(Lake County Super. Ct. Nos. CR908439, CR908705), Hon. Arthur H. Mann.
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PUBLICATION
This is our second review of two 2006 Lake County Superior Court drug cases against Charles Thomas Jones. In the first case (No. CR908439), Jones was found guilty upon his "slow plea"*fn1 of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), one of three charges, with strike and prison-term enhancements found true. In the second case (No. CR908705), Jones entered a negotiated guilty plea to possessing methamphetamine (id., § 11377, subd. (a)) and misdemeanor possession of tear gas (Pen. Code, § 12420), two among 10 counts, plus admitted enhancements. At consolidated sentencing, Jones received a total prison term of 10 years four months.
Jones previously appealed in both cases (Sept. 30, 2008, A119995 [nonpub. opn.]). We vacated the judgments in part, holding that the court erred in refusing to hear a motion alleging ineffective assistance of counsel affecting the result of the first motion to suppress. Our remand directions were that the court take evidence on the renewed claim. If it found ineffective assistance, it would rehear the suppression motion and, if suppression were warranted, set a retrial of the first case and a resentencing in the second. If ineffective assistance was not found, the judgments would stand in each case.
At an evidentiary hearing on remand, the trial court found no ineffective assistance. We disagree and shall vacate the judgment in the first case and remand the matter to the trial court for further proceedings.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts of the offenses are unimportant to the appeal except that the evidence against Jones in the first case derived from a nighttime stop of his vehicle on February 26, 2006, for running a stop sign at an intersection.
On Jones's suppression motion, the critical issue was the truth of Police Officer Greg Piccinini's statement that he saw Jones run the stop sign. (Veh. Code, § 22450.) Apparently conceding that this relatively minor traffic offense was enough to justify the stop and even a custodial arrest (People v. McKay (2002) 27 Cal.4th 601, 605, 607, 618), Jones claimed he came to a complete stop at the sign, Piccinini could not from his position have seen whether he stopped, and the stop was pretextual. These claims were unsuccessfully advanced in a 2006 suppression motion filed and litigated by Jones's original counsel, Thomas Quinn.
A. Evidence at the 2006 Suppression Hearing
The hearing on Jones's motion to suppress was heard on July 31, 2006. Presenting no witnesses in support of the motion, Quinn relied on his cross-examinations of Officer Piccinini and Officer Timothy Hobbs, one of two other officers who quickly appeared at the scene after Piccinini made the stop.
Piccinini testified that at about 9:30 p.m. on February 26, 2006, while he was travelling north on Park Street toward its intersection with Arrowhead Road in the City of Clearlake, he saw a green sport utility vehicle (SUV) travelling east on Arrowhead after running the stop sign at the intersection of Park and Arrowhead while moving at about five miles per hour. Piccinini turned right from Park onto Arrowhead to follow the vehicle after it crossed Park, and conducted a traffic stop near the intersection of Arrowhead and Mint Street, about 150 yards east of Park Street. About a minute later, Clearlake Police Sergeant Celli arrived at the scene, asked the driver, Jones, if he could search his vehicle, and was told he could. Piccinini noticed repetitive speech and body movements suggesting Jones was under the influence of a controlled substance and for that reason called Officer Hobbs to the scene. Hobbs arrived in four or five minutes. Officer Celli found $160 in $20 bills in Jones's SUV. Jones was arrested for being under the influence of a controlled substance.
On cross-examination that could not have lasted more than 10 minutes, Quinn showed Piccinini photographs taken of the intersection of Park and Arrowhead by Quinn and Amber Westphal, Jones's "partner" and the mother of their children, who was Jones's co-defendant in the second case. Because Quinn and Westphal did not testify and no defense witnesses were presented, the probative value of the photographs, if any, was never explained by the defense. In any case, Quinn asked Officer Piccinini whether he recognized three of the photographs (marked for identification as exhibits A, B, and C) as being of the intersection of Arrowhead and Park. Piccinini said he did, and the three exhibits were received into evidence without objection.
Moving to another issue, Quinn asked Piccinini whether he had received information that evening about Jones from the Lake County Narcotics Task Force. Piccinini said he had, and that at the time he made the stop "I was actually going out that direction to see where [Jones's] vehicle was going." Piccinini was unable to explain why Officer Celli arrived at the scene so quickly, apparently without being asked. Quinn never asked Piccinini why he needed the assistance of Officer Hobbs, nor did he pursue Hobbs's later testimony that he was called to the scene by Officer Celli, not Officer Piccinini.
At the beginning of his testimony, Piccinini stated he was travelling north on Park about 30 yards south of the intersection with Arrowhead when he saw Jones slowly run through the stop sign. Later, when Quinn referred to that earlier statement, Piccinini asked to see the photographs Quinn had offered in evidence and, pointing to an area of a particular photo unidentified by the court or counsel, said: "I was somewhere in the area past this driveway... around this area right here where I was visible to see his headlights coming to this stop sign where he did not complete the stop and continued to go through and down on to Arrowhead here." At that point, Piccinini pointed to a telephone pole depicted in the unidentified photograph. Reminding Piccinini of his previous testimony that he was 30 yards from the intersection when he saw Jones's vehicle, Quinn pointed out that the pole was closer than 30 yards. After Piccinini answered that "I would estimate it [as] approximately 30 yards." Quinn stated that he had no further questions. Thus, the only testimonial use made of the photographs taken by Quinn and Westphal was by Piccinini, who asked and was allowed to use an unidentified photo to show where he was located when he saw Jones run the stop sign.
Officer Hobbs testified that he was called to the scene by Officer Celli, not Officer Piccinini, as the latter had testified. After examining Jones, Hobbs concluded he was under the influence of a controlled substance, "probably methamphetamine," and arrested him. After Jones was given and waived his Miranda*fn2 rights, he admitted he had used methamphetamine an hour and a half earlier.
At the close of the one-day hearing, the motion to suppress was denied. About three months later, on March 14, 2007, new counsel for Jones filed a second motion to suppress, alleging that it was authorized under Penal Code section 1538.5, subdivision (h), because the grounds for this second motion were not raised the first time due to ineffective assistance of counsel. On April 2, 2007, the court declined to hear the motion, because it would entail relitigating issues already decided, and also denied new counsel's request to call witnesses to establish the basis for his offer of proof regarding the ineffective assistance of counsel Jones allegedly received on his first motion to suppress. As earlier noted, we remanded this case to the trial court in 2008 with instructions to inquire into Jones's 2007 claim of ineffective assistance of counsel.
B. Evidence at the 2009 Hearing on Ineffective Assistance of Counsel
The hearing on whether Jones received ineffective assistance of counsel was conducted on three days over a period of three and a half months in 2009: April 13th, July 27th, and August 13th.*fn3 Jones and Quinn testified on the first day of the hearing. Professional-standards expert Keith Faulder also testified on the first day of the hearing in April, and investigator Richard Biggs, claimed eyewitness Samantha Sutch, and Jones's "partner," Amber Westphal, all testified at the second day of the hearing in July. The court delivered its decision from the bench on the last day of hearing in August.
Jones testified that on the night of February 26, 2006, he was arrested for running a stop sign on Arrowhead Road in the City of Clearlake at the intersection of Arrowhead and Park Street. Jones explained why the configuration of the intersection is "unusual." As one approaches it from Park "you can't even see Arrowhead Street at all... until you come up around that sharp corner. You've got to be right on the stop sign coming around that corner to see that stop sign." Jones stated that, because the stop sign on Arrowhead is set back from the intersection with Park, a driver on Park must roll forward and peer around dense trees and bushes "to make sure it's clear" before entering the intersection. Jones recalled coming to a full stop at the sign. He felt that the traffic stop was a pretext, not only because he did not run the stop sign, but also because he had seen task force officers drive by his house before he left that night.
Two of Jones's friends, Samantha Sutch and Marty Franceschi,*fn4 left his house at about the same time Jones did. While the couple did not follow him and had taken a different route, they were right behind him at the stop sign. As far as Jones knew, they did not remain at the scene when he was pulled over.
Jones said he told Quinn about the two percipient witnesses at every meeting he had with him, and told him the stop was "bogus" when he first met him at his arraignment. He gave Quinn the witnesses' common phone number and assumed Quinn would contact them. Quinn wrote down the number the first time, but also asked for it again later. Although Jones pursued this matter repeatedly, Quinn never contacted Sutch or Franceschi.
Quinn filed a suppression motion challenging the traffic stop and ensuing search. On three separate occasions prior to the hearing on the motion, Jones asked Quinn to get an investigator to help establish that Piccinini's claim to have seen him run the stop sign was physically "impossible." Quinn failed to do so, telling Jones "there was 12 public defenders and only one investigator."*fn5 Shortly before the hearing, when it became clear Quinn would not or was unable to obtain the services of an investigator, Jones asked Westphal to take photographs of the stop sign and other areas of the intersection and Jones gave the photos to Quinn, who offered three of them in evidence.
Jones testified that Sutch and Franceschi attended the suppression hearing and he pointed them out; telling Quinn "that's them right there, those are my two witnesses right there." Quinn did not ask either to testify, however, telling Jones "we didn't need them." After the hearing ended and Jones asked Quinn why he did not call them as witnesses, Quinn reiterated that "we didn't need them," adding that the pictures he and Westphal had taken "would have been enough." Jones complained about this and also about the small size of the three photos Quinn placed in evidence, and the failure of anyone to explain "where those pictures were taken from, what angles those pictures were taken from."
Jones testified that though the stop was made by Officer Piccinini, Officer Celli showed up in a separate patrol car at almost the same time, and a third policeman, Officer Hobbs, also quickly appeared at the scene. Asked whether he "suspected that the traffic stop was based on something other than the fact that you were allegedly running a stop sign," Jones said he did and explained that immediately before the stop, as he left his house, he saw a member of the local drug "task force" drive by. Immediately after his arrest, Jones was placed in a "holding tank," and a task force agent named Anderson tried to interview him. One of the reasons Jones wanted Quinn to obtain an investigator was to develop the information necessary to show that the traffic stop sign was pretextual.
Quinn's testimony at the hearing was exceedingly equivocal. The gist of it is provided in a declaration he inexplicably filed three weeks earlier. Stating that he learned from our 2008 opinion that he was alleged to have provided Jones ineffective assistance in pursuing the suppression motion, Quinn declared that due to the lapse of time his recollection of the case was "somewhat limited." He allowed that "at least one name, Samantha Sutch, was provided to me by Mr. Jones, but I cannot recollect with certainty that this was done prior to the [suppression] motion." At some unidentified point, Quinn contacted Sutch by phone "and was told by her that she and another individual actually were in a vehicle or vehicles immediately behind Mr. Jones['s] vehicle and saw his vehicle come to a complete and lawful stop at the stop sign at the intersection involved in the incident at issue in the suppression motion."
Based on the foregoing, Quinn allowed that "I surely should have taken note of the names, addresses and phone numbers of any witnesses... that were provided to me prior to the hearing and should have proactively queried my clients[*fn6 ] regarding any such potential persons and should have subsequently had my investigator interview them." Stating his belief that "I made a good faith effort to do the best job possible for my client at the time," Quinn also acknowledged that "it is entirely possible that due to the press of business or my relative inexperience with suppression motion practice at the time, that I neglected to note this information or contact these witnesses in a timely manner to the potential detriment of this case." Quinn also stated that he had "no tactical reason" for failing to call a single witness at the suppression hearing and "did not intentionally fail to do so."
Quinn had been a contract public defender for Lake County for about three years, and had previously worked for about three months for the Mendocino Public Defender, where he first began working on criminal cases. He recognized how crucial it was for Jones to attack the legitimacy of the traffic stop, which was the "the linchpin" in both of the cases against him, because fruits of the traffic stop in the first case had contributed to a warrant search of Jones's residence that produced the charges against Jones and Westphal in the second case. Jones told Quinn why he believed the traffic stop "was motivated by some reason or some ground other than simply he rolled through or ran through a stop sign." Quinn could not recall the exact reason, but it had to do with the fact the police "had knowledge that he had some contraband on him and they wanted to have a pre-textual stop."
Quinn did not obtain investigative assistance because contract public defenders in Lake County had access to a single investigator unable to satisfy all of their needs for his services. Although he could not recall telling Jones "there's 12 public defenders and there's one investigator so we don't have the resources to investigate all cases," he may have done so because "I made statements like that to clients before." Quinn stated that, given the inability of the single defense investigator to serve all of their needs, contract defenders had to "prioritize our cases" so that "a murder case is going to have more of a priority over, say, a DUI." Quinn's decision to proceed without an investigator was apparently also based on his belief that he was capable of making the necessary investigation of the scene and taking photographs, as was Amber Westphal, who "was very motivated to assist in the defense."
In the course of his own investigation, Quinn noticed that the configuration of the intersection was "unusual" in that Arrowhead was at a higher elevation than Park; "one street goes up a hill and then the stop sign is kind of... obscure in a lot of locations... when you're coming up the road there.... So there's a real issue as to whether--whether an officer or anybody could really--really see--you know, could see whether if someone rolled through that stop or not." Asked whether, from analyzing the police report and discovery materials he had been provided indicating where Officer Piccinini was when he made his observations, he attempted "to determine where that officer was standing relative to the intersection to see if he could actually visually see the stop sign and the limit line from where he claimed to be standing?" Quinn responded that he did. "As I recall from the discovery there, he said that he was at the intersection of another street. I think it began with an M, Milton or Morton or something. And so I went there, and I looked up there, and I took photographs, and it seemed somewhat curious as to whether he could see it there. Of course, there could be issues as to the time of year and the amount of foliage and so on, but it's not a wide open scenario at all."
Quinn believed Westphal did "an excellent job" taking photographs of the area. Between them, they had two or three dozen photos, and for purposes of checking the intersection and circumstances, Quinn felt that he and Westphal had investigated "thoroughly." He attached about nine color photographs as exhibits to the suppression motion, which he filed after unsuccessful efforts to get a "decent offer" and after difficulty in getting Quinn free on bail.
Quinn felt sure there were observers at the suppression hearing, but none that were memorable. He asked Jones, "did you bring your witnesses, and he kind of said no." Counsel inquired whether Quinn asked Jones that question because "you were aware that he had told you before the hearing date that, in fact, he had a couple of witnesses that might have some material information to present," and Quinn responded, "That's a fair inference." Quinn did not recall knowing the names or any contact information for witnesses; nor did he recall seeking a continuance. Jones did not chide him then for not calling witnesses. His first complaint came months later, as the trial date approached.
Elsewhere in his testimony, Quinn emphasized his inability to clearly remember whether, at the time of the suppression hearing, he knew Sutch and Franceschi were willing to testify in behalf of Jones. Although he was certain the two did not attend the suppression hearing, as Jones claimed, he consistently left open the possibility he knew of these witnesses prior to the hearing and negligently failed to contact them. For example, after stating that his "first memory" of being told about Sutch was after the suppression hearing, Quinn stated that, "in all fairness, I think [Jones] did... mention to me that there were people who had witnessed this traffic stop prior to the suppression hearing. The question was who are these people and how could we get in touch with them?... I'm pretty confident that he did mention to me--you know, it's not just like after the suppression hearing he said there were people there. I do recall that on... more than one occasion... there were a lot of other things that we were talking about in dealing with his case, his bail issues. He had a child that... had some kind of heart surgery. There... were a lot of issues involved. There was this other case and so on. So, yeah, he definitely told me that there were some people that had witnessed the case and in this--you know, that a witness had stopped, and if they could contact them, they could corroborate, you know, his--you know, what he said and heard."
Quinn acknowledged the possibility he had been given Sutch's and Franceschi's names and contact information prior to the suppression hearing at several other times in his testimony. For example, after stating that he did not remember talking to Sutch prior to the suppression hearing, Quinn added that "in all fairness, I think he may have mentioned her prior to that time. I don't know if he... gave me her number, and I may have, just due to the press of business or forgetfulness or various other reasons, have neglected or forgotten to call that number prior to that time." Quinn was subsequently asked, "do you remember specifically if [Jones] had told you 'I have witnesses that were at the scene that can testify as to what they saw?' " He answered, "I think so," and affirmed that this happened "before the motion to suppress." Asked whether Jones provided him the names of the witnesses, Quinn was unable to recall, stating "[h]e may have given me their names or their first names," but "the issue for me is whether he had given me their contact information or not." Quinn remembered a conversation in which he "mentioned" to Jones the need for his help in getting witnesses and Jones "said he was going to help me get these witnesses. But it's possible that he gave me this phone number and due to--due to my--due to negligence that I forgot to--I forgot to call the number. I mean, you know, I'm not perfect. I make mistakes."
When Quinn's attention was called to the fact that Sutch's name and phone number had been handwritten on a page in his file on Jones's case, Quinn acknowledged he put this information there, but said it did not clearly indicate "when I became aware of that information." Quinn admitted, however, that the notation may have been made prior to the suppression hearing: "It may have been in there from before and I may have just neglected to call it before. In other words, he may--there may be an entry there from before, and then maybe he may have, you know, really made an issue of it later on and then I called, so--but--so, I mean, any entry as I recall--any entry that I have that--since we don't have a clerical staff the way the district attorney does or the way, you know, maybe some private lawyers that can afford them do, I do all my own work, secretarial work, all of it. I don't recall that there was any dated entry in the file except the one from maybe February/March of '07. However, as I do recall, I did write her name at the top of my docket sheet there, so I recall being there. So that may have been there from before [the suppression hearing]. And I may--I may have seen that name and not really, you know... correlated who she was and why I needed to contact her, so I may have had that number from before."
Near the end of this portion of his testimony, Quinn was reminded that he received a letter from Jones in 2008 asking why he failed to call particular persons as witnesses at the suppression hearing. In a letter dated September 24, 2008, Quinn responded by stating that his recollection was that Jones and Westphal "were going to bring witnesses to court on the day of the suppression hearing." When counsel asked whether this was why, at the suppression hearing "you asked Mr. Jones are your witnesses here," Quinn answered, "[y]es." After counsel asked whether Quinn ended his letter to Jones by stating, "It's entirely possible that you, Mr. Jones, or your wife may have provided me one or both of those names prior to the hearing and that I neglected to note or forgot to contact those persons prior to the hearing," Quinn answered," "That's what I told him, and I would affirm that statement."
Keith Faulder practiced for many years in the Mendocino County District Attorney's Office, where he served as chief trial deputy and eventually assistant district attorney, as a criminal defense lawyer in California and Arizona, and as a state-licensed criminal investigator for the alternate public defender in San Diego County. His testimony related to "the standard... of competence ...