Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment (order granting probation) of the Superior Court of Los Angeles County No. KA083763, Steven D. Blades, Judge.
David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sarah J. Farhat and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Hector Esquivel appeals from the judgment (order granting probation) entered following his convictions by jury on count 1 – possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and count 2 – driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)). The court suspended imposition of sentence and placed appellant on formal probation for three years. We affirm the judgment.
On July 20, 2009, appellant filed a petition for a writ of habeas corpus (B217621) and, on July 29, 2009, this court ordered that his appeal and the petition be concurrently considered. The petition will be the subject of a separate order.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that about noon on July 8, 2008, La Verne Police Officer Jay Alvarado saw appellant driving a Toyota pickup truck on Arrow Highway in Los Angeles County. Appellant was the truck’s sole occupant. Alvarado conducted a traffic stop of the truck because appellant was talking on a cell phone while driving. Appellant told Alvarado that appellant was talking on the phone because he was trying to connect his Bluetooth.
During the detention, another officer arrived and determined appellant’s driver’s license was suspended. Alvarado arrested appellant for driving with a suspended license. Evidence was presented at trial that appellant was driving with a suspended or revoked license in violation of Vehicle Code section 14601.1, subdivision (a) (count 2).
Appellant does not challenge the validity of his conviction on count 2.
After Alvarado arrested appellant, Alvarado searched the small truck. The truck had a bench seat, and Alvarado found a male’s jacket on the bench seat next to where appellant had been sitting. The jacket appeared to fit appellant. Alvarado opened the jacket’s left pocket and saw inside a small baggy containing a white, crystalline substance resembling methamphetamine. He also saw inside the pocket a glass pipe which had a white, crystalline film on it. Evidence was presented at trial that the substance in the baggy was about 1.7 grams of methamphetamine and that appellant possessed it in violation of Health and Safety Code section 11377, subdivision (a) (count 1).
During the People’s direct examination of Alvarado, the following occurred: “Q. Regarding the Bluetooth earpiece defendant mentioned, you searched the vehicle; is that correct? [¶] A. Yes. [¶] Q. Then you arrested the defendant, so you searched him as well? [¶] A. Yes. [¶] Q. Did you find a Bluetooth device? [¶] A. No.” We note this colloquy suggested the search of the truck preceded appellant’s arrest.
2. Defense Evidence.
In defense, appellant denied knowledge of the contraband and claimed the jacket belonged to Jose De Jesus Ponce. According to appellant, he picked up Ponce, a contractor, at a Contractor’s Warehouse in Pomona to lay a foundation on which a structure could be built at an auto body shop. Appellant managed the shop. Appellant had, inter alia, a California identification card belonging to Ponce, and Alvarado took the card from appellant. Ponce also gave appellant an expired driver’s license and Ponce’s social security card.
Appellant also testified as follows. The officer told appellant that appellant was being arrested for driving on a suspended license. Appellant thought his license had been cleared. The following then occurred: “Q. And the officer thereafter in your vehicle found methamphetamine and a glass pipe, and you knew that, so at what point did you find out about that?” Appellant later replied that he found that out after he was released from jail.
3. Rebuttal and Surrebuttal Evidence.
During rebuttal, the prosecutor indicated to Alvarado that appellant had testified that when Alvarado arrested appellant, Alvarado said he was arresting appellant for a violation of Vehicle Code section 14601.1, subdivision (a), but did not say he was arresting appellant for possession of methamphetamine and the pipe. Alvarado denied that this testimony from appellant was true. Alvarado then testified, “I told [appellant] he was arrested initially for driving on a suspended license. After I searched his vehicle I told him there is additional charges....” After arresting appellant, Alvarado found on him an identification card belonging to Ponce.
The following later occurred between the prosecutor and Alvarado: “Q. When you found the methamphetamine and the glass pipe, [appellant] was still at the location on scene, right? [¶] A. Yes. [¶] Q. And it was only thereafter you found... the glass meth pipe, and the methamphetamine? [¶] A. Yes.” (Sic.) After the search was completed, appellant’s father arrived. When appellant’s father arrived, appellant was still in Alvarado’s police car. Alvarado talked to appellant’s father about the truck. After Alvarado talked with appellant’s father, appellant was transported. Appellant had been there the whole time, even when Alvarado talked with appellant’s father.
During cross-examination, Alvarado testified the truck had stopped and Alvarado parked his police car at an angle behind the truck. Appellant was initially placed in Alvarado’s vehicle. During redirect, Alvarado testified that when he initially approached appellant, appellant talked normally to Alvarado, but once appellant was out of the car and under arrest, he became angry. During surrebuttal, Alvarado testified he arrested appellant, and Alvarado was clear that Alvarado placed appellant in the back of Alvarado’s vehicle.
The preliminary hearing transcript reflects that after Alvarado testified that an officer told him that appellant’s license was suspended, Alvarado testified that Alvarado searched the vehicle.
CONTENTIONS
Appellant claims (1) he was denied effective assistance of counsel by his trial counsel’s failure to move to suppress the methamphetamine on the ground it was the product of an unlawful search of the truck, and (2) the trial court abused its discretion by excluding evidence that Ponce’s identification was genuine and by excluding evidence that the address on Ponce’s identification documents provided corroborating evidence that Ponce did construction work.
DISCUSSION
1. No Ineffective Assistance of Counsel Occurred.
Appellant’s trial counsel failed to file a Penal Code section 1538.5 suppression motion. The jury convicted appellant as previously indicated in October 2008. Appellant claims his trial counsel’s failure to file said suppression motion deprived him of effective assistance of counsel, because the search of his car was unlawful in light of Arizona v. Gant (2009) ___ U.S. ___ [ 129 S.Ct. 1710] (Gant.) We disagree.
“ ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction... has two components.’ [Citations.] ‘First, the defendant must show that counsel’s performance was deficient.’ [Citations.] Specifically, he must establish that ‘counsel’s representation fell below an objective standard of reasonableness... under prevailing professional norms.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 216.) “In addition to showing that counsel’s performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.” (Id. at p. 217.) Moreover, on appeal, if the record sheds no light on why counsel 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, an ineffective assistance contention must be rejected. (People v. Slaughter (2002) 27 Cal.4th 1187, 1219.)
In Gant, after the defendant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police searched his car and discovered cocaine in the pocket of a jacket on the backseat. Because the defendant could not have accessed his car to retrieve weapons or evidence at the time of the search, the high court concluded that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California (1969) 395 U.S. 752 [89 S.Ct. 2034], and applied to vehicle searches in New York v. Belton (1981) 453 U.S. 454 [101 S.Ct. 2860], did not justify the search in Gant. (Gant, supra, 129 S.Ct. at p. 1714.)
In Gant, the high court stated, “[u]nder Chimel, police may search incident to arrest only the space within an arrestee’s ‘ “immediate control, ” ’ meaning ‘the area from within which he might gain possession of a weapon or destructible evidence.’ [Citation.] The safety and evidentiary justifications underlying Chimel’s reaching-distance rule determine Belton’s scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” (Gant, supra, 129 S.Ct. at p. 1714.) Gant added, “we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (Ibid.)
Gant observed, “[i]n many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. [Citations.] But in others, ... the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” (Gant, supra, 129 S.Ct. at p. 1719.)
Gant later stated, “our opinion [in Belton] has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” (Gant, supra, 129 S.Ct. at p. 1718.) Gant indicated that this view “predominated.” (Ibid.) Gant noted, “[a]s Justice O’Connor observed, ‘lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.’ [Citation.] Justice Scalia has similarly noted that, although it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol car, cases allowing a search in ‘this precise factual scenario... are legion.’ ” (Ibid.)
Gant rejected this broad reading of Belton and held that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” (Gant, supra, 129 S.Ct. at p. 1719.)
Gant later concluded, “[b]ecause police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable.” (Gant, supra, 129 S.Ct. at p. 1719.) Gant stated in a footnote, “[b]ecause a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding.” (Id. at p. 1722, fn. 11.)
In the present case, the record on appeal sheds no light on why counsel failed to act in the manner challenged. Counsel was not asked for an explanation and we cannot say that, on this record, there simply could have been no satisfactory explanation. Accordingly, we reject appellant’s ineffective assistance claim. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)
Indeed, several reasons suggest themselves as to why appellant’s counsel may not have brought a suppression motion and, because one was not brought and the lawfulness of the search was not at issue at the preliminary hearing or the trial, there was no occasion to raise or develop the following issues.
First, consent is an exception to the Fourth Amendment’s warrant requirement. (People v. Superior Court (McCaney) 86 Cal.App.3d 366, 372.) For all the record reflects, appellant may have consented to the search of the Toyota. Such consent would have rendered lawful the search of the truck and unmeritorious a suppression motion challenging that lawfulness.
Second, we assume arguendo that the 2009 decision in Gant is retroactive to 2008 proceedings in cases, such as this one, which are not yet final (see People v. Henry (2010) 184 Cal.App.4th 1313, 1322 (Henry)) and/or that Gant clarified Fourth Amendment law applicablein 2008. Nonetheless, at the time of appellant’s pre-Gant proceedings, Belton was widely (although, as Gant teaches, erroneously) understood to allow a vehicle search incident to the arrest of a recent occupant even if there was no possibility the arrestee could gain access to the vehicle at the time of the search. For example, People v. Mitchell (1995) 36 Cal.App.4th 672, 674, concluded that such a search was lawful “even after an arrestee has been removed from the vehicle and restrained.” Appellant’s counsel reasonably could have refrained from bringing a suppression motion challenging the search of the Toyota as unlawful based on Gant’s rationale because the motion likely would have been denied at the time of appellant’s 2008 proceedings.
Third, we have recited the pertinent facts from appellant’s preliminary hearing and the trial. That record is unclear as to whether the arrest preceded the search, vice-versa, or the two were concurrent. Nor is the record a model of clarity regarding where appellant exactly was, whether he was in handcuffs, and/or whether he was in a police car at the time of the search. In short, for all the record reflects, even applying Gant’s rationale, police, and appellant’s trial counsel, reasonably could have believed the search was lawful because, at the time of the search, appellant could access the truck.
We note the search-incident-to-arrest exception did not require that appellant’s formal arrest precede the search, i.e., the fact that a defendant is not formally arrested until after a search does not invalidate the search if probable cause to arrest existed prior to the search and the search is substantially contemporaneous with the arrest. (People v. Adams (1985) 175 Cal.App.3d 855, 860-861.)
Fourth, even if the search of the truck was unlawful under Gant, it does not follow that the fruits of the search would have been suppressed. “As the court acknowledged in Gant, ... Belton... had ‘been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search, ’ even to the extent that ‘the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding.’ [Citation.] Under these circumstances it simply cannot be said that the police in the present case had knowledge, or could properly be charged with knowledge, that their action in conducting the search of defendant’s car under the search-incident-to-arrest exception was unconstitutional. Exclusion of the evidence found in defendant’s car would therefore not deter future police misconduct and the exclusionary rule should not be applied.” (Henry, supra, 184 Cal.App.4th at pp. 1328-1329.) Henry’s analysis applies with equal force here.
For the above reasons, appellant’s counsel reasonably could have refrained from filing a suppression motion because she believed such a motion would have been futile. “The Sixth Amendment does not require counsel to raise futile motions.” (People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24.) Appellant has failed to demonstrate that the performance of his trial counsel was constitutionally deficient, or that any such deficiency was prejudicial, and his ineffective assistance claim fails.
The issues of whether Gant applies retroactively and whether the good faith exception to the exclusionary rule can apply to a violation of Gant are pending before our Supreme Court in People v. Branner, review granted March 10, 2010, S179730.
2. The Trial Court Properly Excluded Certain Evidence Concerning Ponce’s Identification Documents.
a. Pertinent Facts.
After the cross-examination of appellant but before redirect examination, appellant proffered testimony from appellant that he obtained identification from Ponce. The court suggested the proffered testimony would be relevant to prove Ponce existed. Appellant also proffered testimony from Alvarado that he recovered Ponce’s identification from appellant’s pocket. Appellant suggested the latter testimony would be relevant to prove appellant contacted Ponce. The prosecutor suggested the latter testimony was excludable under Evidence Code section 352.
The court suggested Ponce was a day laborer, and later indicated the issue was whether Ponce was a real person. Appellant agreed and indicated he wanted to corroborate his testimony that he picked up Ponce. Appellant proffered testimony from appellant that Alvarado recovered Ponce’s identification from appellant.
Appellant’s counsel later represented that appellant’s investigator “ran DMV, it was a valid name, photograph[.]” The following later occurred: “[Appellant’s Counsel]: Can my investigator testify that he went to the residence verified by DMV and found various vehicles registered to the Ponce family, including one to Ponce Construction? [¶] The Court: But it’s a different name. [¶] [Appellant’s Counsel]: It is a different first name. It’s Ramon Ponce Construction. [¶] The Court: I would think not because there’s no connection here between Jose Ponce. We don’t know Ponce Construction is not some other Ponce. [¶] [Appellant’s Counsel]: Okay.” Appellant had made a similar proffer earlier and, at the time, the prosecutor had posed a relevance objection.
After the above quoted proffer, the court ruled appellant could present evidence that he had Ponce’s identification and police took it when appellant was arrested. The court also ruled, “no investigation [evidence] of Mr. Ponce [is admissible], and that’s based on 352. I think that’s just getting off in an area that’s going to take an undue amount of time and create some confusion. I think there’s plenty of evidence to either believe or disbelieve the existence of Mr. Ponce, particularly when the I.D. card information comes in.” As previously indicated, appellant and Alvarado testified during the trial that appellant possessed Ponce’s identification card.
b. Analysis.
Appellant claims, in essence, that the trial court erroneously excluded under Evidence Code section 352, the defense investigator’s proffered testimony referred to in the paragraph preceding the paragraph immediately above. Appellant argues, “[t]he investigator’s testimony that Ponce’s California identification card was valid and listed an address where vehicles belonging to members of the Ponce family, and one vehicle registered to a company called Ponce Construction[, ] was strongly supportive of appellant’s testimony that he was with Ponce for the purpose of getting an estimate from him as to the cost of a construction project to be undertaken at appellant’s auto body shop.” We reject appellant’s claim.
Although appellant raises only an Evidence Code section 352 issue, the record, fairly read, including the trial court’s comment, in context, that “there’s no connection here between Jose Ponce, ” indicates the court excluded the proffered testimony on relevance and Evidence Code section 352 grounds.
Evidence Code section 210, states, in pertinent part, that: “ ‘[r]elevant 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.” An appellate court applies an abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including a ruling concerning relevance. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) Evidence Code section 352 states, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” An appellate court applies the abuse of discretion standard of review to any ruling by a trial court on an Evidence Code section 352 issue. (People v. Waidla, supra, at p. 724.)
Even assuming appellant proffered testimony from his investigator that the card was valid and listed an address which the defense investigator verified with DMV, nothing in the proffered testimony had a tendency in reason to prove that Jose De Jesus Ponce was related to or associated with the “Ponce family” or Ramon Ponce Construction.
In particular, during the trial court’s previously quoted discussions with appellant’s counsel, the trial court indicated the full name of Ponce Construction was “a different name.” Appellant then conceded the first name was different, and that the company’s full name was Ramon Ponce Construction, thereby suggesting at a minimum that Jose De Jesus Ponce did not own the company. When the court later effectively denied that any connection with Jose De Jesus Ponce had been proffered, and indicated Ponce Construction might involve “some other Ponce, ” i.e., a Ponce other than Jose De Jesus Ponce, appellant’s counsel did not expressly dispute this but merely said, “[o]kay.”
Although appellant proffered testimony from the investigator to the effect that the investigator found, at the address listed on the identification card of Jose De Jesus Ponce, vehicles registered to “Ponce family” members, appellant proffered no testimony from the investigator as to how the investigator knew the vehicles were registered to family members, that any of such family members lived at the address, or that any found vehicles were registered to Jose De Jesus Ponce. In sum, the trial court appears to have concluded that the name Ponce was simply too common, by itself and considered with the rest of the proffered testimony, to have a tendency in reason to prove that Jose De Jesus Ponce was related to or associated with the “Ponce family” or Ramon Ponce Construction, and we do not believe the trial court abused its discretion when reaching that conclusion.
Moreover, nothing in the proffered testimony had a tendency in reason to prove that Ramon Ponce Construction did the type of work that appellant allegedly had contacted Jose De Jesus Ponce to do. The proffered testimony that the investigator “found various vehicles” registered to the family had no tendency in reason to prove appellant was with Jose De Jesus Ponce for any purpose.
Appellant testified Ponce gave his identification card to appellant, appellant and Alvarado testified appellant possessed it, and the jury therefore reasonably could have concluded that Ponce was a real person and that appellant had contacted him. The trial court did not abuse its discretion by excluding the defense investigator’s proffered testimony based on relevance and Evidence Code section 352 grounds.
DISPOSITION
The judgment (order granting probation) is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.