Opinion
H043922
02-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ABELINO BONILLA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS160039A)
Following a jury trial, defendant Abelino Bonilla was found guilty of possession for sale of a controlled substance, namely methamphetamine (Health & Saf. Code, § 11378) and unauthorized entry into a dwelling (Pen. Code, § 602.5, subd. (a)). The trial court suspended imposition of sentence and granted probation.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that the trial court erroneously found that his inculpatory statements were not obtained in violation of his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)). He asserts that the trial court impermissibly prevented the jury from considering relevant evidence surrounding his "confession," which violated his due process rights under the Fourteenth Amendment to the United States Constitution. Defendant also maintains that there were multiple instances of ineffective assistance of counsel.
Since we discern no error, we will affirm the judgment.
Defendant has separately filed a petition for writ of habeas corpus, which we considered with this appeal. We resolve the petition by separate order.
I
Procedural History
A complaint accused defendant of committing two offenses on or about January 6, 2016: a felony violation of Health and Safety Code section 11378 (possession for sale of a controlled substance, namely methamphetamine) (count 1) and a misdemeanor violation of section 602, subdivision (m) (entering and occupying real property or structures without consent) (count 2).
On February 19, 2016, after holding defendant to answer as to both counts at the end of the preliminary hearing, and in the absence of any objection, the court deemed the complaint the information. Defense counsel waived arraignment.
On July 14, 2016, the court granted, over defense objection, the prosecutor's request to amend count 2 of the information to charge a violation of section 602.5 (unlawful entry without consent).
Before trial, defense counsel unsuccessfully moved to suppress defendant's inculpatory statements on the ground they had been obtained in violation of his Miranda rights.
Following a trial, the jury convicted defendant of both charges (Health & Saf. Code, § 11378; § 602.5, subd. (a)). The trial court suspended imposition of sentence and placed defendant on formal probation for three years under certain terms and conditions.
Defendant timely filed a notice of appeal.
II
Evidence
At "approximately 7:51 a.m." on January 6, 2016, Elias Orozco, a King City police officer, and his field training officer, Steve Orozco (no relation), were on patrol. The police officers had gone to the Villa Alegre Apartments in King City to provide "extra patrol" because vacant apartments were being broken into and vandalized. While walking in a hallway on the upper floor on the west side of the apartment complex, Officer E. Orozco observed through the window that there was a person inside apartment No. 14, one of the vacant apartments.
Officer E. Orozco called for backup on his radio. Officer S. Orozco went to the southeast corner of the apartment. A third officer, Officer Tyler, was located on the apartment's south side.
A person, later identified as Luis Pacheco, jumped out of apartment No. 14's south window and was detained and searched. Pacheco was asked whether there were other people inside.
Officer E. Orozco and Officer S. Orozco entered the apartment through the same window, and they conducted a search for another person. They encountered a locked bathroom door. Officer S. Orozco knocked on the door several times, announced the presence of police, and ordered the person inside to open the door and come out. Defendant opened the door.
Officer E. Orozco had his gun out; defendant was placed in handcuffs. As he was being escorted out of the apartment, defendant asked for his jacket that was in the apartment.
Outside the apartment unit, Officer E. Orozco asked defendant for "an I.D." Defendant provided identification to the officer, and he explained that he did not live in that apartment and that he was "trying to look for somewhere to stay."
Officer S. Orozco went back inside the apartment, where he found a jacket and a Marlboro cigarette pack on the floor, "right next to each other." The officer brought them out. Inside the cigarette pack, Officer E. Orozco found "a plastic baggie with a white crystal-like substance," which appeared to be methamphetamine. The pack also contained one cigarette. When asked if the cigarette pack was his, defendant said that it was.
The officer may have retrieved two jackets.
Defendant was formally arrested for possession of methamphetamine, and Officer E. Orozco conducted a search of defendant incident to arrest. Inside defendant's right front pants pocket, the officer located a plastic bag, which contained five plastic bindles of a white crystal-like substance. Defendant indicated that the substance was "hielo," a Spanish street term for methamphetamine. But he claimed that "someone else [had] put it inside his pants." The officer also found $60 on defendant's person.
Defendant was transported to the King City Police Department. The six plastic bindles, each of which was twisted closed, were separately weighed and determined to have a total gross weight of 1.4 grams. The single bindle recovered from the Marlboro cigarette pack weighed .1 grams. Three of the other bindles weighed .2 grams. A fifth bindle weighed .3 grams, and a sixth bindle weighed .4 grams. When tested, the white crystal-like substance produced a presumptive positive result for methamphetamine. After the bindles were booked into evidence, they were sent to the California Department of Justice.
Later that morning, Officer S. Orozco spoke with defendant in the King City Police Department's interview room. An audio-visual recording of the interview, which was conducted in Spanish, was played for the jury. A transcript of the interview, with an English translation, was provided to the jury.
During the interview, defendant again confirmed that the cigarette pack was his. When shown a bindle, defendant identified it as "crystal," he said he had smoked some of it, and he estimated that it still contained about a "dime." Defendant also acknowledged that another bag had been found in his right front pants pocket and that it contained the same substance, "hielo" (translated as "ice"), which was the same thing as crystal. Defendant indicated that the bag contained five small "twenties" bags, each worth $20. Defendant admitted that he used methamphetamine and that he had smoked it that morning.
Defendant eventually conceded that he sold the substance when someone asked him, "Do you have a twenty?" He had bought $50 worth the day before, and he had separated it into smaller bags. He indicated that he was not currently working. Defendant said that he had been selling methamphetamine for approximately a year.
At trial, the manager of the Villa Alegre Apartments confirmed that as of January 6, 2016, apartment No. 14 was not rented to either defendant or Pacheco. The apartment unit had been vacant for a little over three months, and defendant did not have permission to be in it.
At trial, Rachel Frase, a criminalist with the California State Department of Justice, testified as an expert in the field of forensic analysis of controlled substances, particularly methamphetamine. She had tested the white crystalline substances contained in two of the six bindles. The substances tested positive for methamphetamine. Without packaging, the substance in the first bindle weighed "0.199 grams net" and the substance in the second bindle weighed "0.196 grams net." Both were usable amounts.
Jose Perez, a police officer with the King City Police Department, testified as an expert in the field of possession for sale of methamphetamine. He stated that in January 2016 in King City, .1 grams of methamphetamine sold for approximately $10 to the end user. "Dime" was the slang term for a $10 amount of methamphetamine. A $20 amount of methamphetamine was referred to as a "veinte" in Spanish. In Perez's opinion, the bag containing five separate bindles was consistent with possession for sale rather than for personal use, because they were "individually wrapped for distribution." A "common dose" of methamphetamine used on the streets by individuals was .2 to .25 grams. Six individually wrapped bindles totaling 1.4 grams was a larger quantity than would be commonly possessed by a methamphetamine user. Based on his training and experience, Perez testified that methamphetamine users also sell methamphetamine so they can fund their addiction and supply themselves.
III
Discussion
A. Miranda Advisements
1. Legal Principles
In Miranda, the United States Supreme Court held that, prior to any custodial questioning, a person must be given the following warnings: "He must be warned . . . that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda, supra, 384 U.S. at p. 479.) "After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement." (Ibid.)
A "talismanic incantation" of the Miranda advisements is not required. (California v. Prysock (1981) 453 U.S. 355, 359.) "The four warnings Miranda requires are invariable, but [the United States Supreme] Court has not dictated the words in which the essential information must be conveyed. [Citations.] In determining whether police officers adequately conveyed the four warnings, . . . reviewing courts are not required to examine the words employed 'as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably "conve[y] to [a suspect] his rights as required by Miranda." ' [Citation.]" (Florida v. Powell (2010) 559 U.S. 50, 60.)
"It is well settled that law enforcement officers are not required to obtain an express waiver of a suspect's Miranda rights prior to a custodial interview and that a valid waiver of such rights may be implied from the defendant's words and actions. [Citations.]" (People v. Parker (2017) 2 Cal.5th 1184, 1216 (Parker); see North Carolina v. Butler (1979) 441 U.S. 369, 373 (Butler).) Under particular circumstances, "a court may find an intelligent and understanding rejection of counsel in situations where the defendant did not expressly state as much." (Butler, supra, at p. 373, fn. 4.)
" '[T]he question of waiver [of Miranda rights] must be determined on "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." ' (North Carolina v. Butler (1979) 441 U.S. 369, 374-375]; accord, People v. Duren (1973) 9 Cal.3d 218, 238.) 'In general, if a custodial suspect, having heard and understood a full explanation of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk, he or she has thereby knowingly, voluntarily, and intelligently waived them.' (People v. Cunningham (2015) 61 Cal.4th 609, 642; accord, People v. Johnson (1969) 70 Cal.2d 541, 558 [disapproved on another ground in People v. Devaughn (1997) 18 Cal.3d 889, 899, fn. 8].)" (People v. Parker, supra, 2 Cal.5th at p. 1216.)
But a mere showing that "a Miranda warning was given and the accused made an uncoerced statement, . . . standing alone, is insufficient to demonstrate 'a valid waiver' of Miranda rights. Miranda, supra, at 475." (Berghuis v. Thompkins (2010) 560 U.S. 370, 384 (Berghuis).) "The prosecution must make the additional showing that the accused understood these rights. [Citations.]" (Ibid.) "A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. [Citations.]" (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219 (Sauceda-Contreras).)
"Ultimately, the question becomes whether the Miranda waiver is shown by a preponderance of the evidence to be voluntary, knowing and intelligent under the totality of the circumstances surrounding the interrogation. [Citations.] The waiver must be 'voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception' (Moran v. Burbine (1986) 475 U.S. 412, 421), and knowing in the sense that it was 'made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' (Ibid.)" (Sauceda-Contreras, supra, 55 Cal.4th at p. 219.)
"The Miranda warnings protect [the Fifth Amendment] privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him." (Colorado v. Spring (1987) 479 U.S. 564, 574.) "The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. [Citations.]" (Ibid.)
"Whenever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence. [Citations.]" (Colorado v. Connelly (1986) 479 U.S. 157, 168-169.)
2. Factual Background
Before being interviewed by police, an officer, reading from a Miranda advisement form, advised defendant in Spanish as follows: "You have the right to remain silent. Anything you say, can be used against you in a court of law. You have the right to talk to an attorney and to have him present during questioning. If you cannot get an attorney, one can be appointed for you at no cost before you are asked any questions. Do you understand each and every one of the rights that I explained to you?" (Italics added.)
The following exchange ensued: "[Defendant]: Explain to me from the beginning, yes. "[Officer]: Huh? "[Defendant]: About what you told me? "[Officer]: Yes. "[Defendant]: Yes. "[Officer]: Yes? Ok. Having these rights, do you want to talk to us? "[Defendant]: Yes."
In response to defendant's answers, the officer checked the boxes on the form. On the Miranda advisement form, the "yes" boxes were checked next to the following questions in Spanish: "1. Do you understand each of these rights I have explained to you?" and "2. Having these rights in mind, do you wish to talk to us now?" Defendant then initialed and signed the Spanish portions of the form as requested. The form set forth the Miranda advisements in both English and Spanish.
The trial court first determined that the challenged Miranda advisement ("If you cannot get an attorney, one can be appointed for you at no cost before you are asked any questions") was not defective because it made clear that "an attorney can be provided without cost to the defendant." The court determined that under the circumstances, the word "can" was "synonymous with the word 'will.' "
The trial court, which had reviewed an audio/visual recording of the police interrogation, then concluded that defendant's arguably ambiguous initial response did not, in context, show that defendant did not understand the Miranda advisement. The court noted that defendant had nodded upon the completion of the advisements and had not appeared confused. It found no evidence indicating that defendant was illiterate, and it appeared from the recording that defendant "reviewed [the Miranda advisement form] at least for a moment." The court observed that defendant made "no other statement that [could] be construed as asking for an explanation" and that he did not indicate that he was confused. It also noted that defendant did not ask for an attorney and that he proceeded to "provide responses to the questions posed."
The trial court concluded, based on the totality of evidence, that defendant "knowingly and intelligently waived his rights under Miranda" and that the waiver was uncoerced. The court denied defendant's motion to suppress.
3. Analysis
a. Advisement that an Attorney "Can Be Appointed"
Defendant contends that the Miranda advisement that he received was deficient because he was told that an attorney "can be appointed" rather than "will be appointed." He asserts that he was "not adequately advised of his absolute right to counsel."
We note that the English portion of the written Miranda advisements stated in part: "4. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning, if you wish one." (Italics added.) --------
Defendant cites United States v. Connell (9th Cir. 1989) 869 F.2d 1349 (Connell) in support of his argument. But that case does not help him. In Connell, the Ninth Circuit Court of Appeals reversed a conviction after concluding that the Miranda warnings that "Connell received were equivocal and open to misinterpretation" (id. at p. 1353) and that they failed to clearly "inform him that if he could not afford an attorney he had the right to have an attorney appointed for him prior to interrogation." (Ibid.) The court explained its reasoning: "Although told that he had the right to talk to an attorney before, during, and after questioning, this statement was immediately followed by a strong assertion that such an attorney could not be obtained at the Government's expense. The subsequent statements regarding appointed counsel in both the oral and written warnings—that 'a lawyer may be appointed to represent you' (oral) and that if I want but cannot afford a lawyer 'arrangements will be made for me to obtain a lawyer in accordance with the law' (written)—did not clearly inform Connell that if he could not afford an attorney one would be appointed for him prior to questioning, if he so desired. The oral warning, using the word 'may', leaves the impression that providing an attorney, if Connell could not afford one, was discretionary with the government, particularly in light of the previous strong statement that 'you must make your own arrangements to obtain a lawyer and this will be at no expense to the government.' The written warning is ambiguous in that the arrangements to be made for an attorney, if Connell could not afford one, were to be 'in accordance with the law.' Connell is not expected to know what the requirements of the law are. In fact, conveying to the person in custody the requirements of the law is the whole purpose of the warning." (Ibid.)
Connell has been distinguished in other cases, including by the Ninth Circuit Court of Appeals. In United States v. Miguel (9th Cir. 1991) 952 F.2d 285, the Ninth Circuit rejected an argument similar to the one being made in this case. Miguel was advised in part as follows: "You may have an attorney appointed by the U.S. Magistrate or the court to represent you, if you cannot afford or otherwise obtain one." (Id. at p. 287.) Relying primarily on Connell, Miguel argued that the advisement "rendered the warning inadequate because it improperly suggested that he might or might not get an attorney." (Id. at p. 287.) The court distinguished Connell, which involved confusing and inconsistent advisements. (Id. at pp. 287-288.) It concluded that, "[w]hen we evaluate the totality of the warnings given, we believe that Miguel would be able to grasp the substance of what he was told—that he had the right to appointed counsel if he could not afford a lawyer." (Id. at p. 288.)
In State v. Rhines (S.D. 1996) 548 N.W.2d 415, a detective advised in part, "You have the right to consult with and have the presence of an attorney, and if you cannot afford an attorney, an attorney can be appointed for you free of charge." (Id. at p. 425.) The Supreme Court of South Dakota rejected the contention that the Miranda warnings were deficient: "In contrast to the defendant in Connell, Rhines was never told he would have to make his own arrangements for an attorney or that the government would not pay for his attorney. Nor was his right to appointed counsel contingent on a nebulous reference to the requirements of the law. [The detective] expressly informed Rhines of his right to remain silent, to consult with an attorney, and to have an attorney present. In this context, Rhines was also told that an attorney 'can' be appointed if Rhines could not otherwise afford one. There was no additional information to mislead him into believing that an attorney would not be appointed if he could not pay for one." (Id. at p. 428.) The court concluded that "the advisement reasonably conveyed the right to appointed counsel. [Citations.]" (Ibid.) The same is true here.
The Miranda warnings given to defendant did not suffer from the same infirmity present in Connell. In context, the challenged advisement made clear that if defendant could not get an attorney, he was entitled to an appointed attorney "at no cost" prior to being questioned. The advisement conveyed the essential information and was sufficient to satisfy the requirements of Miranda. b. Voluntary, Knowing, and Intelligent Waiver of Miranda Rights
The trial court impliedly found that defendant comprehended the Miranda advisements given to him. Defendant's initial verbal response ("Explain to me from the beginning, yes.") ended with the word "yes." The officer did not understand this initial response, replying, "Huh?" Defendant's initial response did not end with the inflection normally used to convey a question. It can be inferred from the ensuing exchange that defendant grasped that the officer was inquiring whether defendant understood the Miranda advisements just given and that defendant's final "yes" answer indicated that he did understand.
That understanding is also reflected by defendant's demeanor and his conduct of not asking for further explanation of his rights and initialing and signing the Miranda advisement form. Defendant appeared to be listening closely as the Miranda advisements were read to him. He affirmatively nodded when asked if he understood. Defendant did not appear confused. As the court noted, defendant made "no other statement that [could] be construed as asking for an explanation" and he did not otherwise indicate to the officer that he was confused. Further, as the court also mentioned, defendant did not ask for an attorney, and "he proceed[ed] to provide responses to the questions posed."
The totality of circumstances was sufficient to show that defendant understood the Miranda advisements that he received. Having understood his rights, defendant impliedly waived them by confirming that he wanted to talk to the officers and proceeding to answer questions without requesting counsel. (See Berghuis, supra, 560 U.S. at p. 384; Sauceda-Contreras, supra, 55 Cal.4th at pp. 218-219.)
Since we have found no violation of Miranda, we do not reach defendant's prejudice argument. B. Response to a Jury Question regarding Miranda
During the jury's deliberations, the trial court received the following note from a juror: "Does the suspect need to understand clearly what his rights are when the Miranda rights are read to him? [¶] When a suspect does not understand what his rights are and requests an explanation is there an obligation to explain his rights to him[.]" Over objection, the court indicated that it was going to send the following response to the jury: "The admissibility of evidence is an issue determined by the Court and not a question of fact to be determined by the jury. Evidence was admitted during this trial according to the law. The weight you assign to that evidence is totally up to you." The court declined to give the following additional language, which was requested by defense counsel: "[T]he jury can only consider whether or not [defendant] understood his Miranda rights in regards to [his] understanding, level of sophistication, in regards to the rest of [his] responses and the officer's questions on the remaining portion of the interrogation."
Defendant now argues that the trial court's response to the jury question violated his right to due process by preventing the jury from considering relevant evidence surrounding his confession. He contends that the trial court should have advised the jury as follows: "A suspect must clearly understand his Miranda rights. The police should assist the suspect in understanding his rights. In this case, the court has made a determination that the defendant's statements constitute admissible evidence. However, in determining the weight to be given to the defendant's statement, you may consider the extent to which the defendant understood his rights."
Defendant overlooks the fact that the recording of defendant's interview was played for the jury, and a transcript of the audio portion of the interview, with an English translation, was provided to the jury. Both the recording and the transcript were admitted into evidence. Defendant has not identified any relevant evidence that was withheld from the jury.
In Crane v. Kentucky (1986) 476 U.S. 683 (Crane), which defendant cites, the trial court ruled that the testimony concerning the physical and psychological circumstances of defendant's confession "pertained solely to the issue of voluntariness and was therefore inadmissible" at trial. (Id. at p. 684.) The United States Supreme Court made clear that " 'evidence surrounding the making of a confession bears on its credibility' as well as its voluntariness. [Citation.]" (Id. at p. 688.) "[B]ecause 'questions of credibility, whether of a witness or of a confession, are for the jury,' the requirement that the court make a pretrial voluntariness determination does not undercut the defendant's traditional prerogative to challenge the confession's reliability during the course of the trial. [Citation.]" (Ibid.)
In Crane, the Supreme Court stated: "[E]vidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility. Such evidence was especially relevant in the rather peculiar circumstances of this case. Petitioner's entire defense was that there was no physical evidence to link him to the crime and that, for a variety of reasons, his earlier admission of guilt was not to be believed. To support that defense, he sought to paint a picture of a young, uneducated boy who was kept against his will in a small, windowless room for a protracted period of time until he confessed to every unsolved crime in the county, including the one for which he now stands convicted. We do not, of course, pass on the strength or merits of that defense. We do, however, think it plain that introducing evidence of the physical circumstances that yielded the confession was all but indispensable to any chance of its succeeding." (Crane, supra, 476 U.S. at p. 691.) The court reversed because no "rational justification for the wholesale exclusion of this body of potentially exculpatory evidence" was advanced. (Ibid.)
In this case, the trial court's response to the juror's question did not remove any evidence of the conditions or conduct of the custodial interrogation from the jurors' consideration. They were free to assess defendant's credibility and assign the appropriate weight to his inculpatory statements made during the interrogation based on all the evidence.
Insofar as defendant is complaining about the court's refusal to instruct the jury in accordance with defense counsel's request or the court's failure to instruct sua sponte in the manner now suggested, he has failed to show that either instruction was proper or necessary under governing authority. The trial court properly advised the jurors that the weight they assigned to the evidence of the interrogation was totally up to them. (See Crane, supra, 476 U.S. at p. 688 ["the manner in which a confession was secured will often be germane to its probative weight, a matter that is exclusively for the jury to assess"], 689 ["entirely independent of any question of voluntariness, a defendant's case may stand or fall on his ability to convince the jury that the manner in which the confession was obtained casts doubt on its credibility"].) Here, the trial court's response to the jury question did not preclude the jury from considering all circumstances surrounding defendant's inculpatory statements. Accordingly, we reject defendant's due process claim. C. Alleged Ineffective Assistance of Counsel
1. Legal Principles
To establish a claim of ineffective assistance of counsel, a defendant must make a two-prong showing of deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." (Id. at p. 700.)
As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness," as measured against "prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) "[E]very effort" must "be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Ibid.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Ibid.)
The prejudice prong requires a defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel had acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citation.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The likelihood of a different result must be substantial, not just conceivable. [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 111-112.)
It is also well settled " 'that "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello).) In Mendoza Tello, the defendant argued on appeal that his counsel had rendered ineffective assistance by failing to bring a motion to suppress evidence under section 1538.5. (Mendoza Tello, supra, at p. 266.) The Supreme Court observed that "[t]he issue at trial was whether defendant possessed cocaine, not whether the deputy acted unlawfully." (Ibid.) It determined that " '[b]ecause the legality of the search was never challenged or litigated, facts necessary to a determination of that issue are lacking.' [Citation.]" (Ibid.) In that case, the court did "not know why counsel failed to move to suppress evidence." (Id. at p. 267.) Thus, the ineffective assistance of counsel claim was "more appropriately decided in a habeas corpus proceeding. [Citations.]" (Id. at pp. 266-267.)
2. Alleged Instances of Ineffective Assistance of Counsel
a. Failure to Bring Motion to Suppress
Defendant contends that defense counsel rendered ineffective assistance by failing to move to suppress the methamphetamine found in the cigarette pack and in his pants pocket and his statements to police. His primary argument is that the search of the cigarette pack was not justified by the search incident to arrest exception to the warrant requirement because he was not under arrest at the time of the search. He asserts that the officers did not intend to arrest him before discovering the methamphetamine in the cigarette pack. Alternatively, defendant argues that, even if he was under arrest when the cigarette pack was searched, the search still could not be justified as a search incident to arrest because the pack "was far from [his] person" and there was "no concern that [he] would gain access" to it.
It is undisputed that defendant had no permission to be in the apartment and was trespassing and that the officers had probable cause to arrest defendant. The officers removed defendant from the apartment at gunpoint and immediately placed him in handcuffs. The Fourth Amendment to the United States Constitution does not forbid a warrantless arrest of an individual for a minor criminal offense, and a search incident to such arrest is constitutionally permissible. (Virginia v. Moore (2008) 553 U.S. 164, 171, 176-178; Atwater v. City of Lago Vista (2001) 532 U.S. 318, 323, 354.)
The officers' subjective intentions are beside the point. "An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.' [Citation.] The officer's subjective motivation is irrelevant. [Citations.]" (Brigham City v. Stuart (2006) 547 U.S. 398, 404-405 [regardless of their subjective motives, police officers were justified in entering a home without a warrant under the exigent circumstances exception to the warrant requirement].)
The legality of the search of the cigarette pack was not at issue at trial. The issue at trial was whether defendant possessed methamphetamine, not whether there was a Fourth Amendment violation or whether there was an applicable exception to the exclusionary rule. For example, the inevitable discovery exception to the exclusionary rule provides that if "the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible." (Nix v. Williams (1984) 467 U.S. 431, 448.)
As in Mendoza Tello, supra, 15 Cal.4th at pp. 266-267, defendant's ineffectiveness claim is more appropriately raised in a habeas corpus proceeding. We reject the claim on direct appeal. b. Failure to Object to Testimony that Defendant was Unemployed
At trial, in response to a question about what defendant had said about his "employment status," Officer S. Orozco testified, without objection, that defendant had said that he was not employed. Defendant now claims that defense counsel's failure to object constituted ineffective assistance of counsel because he should have objected to that prejudicial testimony under Evidence Code section 352.
The decision "[w]hether to object to inadmissible evidence is a tactical decision" (People v. Hayes (1990) 52 Cal.3d 577, 621), and a "failure to object seldom establishes counsel's incompetence. [Citations.]" (Ibid.) "[C]ompetent counsel may often choose to forgo even a valid objection." (People v. Riel (2000) 22 Cal.4th 1153, 1197.)
While evidence of poverty is generally inadmissible to prove motive to commit a robbery or other theft (see People v. McDermott (2002) 28 Cal.4th 946, 999; People v. Koontz (2002) 27 Cal.4th 1041, 1076), defense counsel nevertheless could have made a reasonable tactical decision not to object. When the officer's testimony was elicited, the jury had already heard that defendant told the officers that he was in the apartment because he was looking for a warm place to stay and that defendant told police that he had to sell methamphetamine to eat. Given that evidence, defense counsel could reasonably conclude that an objection would not be useful.
Moreover, both the recorded police interview and the transcript of the interview, with the English translation, were admitted into evidence. During that interview, defendant made clear that he was not working at the time of his offenses and that he sold methamphetamine when he had no work and needed something to eat. Thus, even if defense counsel had successfully objected to the officer's testimony regarding defendant's employment status, it is not reasonably probable that defendant would have obtained a more favorable result.
This ineffective assistance of counsel claim fails. (Strickland, supra, 466 U.S. at pp. 687, 700.) c. Failure to Object to Officer's Testimony that He Disbelieved Defendant
On cross-examination, Officer S. Orozco confirmed that defendant said the methamphetamine was for personal use at least four times during the recorded interview. The officer also confirmed that he urged defendant to be honest with him. On redirect examination, the officer was asked, "Did you challenge his statement because you simply didn't believe him?" He answered yes. The prosecutor inquired, "And why is it that you disbelieved [defendant] that it was for personal use?" The court overruled a relevancy objection, explaining that the evidence was relevant for the limited purpose of explaining the officer's shift in tactics during the interview. Officer S. Orozco indicated that, based on his training and experience, separate bindles were not consistent with possession of a controlled substance for personal use. Thus, the officer's testimony as to disbelieving defendant went to the reason that he pressed for defendant's admission that he possessed the methamphetamine for purposes of sale.
On appeal, defendant contends that defense counsel should have objected when the prosecutor asked Officer S. Orozco, "Did you challenge [defendant's] statement because you simply didn't believe him?" He now asserts that evidence of the officer's disbelief amounted to an impermissible opinion of guilt and invaded the province of the jury.
"Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) "[I]t is settled that an officer with experience in the narcotics field may give his opinion that the narcotics are held for purposes of sale based upon matters such as quantity, packaging, and the normal use of an individual." (People v. Hunt (1971) 4 Cal.3d 231, 237; see People v. Harris (2000) 83 Cal.App.4th 371, 374-375.)
But "[a] witness may not express an opinion on a defendant's guilt. [Citations.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) "The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.' [Citation.]" (Ibid.; see People v. Prince (2007) 40 Cal.4th 1179, 1227.)
In this case, Officer S. Orozco did not opine on defendant's ultimate guilt or innocence of the charged offenses. Consequently, an objection on that ground would have been meritless and futile. Defense counsel does not act deficiently by not making a meritless or futile objection. (See People v. Ochoa (1998) 19 Cal.4th 353, 432; People v. Diaz (1992) 3 Cal.4th 495, 562.)
In any case, even if defense counsel had successfully objected to the officer's testimony regarding his disbelief of defendant's claim of possession for personal use, it is not reasonably probable that defendant would have obtained a more favorable result since there was ample evidence, including expert opinion, that defendant possessed the methamphetamine for sale. Defendant has failed to establish this claim of ineffective assistance of counsel. (Strickland, supra, 466 U.S. at pp. 687, 700.) d. Alleged Cumulative Prejudice of Ineffective Assistance of Counsel
Defendant argues that defense counsel's two failures to object to Officer S. Orozco's testimony, "[t]aken together, . . . had the cumulative prejudicial effect of impressing upon the jury that [he] lied and had a reason to lie." He contends that the cumulative prejudicial effect of such ineffective assistance deprived him of "his due process right to [a] fair trial under the Fourteenth Amendment" to the United States Constitution.
Since defendant had not demonstrated any instance of ineffective assistance of counsel, his due process claim of cumulative prejudice necessarily fails.
DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, Acting P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.