Opinion
C077681
08-01-2017
THE PEOPLE, Plaintiff and Respondent, v. FELIX CHI DUONG, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F05015)
After the magistrate denied his motion to suppress at the preliminary hearing, defendant Felix Chi Duong pleaded guilty to cultivating marijuana (Health & Saf. Code, § 11358), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), and misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)) in exchange for the dismissal of all remaining charges plus a resolution of several other pending cases. Defendant did not renew his motion to suppress before the trial court prior to accepting the plea deal.
Defendant appeals the magistrate's denial of his suppression motion, claiming no exceptions to the Fourth Amendment's warrant requirement applied and that the officers were not justified in performing a "protective sweep" of his home. In defendant's view, the court erred in failing to exclude all of the evidence collected as the fruit of an illegal search. Although he acknowledges the general rule that a defendant must renew a motion to suppress in the trial court in order to preserve the issue of the legality of a search for appeal (People v. Lilienthal (1978) 22 Cal.3d 891, 896-897 (Lilienthal)), he nonetheless argues we should reach the merits of his challenge to the search because his counsel was ineffective for failing to preserve the issue and the record shows his counsel had no tactical reason for not renewing the motion.
We agree the record affirmatively discloses no tactical reason for failing to renew the suppression motion before the trial court, and, thus, we consider the merits of defendant's appellate contentions on direct appeal rather than through a separate habeas corpus proceeding to determine whether he was prejudiced by his counsel's ineffective assistance. We conclude the search was lawful, and, as a result, he suffered no prejudice despite his counsel's failure to renew his motion to suppress. We affirm the judgment.
FACTS AND PROCEEDINGS
The following factual background is based on testimony elicited at the preliminary hearing.
At the request of Child Protective Services (CPS), in early August 2013, City of Sacramento police officers Michael Severi and Ryan Trefethen were dispatched to a home in Sacramento to conduct a child welfare check. CPS told the police dispatcher that three young children under the age of five lived in the residence with defendant, their father. According to CPS, defendant was cultivating marijuana in the home and smoking the drug in the children's presence. He was also supposedly on probation for a previous conviction and had firearms in the house.
Before going to the home, Officer Severi conducted a records check on defendant and discovered that he had a 2006 felony arrest and conviction for possession for sale of methamphetamine, but that he was not currently on probation. Severi also learned that approximately 10 days earlier, someone had called in a narcotics tip containing nearly identical information as that provided to CPS and relayed to the police dispatcher.
Upon arriving at the home to conduct the welfare check, Officer Severi knocked on the front door. Although the officers could hear someone walking inside near the door, no one answered. Officer Severi knocked again, announcing that it was the Sacramento Police Department. The officers, however, received no response. Instead, they heard what sounded like a deadbolt being locked from inside.
After attempting to open the door but finding it locked, Officer Severi then shouted several times demanding that the door be opened. When he received no response, he unsuccessfully attempted to kick the door down. He explained that he tried to force entry into the home based on his prior law enforcement experiences where people had locked or shut doors upon his arrival and had either attempted to flee or possibly harm themselves or someone else inside. He believed, based on the information provided and the furtive conduct of whoever was behind the door, that there may have been an armed individual inside who posed a threat to the officers and others inside. The officers could hear children's voices, which Officer Trefethen described as whining and possibly in distress.
Defendant's mother eventually asked what the officers wanted and opened the door. When the officers entered they saw three young children in the living room with defendant's father. The children, aged three, four, and six, appeared to be well fed and did not bear any obvious signs of physical abuse.
The officers said they were there to conduct a welfare check on the children. Defendant's mother informed the officers that defendant was not home, and that she and her husband were babysitting the children.
While Officer Trefethen remained with the children and defendant's parents, Officer Severi conducted a limited sweep of the entire house to ensure that defendant, a convicted felon, was not hiding armed somewhere in the residence. Upstairs, he found two bedrooms with 18 mature marijuana plants and 400-500 seedling marijuana plants, respectively. Those bedrooms had no beds or other personal items. The master bedroom did not have any marijuana growing in it, but Officer Severi saw two firearms in plain view on a dresser in the room and saw a rifle magazine in the closet. An attached master bathroom had approximately 250 small marijuana plants. An upstairs bathroom had chemicals and fertilizers often associated with growing marijuana. The chemicals did not have child-proof caps and were within the children's reach.
Officer Severi found a large shotgun box as well as a pistol box in plain view in a downstairs closet. When he told Officer Trefethen about the gun boxes, one of the children said something like, "That's my daddy's."
In the garage, Officer Severi observed a large quantity of dried marijuana together with plastic baggies on a table as well as open bins of dried marijuana. After checking the garage to ensure no one was hiding there, Officer Severi concluded the protective sweep and left to obtain a search warrant. In the meantime, Officer Trefethen spoke with the children. The two oldest told him that they helped their father with the marijuana plants, which were located upstairs, and that their father disliked their mother.
After securing the warrant, Officer Severi returned and executed a search of the house. The marijuana described above, plus packaging materials, four firearms and ammunition, and a large amount of cash were confiscated during the search.
The evidence seized pursuant to the warrant led to charges against defendant for cultivation of marijuana (Health & Saf. Code, § 11358), possession for sale of marijuana (Health & Saf. Code, § 11359), four counts of being a convicted felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), and convicted felon in possession of ammunition (Pen. Code, § 30305, subd. (a)(1)). A misdemeanor child endangerment charge was added later. (Pen. Code, § 273a, subd. (b).)
Defendant moved, pursuant to Penal Code section 1538.5, to suppress the evidence found at his home. The magistrate heard the suppression motion in conjunction with the preliminary hearing, and denied the motion. Based on the dispatch logs presented during the hearing, the court found the officers had not manufactured the information triggering the welfare check. The court further concluded that the officers reasonably acted for the purpose of protecting the children's welfare, and that it was reasonable for Officer Severi to "sweep" the house to determine whether any other dangerous individuals were present. After being held to answer, defendant pleaded not guilty to all charges.
Defendant never renewed the suppression motion before the trial court. Instead, he agreed to plead guilty to unlawfully cultivating marijuana, one count of being a felon in possession of a firearm, and child endangerment. At the change of plea hearing, the court specifically asked whether defendant, as part of the plea bargain, was giving up his right to appeal. His counsel explained that he was not, referencing the section 1538.5 motion denied by the magistrate.
Defendant was sentenced to concurrent three year terms for the cultivating marijuana and being a felon in possession of a firearm charges. No time was imposed for the child endangerment charge. He timely appealed, raising only the search and seizure issue.
DISCUSSION
I
Failure to Preserve the Search Issue
If a defendant moves to suppress evidence before a magistrate at a preliminary hearing, the defendant must later renew the motion before the trial court in order to preserve the issue for appeal. (Lilienthal, supra, 22 Cal.3d at pp. 896-897.) Defendant acknowledges, and we agree, that he did not comply with the Lilienthal rule. He thus failed to preserve for review the issue of whether the search violated the Fourth Amendment of the United States Constitution. (People v. Hart (1999) 74 Cal.App.4th 479, 485-486 (Hart).)
II
Review of Ineffective Assistance of Counsel Claim on Direct Appeal
Having conceded he did not preserve the issue of the legality of the search for appeal, defendant contends we may nevertheless consider the merits of his challenge to the search because his trial counsel was constitutionally ineffective for failing to preserve the issue for appellate review. Because we conclude the record affirmatively shows no sound tactical reason for counsel's failure to raise the suppression motion before the trial court, we conclude we may resolve the issue directly on appeal rather than through a separate habeas corpus proceeding.
To prevail on an ineffective assistance of counsel claim, defendant must establish trial counsel's representation fell below professional standards of reasonableness and must affirmatively establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland); Hart, supra, 74 Cal.App.4th at p. 487.) "A claim on appeal of ineffective assistance of counsel must be rejected ' "[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." ' " (People v. Hinds (2003) 108 Cal.App.4th 897, 901 (Hinds).) Unless the record affirmatively discloses that counsel had no tactical purpose for his act or omission, the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence outside the record may be taken to determine the basis, if any, for counsel's conduct or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581-582.)
After reviewing the record in this case, we conclude it affirmatively discloses that defendant's counsel had no tactical purpose for failing to raise the legality of the search before the trial court. During the change of plea hearing, the court specifically asked defendant if he was giving up his appellate rights "[a]s part of your plea agreement[?]" Defendant's counsel responded "[n]o," explaining "[i]n this particular case, there was a 1538.5 that was filed." Defendant further responded "[n]o" when the court asked whether "anyone [had] made any promises to [him] other than what has been stated here in open court and on the record to induce [him] to enter this plea?" Defendant's counsel then filed a notice of appeal raising the motion to suppress the issue three days later.
The fact that the record indisputably shows defendant did not agree to give up his right to appeal the denial of his motion to suppress as part of the plea deal distinguishes this case from Hinds, which the People argue mandates a separate habeas corpus proceeding to resolve defendant's ineffective assistance claim. The Hinds court rejected the defendant's ineffective assistance of counsel claim, leaving him to the remedy of seeking habeas relief, because it found that a satisfactory explanation for why trial counsel did not renew the motion to suppress before the trial court could exist. (Hinds, supra, 108 Cal.App.4th at p. 902.) As the court explained, "the availability of the plea bargain accepted by the defendant may have been dependent upon not further pursuing the suppression motion." (Ibid.) That is not the case here.
Since the record clearly shows that defendant's plea bargain was not conditioned on any relinquishment of his right to challenge the denial of the motion to suppress on appeal, there could have been no sound tactical reason for failing to pursue the motion before the trial court. If successful the motion would have excluded the evidence against defendant, including the marijuana, firearms and ammunition, and would likely have resulted in a dismissal of the charges brought against him. A reasonably competent attorney, then, would not have waived the search issue by failing to raise it before the trial court. (Hart, supra, 74 Cal.App.4th at pp. 486-487 ["If the search was invalid, failing to preserve the issue constituted [a] deficient performance when measured against the standard of a reasonably competent attorney"].)
Under such circumstances, rather than requiring defendant to pursue his ineffective assistance claim in a habeas corpus proceeding, we consider whether the trial court's error was prejudicial. The question of prejudice, in turn, depends on the lawfulness of Officer Severi's search of defendant's home prior to obtaining a warrant. If the search was lawful, the magistrate properly denied the motion to suppress and defendant was not prejudiced by his counsel's failure to preserve the point for appeal. If the search was unlawful, and there would not have been sufficient evidence otherwise to convict, prejudice has been established. (Hart, supra, 74 Cal.App.4th at p. 487.) We now turn the question of whether the search was lawful under the constitutional strictures for searching an individual's home.
III
Constitutionality of Search
Defendant contends the police entry into his home was an unreasonable search under the Fourth Amendment. In his view, the tip CPS received, which was conveyed to the police dispatcher, was not sufficiently reliable to provide an objectively reasonable basis for believing that an emergency justified entry into his home or for a sweep of the of the premises.
"In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the [magistrate's] ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search [or] seizure." (People v. Miranda (1993) 17 Cal.App.4th 917, 922; People v. McDonald (2006) 137 Cal.App.4th 521, 529 (McDonald) ["We judge the legality of the search by 'measur[ing] the facts, as found by the trier, against the constitutional standard of reasonableness' "].) "We may sustain the trial court's decision without embracing its reasoning." (McDonald, at p. 529) Thus, we may affirm the ruling on defendant's motion to suppress if it is correct on any theory of the law applicable to the case, even if the ruling is based on an incorrect reason. (Ibid. [citing People v. Smithey (1999) 20 Cal.4th 936, 972].)
The Fourth Amendment to the United States Constitution protects citizens from unwarranted governmental intrusion. It provides that the people are entitled "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." (U.S.C.A. Const., 4th Amend.) "It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' " (Welsh v. Wisconsin (1984) 466 U.S. 740, 748 .) "[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." (Mincey v. Arizona (1978) 437 U.S. 385, 393-394 .) "Because a warrantless entry into a home is presumptively unreasonable, the government bears the burden of establishing that exigent circumstances or another exception to the warrant requirement justified the entry." (People v. Troyer (2011) 51 Cal.4th 599, 605 (Troyer).)
One such exception exists when the police "have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury." (Brigham City v. Stuart (2006) 547 U.S. 398, 400 (Brigham City); see also People v. Ray (1999) 21 Cal.4th 464, 470 (Ray) ["Under the emergency aid exception, police officers 'may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance' "].) " ' "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." ' " (Brigham City, at p. 403.) " ' " 'There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.' " ' " (Troyer, supra, 51 Cal.4th at p. 605.)
"The ' "emergency aid exception" ' to the warrant requirement 'does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises.' [Citation.] Rather, the exception 'requires only "an objectively reasonable basis for believing . . . " [citation] that "a person within [the house] is in need of immediate aid." ' " (Troyer, supra, 51 Cal.4th at p. 605.) " 'We are to approach the Fourth Amendment . . . with at least some measure of pragmatism. If there is a grave public need for the police to take preventive action, the Constitution may impose limits, but it will not bar the way.' " (Id. at pp. 605, 606.)
In this case, defendant contends the officers did not have an objectively reasonable basis for believing an emergency existed because the welfare check was prompted by a tip to CPS that was not "sufficiently reliable" under the circumstances. Although defendant's counsel made comments during the preliminary hearing that intimated the source of the information which CPS ultimately passed on to police dispatch was a "relative" or the children's mother who was involved in a custody dispute with defendant, no evidence bearing directly on this point was admitted below. (People v. Valdez (2004) 32 Cal.4th 73, 134 [" '[s]tatements made by the attorneys during trial are not evidence' "].) We thus assume the tip was anonymous.
While courts have recognized that " 'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity,' " an anonymous tip may bear "adequate indicia of reliability for the officer to credit the caller's account." (Navarette v. California (2014) --U.S.-- [188 L.Ed.2d 680, 686-687] [officer had reasonable suspicion that driver was intoxicated based on 911 call that reported the vehicle ran her off the road].) Based on the totality of the circumstances, we conclude the CPS tip bore adequate indicia of reliability to justify the officers' reliance on the tip.
In requesting the welfare check, CPS told the police dispatcher that defendant was living with three children under the age of five in a two-story house where marijuana was being cultivated in the upstairs area of the home. Defendant was consuming the narcotic in his children's presence and also had firearms in the house. Information about defendant's name, date of birth, and that he had a prior criminal record and might have been on probation were also conveyed.
Prior to going to defendant's home, Officer Severi conducted a records check on defendant, verifying that he had in fact been convicted of possessing methamphetamine for sale in 2006 and that as a result he had been sentenced to jail and probation, although he was not currently on supervised release. This records check confirmed the details concerning defendant's criminal history, and lends credibility to the tipster. (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1399 [anonymous caller's expressed familiarity with the suspect's past conduct was one factor the court considered in finding an anonymous tip sufficiently reliable].)
Officer Severi also conducted a records check on the home address CPS provided. That check revealed that the police investigation unit received a narcotics tip about two weeks earlier containing similar information as that provided by CPS. This narcotics tip, as Officer Severi explained, justifiably heightened the concern for the children's welfare. The certified CAD logs from the Sacramento Police Department dispatching the officers to defendant's home, we note, show the officers were responding to the CPS request to check on the welfare of three young children due to a report of the presence of drugs and firearms. Officers may rely on reports obtained through official channels. (People v. Brown (2015) 61 Cal.4th 968, 982-983.)
Upon arriving at the house, the officers could visually verify that the home was in fact two stories like CPS stated. When they knocked on the door, they could hear children's voices, which corroborated the tipster's information that multiple young children were at the home. Officer Severi's own independent investigative work as well as the officers' observations at the house thus sufficiently corroborated the information provided by the anonymous tipster. Relying on the tip received through official CPS and police dispatch channels to investigate the children's welfare was therefore proper.
We further conclude that the circumstances the officers confronted when they arrived at the house, coupled with the information provided by CPS, supported an objectively reasonable belief that one or more persons inside the home needed immediate assistance. (United States v. Arvizu (2002) 534 U.S. 266, 273 [for reasonable suspicion determinations, officers may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' [Citations.]"; see also Ray, supra, 21 Cal.4th at p. 477 [under the community caretaker exception, "as in other contexts, 'in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or "hunches," but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary' "]; italics added.)
When Officer Severi knocked on the door and announced his presence, the officers heard movement from within the house as if someone was walking near the door. Rather than open the door, however, they heard what sounded like the deadbolt being locked from inside. When they tried the handle, they confirmed the door was locked. Officer Severi had been a police officer for over five years, and in his experience such conduct often indicated that someone inside was in danger or was otherwise attempting to flee. Officer Trefethen, moreover, testified that he could hear children's voices that sounded like they were in distress.
In People v. Roberts (1956) 47 Cal.2d 374, 380, our Supreme Court upheld a warrantless search where substantial evidence showed the officers reasonably believed someone was inside an apartment in need of aid. There, the officers were told that a man living in the apartment had not worked often and was sickly. (Id. at p. 376.) They also testified that after knocking on the door and receiving no response, they heard several moans or groans that sounded as if a person was in the apartment in distress. (Ibid.) This evidence was sufficient to show the officers' reasonably believed someone needed emergency assistance, and that entering the apartment without a warrant did not violate the defendant's constitutional rights. (Id. at p. 380.)
Like in Roberts, substantial evidence shows the distressed voices of small children could be heard through the door. (Roberts, supra, 47 Cal.2d at p. 378 [testimony of officers sufficient to establish basis for emergency aid exception to warrant requirement].) From this, the officers could reasonably infer that the children--who were reported to be under the age of five, and were in fact six, four, and three years old--were in need of assistance, especially since the door had just been locked barring the officers' entry after they had announced their presence. The officers' entry here was reasonable under the circumstances.
Indeed, as the trial court noted, had the police failed to enter the residence to check on the safety of the children as requested by CPS, they would have been derelict in their duties. (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 189-191 [law enforcement agency has a duty to investigate reports of child abuse or neglect]; People v. Miller (1999) 69 Cal.App.4th 190, 198-200 [warrantless entry justified where officer was investigating the welfare of a two-year-old child found wandering the neighborhood and the child could not communicate with officer]; United States v. Bradley (9th Cir. 2003) 321 F.3d 1212, 1214-1215 [officers entered home without warrant to check on welfare of minor child].) Although we recognize that " '[e]ntry for the purpose of the protection of infant children must be justified on the same grounds as any other entry' " (Miller, supra, 69 Cal.App.4th at p. 198), the circumstances here establish that the officers had an objectively reasonable belief that very young children inside the home were in distress and needed assistance. (Roberts, supra, 47 Cal.2d at pp. 378-380.)
Once inside, the officers were not required to accept the unsubstantiated claim of defendant's mother that defendant was not home. (Troyer, supra, 51 Cal.4th at p. 608 [recognizing responding officers are "not required to accept blindly" the explanation offered by someone answering the door of a residence].) Instead, Officer Severi was entitled to quickly walk through the home as he did to ensure neither defendant, nor anyone else, was hidden within the house where he or she might launch an attack or otherwise pose a danger to the officers or the children during the welfare check. (Maryland v. Buie (1990) 494 U.S. 325, 334 (Buie) ["there must be articulable facts which, taken together with the rationale inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene"]; People v. Celis (2004) 33 Cal.4th 667, 678 ["A protective sweep can be justified merely by a reasonable suspicion that the area to be swept harbors a dangerous person"].)
While Buie involved a protective sweep in the context of an arrest, subsequent cases "have clarified that its holding is not limited to arrest situations." (People v. Ledesma (2003) 106 Cal.App.4th 857, 864; see also e.g., United States v. Taylor (6th Cir. 2001) 248 F.3d 506, 513 [officer left behind to secure residence while search warrant obtained may conduct protective sweep].) --------
This is especially so since CPS reported that defendant, who had previously been convicted of a felony for possessing methamphetamine for sale, had a marijuana grow and firearms in the home. (People v. Bland (1995) 10 Cal.4th 991, 1002 [recognizing ongoing risk of serious injury or death from firearms kept near drugs because weapons can be used "to protect the defendant during a drug sale, to guard against theft of the drugs or to ward off police"].) Courts have recognized that where narcotics are involved, firearms are often considered " 'tools of the trade.' " (People v. Glaser (1995) 11 Cal.4th 354, 367-368.) Under such circumstances, the danger to officers is greatest when, as here, they are in a private home rather than a public place of accommodation. (Ibid.; see also Buie, supra, 494 U.S. at p. 333 [The officer is "at the disadvantage of being on his adversary's 'turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings"].)
Defendant was not in the main living space with the children when the officers entered. As noted above, the officers were not bound to blindly accept his mother's statement that he was not home (Troyer, supra, 51 Cal.4th at p. 608), particularly after her delay in opening the door. After failing to locate defendant in the living room, the officers could reasonably infer that he might have been somewhere else within his home. Officer Severi was thus reasonably justified in conducting a cursory search of the premises to determine defendant's potential whereabouts.
We also find meritless defendant's argument that once the officers observed the children in the living room with their grandparents with no outward signs of abuse any objectively reasonable basis for checking other areas of the home vanished. While "[t]he scope of a warrantless search 'must be "strictly circumscribed by the exigencies which justify its initiation" ' " (Troyer, supra, 51 Cal.4th at p. 612), quickly canvassing the upstairs and garage areas were reasonable under the circumstances. The officers were entitled to speak to the children and sweep the premises for their own protection before doing so.
The specific, articulable facts known to the officers when they conducted the welfare check provided an objectively reasonable basis for believing an occupant inside the house was distressed and in need of aid. The CPS report, much of which was corroborated by independent investigative work and records checks, the suspicious conduct of those inside the house upon their arrival, and the distressed children's voices, coupled with the officer's training and experience in similar situations, demonstrate that the officers' actions were reasonable under the circumstances. (Brigham City, supra, 547 U.S. at p. 403; Troyer, supra, 51 Cal.4th at p. 605.)
Because we conclude the entry and cursory sweep of defendant's residence were lawful, his counsel's failure to renew his motion to suppress before the trial court was not prejudicial. We therefore reject his ineffective assistance of counsel claim on that basis. (Strickland, supra, 466 U.S. at p. 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed"].)
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: MURRAY, J. RENNER, J.