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THE PEOPLE v. FRANCISCO TABORA

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE


November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FRANCISCO TABORA, DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Simons, Acting P.J.

P. v. Tabora

CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Francisco Tabora (appellant) appeals his conviction by jury trial of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.)*fn1 He contends his trial counsel rendered ineffective assistance of counsel in failing to renew his suppression motion in the trial court. He also contends the court erred in imposing various fines, fees and assessments. We affirm.

BACKGROUND

On the afternoon of July 26, 2008, San Francisco Police Officer Cota and two other officers were on patrol in plain clothes and an unmarked car in San Francisco's Tenderloin neighborhood. Cota wore a police star on a chain around his chest, but could not recall whether it was "in" or "out" at that time. As they passed by the Brown Jug, a neighborhood bar associated with underage drinking, Cota saw appellant sitting at a table near the bar's door. Cota suspected that appellant might be under age 21,*fn2 decided to investigate, and told San Francisco Police Officer Watts, who was driving, to stop the patrol car.

Cota walked into the bar. When Cota was about 10 feet away, appellant looked up, saw Cota, grabbed the jacket he was holding on his lap and threw it on a chair about four feet away from him. Cota walked over to the jacket and picked it up by the collar. The jacket felt heavy, and when Cota looked down, he noticed a 20-ounce water bottle next to two baggies of suspected crack cocaine in the jacket's right pocket. Appellant was then placed under arrest. The baggies were later found to contain a total of 9.03 grams of cocaine base.

San Francisco Police Officer Guerrero, testifying as an expert in possession of cocaine base for sale, opined the cocaine rocks seized were packaged for possession for sale. The water bottle was consistent with cocaine sales because often individuals keep the plastic-wrapped cocaine in their mouths and use the water to swallow the wrapped rocks if approached by the police. He said the two baggies contained cocaine rocks of different sizes and contained more than a usable quantity. Some rocks appeared to be "$20 shots" and others "[$10] shots." One baggie had 18 of the larger rocks, with a total value of about $360. The baggie with the smaller rocks contained about 20 rocks, with a total value of about $200. Guerrero also opined that, based on the quantity of the rocks and the absence of a crack pipe or other means of ingestion, the cocaine was possessed for sale.

The Defense

Appellant testified he went to the Brown Jug to meet some friends. When he arrived, he sat down next to one of his friends at the friend's table. Appellant said the jacket with the cocaine and water bottle did not belong to him; it was already on the chair next to him when he sat down. Appellant said he did not remember touching the jacket when Cota entered the bar.

DISCUSSION

I. Trial Counsel Was Not Ineffective in Failing to Renew the Suppression Motion

Appellant contends he was denied the effective assistance of counsel because his defense counsel failed to renew his suppression motion in the trial court. He argues the warrantless search of his jacket was unconstitutional because the contents of the jacket pocket were not in plain view and he did not discard or abandon the jacket by placing it on a nearby chair within his reach. He appears to argue that Cota's handling of the jacket was an unjustified, warrantless search and therefore the motion to suppress would have been granted had it been renewed in the superior court. We disagree.

On August 29, 2008, appellant filed a motion to suppress evidence asserting that the police lacked reasonable suspicion to detain him and had no probable cause to arrest him. At the October 30 preliminary hearing, Cota testified that he and the other officers were at the Brown Jug on the afternoon of July 26 to do a "bar check" because there had been problems with underage Sureno gang members loitering in the bar. Cota saw appellant throw the jacket on the chair behind him and thought appellant might be discarding the jacket because it contained identification confirming that appellant was underage. Cota's intent was to pick up the jacket and ask appellant if the jacket contained any identification. However, when Cota picked up the jacket it seemed heavy, and when Cota looked down, he saw the bottle of water and the baggies of suspected cocaine inside the jacket's pocket.

In support of the motion to suppress, defense counsel argued that because Cota had no evidence of any wrongdoing or criminal activity by appellant, Cota's conduct in lifting the jacket and looking at it amounted to an illegal seizure. The prosecutor argued that the jacket had been discarded by appellant and the jacket and its contents were in plain view when Cota walked by, therefore there was no illegal search or seizure. The court agreed and denied the suppression motion. Defense counsel did not renew the suppression motion in the trial court.

A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) 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." (Strickland, at p. 694.)

Moreover, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 442.) "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]" (People v. Anderson (2001) 25 Cal.4th 543, 569.)

Where, as here, the claim is that counsel's performance was deficient because counsel failed to renew the defendant's suppression motion in the superior court, the defendant must show that reasonably competent counsel would have renewed the motion and that the motion would have been meritorious. (See, e.g., People v. Frye (1998) 18 Cal.4th 894, 989, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Grant (1988) 45 Cal.3d 829, 864-865.) It is well settled that "[c]counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387.) "Hence, to determine whether counsel was constitutionally ineffective for failing to preserve the issue, we must consider the merits of the Fourth Amendment argument." (People v. Hart (1999) 74 Cal.App.4th 479, 487.)

A search violates the Fourth Amendment only if the defendant had a legitimate expectation of privacy in the item seized and searched. (People v. Roybal (1998) 19 Cal.4th 481, 507.) It is the defendant's burden to establish a legitimate expectation of privacy in the item seized or searched. (Ibid.)

"It has long been settled . . . that a warrantless search and seizure involving abandoned property, is not unlawful, because the person has no reasonable expectation of privacy in such property." (People v. Parson (2008) 44 Cal.4th 332, 345 (Parson); accord, People v. Pereira (2007) 150 Cal.App.4th 1106, 1112.) "[P]roperty is abandoned when a defendant voluntarily discards it in the face of police observation, or imminent lawful detention or arrest, to avoid incrimination." (People v. Daggs (2005) 133 Cal.App.4th 361, 365.)

Abandonment can occur even if the defendant does not intend to permanently relinquish control over the object. (In re Baraka H. (1992) 6 Cal.App.4th 1039, 1048.) " '[T]he intent to abandon is determined by objective factors, not the defendant's subjective intent. " 'Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts. [Citations.] Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.' " [Citations.]' [Citation.] 'The question whether property is abandoned is an issue of fact, and the court's finding must be upheld if supported by substantial evidence.' [Citation.]" (Parson, supra, 44 Cal.4th at p. 346.)

Here, the record establishes that when Cota--dressed in plain clothes--entered the bar, appellant looked up, saw Cota, and immediately grabbed the jacket that was on his lap and threw it onto a chair about four feet away. Cota was unsure whether his police star was visible, and the record does not establish whether appellant knew or suspected that Cota was a police officer. However, we can conceive of no reason why, after looking up and seeing Cota, appellant would have suddenly thrown his jacket on a chair four feet away, other than that he knew or suspected Cota was a police officer, and was trying to distance himself from the contraband to evade its detection by police. The facts objectively indicate that appellant intended to abandon the jacket and thereby relinquish any reasonable expectation of privacy in it. Consequently, the jacket was no longer protected by the Fourth Amendment and a renewed suppression motion would have been fruitless. Therefore, defense counsel's failure to renew the suppression motion in the superior court did not constitute ineffective assistance of counsel.

II. Statutory Basis for Base Fines, Penalty Assessment, and Fees

Next, appellant contends the court erred in failing to specify the statutory authority under which it imposed the following fines, fees, penalties and assessments: (1) $140 in penalties and assessments on a $50 criminal analysis fee base fine pursuant to Health and Safety Code section 11372.5;*fn3 (2) $420 in penalties and assessments on a $120 drug program fee base fine pursuant to section 11372.7;(3) a $500 "base fine;" and (4) $1,400 in assessments on that base fine. He argues these fees should be stricken or the case remanded with directions to the trial court to identify the statutory authority for them.

As explained in People v. High (2004) 119 Cal.App.4th 1192, 1200, "Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment." Here, while the court delineated at sentencing and in the attachment to the abstract of judgment the challenged fine, penalties, assessments, and fees, it erroneously failed to include their "statutory basis." (Id. at p. 1201.) Thus, the trial court must amend the attachment to the abstract of judgment to delineate the statutory basis for each of the challenged, fines, penalties, assessments and fees.

A. Penalties and Assessments on the Criminal Laboratory Analysis Fee

The court imposed a criminal laboratory analysis base fine of $50 pursuant to section 11372.5 plus $140 in unspecified penalties and assessments.

Section 11372.5*fn4 requires the trial court to impose a mandatory $50 laboratory analysis fee when the defendant is convicted of certain qualifying offenses, including section 11351.5. This mandatory laboratory analysis fee constitutes a "fine," triggering additional penalties or assessments that must be imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses. (People v. Jordan (2003) 108 Cal.App.4th 349, 368; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257.)

When a section 11372.5 $50 laboratory analysis fee is imposed, the court must also impose a $50 penalty assessment pursuant to Penal Code section 1464*fn5 (see People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414 (Turner)); a $35 penalty assessment pursuant to Government Code section 76000*fn6 (see Turner, at pp. 1413-1414); a $10 state surcharge pursuant to Penal Code section 1465.7*fn7 (see People v. Taylor (2004) 118 Cal.App.4th 454, 456 (Taylor)); a $25 state court construction penalty fee pursuant Government Code section 70372, subdivision (a)(1)*fn8 (see Taylor, at pp. 457-458); a $5 DNA penalty pursuant to Government Code section 76104.6;*fn9 and a $5 DNA state-only penalty pursuant to Government Code section 76104.7.*fn10 Taken together, these mandatory assessments total $130.

In his reply brief, appellant concedes that the court could properly impose $130 in mandatory assessments, but disputes the additional $10 imposed. Respondent asserts that an additional $10 emergency medical services penalty was imposed on the laboratory analysis fee pursuant to Government Code section 76000.5.*fn11 Appellant argues that the record before us contains no evidence that the Board of Supervisors for the City and County of San Francisco (Board) elected to levy this additional penalty and, therefore, it should be stricken. We agree. Since the $10 amount in dispute is de minimis, striking that amount furthers judicial efficiency rather than remanding the matter for a further hearing.

B. Penalties and Assessments on the Drug Program Fee

The court also imposed a drug program fee of $150 pursuant to section 11372.7*fn12 plus $420 in unspecified penalties and assessments. In his reply brief, appellant concedes that $390 in additional penalties and assessments was properly imposed, but disputes the additional $30 imposed.

The drug program fee pursuant to section 11372.7 is a "fine" to which penalty assessments apply. (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694.) Thus, the penalties and assessments applicable to the section 11372.5 laboratory analysis fee also apply to the drug program fee under section 11372.7. Once again, appellant disputes the $30, which respondent asserts the court properly imposed pursuant to Government Code section 76000.5. As we noted previously, since the record before us contains no evidence that the Board elected to levy this additional penalty, it should be stricken.

C. The Base Fine Plus Assessments

The court imposed an unspecified $500 "base fine" plus $1400 in unspecified "assessments." As we noted above, the court imposed a $50 criminal laboratory analysis fee under section 11372.5. Section 11372*fn13 authorizes the court, in its discretion, to impose a base fine upon a person convicted of violation of, inter alia, section 11351.5, as was appellant here. The maximum fine under section 11372 is $20,000 per offense; no minimum fine is stated (§ 11372, subd. (a)). Both the section 11372 fine and the section 11372.5 fee may be imposed. (See § 11372.5, subd. (a).) The other statute providing for the discretionary imposition of a general base fine is Penal Code section 672. However, by virtue of the court's imposition of the Health and Safety Code section 11372.5 fee, imposition of a base fine under Penal Code section 672 would have been unauthorized. Thus, it is a fair inference that the court exercised its discretion and imposed the $500 base fine under section 11372.

DISPOSITION

The judgment is modified to impose $130 in penalties and assessments related to the laboratory analysis fee (§ 11372.5), and to impose $390 in penalties and assessments related to the drug program fee (§ 11372.7), as set forth in more detail herein. The judgment is affirmed as modified. The trial court is directed to amend the abstract of judgment to set forth statutory bases for the fines and accompanying penalties and assessments consistent with the calculations herein.

We concur. NEEDHAM, J. BRUINIERS, J.


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