IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
December 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL ELBERT LOCKWOOD, DEFENDANT AND APPELLANT.
(Super. Ct. No. P09CRF0268)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Lockwood
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 June 2009, Corrine Defreze was living with her boyfriend, defendant Michael Elbert Lockwood. Defreze and defendant lived in John Simon's house and slept on separate couches in the living room. There was a .22 caliber rifle near the door, behind defendant's couch. When the dogs started barking, defendant would take the rifle and go outside to protect his animals from potential predators.
On June 14, 2009, defendant wanted Defreze to go to the pigeon races with him, but she decided to go to church. As Defreze got dressed, defendant grabbed her by the throat and slammed her head against the wall. The force of the impact put a hole in the wall. Defendant held Defreze by the throat, impeding her breathing. After she was released, Defreze's neck hurt very badly, and she still had difficulty breathing.
Defreeze started to pack her bag and leave. Defendant tried to impede her, repeatedly removing clothes from her bag, and also putting his arms around her. Defreze bit defendant on the shoulder as he hugged her.
Defreze eventually drove to her friend Phylis Lewis's Concord home. Lewis took Defreze to a doctor, who found slight muscle spasms in her neck, a contusion to the back of her head, and swollen wrists. Lewis took pictures of Defreze's injuries the following day.
A search of defendant's residence found a loaded .22 caliber rifle on one side of the front door, behind a sofa. There was an indentation in the bathroom wall about five feet from the floor; below the indentation was some clothing with white powder debris and small chunks of what appeared to be sheetrock. An El Dorado County Sheriff's deputy took a photograph of a bite mark on defendant's right shoulder.
Defendant was convicted in 2001 for corporal injury to a spouse or cohabitant. (Pen. Code, § 273.5.)*fn1
Following a jury trial, defendant was convicted of corporal injury to a cohabitant (§ 273.5, subd. (a)) and felon in possession of a firearm (§ 12021, subd. (a)). Defendant admitted seven prior serious felony convictions within the meaning of the Three Strikes law. The trial court denied defendant's motion to strike six of the seven strike allegations and sentenced defendant to 25 years to life, imposed various fines and fees, and awarded 442 days' presentence custody credit. The trial court subsequently amended the award of presentence credits to add 221 days' conduct credits, for a total of 663 days' presentence credits.*fn2
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief asserting trial counsel was ineffective for failing to object to Lewis's photographs of Defreze, not calling as witnesses the two people who accompanied Defreze to retrieve her belongings from defendant's residence, and not calling an expert witness on photographs.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696].) Counsel is not ineffective for declining to make meritless objections. (People v. Cunningham (2001) 25 Cal.4th 926, 1038.)
Defendant asserts the photographs of Defreze were inadmissible because they lacked a "trail of authenticity." Not so, as Lewis identified the photographs at trial. Likewise without merit is defendant's claim that the photographs were inadmissible because no officer saw bruising on Defreze. The presence of arguably contrary evidence does not render the evidence inadmissible.
Defendant fails to show how calling either of the people who accompanied Defreze when she retrieved her belongings would aid his defense. Nor has defendant shown how calling a photographic expert would have led to a different result. Lewis's photographs were merely one part of overwhelming evidence of guilt. As the trial court commented at sentencing, it did not "even appear to be a close case."
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: HULL , J. MAURO , J.