigh the interest of society in incarcerating the

defendant versus the interest of the defendant's constitutional rights by considering

                                               13
whether the overall circumstances of the defendant's crimes fall outside the spirit of the

three strikes sentencing scheme. The trial court in this case evaluated defendant's history

and concluded that his crimes were of the type that the three strikes sentencing scheme is

designed to punish. The court was correct and acted within the bounds of its discretion.

       Defendant was previously convicted of attempted murder and related charges.

Though defendant's most recent conviction did not arise from an act of violence, it did

arise from defendant carrying and perhaps manufacturing a deadly weapon while

incarcerated. A weapon that if used would likely have resulted in the imposition of

charges similar to those defendant was convicted of in 1998. Given the clear similarity in

the nature of the 1998 and 2014 convictions, the court was correct to find that defendant's

convictions fit into a pattern of violent or serious criminal behavior of the kind the three

strikes sentencing scheme is designed to punish. In these circumstances, the interest of

justice did not require the trial court to dismiss the allegations that defendant had

committed previous felonies.

                                       DISPOSITION

       The judgment of the trial court is affirmed.

                                                                        BENKE, Acting P. J.
WE CONCUR:

HUFFMAN, J.

IRION, J.




                                             14
