IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
February 6, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL HARIS, DEFENDANT AND APPELLANT.
(Super. Ct. No. TF035771A)
The opinion of the court was delivered by: Hoch , J.
P. v. Haris
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following denial of his motions to suppress evidence, made initially at the preliminary hearing and then renewed in the trial court under Penal Code*fn1 section 1538.5, subdivision (i), defendant Michael Haris entered a negotiated plea of guilty to possession of methamphetamine for sale and transportation of methamphetamine. He also admitted to being armed with a firearm while possessing the substance. Pursuant to the plea agreement, several charges and enhancements were dismissed, and defendant was sentenced to a stipulated term of four years in state prison.
On appeal, defendant challenges the trial court's denial of the renewed suppression motion, arguing the trial court should have allowed him to present the testimony of two additional witnesses at the hearing on the renewed motion because this testimony could not reasonably have been presented at the preliminary hearing. He also asserts that if this testimony could reasonably have been presented at the preliminary hearing, his attorney's decision not to offer the testimony amounted to ineffective assistance of counsel. We disagree. As we shall explain, substantial evidence supports the trial court's determination that the testimony of these witnesses could reasonably have been presented at the preliminary hearing. With regard to the claim of ineffective assistance of counsel, defendant has not demonstrated a reasonable probability that the suppression motion would have been granted had his attorney secured the witness testimony. We therefore affirm the judgment.
Because defendant's initial motion to suppress evidence was brought at the preliminary hearing, we summarize the facts adduced during that hearing. (See People v. Moore (2006) 39 Cal.4th 168, 171; § 1538.5, subd. (i).)
Defendant drove an orange Honda Element through the intersection of Emerson Avenue and Bessie Avenue in Tracy. Loud music coming from the Element caught the attention of detectives Timothy Brown and Scott Muir of the Tracy Police Department, who were in a police vehicle about 50 feet away. Brown recognized defendant's passenger, Robert Scott, from previous arrests and knew him to be on searchable probation. The detectives followed the Element to Tracy Boulevard, where defendant made a left turn without signaling, and then "came to an abrupt stop, almost colliding with two young children crossing the street." Defendant then continued down Tracy Boulevard, changing lanes without signaling, and stopped at a red light at Lowell Avenue. At this point, Scott looked over his shoulder and appeared to recognize the detectives. The music was promptly turned off. Defendant continued down Tracy Boulevard and pulled into the parking lot of a check cashing business.
After defendant parked, Scott quickly emerged from the Element. But the detectives had also entered the parking lot. Detective Muir was the first to exit the police car. He called out "police" and made contact with Scott. Detective Brown then approached defendant, who had also stepped out of the Element. While Brown was wearing plain clothes, his badge was clearly visible on his belt. Brown identified himself as a police detective and asked defendant for his driver's license. Defendant stood facing the detective; he was wearing "a loose fitting jacket and pants" and "was grasping and reaching at his pockets like frantically." Concerned that defendant could be armed, Brown told him to "stop reaching and grabbing at his pockets." Defendant continued to do so. Brown then asked whether defendant had any weapons on him. Defendant responded: "What did I do?" He then "began to walk backwards towards his open driver's door." Brown ordered defendant to stop, but defendant "continued to walk backwards," prompting Brown to grab defendant's wrist and pull him away from the Element. Defendant tried to escape the detective's grasp and was arrested for resisting a peace officer in the lawful exercise of his duties.
Defendant was patted down and searched incident to his arrest. Detective Brown found a loaded handgun in defendant's right front pants pocket, another loaded handgun in his right rear pants pocket, and an unloaded handgun in his right front jacket pocket. Brown also found a cell phone and three padlock keys. The cell phone contained several digital photographs of assault weapons and large sums of money. After defendant identified himself, a call to dispatch revealed that he did not have a driver's license. The Element was also searched incident to defendant's arrest. In the driver's side ashtray compartment, police discovered about 30 small Ziploc bags containing methamphetamine. A digital scale was found behind the front passenger's seat. These circumstances led Brown to believe that defendant was "selling narcotics and firearms."
Detective Brown asked for defendant's address, which defendant provided, explaining that he lived with his wife and mother-in-law, Annette and Elly Reed.*fn2 Detectives then contacted these women at the address defendant provided. Brown identified himself, explained that he wanted to talk to them about defendant, and asked for consent to do a protective sweep of the house. Elly agreed. During the protective sweep, Brown saw a receipt for a storage unit in plain view on the master bathroom counter. When he asked Annette and Elly about the storage unit, both explained the unit was rented in Annette's name, Elly paid the bill, and defendant was the only person who had access to the unit.
Detective Brown then asked for consent to conduct a more extensive search of the house. He read a consent form to Annette, who had an accent but "spoke great English." Annette signed the consent form. Elly had also been speaking English, but asked Annette to translate the form for her. After Annette had done so, Elly signed a separate consent form. Detectives then searched the house. In an office room, they found "a large duffle bag that contained four plastic bags," each containing about "a half pound of marijuana." One of these bags also contained "several smaller plastic bags" also containing marijuana. Both Annette and Elly stated that they "did not know anything about [the marijuana]" and that they "respected [defendant's] privacy." Detectives secured a warrant to search the storage unit. About an ounce of methamphetamine and a handgun were found in the unit.
At his preliminary hearing, defendant challenged the reasonableness of the pat-down search following his arrest in the parking lot of the check cashing business. His counsel, Deputy Public Defender Teruel, argued that Detective Brown did not have a reasonable suspicion that defendant was armed and dangerous at the time of the pat-down search. Teruel also argued that Annette and Elly did not voluntarily and intelligently consent to the search of the house, explaining: "The [mother-in-law], Your Honor, speaks another language. [Detective Brown] conceded that she had an accent and that she did not -- he did not offer to get her an interpreter, and that in fact most of the time the wife needed to intercede as an interpreter because she couldn't understand." Teruel further argued that "there was no reason for a protective sweep," and because detectives "would not have found the [storage unit] receipt if they had not illegally entered the home," evidence secured from the search of the storage unit should also be suppressed.
The magistrate denied that suppression motion and held defendant to answer. The magistrate explained that the search of defendant's person was lawful because defendant was properly arrested for resisting a peace officer in the lawful exercise of his duties. The magistrate also explained that the vehicle search was lawful incident to defendant's arrest and because Scott was on searchable probation, and that the items seized would have been discovered during an inventory search after the vehicle was impounded.
With respect to the search of the house, the magistrate ruled that the prosecution showed by a preponderance of evidence that Annette and Elly knowingly and voluntarily consented to the search, explaining: "Well, unfortunately we don't have their side of it. I think the prosecution has met [its] burden [with Detective Brown's testimony that] he did ask them for consent. They did speak in English. Even though it may not have been their native tongue, they did discuss [the matter] in such [a way] that he didn't feel he needed an interpreter. He said [the mother-in-law] did understand, although later they did use the services of the wife as an interpreter. It was certainly enough to consent to invite them in, and I think it's certainly proper in this day and age for the officers to do a protective sweep. They don't know who is in there. They just found three weapons on [defendant], so they don't know who is in the house, who may be armed, what else may be going on. So I think the protective search at that point was reasonable. [¶] The testimony, as I recall it, was that [Detective Brown] then saw the receipt. He didn't pick it up, he saw it in plain view. He had a right to be there to conduct the protective search. He then went back and talked to her and said I saw a receipt, what's that receipt to, and then they got the search warrant [for the storage unit]. So I'm going to deny the motion as to the consent, at least in as far as that the prosecution met their burden to show a preponderance [of evidence]. And the burden shifted to the defense then to show that it wasn't consensual. You presented no evidence on that."
Defendant renewed the suppression motion in the trial court. By this point, defendant's case had been transferred to Deputy Public Defender Lu, who asked to be allowed to present additional testimony from Annette, Elly, and defendant. Following a hearing on this issue, the trial court ruled that the testimony of these witnesses could reasonably have been presented at the preliminary hearing and denied the request. The trial court then reviewed the preliminary hearing transcript and confirmed the magistrate's decision denying the suppression motion.
Renewed Suppression Motion
Defendant contends the trial court prejudicially erred by precluding him from presenting the testimony of Annette and Elly at the hearing on the renewed suppression motion. We disagree.
A criminal defendant may challenge the reasonableness of a search or seizure by bringing a motion to suppress evidence at the preliminary hearing. (§ 1538.5, subd. (f); People v. Torres (2010) 188 Cal.App.4th 775, 783; People v. McDonald (2006) 137 Cal.App.4th 521, 528-529.) If the defendant is unsuccessful at the preliminary hearing, he or she may renew the suppression motion in the trial court. However, section 1538.5, subdivision (i)*fn3 , "removes the right of a defendant to have a de novo hearing in the superior court on a suppression motion if the motion was made at the preliminary hearing. Evidence at the superior court section 1538.5, subdivision (i) hearing is limited to the preliminary hearing transcript and evidence which could not reasonably have been presented at the preliminary hearing." (People v. Drews (1989) 208 Cal.App.3d 1317, 1324; § 1538.5, subd. (i).) Whether evidence reasonably could have been presented at the preliminary hearing is predominantly a factual question and its determination is reviewed under the substantial evidence standard. (See People v. Gonzales and Solis (2011) 52 Cal.4th 254, 284 [factual determinations reviewed for substantial evidence]; see also People v. Velasco (2011) 194 Cal.App.4th 1258, 1262 [substantial evidence standard applies to the factual determination that the state acted in good or bad faith in failing to preserve evidence].)
Defendant argues the testimony of Annette and Elly could not reasonably have been presented at the preliminary hearing because Teruel "had no basis to suspect that either [woman] may have language issues" until the night before the preliminary hearing when she reviewed an audio recording of their discussion with Detective Brown regarding consent to search the home. According to defendant, "by that time, it was too late to conduct an investigation to determine the extent of the language problem and whether or not Annette and Elly understood the consents they had given the police let alone to evaluate whether there was any reason not to present them as witnesses." Teruel also believed that "seeking a continuance was out of the question and feared anger from the court and the deputy district attorney." Finally, the public defender's office was "short staffed and the attorneys were overloaded and could not conduct full investigations before preliminary hearings. Additionally, the office's investigative staff was also understaffed and it took over a month for investigators to comply with requests to interview witnesses."
The trial court rejected these arguments, explaining: "[Defense counsel Teruel] knew from the beginning that [a motion to suppress evidence] would be filed based on her review of the police report. The issue of consent did not jump out at her. And I think if there is any question about when it jumped out to her, it was, you know, when she heard the audio tape. But she -- the reality of it is, she did not ask the Court for a continuance on that day." The trial court explained that aside from requesting a continuance, Teruel could have withdrawn the suppression motion and proceeded with the preliminary hearing. This would have allowed her to investigate the consent issue, file a suppression motion in the trial court, and call Annette and Elly at the hearing on that motion. The trial court also found that the public defender caseload, i.e., "150 to 200 cases divided by three attorneys, is not an oppressive caseload at all. But if that were the case, a request could have been made to be relieved, because that staffing precluded the provision of Constitutionally effective assistance. None of those things happened." The trial court further explained: "I haven't heard any testimony that attempts were made to find these people, that they were unavailable somehow within the definition of Evidence Code Section 240, defining unavailability.*fn4 So as far as the request for a special hearing on those grounds, clearly, those grounds are not supported by the evidence here before the Court."
The trial court's assessment of the situation is supported by substantial evidence. Teruel knew about Annette and Elly well before but certainly on the day of the preliminary hearing. She knew that they gave consent to search the house. She also knew, based on the audio recording, that there was an issue concerning whether they understood the consent they were providing. Regardless of language barriers, defense attorneys invariably raise consent as an issue. Indeed, Teruel argued this very issue at the preliminary hearing. If she wanted to call Annette and Elly as witnesses, she could have asked for a continuance in order to secure their presence. After failing to take advantage of that opportunity, defendant cannot now claim that their testimony could not reasonably have been presented. (See People v. Drews, supra, 208 Cal.App.3d at p. 1326 [testimony could reasonably have been presented at preliminary hearing where counsel knew of the witness before the hearing but did not subpoena him, and did not ask for a continuance to secure his presence].)
Nevertheless, defendant argues the trial court should not have relied on the Evidence Code definition of "unavailable" because, regardless of whether Annette and Elly were technically available to be called as witnesses at the preliminary hearing, Teruel "had no resources with which to procure the attendance of these witnesses" and "could not have exercised any more reasonable diligence than she did." We disagree. First, contrary to defendant's argument, the trial court did not rule that these witnesses could reasonably have been presented at the preliminary hearing solely because they were available within the meaning of the Evidence Code. Second, whether a witness was available to testify at the preliminary hearing is a relevant consideration for the trial court in determining whether that witness's testimony could reasonably have been presented at that hearing. (People v. Drews, supra, 208 Cal.App.3d at p. 1326.) Despite Teruel's claim to have been unable to subpoena Annette and Elly the night before the preliminary hearing, she certainly could have called them to ask for their voluntary appearance. She chose not to do so. And, as the trial court correctly observed, Teruel could have asked for a continuance to secure their presence. Nor does Teruel's purported fear that the magistrate and district attorney would have been angry if she asked for a continuance demonstrate that Annette and Elly could not reasonably have been presented.
Defendant also complains that the trial court used the content of the audio recording to rule that the suppression motion would not have been granted even had Annette and Elly testified. The trial court did not rely on the audio recording to determine whether or not to allow the witness testimony. The trial court's statement was made in response to the ineffective assistance of counsel argument. It was in this context that the trial court stated that Teruel could have made a strategic decision not to call these witnesses and that defendant did not suffer prejudice because "a 1538.5 grounded on the notion of consent, listening to the tape, anyway, would not have been granted." Thus, this statement was not part of the trial court's decision to disallow the additional testimony. And, in any event, Lu provided the trial court with the audio recording and stated that he had "no problem" with the court listening to the recording in order to "hear the English capabilities of both [Annette and Elly] as would have been heard by counsel who represented the defendant at the preliminary hearing the night before." Any error was therefore invited by defendant and may not be raised on appeal. (People v. Lawley (2002) 27 Cal.4th 102, 165.)
Because substantial evidence supports the trial court's determination that the testimony of Annette and Elly could reasonably have been presented at the preliminary hearing, we must affirm its decision to disallow this testimony at the renewed suppression hearing.
Ineffective Assistance of Counsel
Defendant also asserts that "if the facts surrounding the staffing of the public defender's office, the chain of events leading to the preliminary hearing and [Teruel]'s reasons for not asking for a continuance do not provide an adequate explanation to show that the witness testimony could not reasonably have been presented at the preliminary hearing, then [defendant] was clearly denied effective assistance of counsel." We are not persuaded.
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (Ibid.)
The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) "'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] 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."'" (In re Harris (1993) 5 Cal.4th 813, 832-833; see also People v. Ledesma, supra,43 Cal.3d at pp. 216-217; accord, Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
We need not determine whether Teruel's decision to proceed with the suppression motion at the preliminary hearing without securing the testimony of Annette and Elly fell below an objective standard of reasonableness because we find no prejudice. As already mentioned, defendant offered the audio recording into evidence to demonstrate the English proficiency of Annette and Elly. After reviewing the recording, the trial court commented: "Annette has no problem speaking English, from what I hear in here, and she's the one who gave consent, as far as I can tell, to relevant areas. And I don't see what the language issue is here at all." While the trial court also noted that Elly "had some challenges understanding what the officers were requesting," Detective Brown testified that Annette translated the consent form for her mother. Like the trial court, we do not believe it to be reasonably probable that the suppression motion would have been granted had Annette and Elly testified.
The judgment is affirmed.
We concur: RAYE , P. J. NICHOLSON , J.