People v. Venegas CA5

Filed 12/9/13 P. v. Venegas CA5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038103 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1083800)

v.

HENRY TORRES VENEGAS,

Defendant and Appellant.

A jury convicted defendant Henry Torres Venegas of possession of heroin for sale, possession of a firearm while under the influence, possession of ammunition by a prohibited person, possession of a firearm by a felon, carrying a concealed firearm, possession of controlled substances while armed with a loaded firearm, and a prior felony conviction for carrying a loaded firearm. (Health & Saf. Code, §§ 11351, 11550, subd. (e), 11370.1; Pen. Code, §§ 12316, subd. (b), 12021, subd. (a)(1), 12025, subd. (a)(2), 12031, subd. (a)(1).)1 The jury also found true a weight enhancement as to the heroin, and an allegation defendant was personally armed during the offense. (§§ 1203.07, subd. (a)(1), 12022, subd. (c).) The trial court imposed a term of six years and eight months in state prison.

1 Subsequent undesignated statutory references are to the Penal Code.

On appeal, defendant argues: (1) the trial court erred in denying his motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); (2) defense counsel provided ineffective assistance by failing to renew the Pitchess motion; and (3) the court erred in denying his motion for substitution of counsel. Finding no error, we will affirm. I. FACTUAL AND PROCEDURAL BACKGROUND A. Evidence Presented at Trial At trial, San José Police Officer Keith Aldinger testified that on July 31, 2010, at approximately 11:00 p.m., he saw a van parked at a slant to the curb with its headlights on. He parked behind the van and began to run the license place. A nearby pedestrian walking her dog waved to him and approached his car. She told him the van had been parked there for an hour with its lights on, the motor running, and the driver asleep. Officer Aldinger got out of his car, approached the van, and confirmed the motor was running. He tapped on the driver’s window, but defendant, sitting in the driver’s seat, was asleep and did not wake up. Officer Aldinger opened the unlocked driver’s door, woke up defendant, and asked him what he was doing. Defendant’s eyes were bloodshot and glossed over, his pupils were extremely constricted, and his eyelids were fluttering rapidly. His voice was raspy, and his speech was slow. Officer Aldinger believed defendant was under the influence of opiates or other drugs. Defendant got out of the van and Officer Aldinger patted him down. In defendant’s pants pocket, Officer Aldinger found a .38 caliber revolver fully loaded with five rounds, and four loose rounds. Officer Alindger also found $6,669 in cash, a ball of black tar heroin, a syringe wrapper, and two “pay/owe” sheets. One of the sheets stated, “Billy owes you for 10 pills.” Another stated, “Billy got $80 worth of pills today. He owes you $80 for meds.” A search of the van yielded a block of black tar heroin hidden in the engine compartment, fourteen bottles of methadone prescribed to defendant, a dagger, and three cellphones, one of which contained texts related to drug dealing. The 2