IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 28, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BOBBY BYERS MCWOODSON, DEFENDANT AND APPELLANT.
(San Mateo County Super. Ct. No. SC065141)
The opinion of the court was delivered by: Haerle, J.
P. v. McWoodson
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a jury trial, appellant was convicted of two counts charged in an information filed against him, i.e., possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and misdemeanor possession of marijuana for sale. (Health & Saf. Code, § 11359.) He was subsequently sentenced to a term of six (6) years in state prison. He appeals, claiming that he was searched by the police in violation of his Fourth Amendment rights and received ineffective assistance of counsel because his trial counsel failed to file a timely motion to suppress evidence recovered from his person, and that he suffered prejudice as a result thereof.
We agree that the record strongly suggests both an improper search of appellant and ineffective assistance of counsel for not litigating that issue, and thus conditionally vacate the trial court's judgment of conviction and remand the matter to that court for further proceedings as noted hereafter.
II. FACTUAL AND PROCEDURAL BACKGROUND
At approximately 7:30 p.m. on the evening of September 15, 2007, San Mateo Police Officers Schlegel and Murphy were on uniformed patrol in the theatre district of San Mateo. Shortly before, the manager of the Century 12 Theatre had told those officers that she had "observed [appellant] smoking marijuana" while talking with a young woman (later identified as his then-girlfriend, Tiera Horton) in a courtyard area between the theatre entrance and B Street in San Mateo. As the officers approached appellant (then age 19) and Horton, they smelled burnt marijuana, though they had not seen, and did not see, anyone smoking it. One of the officers testified that the closer they got to appellant "the stronger the burnt scent of freshly burnt marijuana got." Officer Murphy explained to appellant why they had approached him and asked for identification. Appellant replied that he had no identification on him and then "raised his hands up and said . . . 'it was just a little doobie'" (i.e., a slang term for marijuana). At the time, appellant was wearing a black jacket.*fn1
The officers then advised appellant they were going to conduct a search of him for a wallet or other form of identification on him, and then commenced to pat him down to see if he was carrying a wallet in one of his pockets. According to the officers, appellant immediately became "somewhat uncooperative," and while one officer checked for a wallet the other "took control" of appellant's left hand. Appellant protested that the officers were wrong in having contacted or stopped him, and turned again, this time making a "grab towards his right side with his right hand to his waistband area . . . by his-part of his jacket." The officers were then able to gain control over both of appellant's hands, and did so to prevent appellant from possibly reaching for a weapon. They then located "some items in the front jacket pocket." The two items retrieved from that jacket pocket turned out to be (1) a "baggie full of unburned marijuana buds" and (2) "a baggie full of off-white colored substance commonly known as rock cocaine."
Altogether, the officers recovered from appellant's jacket pocket from 12 to 15 individually wrapped rocks of cocaine and marijuana and, later, $1,756 in cash from his pants' pocket. The officers handcuffed and arrested appellant.
Two other officers were called to the scene by the arresting officers; during the short time before they arrived, appellant gave his name as "Bobby Byers" to one of the officers, although in fact his true name is Bobby Byers McWoodson. Appellant provided the same incorrect name to one of the new officers, Detective Riccardi.
Riccardi took appellant to the San Mateo police station and gave him a Miranda warning, which appellant stated he understood. At that point, appellant gave his true name. Appellant explained to Riccardi that he and his girlfriend had come to the theatre in a car, had been having a fight, and that in exiting the car he had grabbed a jacket without paying attention to it, and then had taken the marijuana out of his pants pocket and put it in the jacket pocket. Then, per his testimony, he reconnected with his girlfriend Horton near the theatre, where they "made up," and then smoked some marijuana before being contacted by the two other police officers. Appellant conceded to Riccardi that the marijuana was his but the cocaine was not, and denied using cocaine. Regarding the $1,756 in cash found in his pants pocket, appellant said that Horton "had given him the money to purchase a vehicle" for her.
On October 18, 2007, a complaint was filed in San Mateo County Superior Court charging appellant with three counts, i.e., the two counts noted above and, as a third, providing false identification to a peace officer. (Pen. Code, § 148.9, subd. (a).)
On November 27, 2007, a preliminary hearing was held. The only witness appearing at that hearing was Detective Riccardi, who testified about what Officers Murphy and Schlegel had told him about their detention, search, and subsequent arrest of appellant, his later questioning of appellant at the police station, what the tests showed as to the two different drugs recovered from appellant's jacket pocket, and appellant's initial misidentification of himself. On cross-examination, Riccardi was questioned principally about his Miranda warning to appellant, and what additional information he had given appellant regarding his rights, and any inquiries appellant had on that subject, etc. After that testimony, appellant's counsel argued to the court that appellant had not been given the opportunity to make a "knowing and intelligent" waiver of his Miranda rights. The trial court rejected this argument and ordered appellant to be held for arraignment.
On December 10, 2007, the San Mateo District Attorney's office filed an information charging appellant with the same three counts as were charged in the complaint. Trial was scheduled to start on November 17, 2008. However, a few days before, specifically on November 13, 2008, appellant's trial counsel moved for a continuance, asserting that he had recently visited the "scene of the arrest and search" and that during that visit had "learned information which under the standards of professional representation require a motion to suppress be made," stated that he had "made a mistake" in not seeking such, and moved for a continuance of the trial to do so. The trial court denied the motion as untimely.
Trial commenced as scheduled on November 17. During the trial, the prosecution dismissed the false identification count, leaving only the two drug-related charges. After four days of trial, the jury found appellant guilty of those two counts; however, it found that appellant's possession of marijuana for sale to be a misdemeanor, and not a felony. The court thereafter found the allegation of a prior strike of appellant to be true.
On March 6, 2009, the trial court sentenced appellant to six years in state prison. On September 22, 2009, this court granted appellant's motion to file a late notice of appeal, which he did on October 6, 2009.
On appeal, appellant argues that the record on appeal (1) establishes, or at the very least strongly suggests, that there was an improper search of appellant, i.e., a patdown for purposes of finding some identification and (2) also shows ineffective assistance of counsel because appellant's trial counsel should have filed a motion under Penal Code section 1538.5 (section 1538.5) to suppress the drug evidence taken from the pocket of the jacket he was wearing on the day of his detention and arrest.
The record before us shows, as noted above, that those officers searched appellant's jacket pockets and found both cocaine and marijuana, as well as (later, apparently) $1,756 in cash in one of his pants' pockets. That evidence supported appellant's conviction for possessing both cocaine and marijuana for sale. Although appellant effectively concedes (by not arguing otherwise) that the two San Mateo officers had reasonable grounds to suspect he was involved in criminal activity, i.e., smoking marijuana immediately before they confronted him outside the movie theatre, he argues that the record on appeal establishes that those officers' initial patdown violated his Fourth Amendment rights.
We agree in part. We do not think the record unconditionally proves a Fourth Amendment violation, but it certainly raises significant Fourth Amendment issues, i.e., whether those officers were justified in conducting their initial patdown search of appellant, whether appellant consented to that search, and/or whether the search was conducted pursuant to a valid arrest. But because no motion to suppress the September 15 evidence was ever timely brought or heard, the issue of whether the search violated appellant's Fourth Amendment rights was never properly explored. But, as just noted, the testimony of both of the San Mateo police officers at the trial suggests rather strongly that their first patdown of appellant was to determine if he had a wallet in his clothes which might establish his identification.
Officer Schlegel was the first one to testify on this issue. Under direct examination by the Deputy District Attorney, he testified as follows:
"Q. Okay. After the defendant threw up his hands and he says it's just a little doobie, what happened next?
"A. At that point in time, I believe Officer Murphy asked him again for some identification and he continued to say he didn't have any and I asked him if he had some identification also and he still claimed that he didn't.
"Q. Then what?
"A. Then I watched him as he appeared to become a little bit more anxious. He was looking about himself, glancing over to the young lady nearby him on the bench, looking about the area and it seemed to me he was contemplating possibly trying to take off from us.
"Q. What did you do then?
"A. I reached out and grabbed his left arm near the wrist to hang on to him and told him I was going to pat him down and check to make sure whether he had a wallet or he didn't have a wallet or some type of identification on him."
On cross-examination by appellant's counsel, Officer Schlegel appeared to change this testimony somewhat, suggesting that the initial patdown of appellant was done to check for possible weapons, but then seemed to revert to his original version that it started out as a means to verify appellant's identity.
Officer Murphy's version was consistent with Officer Schlegel's initial testimony; indeed, it establishes even more firmly that the initial patdown was to check for any identification appellant might have on him, e.g., a wallet. On direct examination by the Deputy District Attorney, Officer Murphy testified thusly:
"Q. When you finally got to where the defendant was standing, what happened?
"A. I advised the subject why I was contacting him that I smelled the odor of marijuana and I asked him to see some identification.
"Q. And what was his response at this time?
"A. That time he raised his hands up and said, if I quote, it was just a little doobie.
"Q. Did he provide you with identification at that time?
"Q. Did he provide you verbal identification; give you his name?
"A. At that time, no.
"Q. What happened next?
"A. My partner advised Mr. McWoodson that he was going to check for a wallet. He got control of his left hand and started to check for a wallet. At that time, Mr. McWoodson became somewhat uncooperative.
"Q. Prior to - strike that. Your partner at this time, was that Officer Schlegel?
"Q. Prior to that, how many times had either you or Officer Schlegel asked the defendant for some identification?
"A. It was at least two or three times.
"Q. What happened next?
"A. Officer Schlegel continued to check for a wallet. In doing so, he had a control hold or had control over McWoodson's left hand. At that point, Mr. McWoodson started to motion and grab towards his right side with his right hand to his waistband area kind of by his - part of his jacket. My partner asked him to put his hand behind his back and stop reaching for the jacket or into his - into the front of his body and eventually he was able to gain control over both hands. And as he was doing that, the subject made a statement such as you shouldn't be contacting me or stopping me because I'm only 16.
"Q. What happened next?
"A. My partner continued to check for a wallet. At that time, we had some concerns what the subject was reaching for so he checked the right side of Mr. McWoodson's person and he located some items in the front jacket pocket."
On cross-examination by defense counsel, Officer Murphy made the motive for the initiation of the patdown even more explicit:
"BY MR. GRIM: Q. When - I know you asked him for it; was it you or your partner who asked him for identification?
"A. We both did. I was the initial one that asked.
"Q. And he said he didn't have any?
"Q. And what is the next thing you did?
"A. My partner, Officer Schlegel, checked him to see if he had a wallet on him. Often times in your career, people say they don't have ID, but they do have an ID.
"Q. Could you just hold it there. You say he checked him to see if he had a wallet on him?
"Q. When you say checked him, what do you mean by that word, 'checked' him?
"A. It involves patting down the outside of the clothing to see if there's a bulge for a wallet.
"Q. And if you felt a wallet, what right did you have to do about that?
"MR. FEASEL: Objection. Relevance.
"THE COURT: Sustained.
"BY MR. GRIM: Q. did you remove his wallet or did you discover he didn't have one or what happened?
"A. He did not give us a wallet and we did not discover the wallet.
"Q. Did you discover anything in his pocket?
"A. I did not."
In light of this testimony, it is appropriate to discuss the applicable legal standards. First of all, the law is, and long has been, clear that a police officer who lacks probable cause to arrest may temporarily detain an individual if the officer has knowledge of specific and articulable facts which cause him to suspect that the person is involved in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21 (Terry).) The officer may also conduct a "patdown search" of the individual for weapons if the officer reasonably believes the person may be armed and dangerous. (Id. at pp. 27-29; People v. Dickey (1994) 21 Cal.App.4th 952, 956, and cases cited therein.)
Second, to establish a claim of ineffective assistance of counsel, a defendant must show (1) his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) prejudice, that is, a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
When, as here, an ineffective assistance claim is predicated on counsel's failure to bring a motion to suppress evidence on Fourth Amendment grounds, the defendant "must also prove that his Fourth Amendment claim is meritorious . . . ." (People v. Wharton (1991) 53 Cal.3d 522, 576, quoting Kimmelman v. Morrison (1986) 477 U.S. 365, 375.) A contrary rule would be inconsistent with the requirement that the defendant must demonstrate a reasonable probability that, but for his counsel's error, the result of the proceeding would have been different. (People v. Wharton, supra, at p. 576.)
When, however, " ' "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello).) "A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (Id. at pp. 266-267.)
The Attorney General relies strongly on Mendoza Tello in arguing that the record made below is too incomplete to permit either a finding of unlawful search or ineffective assistance of counsel. We agree that we cannot make such a legal finding here based on this record, but we do not agree that, in light of the evidence in this record--especially the portions quoted above--we must affirm appellant's conviction. In Mendoza Tello, there was neither a section 1538.5 motion nor--as there was here--a request for a continuance to file such a motion. Even more importantly, there was no testimony in that case, as there was here from both officers, that the initial patdown search of appellant was to see if he had any identification on him. Additionally, and as noted above, the only testimony presented at the preliminary hearing held in this case was from Detective Riccardi, who arrived at the scene after appellant's detention, search, and arrest, and thus there was nothing in the preliminary hearing record to suggest a possibly inappropriate initial patdown of appellant.
The trial testimony of Officers Murphy and Schlegel was certainly sufficient to establish that they had reasonable grounds to stop and detain appellant because of (1) the information they had gleaned from the theatre manager that she had seen him smoking marijuana and (2) the distinct aroma of marijuana around him as the officers approached him. However, that is not the end of the inquiry: even if the officers had reasonable grounds to stop and detain appellant under Terry, that did not justify their act of patting him down for a wallet or other identification. Such is the express holding of a case very much on point, People v. Garcia (2006) 145 Cal.App.4th 782, 784-788 (Garcia). In that case, our colleagues in the Sixth Division of the Second District held that Terry does not justify a search for ordinary evidence, including identification. They stated: "A fair reading of Terry v. Ohio, and its reference to the lower court opinion in State v. Terry (1966) [5 Ohio App.2d 122], show that the 'frisk' allowable upon a proper showing was ' "only a 'frisk' for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest. Such a search is controlled by requirements of the Fourth Amendment, and probable cause is essential." ' [Citation.] Our own Supreme Court has unanimously so held. (People v. Lawler (1973) 9 Cal.3d 156, 161 [pat down search "only" for weapons].) If stare decisis means anything (and it does) and if the word "only" means "only" (and it does), the trial court was required to grant this suppression motion as a matter of law. [Citation.]" The Garcia court then concluded its discussion of this issue by expressly stating: "[T]here is no legal justification for a patdown search for identification." (Garcia, supra, 145 Cal.App.4th at p. 788.)
We are aware of no case that holds to the contrary of Garcia, and the Attorney General cites us to none.*fn2
If the officers had probable cause to detain appellant before they arrested him, or acquired such probable cause while conducting a Terry search of his person for weapons, then any subsequent search of his person for evidence was valid, and any motion to suppress that evidence would not have had merit. (Chimel v. California (1969) 395 U.S. 752, 762-763; People v. Lee (1987) 194 Cal.App.3d 975, 983-985 [officer who reliably detects contraband during Terry search can seize the item and conduct further search incident to lawful arrest]; People v. Limon (1993) 17 Cal.App.4th 524, 538 [officer's discovery of object commonly used to store narcotics, coupled with circumstances strongly indicating narcotics sales, justified arrest and search incident to arrest for evidence].) Alternatively--although there was no evidence along these lines at either the trial or in the preliminary hearing--conceivably a trier of fact might conclude that appellant voluntarily consented to the search of his pockets for identification (see People v. James (1977) 19 Cal.3d 99, 106-118), and the two officers may have reasonably discovered the contraband and other evidence during that search.
However, none of those alternative rationales possibly justifying the initial patdown of appellant were litigated or determined at or before trial. As already noted, there was no section 1538.5 hearing in advance of that trial regarding any of those issues, nor was the matter explored at the preliminary hearing. Additionally, and notwithstanding the holding of Mendoza Tello, appellant's appellate counsel has filed just an appeal in this court and not, additionally, a petition for a writ of habeas corpus regarding the ineffective assistance of counsel issue.
We conclude that the record at trial--especially the above-quoted testimony of the two arresting officers--establishes, at the minimum, a reasonable possibility that a timely section 1538.5 motion prior to trial might have been granted. We also conclude that, in light of the holding in Garcia, that testimony should have triggered a renewal, during trial, of defense counsel's motion for a section 1538.5 hearing.
We therefore conclude we must conditionally vacate and reverse appellant's judgment of conviction and remand the matter to the trial court for further proceedings. Those proceedings should include, but not necessarily be limited to, allowing and determining a section 1538.5 motion. If the trial court grants that motion or any similar or related motion, it may unconditionally reverse the judgment of conviction. If the trial court denies that or any related or similar motion, the judgment of conviction shall be reinstated.
The judgment of conviction is vacated and the matter is remanded to the trial court for further proceedings as hereinabove directed.
We concur: Kline, P.J. Lambden, J.