Opinion
H036354
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. GUNTHER GEORGE GUTIERREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC961905)
Defendant Gunther George Gutierrez moved at the preliminary examination to suppress evidence seized from his truck on the ground that the police officer who stopped his truck lacked probable cause to believe he had violated the Vehicle Code. (Pen. Code, § 1538.5.) The magistrate denied the motion and held defendant to answer. After an information was filed, defendant pleaded no contest to possession of a firearm by a felon (§ 12021, subd. (a)(1)), possession of ammunition by a prohibited person (§ 12316, subd. (b)(1)), and misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a)). The trial court suspended imposition of sentence and placed defendant on formal probation for three years with various terms and conditions, including that he serve 240 days in jail.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that trial counsel rendered ineffective assistance by (1) failing at the preliminary examination to also challenge on Fourth Amendment grounds the impoundment of his vehicle as a pretext for a search, and (2) failing to raise the challenge again, as necessary, before the superior court.
For reasons that we will explain, we will affirm the judgment.
BACKGROUND
Defendant was charged by felony complaint with possession of a firearm by a felon (§ 12021, subd. (a)(1); count 1), possession of ammunition by a prohibited person (§ 12316, subd. (b)(1); count 2), and misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a); count 3). Relevant to this appeal, the evidence presented at the preliminary examination was as follows.
San Jose Police Officer Fabien Wilkinson testified that he was in a patrol vehicle when he observed a pickup truck on the road. He believed the truck had a very loud exhaust and had a license plate less than four inches off the ground in violation of the Vehicle Code. Officer Wilkinson initiated a traffic stop by activating the lights and sirens on his patrol car and repeatedly instructing the driver to pull over. After approximately two minutes, and after driving five or six city blocks, the driver pulled into a "private residential complex" and then "into a parking spot" at the complex. Defendant, who was driving the truck, told the officer that he did not have a driver's license and provided the officer with a DMV printout that included his name. A records check revealed that defendant had a suspended license and an outstanding warrant for his arrest for driving on a suspended license. At that time, Officer Wilkinson placed defendant under arrest on the warrant, and for driving on a suspended license and evading police.
In the truck with defendant were two 13-year-olds, one of whom was defendant's child. The mother of defendant's child lived at the apartment complex that defendant had pulled into.
Officer Wilkinson decided to impound the truck because the driver, defendant, was being arrested and the truck was "parked on private property" not belonging to defendant. Regarding the location of the truck, Officer Wilkinson testified that it was in a parking spot that did not belong to defendant or the mother of defendant's child. Rather, the truck was "in somebody else's parking spot." Officer Wilkinson did not speak to the apartment manager to determine whether defendant had permission to park his truck in the parking spot.
Officer Wilkinson testified that there was no one present who had the ability to move the truck. Defendant's 13-year-old passengers were not "able to drive or take control of the vehicle." According to Officer Wilkinson, the mother of defendant's child arrived at the scene and indicated in response to questioning by the police that she was a licensed driver. Officer Wilkinson testified, however, that the mother "drove her vehicle to the crime scene" so "she couldn't take" defendant's truck and "park it where it couldn't be towed." He could not recall at the preliminary examination whether he had "ask[ed] her to."
After determining that the truck should be impounded, and pursuant to department policies and procedures, Officer Wilkinson conducted an inventory search of the vehicle. In the truck bed on the driver's side, the officer found a leather bag containing a firearm and ammunition. He contacted dispatch again and learned that defendant was a convicted felon. Officer Wilkinson also arrested defendant for being a felon in possession of a weapon and a felon in possession of a firearm.
John Galvan, who worked at the tow yard where defendant's truck was taken, testified on behalf of defendant. According to Galvan, about six days after the truck was brought to the tow yard, defendant asked him to measure the truck. Based on photographs shown to Galvan at the preliminary examination, he testified that the truck appeared to be "higher than four inches" off the ground, and that the frame of the truck was not below the lower edge of the rim on the vehicle's wheel. Galvan also testified, based on photographs shown to him, that there was no indication the truck's muffler had been modified in any way that would make it louder than normal.
Defendant moved at the preliminary examination to suppress evidence. (§ 1538.5.) He argued that the officer lacked probable cause to stop his truck for Vehicle Code violations and that, accordingly, the evidence thereafter seized from the truck should be suppressed. The prosecutor opposed the motion. The magistrate denied the motion and held defendant to answer on all counts. Among other things, the magistrate found that the officer had probable cause to conduct a traffic stop and that defendant "didn't have a right to park the car [where] it was parked" and "it was an appropriate decision to impound the car."
An information was filed charging defendant with the same offenses as the complaint. Defendant did not renew his motion to suppress. He pleaded no contest to all three counts with the understanding that he would be placed on formal probation for three years and serve eight months in jail, which would be served "at half time." The trial court suspended imposition of sentence and placed defendant on formal probation for three years with various terms and conditions, including that he serve 240 days in jail. The court stated that defendant was "half time eligible."
Defendant filed a timely amended notice of appeal and obtained a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).)
DISCUSSION
Defendant contends that trial counsel rendered ineffective assistance by (1) failing to challenge on Fourth Amendment grounds the impoundment of his vehicle as a pretext for a search, and (2) failing to raise the challenge again, as necessary, before the superior court.
The Attorney General contends that defendant fails to establish deficient performance by trial counsel because a Fourth Amendment challenge to the impoundment would have been meritless. The Attorney General further argues that defendant was not prejudiced in any event, because the search of the truck was justified as a search incident to a lawful arrest.
A defendant claiming ineffective assistance of counsel must establish both that counsel's performance was deficient and that he or she was prejudiced thereby. (People v. Ledesma (2006) 39 Cal.4th 641, 745-746 (Ledesma); Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland).) "Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]" (Ledesma, at p. 746.) To show that counsel's alleged deficient performance prejudiced the defense, "[t]he defendant must show that 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.) A court need not determine whether counsel's performance was deficient; "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
Here, defendant acknowledges that he failed to raise below a claim that the impoundment of his truck was unconstitutional and that evidence seized from the resulting inventory search should be suppressed as a consequence. He further acknowledges that his failure to raise the search and seizure issue in the superior court by way of a renewed motion to suppress under section 1538.5 or by way of a motion to set aside the information under section 995 ordinarily precludes him from raising the issue on appeal. (See People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Hinds (2003) 108 Cal.App.4th 897, 900 (Hinds).) He claims, however, that "there was no plausible tactical basis for counsel not to challenge the constitutionality" of the impoundment of the vehicle and the inventory search, as counsel did argue a motion to suppress at the preliminary examination and "there was no tactical reason to omit a different, more meritorious [ground] for suppression." As for trial counsel's failure to renew the suppression motion in the superior court, defendant states that, although it is "conceivable in the abstract that counsel might negotiate a plea with the prosecution in which he agreed not to renew the motion in the superior court, this could not have happened here, as such an agreement would have meant giving up [defendant's] right to appeal denial of the suppression motion, and counsel would not have filed a notice of appeal based on the denial of the suppression motion," as he did in this case. (See Hinds, supra, 108 Cal.App.4th at p. 902 [rejecting the defendant's claim of ineffective assistance of counsel for failing to renew a suppression motion in the superior court because a satisfactory explanation might exist for counsel's conduct; for example, "the availability of the plea bargain accepted by the defendant may have been dependent upon not further pursuing the suppression motion"].)
Based on the record, we determine that a Fourth Amendment challenge to the impoundment of defendant's truck would not have been successful, and thus defendant has not shown prejudice as a result of trial counsel's failure to raise the issue below.
Vehicle Code section 22651, subdivision (h) provides that a law enforcement officer "may remove" a vehicle when the officer makes a custodial arrest of the vehicle's driver. Impoundment of a vehicle pursuant to this statute is not per se violative of the Fourth Amendment. The touchstone of all Fourth Amendment determinations is reasonableness. (Florida v. Jimeno (1991) 500 U.S. 248, 250.) "Nothing . . . prohibits the exercise of police discretion [in deciding to impound a vehicle] so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." (Colorado v. Bertine (1987) 479 U.S. 367, 375-376 (Bertine); see also South Dakota v. Opperman (1976) 428 U.S. 364, 375-376 (Opperman) [inventory search permissible under the federal constitution if conducted pursuant to a lawful impoundment].) The fact that Vehicle Code section 22651 " 'gives the officer the discretion to decide whether to impound or to otherwise secure the vehicle does not mean that the procedure is unreasonable in Fourth Amendment terms. The fact that there may be less intrusive means of protecting a vehicle and its contents does not render the decision to impound unreasonable. [Citation.]' [Citation.]" (People v. Benites (1992) 9 Cal.App.4th 309, 325 (Benites); People v. Steeley (1989) 210 Cal.App.3d 887, 892 (Steeley).)
Vehicle Code section 22651, subdivision (h)(1) provides in relevant part: "A peace officer . . . may remove a vehicle . . . under the following circumstances: [¶] . . . [¶] (h)(1) When an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody."
If the officer properly decides to impound the vehicle, a subsequent "inventory search may be 'reasonable' under the Fourth Amendment even though it is not conducted pursuant to a warrant based upon probable cause." (Bertine, supra, 479 U.S. at p. 371.) An officer has the "authority to conduct an inventory of the vehicle's contents 'aimed at securing or protecting the car and its contents.' ([Opperman, supra, 428 U.S. at p.] 373.)" (People v. Redd(2010) 48 Cal.4th 691, 721, fn. omitted.) " ' "When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody [citation]; the protection of the police against claims or disputes over lost or stolen property [citation]; and the protection of the police from potential danger [citation]. The practice has been viewed as essential to respond to incidents of theft or vandalism. [Citations.]" ' [Citations.]" (Benites, supra, 9 Cal.App.4th at p. 322.)
For example, in Bertine, supra, 479 U.S. 367, the defendant was arrested for driving under the influence of alcohol. Before his vehicle was towed to an impoundment lot, the police inventoried its contents. In conducting the inventory, the police opened a closed backpack and containers and found, among other things, controlled substances. Some of the charges against the defendant were based on these items that were found in the vehicle. The United States Supreme Court concluded that the Fourth Amendment did not prohibit the state from proving the charges with the evidence found during the inventory of the vehicle. (Id. at p. 369.) The Supreme Court explained that "inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment." (Id. at p. 371.) In the case before the court, "there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation." (Id. at p. 372.) Further, governmental interests justified the inventory search. "[T]he police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property." (Id. at p. 373, fn. omitted.)
In this case, it was not unreasonable for Officer Wilkinson to conclude that impounding defendant's truck was the appropriate way to protect it after defendant was arrested. The truck was parked "in somebody else's parking spot" at an apartment complex and on private property not belonging to defendant. Defendant's 13-year-old passengers were not capable of driving the truck. Although the mother of defendant's child appeared on the scene and was a licensed driver, assuming she would have been willing and defendant would have authorized her to take his truck, she had driven her own vehicle to the scene and nothing in the record suggests that she would have been able to move the truck to a more appropriate location, either within the apartment complex's parking lot or on the street. Further, nothing in the record suggests that Officer Wilkinson impounded the truck as a pretext for trying to find evidence of criminal activity.
In arguing that the impoundment in this case was a pretext by the police to search his vehicle, defendant contends that this case "resembles" People v. Williams (2006) 145 Cal.App.4th 756 (Williams). Williams, however, is distinguishable.
In Williams, the police officer observed the defendant driving a car and not wearing a seatbelt. The officer conducted a traffic stop and eventually placed defendant under arrest after learning there was an outstanding warrant for his arrest. The officer also impounded the defendant's car.
On appeal, the defendant contended that impounding his car violated the Fourth Amendment. The Williams court agreed. The court stated that police officers, "[a]s part of their ' "community caretaking functions," ' . . . may constitutionally impound vehicles that 'jeopardize . . . public safety and the efficient movement of vehicular traffic.' ([Opperman, supra, 428 U.S. at pp.] 368-369.) Whether 'impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers' duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft.' [Citation.] If officers are warranted in impounding a vehicle, a warrantless inventory search of the vehicle pursuant to a standardized procedure is constitutionally reasonable. (Opperman, supra, 428 U.S. at p. 372.) . . . Although a police officer is not required to adopt the least intrusive course of action in deciding whether to impound and search a car ([Bertine, supra, 479 U.S. at p.] 374), the action taken must nonetheless be reasonable in light of the justification for the impound and inventory exception to the search warrant requirement." (Williams, supra, 145 Cal.App.4th at pp. 761-762.)
In the case before it, the Williams court determined that "[n]o community caretaking function was served by impounding" the defendant's car. (Williams, supra, 145 Cal.App.4th at p. 762.) Among other things, the Williams court observed that when the officer initiated the traffic stop, the defendant pulled over and "legally parked at the curb in front of" his home. (Ibid.) "The possibility that the vehicle would be stolen, broken into, or vandalized was no greater than if [the officer] had not stopped and arrested [the defendant] as he returned home. In this regard, it is significant that other cars were parked on the street and that it was a residential area. The prosecution made no showing that the car was blocking a driveway or crosswalk, or that it posed a hazard or impediment to other traffic." (Id. at pp. 762-763.) The Williams court ultimately concluded that the prosecution "failed to establish the constitutional reasonableness of the seizure and subsequent inventory search." (Id. at p. 763.)
In contrast to Williams, where the defendant parked on the street in front of his home, defendant in this case pulled into the private parking lot of an apartment complex. Although the mother of defendant's child lived at the apartment complex, the parking spot where defendant parked his truck did not belong to the mother. Rather, it was "somebody else's parking spot." Further, there was no evidence that another licensed driver was able to move the car to a more appropriate location. It was reasonable under these circumstances for Officer Wilkinson to determine that defendant's truck should be impounded. (See Steeley, supra, 210 Cal.App.3d at p. 892 [concluding that it was not unreasonable for the officer to protect the vehicle by impounding it, where there was no other licensed driver, the car was blocking a driveway, and the defendant was not the registered owner of the vehicle].)
Accordingly, as the evidence presented at the preliminary examination did not show that the impoundment of defendant's vehicle was unreasonable under the Fourth Amendment and that the evidence discovered during the subsequent inventory search would have been suppressed had the issue been raised by trial counsel below, defendant fails to establish prejudice.
DISPOSITION
The judgment (order of probation) is affirmed.
BAMATTRE-MANOUKIAN, J. WE CONCUR: MIHARA, J. DUFFY, J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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