Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge Super. Ct. No. LF6944A
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
Appellant, Mayra Topete, pled no contest to transportation of methamphetamine (count 1/Health & Saf. Code, § 11379, subd. (a)) and possession for sale of methamphetamine (count 2/Health & Saf. Code, § 11378).
On appeal, Topete contends: 1) the court violated the terms of her plea bargain; and 2) she was denied the effective assistance of counsel. Additionally, on July 15, 2008, this court sent a letter to the parties asking them to brief several issues that are discussed below. Although we will reject Topete’s claims, we will remand the matter to the trial court for further proceedings.
FACTS
On December 5, 2006, Kern County Sheriff’s Deputy Mario Magaña was patrolling in the Lamont area when he stopped a vehicle in which Topete was a passenger, after seeing the vehicle make a right turn without signaling. Magaña asked the driver if he could search the car and the driver consented. Magaña found an open purse that contained marijuana in plain view. Topete admitted the purse and marijuana belonged to her. Magaña asked Topete if she had any other illegal contraband on her and Topete stated she had “crystal.” Topete pulled out a bag of crystal methamphetamine and was placed under arrest.
On December 22, 2006, the district attorney filed an information charging Topete with one count each of transportation of methamphetamine and possession for sale of methamphetamine.
On January 18, 2007, Topete filed a motion to suppress challenging “the legality of the initial stop of the vehicle, the legality of the search of the purse, and the legality of the subsequent investigation that focused on her.” The prosecutor filed a response citing People v. Brendlin (2006) 38 Cal.4th 1107, to allege, in pertinent part, that Topete did not have standing to challenge the stop of the vehicle.
On February 2, 2007, at the start of the suppression hearing, defense counsel changed his position stating, “I am not challenging the lawfulness of the actual stop of the vehicle. I am challenging [the] search of the person and everything that came after that.” During the hearing, Deputy Magaña testified only that he stopped the vehicle after seeing it fail to signal before making a right turn. The court subsequently denied the suppression motion.
On February 22, 2007, a jury trial ended in a mistrial on both counts.
On April 23, 2007, Topete entered into a negotiated plea. During the change of plea proceedings the court admonished Topete she could withdraw her plea if the court did not sentence her in accord with her negotiated plea. The following colloquy also occurred:
“THE COURT: All right. She will plead no contest to both counts. The only condition [is] that it will be a felony one year [maximum] lid. Is that correct?
“[DEFENSE COUNSEL]: Correct.”
Later, in discussing the consequences of Topete’s plea the following conversation occurred:
“THE COURT: Was there a motor vehicle involved?
“[DEFENSE COUNSEL]: She was a passenger in a vehicle.
“THE COURT: So it is still -- will it be a suspension?
“[DEFENSE COUNSEL]: I don’t think so, she wasn’t driving.
“THE COURT: May not. Okay, I won’t worry about it. And neither of these are serious felonies. Am I correct?
“[THE PEOPLE]: That’s correct.
“THE COURT: Okay.
“[DEFENSE COUNSEL]: Your Honor, might I interrupt briefly for a second. They are three year priors, should she commit another serious drug offense. Okay. The other thing is I don’t think she has a driver’s license, so there would be no
“THE COURT: No reason to do
“[DEFENSE COUNSEL]: No suspension.”
On May 21 2007, the court suspended imposition of sentence and placed Topete on probation for three years on condition she serve a year local time. The court also ordered, without objection, Topete’s license suspended for one year starting on that date. Later that day, Topete filed an appeal stating that it was based on the denial of her suppression motion. However, Topete did not raise any suppression issues in her opening brief.
DISCUSSION
Topete’s Plea Bargain
Topete contends the court violated the terms of her plea bargain when it ordered her license suspended. Alternatively, Topete contends she was denied the effective assistance of counsel if this issue is not properly before the court because of defense counsel’s failure to object. We will find that Topete waived this claim and reject her ineffective assistance of counsel claim.
Preliminarily, we note that this issue is moot because the license suspension expired on May 20, 2008. (Cf. People v. Lindsey (1971) 20 Cal.App.3d 742, 743-744.) However, even if the issue were not moot, we would reject it.
“‘“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” [Citation.] [¶] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.’ [Citations.] Although the purpose of a restitution fine is not punitive, we believe its consequences to the defendant are severe enough that it qualifies as punishment for this purpose. Accordingly, the restitution fine should generally be considered in plea negotiations. [¶] … [¶]
“Whether or not a defendant waives an objection to punishment exceeding the terms of the bargain by the failure to raise the point in some fashion at sentencing depends upon whether the trial court followed the requirements of [Penal Code] section 1192.5. That section provides in pertinent part that when a plea bargain is accepted by the parties and approved by the court, the defendant generally ‘cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea.’ The court ‘shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so.’ [Citation.]” (People v. Walker (1991) 54 Cal.3d 1013, 1024-1025.)
“Absent a [Penal Code] section 1192.5 admonition, we cannot assume defendant knew he had a right to withdraw his plea. But when the admonition is given, and the defendant does not ask to withdraw the plea or otherwise object to the sentence, he has waived the right to complain of the sentence later. (People v. Walker, supra, 54 Cal.3d at p. 1026.)
Here the court gave the required Penal Code section 1192.5 admonition. Therefore, Topete waived this issue by her failure to object to the court’s order suspending her license.
Moreover, “‘[i]n order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness ... under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] … If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’” (People v. Salcido (2008) 44 Cal.4th 93, 170.)
Topete did not have a license when she was arrested in this matter. Further, the record is unclear whether Topete ever had a license issued to her or it was merely expired and devoid of evidence that she ever drove. Thus, Topete has failed to show how she was prejudiced by the suspension of a privilege she apparently never exercised. Accordingly, we also reject Topete’s ineffective assistance of counsel claim.
The Other Issues
Introduction
In People v. Brendlin, supra, 38 Cal.4th 1107, the California Supreme Court held that a passenger in a car stopped by police is not seized and therefore has no standing to challenge the stop. (Id. at p. 1123; accord, People v. Saunders (2006) 38 Cal.4th 1129, 1134.) In June 2007, the United States Supreme Court issued its opinion in Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 2400] (Brendlin), reversing the California Supreme Court’s decision in People v. Brendlin, supra, 38 Cal.4th 1107 and holding that a passenger does have standing to challenge the stop of a vehicle he or she is riding in. (Brendlin v. California, supra, ___ U.S. ___ [127 S.Ct. at p. 2410].)
In Griffith v. Kentucky (1987) 479 U.S. 314 (Griffith), the United States Supreme Court held that “[a] new rule for the conduct of criminal prosecutions … applies retroactively to all cases, state or federal, pending on direct review or not yet final[.]” (Ibid.)
Topete’s defense counsel may have withdrawn his challenge to the stop of the car in which Topete was a passenger based on the California Supreme Court’s decisions in People v. Brendlin, supra, 38 Cal.4th 1107 and People v. Saunders, supra, 38 Cal.4th 1129. Consequently, on July 15, 2008, this court asked the parties to brief the following issues: 1) Did the mere fact of turning right without signaling provide the deputy with legal justification for stopping the car in which Topete was a passenger? 2) Does Griffith v. Kentucky, supra, 479 U.S. 314 allow this court to apply Brendlin to the instant case? 3) Is there any other bar to this court applying Brendlin to the instant case? and 4) If this court applies Brendlin to the instant case how should this be done, by applying its holding to the facts of the instant case as adduced at the suppression hearing, remanding the matter to the trial court to take additional evidence, or in some other manner?
The Stop of the Car in which Topete was a Passenger
Vehicle Code section 22107 provides: “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” (Italics added.)
As noted earlier, during the suppression hearing Deputy Magaña testified he stopped the car Topete was a passenger in because the driver did not signal prior to turning right.
The parties concede, and we agree, that simply turning without signaling is not enough to violate Vehicle Code section 22107. However, respondent contends Deputy Magaña lawfully stopped the car in which Topete was a passenger because it can reasonably be inferred from Magaña’s testimony that he observed the car turn right and that he made this observation from a distance close enough to be affected by it. We disagree.
The deputy’s testimony established only that he saw the driver make a right hand turn and provided no information regarding his distance from the vehicle. Thus, there is no basis in the record to infer that the deputy was close enough to have been affected by the right turn made by the vehicle in which Topete was a passenger.
Does Griffith Allow this Court to Apply Brendlin to the Instant Case?
The parties agree, as do we, that Griffith allows this court to apply Brendlin to the instant case.
Is There Any Other Bar to This Court Applying Brendlin to the Instant Case?
Respondent contends Topete forfeited her right to raise this issue on appeal by her failure to raise it in the trial court. (Cf. People v. Kennedy (2005) 36 Cal.4th 595, 613.) We disagree.
When Topete’s suppression hearing was held, even though the United States Supreme Court had granted review in People v. Brendlin, supra, 38 Cal.4th 1107, (cert. granted Jan. 19, 2007, sub. nom. Brendlin v. California, __ U.S. __, [127 S.Ct. 1145, 166 L.Ed.2d 910]) the law in California provided that a passenger in a car did not have standing to object to the stop of the car by police officers. (People v. Saunders, supra,38 Cal.4th at p. 1134.) Thus, it would have been futile for Topete to have challenged the stop of the vehicle at the suppression hearing. Accordingly, we reject respondent’s contention that Topete forfeited her right to raise this issue on appeal by her failure to object in the trial court. (People v. Hill (1998) 17 Cal.4th 800, 820 [“A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile”].)
The Appropriate Remedy
Respondent contends the record on the lawfulness of the vehicle stop was not developed because defense counsel stated he was not challenging the validity of the stop. Thus, according to respondent, under the invited error doctrine (People v. Mays (2007) 148 Cal.App.4th 13, 47) Topete should not benefit from her defense counsel’s “inducement of a meager record” on this issue. There is no merit to this contention.
As noted earlier, when the suppression hearing was held the law in California was that a passenger did not have standing to challenge the stop of a vehicle in which he or she was riding. Thus, defense counsel did not “induce a meager record” with respect to the basis for the stop because any attempt to introduce evidence as to its lawfulness should have been denied as irrelevant.
Alternatively, respondent contends this matter should be remanded to the trial court for it to conduct a hearing to take additional evidence on the reason for the traffic stop of the vehicle in which Topete was a passenger. Topete agrees remand is appropriate. We agree with the parties and will remand the matter to the trial court.
Respondent also renews its contention that even if Brendlin is applied to the instant case, the record supports an inference that the traffic stop at issue was valid. We reject this contention for the reasons previously stated.
DISPOSITION
The judgment is vacated and the matter remanded to the trial court for further proceedings consistent with this opinion. Topete shall have 30 days from the issuance of a remittitur in this matter to request a hearing for the court to take evidence on the reason Deputy Magaña stopped the vehicle in which Topete was a passenger. If Topete fails to request a hearing within the time allotted or if after the hearing the court concludes Deputy Magaña had a lawful basis for stopping the vehicle in which Topete was a passenger, the court shall reinstate the judgment. However, if after the hearing the court concludes the deputy did not have a legal basis for stopping the vehicle, the court shall dismiss the information.