Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 07ZF0143 William R. Froeberg, Judge.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, ACTING P. J.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument in defendant’s own behalf. That period has passed, and we have received no communication from defendant.
To assist the court in conducting an independent review of the record, counsel listed five potential issues: (1) Did the trial court properly deny Pio’s motion to quash the search warrant and suppress evidence?; (2) Did the prosecutor engage in misconduct when he informed the trial court Pio’s main witness at the suppression hearing may incriminate herself?; (3) Did the trial court engage in misconduct when it admonished Pio’s main witness at the suppression hearing?; (4) Did the trial court err in denying Pio’s renewed motion to suppress evidence and traverse search warrant?; (5) Was Pio’s attorney ineffective for not presenting evidence upon renewing Pio’s motion to Suppress after Pio was granted a new trial? We affirm.
I
Some of the facts are taken from the transcript of the grand jury proceedings, which is the only reporter’s transcript contained in the record on appeal. Defendant was convicted by a jury in a previous trial, but the court granted a new trial. Subsequently, defendant pleaded guilty.
Fareed Ahmad, a police officer in the City of Torrance assigned to vice and narcotics, said that on September 13, 2006, he was involved in a surveillance of a residence on La Jolla Plaza in Garden Grove. A car carrier was parked outside the residence. Police officers observed “two gentlemen standing next to the car carrier and they both were looking around pretty nervously.” He added: “Due to our training and experience we became suspicious of those guys because they were looking around at everything that drove by them. [Their] head[s] were on the swivel.” A Ford F150 pulled up and blocked the garage at the La Jolla residence. A “Latin male” got out of the pickup, looked around and used his cell phone. The men started looking toward Ahmad.
Detective Rehan Nazir also works for the Torrance Police Department in the narcotics division. Nazir testified he saw one of the males walk “up to the silver car and he grabbed a blue suitcase and placed it inside the red Mazda vehicle. And then he directed Mr. Mendez-Garcia to place the red Mazda on top of the carrier.” Nazir and two other detectives, wearing police raid gear, walked toward the residence on La Jolla Plaza. They saw the Ford F150 parked by the opened garage. Nazir said “three subjects [were] standing in the garage next to a white Honda mini van.” One of them was defendant.
Nazir said the men in the garage saw them and Nazir said, “Police.” The three ran through the door from the garage into the townhome. Nazir and another officer “gave chase.” The door from the garage led into the kitchen and there were “kilo packages of cocaine on the right side of the kitchen” on top of the counter. Defendant and the two others who had been in the garage were apprehended.
Jose Romero testified he owned the residence on La Jolla on September 13, 2006. He personally rented the property to Celia Pio, and that she was the person who was on the lease on that day.
From the record before us, it does not appear that defendant and Celia Pio are related. Defendant’s first lawyer filed a declaration which states: “My client’s true name is not Jesus Pio, it is a name he gave the police upon being arrested. His true name is Valentine Moran Ortiz. I believe it is this name by which Ms. Pio knows him, or a nickname. My client is not related to Ms. Pio.” Amendment one to the indictment has the following interlineation: “True Name: Custudio Valencia.” Additionally, when the court took defendant’s plea, defense counsel stated: “Arturo Hernandez for Mr. Pio, true name of Gustavio Valencia Guizer.” Counsel further stated: “Your Honor, Gustavio Guizer is the true and correct name of my client. We ask the court [to] amend the complaint to verify his true and correct name of Gustavio Valencia Guizer, G-U-I-Z-E-R, date of birth 5/12/74. He is also known as Jesus Pio.”
Search Warrant
On September 13, 2006, a judge of the superior court issued a search warrant to search the residence on La Jolla Plaza and four vehicles. The affidavit in support of the search warrant described the surveillance of the residence and surrounding area by members of the Torrance Police Department and the United States Immigration and Customs Enforcement agents (ICE).
The unsealed portion of the affidavit states officers observed the suspects driving in tandem and in “a manner intended to detect surveillance, or lose a surveillance team.” Other actions were “consistent with... counter surveillance techniques.” The affiant stated it was his “training and experience that counter-surveillance is often used by members of large scale narcotics trafficking organizations prior to and during a narcotics transaction.” It further states officers were concerned their surveillance had been compromised because two of the subjects were looking directly at the agents. At that point, one of them used a cell phone, “and [a] few [minutes] later the garage door opened and an unknown Latin male exited the garage and he started looking directly in the direction of the Detectives and the ‘ICE’ agents. The same subject then [a] short time later walked back inside the residence. Few [minutes] later a maroon Ford F150 pick up truck arrived and it parked blocking the garage [at the residence on] La Jolla Plaza. An unknown Latin male exited the Ford and he was using his cell phone and he turned around and looked at the direct location of the surveillance. It should be noted that... during the aforementioned events, the two subjects kept looking at the direction of the point of surveillance and kept utilizing the cell phone.” The officer wrote “that there was a fair probability that the possible suspects inside the location will try to destroy or remove the narcotics, narcotics proceeds and any other evidence of conspiracy to sell narcotics.”
The affidavit continued: “Due to the above mentioned exigent circumstances, Detectives and the ‘ICE’ agents contacted the residents via the garage of the residence. Two out [of] four subjects contacted ran northbound through the residence when they saw the Detectives and the ‘ICE’ agents. These subjects were shortly detained after a short foot pursuit through the complex all four subjects were subsequently detained pending the authorization of the search warrant.”
Regarding the chase through the residence, the affidavit states: “It should be noted that as the Detectives and the ‘ICE’ agents [pursued] the two runners through the residence, Detectives saw in open view approximately 20 to 25 individually wrapped packages resembling kilo bricks of cocaine and an unknown large amount of U.S. Currency on the kitchen counter top.”
Police subsequently searched the residence and the four vehicles described in the warrant. The fire department had to use the Jaws of Life and pry open the inside of the trunk of the red Mazda where there was a hidden compartment. An officer described the contents: “Inside that special compartment you can see numerous brick like items... two are green and then numerous that are clear that we found out later that they were bricks of cocaine.” Inside the Honda minivan, officers found nine packages of United States currency, totaling $296,000. Inside the Ford F150, they found “currency in money orders, ” totaling $35,000. They were “7-Eleven money orders.” Also inside the Ford F150 was a check with the name Pio written on it. Besides bricks of cocaine, currency in the amount of $33,000 was also found inside the residence.
Motion to Suppress
Defendant moved to suppress the evidence seized by the police in a motion titled: “Motion to Quash Warrant &/or to Suppress Evidence.” In his written motion, defendant argued exigent circumstances did not justify the initial entry into defendant’s home. He also states: “The search warrant was based on illegally obtained probable cause.”
In opposition, the district attorney argued defendant had no standing to bring his motion, and that nonetheless the search was authorized by a search warrant, and admissible under the independent source doctrine. The district attorney further contended that should the court conclude the search warrant was invalid, the seized evidence was still admissible under the good faith exception to the exclusionary rule because the police acted in an objectively reasonable manner in reliance on a search warrant.
The court conducted a hearing on March 28, 2007. Celia Pio was called as a witness and, after she consulted with a lawyer, the court asked her if she intended to invoke her “Fifth Amendment right not to be called to testify, ” and she said, “Yes.”
She said her name was then Celia Sanchez.
Ahmad testified that on September 5, 2006, he was part of a surveillance of the residence on La Jolla Plaza, Garden Grove, and that the surveillance team was located at a parking lot adjacent to the residence on La Jolla Plaza. He said his investigation determined Celia Pio was the renter of the residence.
After some initial questions, the court admonished defendant’s defense counsel as follows: “If you want to explain how your client has standing in the residence, fine, but it seems to me like all we’re doing is taking a deposition of this officer. I’m not going to allow that.” The court clarified: “If your client doesn’t have standing in the premises search, that pretty well takes care of the issue.” Under those circumstances, defense counsel had no more questions of the officer.
The court ruled: “I agree with the People there hasn’t been any demonstration of standing. There doesn’t appear to be any expectation of privacy in what arguably is a stash house. It’s not been demonstrated that either Mr. Frias or Mr. Pio had any possessory interest in that location. Motion’s denied.”
Renewed Motion to Suppress
Two months later, defendant renewed his motion to suppress. On the day it was to be heard, defense counsel was relieved as attorney. The minute order reads: “Defense motions are taken off calendar at this time due to the substitution of new Defense counsel. Motions may be refiled at a later time if necessary.”
Five months thereafter, on October 5, 2007, defendant filed a “Motion to Reconsider Defendant’s Motion to Suppress Evidence Pursuant to Penal Code Section 1538.5 and to Traverse the Search Warrant.” Attached to the motion as an exhibit was a declaration of Celia Pio. In it, Celia Pio declared: “2. I sub-leased the property located [at the residence on] La Jolla Plaza, in Garden Grove, California to Defendant Jesus Urena Pio. [¶] 3. On September 13, 2006, the date upon which the police search [of] the premises located at [the residence on] La Jolla Plaza, in Garden Grove, California, Defendant Pio had a possessory interest in the said property.” Defense counsel requested that Celia Pio be permitted to testify at a hearing on the motion.
The court denied the motion, stating: “This court has no jurisdiction, even if it wanted to, which it doesn’t, to relitigate the [Penal Code section] 1538.5 that has been requested to be relitigated by Mr. Pio, so that motion’s denied.”
Trial and Grant of Motion for New Trial
A jury found defendant guilty of possession for sale of a controlled substance on October 6, 2008. The jury also found defendant guilty of two counts of conspiracy to commit a crime. The jury found it to be true the substance involved in all three counts exceeded 20 kilograms by weight.
Defendant joined a codefendant’s motion for new trial. There was new evidence regarding the veracity of Nazir in a case in Los Angeles County. The court granted the motion for new trial.
Another Renewed Motion to Suppress
While the court was hearing pretrial motions, defense counsel orally renewed the motion for suppression. The court responded: “I haven’t seen any cases that have come down in the meantime that would change my opinion, so I will leave the prior ruling on the motion to suppress.”
Guilty Plea
On March 16, 2009, defendant pleaded guilty and requested immediate sentencing. His plea form shows he initialed the term which states he gave up his right to appeal, but his initials are crossed out and “N/A” is written above the crossed out initials. The court sentenced him to 17 years in prison.
II
DISCUSSION
Standing
The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” (U.S. Const., 4th Amend.) “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” (Payton v. New York (1980) 445 U.S. 573, 586, fn. omitted; Welsh v. Wisconsin (1984) 466 U.S. 740, 748-749.)
“‘“[T]the question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during [the search]. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” [(Rakas v. Illinois (1978) 439 U.S. 128, 140.)] The Fourth Amendment protection depends “upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” [Citation.]”’” (People v. Allen (1993) 17 Cal.App.4th 1214, 1219.) “Evidence of the defendant’s possessory interest in the items seized, without more, is insufficient to demonstrate that expectation of privacy. [Citation.] Similarly, evidence of the defendant’s ‘mere legitimate presence on the searched premises by invitation or otherwise is insufficient in itself to create a protectable expectation.’ [Citation.] Instead, the court must look to the totality of the circumstances, including ‘“‘whether the defendant has a [property or] possessory interest in the thing seized or the place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.’”’ [Citation.]” (People v. Williams (1992) 3 Cal.App.4th 1535, 1539.)
“[D]etermination of a 1538.5 motion at a special hearing in the superior court—whether in the defendant’s or in the People’s favor—deprives that court of jurisdiction to reconsider the matter....” (Madril v. Superior Court (1975) 15 Cal.3d 73, 77-78.) “[T]here are exceptions to that general rule barring reconsideration of suppression motions, including circumstances in which a defendant is denied the right to fully litigate the motion at a hearing. ([Citation.] [‘Under the current law, a defendant is entitled to renew a suppression motion in the trial court... where defendant was not afforded a full and fair opportunity to litigate the issues raised in the original motion....’].) In People v. Brooks [2002] 26 Cal.3d 471, 474, the trial court precluded evidence on a second issue after granting a motion to suppress based on evidence received on the first issue. After the trial court’s order granting the motion based on the first issue was reversed by the Court of Appeal, the trial court on remand heard evidence on the second issue and again granted the defendant’s suppression motion. [Citation.] The People appealed, arguing that the trial court did not have jurisdiction to receive evidence on and decide the second issue. [Citation.] Brooks held: ‘[D]efendant was deprived of an opportunity for a full hearing on the merits of his entire motion to suppress as initially made. Consequently the renewed hearing amounted to neither consideration of a second [Penal Code] section 1538.5 motion nor a relitigation of his original motion, but rather a completion of the full hearing to which he was entitled.” [Citation.] It also concluded: ‘[T]he record clearly reveals that defendant, the People, and the trial court at all times fully comprehended the existence of alternative grounds for the suppression of evidence seized pursuant to the search warrant.’ [Citation.] Brooks distinguished its facts from those in Madril: ‘[I]n Madril the People sought a second opportunity to convince the court of the merits of the position urged by them in the first hearing.... [T]he second hearing[ ] [was] properly characterized as relitigation of matters that the parties had opportunity to fully air in the first hearing[].’ [Citation.]” (People v. Smith (2002) 95 Cal.App.4th 283, 304-305.)
The court heard and denied defendant’s motion to suppress because he did not present any evidence to demonstrate he had standing to bring the motion. The law provides he is entitled to have his motion heard one time. Under these circumstances, the trial court did not err when it determined it lacked jurisdiction to hear any of defendant’s renewed motions.
Prosecutor’s Comments About Celia Pio Possibly Incriminating Herself
One of the potential issues listed by defendant’s counsel on appeal is whether or not the prosecutor committed misconduct when he informed the court Celia Pio may incriminate herself. When defense counsel indicated he was going to call Celia Pio as a witness, the prosecutor stated: “Your Honor, based on our knowledge of the case and what we anticipate she’s going to be testifying to, I think as an officer to the court I need to advise the court that she should be advised by the court of her rights, her privilege against self-incrimination. [¶] As an offer of proof, I expect that she will testify that she is the individual who rented this particular residence that’s the target residence from the owner, and that then she informally subleased this to defendant Pio. By doing that, that’s evidence that puts her in the middle of this conspiracy as she is the individual renting what turns out to be the stash house where a large quantity of cocaine and U.S. currency is found, putting her as a facilitator in this conspiracy. So I think it’s probably important that she be advised of her rights against self-incrimination.”
“Attorneys are ‘member[s] of an ancient, honorable and deservingly honored profession.’ [Citation.] We call them ‘officers of the court.’ [Citation.]” (Frazier v. Superior Court (2002) 97 Cal.App.4th 23, 36.) “As an officer of the court the lawyer should support the authority of the court and the dignity of the trial courtroom by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses and jurors. [Citation.]” (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 123.)
Here the prosecutor advised the court that Celia Pio might incriminate herself is she testified she subleased the residence to drug dealers. Thus, this case is easily distinguishable from cases in which a prosecutor threatens to charge a defense witness with perjury (People v. Hill (1998) 17 Cal.4th 800, 835) or apprise a defense witness of his privilege against self-incrimination in an intimidating way (People v. Warren (1984) 161 Cal.App.3d 961, 973-974), depriving the defendant of the testimony of that witness. We find the prosecutor’s conduct in this situation beyond reproach.
The Court’s Advisement to Celia Pio
Another potential issue cited by defendant’s appellate counsel is whether the trial judge engaged in misconduct in admonishing Celia Pio at the suppression hearing. When Celia Pio was called as a witness, the court stated to her: “Ma’am, before we begin, I need you to listen carefully to some things I’m going to tell you. There’s been a representation that perhaps your testimony would be that you rented a residence located [on] La Jolla Plaza in the City of Garden Grove. If that’s the case, then there may be an implication that you were participating in some illegal activity at that location. [¶] If you were to testify in this case and give answers to questions that would incriminate you, those questions — those answers could be used to prosecute you at some subsequent proceeding.” After Celia Pio consulted with a lawyer, the court asked her if she intended to invoke her “Fifth Amendment right not to be called to testify, ” and she said, “Yes.”
“‘It is axiomatic that a person may waive the privilege against self-incrimination. But any such waiver ‘must be informed and intelligent.’” (People v. Barnum (2003) 29 Cal.4th 1210, 1219.) There can be no waiver when a person does not know his or her rights. (Ibid.)
Whether or not judicial misconduct has occurred is evaluated on a case by case basis. (People v. Rodriguez (1986) 42 Cal.3d 730, 770.) Here the trial judge advised Celia Pio of her rights and gave her an opportunity to speak with a lawyer before she testified. We find no error, let alone misconduct by the trial judge.
Ineffective Assistance of Counsel
Another potential issue listed by defendant’s counsel on appeal is whether or not trial counsel was ineffective for not presenting evidence when defendant’s motion to suppress was renewed after his new trial motion was granted. “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) If the defendant fails to establish either component by a preponderance of the evidence, the claim of ineffective assistance fails. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)
Here counsel brought a motion to suppress. It was denied. As stated above, the court lacked jurisdiction to hear the motion a second time. Under these circumstances, we cannot conclude counsel was ineffective in his representation of defendant.
III
DISPOSITION
We have examined the record, considered counsel’s suggestions regarding potential issues and found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.