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The People v. Michael Haris

February 6, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL HARIS, DEFENDANT AND APPELLANT.



(Super. Ct. No. TF035771A)

The opinion of the court was delivered by: Hoch , J.

P. v. Haris

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BACKGROUND

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]" ...


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