Opinion
A146340 A149393
08-21-2018
THE PEOPLE, Plaintiff and Respondent, v. LUIS GUZMAN, Defendant and Appellant. In re LUIS GUZMAN, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC082940A)
INTRODUCTION
This is an appeal after the trial court denied appellant's motion to suppress and a no contest plea was then entered to the felony violation of Health and Safety Code section 11352, subdivision (a) (transportation of cocaine). Appellant was sentenced to three years' probation, along with fines and fees and 90 days in the county jail. He entered his plea on July 24, 2015, and his notice to appeal was filed on September 23, 2015. Appellant has also filed a petition for writ of habeas corpus, claiming his trial attorney's conduct violated his Sixth Amendment rights.
STATEMENT OF FACTS
On December 20, 2014, around 1:08 a.m., Officer Jason Poirier of the Menlo Park Police Department made a traffic stop of an Acura Integra. The left and right brake lights operated properly but the center brake light on the Acura did not illuminate as it was supposed to. Officer Poirier had been a previous owner of an Acura Integra and knew the center-mounted brake light was supposed to work alongside the other two brake lights. Based on his experience, Poirier believed the brake lights were not working properly and stopped the Acura for a violation of Vehicle Code section 24252, subdivision (a) (lighting equipment). As Officer Poirier approached the suspect vehicle, he noticed holes in the trunk of the Acura, which indicated equipment had been mounted on the trunk. He also detected a modified exhaust system on the car. The officer asked appellant for his identification and vehicle registration. The officer and appellant conversed in English.
Section 24252 of the Vehicle Code states: "All lighting equipment of a required type installed on a vehicle shall at all times be maintained in good working order. Lamps shall be equipped with bulbs of the correct voltage rating corresponding to the nominal voltage at the lamp socket." (§ 24252, subd. (a).)
While conducting a registration check of the car, Poirier asked for permission to search the vehicle. Appellant told the officer he could. At this time, a fellow officer arrived at the scene, Officer Ordone. While Poirier engaged in the inspection of the vehicle, he was concerned about Ordone being alone with appellant on the passenger side of the auto. Poirier decided to do a weapons patdown of the suspect. Poirier asked appellant for permission to remove any suspicious items if he found any in appellant's pocket. Appellant told the officer it would be all right.
During the patdown, the officer discovered a container for Altoids in appellant's pocket. He removed the container and handed it to Officer Ordone. Poirier asked appellant if he could inspect the contents of the tin container. Appellant agreed to the inspection. Poirier told Ordone to open the tin. Inside he found small bindles of white powder. The officers suspected the powder was either cocaine or methamphetamine. The substance tested positive for cocaine base.
DISCUSSION
At the motion to suppress, defense counsel contended the car was not in violation of Vehicle Code section 24603, subdivision (d). That section requires a car to have two working brake lights. Therefore, the stop by Officer Poirier was unlawful. Any consent from appellant after an unlawful stop would be invalid.
Section 24603 of the Vehicle Code provides, in relevant part: "Every motor vehicle that is not in combination with any other vehicle and every vehicle at the end of a combination of vehicles shall at all times be equipped with stoplamps mounted on the rear as follows: [¶] (a) Each vehicle shall be equipped with one or more stoplamps. [¶] (b) Each vehicle, other than a motorcycle, manufactured and first registered on or after January 1, 1958, shall be equipped with two stoplamps . . . . If such vehicle is equipped with two stoplamps, they shall be mounted as specified in subdivision (d). [¶] . . .[¶] (d) When two stoplamps are required, at least one shall be mounted at the left and one at the right side, respectively, at the same level." --------
However, if the officer has reasonable suspicion there is a violation of the Vehicle Code, there is no illegal conduct by the officer. Probable cause is not needed. (People v. Watkins (2009) 170 Cal.App.4th 1403, 1408 (Watkins); People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1148.) In Watkins, the traffic stop was based on a perceived violation of Vehicle Code section 24603 (functioning stoplamp violation), and the magistrate credited the officer's testimony that one of the defendant's brake lights was not working properly. That is enough to suspect a violation. "It does not matter whether the officer's suspicion proved correct." (Watkins, at p. 1408.) Once a police officer discovers the stoplamp defect, along with the other issues detected by Officer Poirier during his approach of appellant's car, he may " 'upon reasonable belief . . . [determine a] vehicle is being operated in violation of any provisions of this code or is in such unsafe condition as to endanger any person [and] . . . require the driver of the vehicle to stop and submit to an inspection of the vehicle, and its equipment, license plates, and registration card.' " (People v. Superior Court (1968) 266 Cal.App.2d 685, 689 [dealing with an observed violation of Vehicle Code section 24603].) Also, the detention here was not prolonged and appellant consented to the search of the car and also the patdown by the officer. Exploring the interior of the tin container was the result of consent.
The trial court denied the motion to suppress. It concluded Poirier's familiarity with the Acura Integra, based on his previous ownership of the car, made his conclusion the central brake light was not operational, in violation of the vehicle code, a reasonable basis for stopping the car. Continued detention of the suspect and the car was justified because the officer noticed the modified exhaust system and the holes in the trunk. The latter situation suggested an improper modification of the vehicle. Finally, a video from the body camera at the scene was played during the suppression hearing. Defense counsel prepared a transcript of any conversation in the video. While some parts were apparently not audible, the full video was reviewed by the trial court. In making her ruling, the trial judge pointed to no conflicts between the videotape and the hearing testimony of Officer Poirier.
When appellant appeals the denial of a motion to suppress, we defer to the factual findings of the trial court, be they expressed or implied, so long as the findings are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Any factual conflict must be resolved in the manner favorable to support the trial court's disposition. (People v. Woods (1999) 21 Cal.4th 668, 673.) In our evaluation of the legality of a search, we exercise our independent judgment in assessing whether the conduct of the government is proper under the Fourth Amendment. It is a question of law, but the trial court's decision cannot be lightly challenged by appeal. (People v. Lawler (1973) 9 Cal.3d 156, 160.)
When an officer conducts a patsearch for his safety, he must be able to identify specific and articulable facts to support his belief in fear for personal safety. However, the officer " 'need not be absolutely certain that the individual is armed; the crux of the issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger." (In re H.M. (2008) 167 Cal.App.4th 136, 143.) Among the relevant factors noted in prior decisions supporting the proper standards for a patsearch are the time of night and lighting conditions at the detention. (People v. Hart (1999) 74 Cal.App.4th 479, 491.) The fact the suspect is unrestrained and the level of support or backup enjoyed by the officer also are factors. (People v. Wigginton (1973) 35 Cal.App.3d 732, 737.) A minimally intrusive patdown under such circumstances will be tolerated to recognize society's interest in officer safety. (People v. Rico (1979) 97 Cal.App.3d 124, 132.) There is enough in this record to support the trial court's conclusion a patdown was justified for officer safety.
Appellant argues in his brief the record contains "no facts which would have warranted a reasonably prudent person in Poirier's circumstances believing that either officer's safety was in danger from [appellant]." First of all, "facts" supporting Poirier's concerns in safety are not limited to appellant's behavior at the time of the stop. The circumstances like place, time, and lighting conditions are also part of the factors that support a legal assessment of what is relevant regarding officer safety in this case. Being on a dark roadway late at night even with another officer present suffices for a reasonable belief in the need for a patdown.
Additionally, if the record is lacking completeness from appellant's perspective, this is in part a result of the contours of his motion to suppress. Appellant's trial attorney raised two specific challenges in his motion to suppress below. The first was the validity of the stop for the vehicle code violation. The second was the lack of consent to search both the car and the tin container. Appellant did not raise the issue of officer safety and the patdown in his papers below. The examination of the officer during this hearing might have focused more on the reasonableness of a fear for officer safety if appellant had indicated it was the focus in his written motion. The prosecution was not alerted to the issue because it was not detailed in appellant's papers. Nor was the issue of officer safety addressed in Poirier's cross-examination.
According to the respondent, the failure to raise the reasonableness of the patsearch for weapons below amounts to waiver of the issue on appeal. However, we have already pointed out there is sufficient basis for justifying a patsearch in this record, considering the enumerated factors discussed, but we mention the consequences of appellant's posturing of this case to highlight the limited review on the subject of officer safety in the patdown examination.
When a warrantless search takes place, it is the prosecution's burden to demonstrate the legal justification for the search. (People v. Williams (1999) 20 Cal.4th 119, 127-128.) However, once the prosecution offers a justification for the conduct, the defendant must present its arguments as to why that justification is inadequate. "Otherwise, defendants would not meet their burden under [Penal Code] section 1538.5 of specifying why the search or seizure without a warrant was 'unreasonable.' " (Id. at p. 130.) While the prosecution addressed the issues presented by appellant directly below, appellant now challenges the lack of testimony regarding the weapon patdown as a basis to disturb the ruling on the motion. Yet it was appellant's motion that omitted a direct assault on the patdown during the hearing; at the very least, the government could have developed the record on this issue and the court could have assessed the credibility of the testimony. The failure to amplify the record during the suppression hearing for appellate review is not necessarily the fault of the prosecution; it is the waiver by appellant. (See Davis v. Appellate Division of Superior Court (2018) 23 Cal.App.5th 387, 395.)
Once the validity of the patdown is established, we review the removal and inspection of the tin canister. The evidence of voluntary consent is reviewed based on the entire record in the case. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.) A factual finding of voluntary consent already determined by the trial court below should not be disturbed if supported by substantial evidence. (People v. Robinson (1974) 41 Cal.App.3d 658, 668-669.) In this case, Officer Poirier was the lone witness in the hearing. He indicated he asked appellant if he could examine the contents of the tin container. His request was rather matter-of-fact. The examination at the hearing did not indicate a tone or manner that would tax the free will of appellant. There were no threats nor acts of intimidation reflected in this record to suggest appellant's will was overborne. No weapons were brandished. The simple request for permission, what we have here, carries with it no suggestion to negate consent if that is the response to the request by the appellant. (People v. James (1977) 19 Cal.3d 99, 116.) In James, the court affirmed voluntary consent even though the defendant was arrested at his front door, was handcuffed, and four police officers were confronting him in a request for permission to search. (Id. at pp. 106-107, 118.) In our case, the lone witness testified he made a request which appellant answered in the affirmative. We see nothing to disturb the trial court's finding of consent in this instance.
APPELLANT'S HABEAS CLAIM
Besides challenging the denial of his motion to suppress directly, appellant is also contending his trial counsel was ineffective. Her failure to attack the validity of the patsearch rendered her performance ineffective. In the habeas petition, appellant provides a declaration from his trial counsel in which she affirms her failure to "explicitly argue" the patsearch by Officer Poirier was "unsupported by articulable suspicion" appellant was armed or dangerous. Appellant argues his rights under the Sixth Amendment were violated and habeas petition should be granted. We reject this claim.
To be successful in a habeas claim of ineffective assistance of counsel, appellant must establish the performance by trial counsel fell below an objective standard of reasonableness expected within the range of professionally competent assistance, and he must show prejudice—a reasonable probability that, but for the unprofessional errors of trial counsel, the result of the case would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688-690, 694.) It is a fact that tactical errors are not generally deemed reversible; courts will not generally second-guess reasonable, though difficult, decisions by a trial lawyer. (People v. Stanley (2006) 39 Cal.4th 913, 954.)
In this case, we have pointed out that trial counsel focused on two legal reasons for suppressing the evidence in this case. She did not argue the patdown here was without a reasonable basis. However, Officer Poirier did testify he was dealing with a situation at a dark location at 1:08 a.m. He was concerned about his fellow officer watching a suspect under such conditions and decided that prudence called for a patsearch of appellant. Therefore, any legal issue on the state of mind of the officer was presented at the hearing. Defense counsel was aware of these reasons before she examined Poirier. Arguably, she believed they formed a legitimate basis for the patdown; she may well have believed her other grounds were superior to a legal challenge of the patdown. At least, this should be deemed a valid exercise of professional judgment by counsel.
A review of the declaration by trial counsel indicates her failure to challenge the lack of reasonable suspicion for the patsearch in her oral argument to the trial court. "My failure to do so was inadvertent, not a tactical decision on my part." Nevertheless, the reasonableness of the police conduct was before the trial court and our legal review of the issue finds the conduct reasonable. Furthermore, her failure to raise the particular issue in an oral argument to the trial court does not prevent us from assessing its legal merit.
Additionally, appellant has the burden of showing his allegation of inadequate representation was not a matter of speculation but demonstrable reality. (People v. Robillard (1960) 55 Cal.2d 88, 97-98.) There must be some showing of an unawareness of a rule of law basic to the case that reasonable preparation would have revealed. When dealing with tactics (and defense counsel's assessment of better arguments to raise in a 1538.5 motion involve such) appellate courts will not ordinarily exercise judicial hindsight. Nor is it sufficient to allege merely the attorney's tactics were poor, or the case might have been handled more effectively. (People v. Gaulden (1974) 36 Cal.App.3d 942, 952-953; see People v. Beagle (1972) 6 Cal.3d 441, 458.) The postplea declaration of trial counsel does not persuade this court. As was observed by one court when reviewing a declaration of trial counsel filed in a habeas petition, "[h]er about-face on the competency issue strongly suggests a willingness to 'fall on the sword' in order to derail a death sentence. The motive is transparent, if not misguided." (Allen v. Mullin (10th Cir. 2004) 368 F.3d 1220, 1240.) Despite trial counsel's current posture of the suppression hearing, we do not see her performance falling below Strickland standards. The facts of the hearing presented various Fourth Amendment issues and her approach was to focus on the ones she believed were likely to be successful. Her efforts did not fall below the standards of effective advocacy under the Sixth Amendment.
Besides the first prong, for appellant to be successful in a habeas challenge, he must demonstrate prejudice by the failure of his trial counsel in the suppression hearing. In assessing the level of prejudice required for a faulty review of Fourth Amendment issues, Strickland's prejudice standard requires the illegal search and seizure claim be meritorious and that there is a reasonable probability the verdict would have been different verdict would arise. "Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." (Kimmelman v. Morrison (1986) 477 U.S. 365, 375.) We have discussed above our review of the Fourth Amendment challenge involved in this case, including the validity of the patsearch now the subject of the habeas challenge, and determined the constitutional challenges of the stop and search would not have been successful. Under these circumstances, appellant could not demonstrate prejudice. Therefore, establishing the second Strickland prong is not possible.
DISPOSITION
We affirm the trial court ruling in this case regarding the denial of appellant's motion to suppress. Consequently, we will affirm the judgment. We also deny the petition for writ of habeas corpus. Trial counsel's performance was not deficient and there is insufficient evidence of prejudice in this record.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.