Opinion
G054650
06-06-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES OMAR MENA, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on June 6, 2018, be modified as follows:
On page 2, the case citation in footnote 1 read "(In re James Omar Mena (June ___, 2018, G055365) [nonpub. order])." It is now changed to read (In re James Omar Mena (June 6, 2018, G055365) [nonpub. order])."
This modification does not change the judgment.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. MOORE, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF1426) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted James Omar Mena of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a), all subsequent references are to the Vehicle Code), and driving with a blood alcohol level of 0.08 percent or greater (§ 23152, subd. (b)). The jury found true an allegation Mena's blood alcohol level was 0.20 percent or greater when he committed these offenses (§ 23538, subd. (b)(2)). Following the jury's verdicts and finding, Mena admitted he had previously been convicted of felony driving under the influence of alcohol in 2012. Finally, in a bench trial the trial court found it true Mena had suffered a prior prison commitment within the meaning of Penal Code section 667.5, subdivision (b). The court sentenced Mena to a three-year term of imprisonment on the section 23152, subdivision (a), driving under the influence charge, and a consecutive one-year term on the Penal Code section 667.5, subdivision (b), prior conviction enhancement. The court imposed and stayed a similar three-year term on the section 23152, subdivision (b) charge. (Pen. Code, § 654.)
Mena's sole contention on appeal is his trial attorney was constitutionally ineffective for withdrawing a pretrial motion to suppress the statements Mena made to police based on a violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We disagree and affirm the judgment.
Mena also brings a separate petition for writ of habeas corpus, basing it upon the same ineffective assistance of counsel ground he raises in this direct appeal. Mena previously filed a motion to consolidate the habeas corpus petition with the direct appeal, which we denied without prejudice pending our consideration of the appeal. We deny the habeas corpus petition in a separate order (In re James Omar Mena (June ___, 2018, G055365) [nonpub. order]).
FACTS
Because the only issue before us is whether trial counsel's decision to withdraw Mena's motion to suppress his statements to police on Miranda grounds constituted constitutionally ineffective assistance of counsel, we only provide a brief summary of the underlying facts. In our discussion, we address additional facts as necessary to resolve the Miranda issues.
In the early morning hours of July 4, 2016, a highly intoxicated Mena drove his truck into a center divider, blowing out a front tire and damaging both driver-side wheels. He moved the truck to a nearby residential street, stopped in the middle of the road, and passed out. When two Costa Mesa police officers arrived, they found Mena alone and still unconscious in the driver's seat. The hood was warm, the driver's side window was down, and the odor of alcohol was coming from inside the truck.
The officers had to rub Mena's chest to awaken him and because he was so intoxicated, he was difficult to understand when he spoke. After some questioning at the scene (see below), officers gave Mena routine field sobriety tests. These included two in field breath tests of Mena's blood alcohol level, which were measured at 0.26 percent and 0.27 percent. A subsequent post-arrest blood sample taken from Mena was analyzed, revealing a blood alcohol concentration of 0.23 percent. Both officers wore digital audio recording devices, which recorded their conversations with each other as well as their questioning of Mena.
Prior to trial, Mena brought an Evidence Code section 402 motion to suppress his statements to police at the scene, arguing they were taken in violation of Miranda. The trial court deferred ruling on the motion until trial, but that ruling was never made.
A CD copy of the digital audio recording of the officers' contact with Mena was played for the jury in open court, and transcript copies were given to the jurors to aid their listening. In its case-in-chief, the prosecution used some of Mena's recorded statements as evidence against him. Using other portions of the same recording, the defense was able to introduce additional statements Mena made, which his counsel later argued supported a "no-driving" defense. The defense rested without presenting evidence, but moved for a directed acquittal verdict pursuant to Penal Code section 1118.1, arguing the prosecution failed to prove Mena was the driver of the truck that morning. The trial court denied the motion, the case went to the jury, and Mena was convicted.
DISCUSSION
I. Background
Both the United States Constitution and the California Constitution guarantee a criminal defendant a right to the assistance of counsel. This right entails a right to effective counsel, without which the assistance of counsel would be meaningless. (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma I); see also McCann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 ["the right to counsel is the right to the effective assistance of counsel"]; Powell v. Alabama (1932) 287 U.S. 45, 67-68 [extending Sixth Amendment right to counsel to states through due process clause of the Fourteenth Amendment].)
"In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense." (U.S. Const., 6th Amend.) "The defendant in a criminal cause has the right . . . to have the assistance of counsel for the defendant's defense. . . ." (Cal. Const., art. I, § 15.)
As noted above, Mena's sole contention on appeal is his trial attorney was constitutionally ineffective for withdrawing a purportedly meritorious pretrial motion to suppress Mena's statements to police, claiming they were obtained in violation of Miranda. In doing so, Mena has the burden of proving he received ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) "[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence. [Citation.]" (Ledesma I, supra, 43 Cal.3d at p. 218.) "'The proof . . . must be a demonstrable reality and not a speculative matter.' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 656.)
Specifically, to prevail on an ineffectiveness of counsel claim, Mena must satisfy a two-pronged test. First, he must show his counsel's performance fell below an objective standard of reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); Ledesma I, supra, 43 Cal.3d at pp. 216-218.) Second, "prejudice must be affirmatively proved; the record must demonstrate '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.' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury); Strickland, supra, 466 U.S. at p. 694.)
"In assessing the adequacy of counsel's performance, a court must indulge 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Citations.]' [Citation.] If 'the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.'" [Citation.]" (People v. McDermott (2002) 28 Cal.4th 946, 988.)
"[Hence, t]actical errors are generally not deemed reversible, and counsel's decisionmaking . . . [is] evaluated in the context of the available facts. [Citation.]" (Maury, supra, 30 Cal.4th at p. 389.) In United States v. Cronic (1984) 466 U.S. 648 (Cronic), the high court observed: "'Whenever we are asked to consider a charge that counsel has failed to discharge his professional responsibilities, we start with a presumption that he was conscious of his duties to his clients and that he sought conscientiously to discharge those duties. The burden of demonstrating the contrary is on his former clients.' [Citation.]" (Cronic, supra, 466 U.S. at p. 658, fn. 23.)
Cronic was a companion case to Strickland. Both were argued on January 10, 1984, and decided on May 14, 1984, with Cronic appearing at 466 U.S. 648, and Strickland appearing immediately after at 466 U.S. 668.
Significant here, trial counsel is not ineffective for failing to make or pursue a meritless motion. (People v. Weaver (2001) 26 Cal.4th 876, 931.) Thus, "[d]efense counsel need not make futile objections or motions merely to create a record impregnable to attack for claimed inadequacy of counsel. [Citation.]" (People v. McCutcheon (1986) 187 Cal.App.3d 552, 558-559.)
"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.]" (People v. Ledesma (2006) 39 Cal.4th 641, 746 (Ledesma II); People v. Fosselman (1983) 33 Cal.3d 572, 581 ["Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission"].) Instead, in such situations a defendant is normally left to his or her habeas corpus remedies. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Even if Mena were able to meet his burden of establishing his trial counsel's performance was constitutionally deficient, however, we must still address the second prong of the inquiry: Prejudice. "It is not enough for the [defendant] to show that the errors had some conceivable effect on the outcome of the proceeding." (Strickland, supra, 466 U.S. at p. 693.) Rather, "[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." (Id. at p. 694.)
"A claim of ineffective assistance of counsel based on a trial attorney's failure to make a motion . . . must demonstrate not only the absence of a tactical reason for the omission [citation], but also that the motion . . . would have been meritorious, if the defendant is to bear his burden of demonstrating that it is reasonably probable that absent the omission a determination more favorable to the defendant would have resulted. [Citations.]" (People v. Mattson (1990) 50 Cal.3d 826, 876, superseded on another ground by Pen. Code, § 190.41.) More precisely, "[t]o establish prejudice . . . the defendant must do more than show the motion would have been meritorious. When the alleged deficiency is the failure to make a suppression motion, the defendant must show, in addition, the motion would have been successful. [Citation.]" (People v. Gonzalez (1998) 64 Cal.App.4th 432, 438 (italics added); cf. Kimmelman v. Morrison (1986) 477 U.S. 365, 382 [same standard applies to Fourth Amendment suppression motions].)
Here, the record sheds no light on why trial counsel withdrew and did not pursue his motion to suppress Mena's statements to police, nor does it show counsel was asked for an explanation. Even so, that is not the end of our direct appellate review.
All we can cull from the record is the trial court's cryptic reference to an unrecorded discussion: "[The Court]: I know we had discussed this earlier off the record, but I just wanted to finalize this. Both [counsel] mentioned [Mena's] statements during opening [statements], and I believe, [defense] counsel, you were indicating you had planned to withdraw [the suppression motion]?" "[Defense Counsel]: Yes."
"Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result." (Strickland, supra, 466 U.S. at p. 697.) As a result, and because it is dispositive in this case, we begin and end our review with the second prong of the Strickland test.
II. Were Mena's Statements to Police Inadmissible Under Miranda?
Miranda advisements and waivers are only required when a person is subjected to custodial interrogation. (Miranda, supra, 384 U.S. at p. 444; People v. Ochoa (1998) 19 Cal.4th 353, 401 (Ochoa) ["'Absent "custodial interrogation," Miranda simply does not come into play'"].) Interrogation is express questioning or "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 301, fns. omitted.) It is undisputed there was an interrogation in this matter when police officers asked Mena a series of questions while he sat on the curb near his truck, and the Attorney General does not suggest otherwise. Thus, the only issue is whether Mena was in custody during this questioning.
Miranda warnings are necessary "as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.' [Citation.]" (Berkemer v. McCarty (1984) 468 U.S. 420, 440 (Berkemer).) This determination presents "a mixed question of law and fact." (Ochoa, supra, 19 Cal.4th at p. 401.) Normally, we apply a deferential substantial evidence standard of review to a trial court's factual findings, but in this case, the trial court did not rule on the motion, so there are no factual findings to defer to. When, as here, an interview is tape-recorded, the facts surrounding an interrogation are undisputed, making the issue subject to our independent review. (People v. Linton (2013) 56 Cal.4th 1146, 1177.)
Neither party has requested the appellate record include the CD containing the audio recording of Mena's encounter with police that Fourth of July, but a transcript of the recording was admitted into evidence at trial as the prosecution's exhibit No. 4, and is a part of the appellate record. We have reviewed the exhibit, and it is sufficient for us to make our independent review. --------
Custody determinations are resolved by an objective standard. Would a reasonable person interpret the actions used by the police as tantamount to a formal arrest? (Berkemer, supra, 468 U.S. at p. 442; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161 [was defendant "'taken into custody or otherwise deprived of his freedom of action in any significant way'"].) "In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation . . . ." (Stansbury v. California (1994) 511 U.S. 318, 322 (Stansbury).) Although no one single factor is dispositive, among the circumstances to be considered are: "(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer[s], including the nature of questioning." (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.)
In general, "questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek. [Citation.]" (Berkemer, supra, 468 U.S. at p. 438, fn. omitted.) "[C]ircumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability. In short, the atmosphere surrounding an ordinary traffic stop is substantially less 'police dominated' than that surrounding the kinds of interrogation at issue in Miranda itself, [citation] and in the subsequent cases in which we have applied Miranda." (Id. at pp. 438-439, fn. omitted.)
"In both of these respects, the usual traffic stop is more analogous to a so-called 'Terry stop,' [citation], than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose 'observations lead him reasonably to suspect' that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to 'investigate the circumstances that provoke suspicion.' [Citation.] '[T]he stop and inquiry must be "reasonably related in scope to the justification for their initiation."' [Citations.] Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." (Berkemer, supra, 468 U.S. at pp. 439-440, fns. omitted.) Nevertheless, "[i]t is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.' [Citation.] If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. [Citation.]" (Id. at p. 440.)
An investigative detention is not an arrest, but here Mena sometimes conflates the two, stating at one point in his brief "[w]hile appellant had not been formally arrested at the time of questioning, a reasonable person would believe he was in custody and not free to leave." But that is not the actual question. In a previous decision, we observed "[t]he test is sometimes phrased as follows: How would a reasonable person in the suspect's position have understood his or her situation? But the issue under Berkemer 'is not whether a reasonable person would believe he was not free to leave, but rather whether such a person would believe he was in police custody of the degree associated with formal arrest.' [Citation.]" (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403, fn. 1.)
There is no doubt here that Mena was detained and not free to leave when police questioned him during the curbside encounter. The Attorney General does not argue otherwise. Nonetheless, the relevant question is not whether Mena was detained, and thereby not free to leave, but whether he was under formal arrest or restrained to "the degree associated with formal arrest." (California v. Beheler (1983) 463 U.S. 1121, 1125; Stansbury, supra, 511 U.S. at p. 322 [was there formal arrest or restraint on freedom of movement of degree associated with formal arrest].) Simply put, if Mena was merely detained he was not entitled to Miranda warnings prior to police questioning because he was "not 'in custody' for the purposes of Miranda." (Berkemer, supra, 468 U.S. at p. 440.)
Mena has failed to demonstrate that, at any time between when the officers awakened him and his ultimate arrest, he was subjected to restraints comparable to those indicative of or associated with a formal arrest. In finding a non-custodial interrogation in Berkemer, the high court observed: "Only a short period of time elapsed between the stop and the arrest. At no point during that interval was respondent informed that his detention would not be temporary. Although [the police officer] apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, [the police officer] never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. Nor do other aspects of the interaction . . . support the contention that respondent was exposed to 'custodial interrogation' at the scene of the stop. From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest. [¶] We conclude, in short, that respondent was not taken into custody for the purposes of Miranda until [the police officer] arrested him. Consequently, the statements respondent made prior to that point were admissible against him." (Berkemer, supra, 468 U.S. at pp. 441-442, fns. omitted.)
So too here. The digital audio recording lasts about an hour, from the officer's initial arrival at 3:02 a.m. until the in-field breath tests. Nonetheless, the relevant pre-field sobriety test questioning lasted only 17 minutes from the time the officers woke up Mena (3:09 a.m.) to the beginning of the tests (3:36 a.m.), and it was during this 17-minute span the officers obtained Mena's admissions to driving. This period of time would likely have been much shorter but for Mena's difficulty responding to questions due to his intoxication. In our view, this relatively brief period did not transform Mena's detention into an arrest. (See People v. Bejasa (2012) 205 Cal.App.4th 26, 36 [23 minutes not alone indicative of an arrest].)
As to the officer/suspect ratio, here there were two officers and one suspect. Neither officer told Mena he would be taken into custody. In fact, at one point one officer told Mena: "Hey James. I'm going to ask you a few questions on here, okay? . . . [¶] . . . Just to make sure you are able to, uh, just to make sure that you're able to drive safely, okay, and can go home and care for yourself." Even if untrue, this kind of questioning did not communicate an indication of custody, current or future.
As to location, a suburban public Costa Mesa curbside is far from the inherently coercive atmosphere of the stationhouse. Only two police officers were present, and the questioning was primarily done by only one at a time. There is no evidence of aggressive questioning, tag-team coercion, or accusatory and confrontational interrogation. In fact, because of Mena's level of intoxication, the questioning was quite simple and innocuous. "One of the investigative techniques that Miranda was designed to guard against was the use by police of various kinds of trickery -- such as 'Mutt and Jeff' routines -- to elicit confessions from suspects. [Citation.] A police officer who stops a suspect on the highway has little chance to develop or implement a plan of this sort." (Berkemer, supra, 468 U.S. at p. 438, fn. 27.) Our review of the transcript shows nothing to indicate such sinister police conduct occurred here.
Mena endeavors to distinguish Berkemer by pointing out in that case the officer had observed the defendant's erratic driving and pulled him over as a result, whereas here "there was no ongoing situation," and Mena was merely "sleeping in the car [sic]." Mena overlooks the fact he was not merely sleeping in his truck, but he was parked in the middle of the street while sleeping in his truck.
Mena does not explain why it makes a constitutional difference whether police observed odd driving or odd parking in making our Miranda custody assessment, other than to remark "it was not an ordinary traffic stop." Mena's other attempts to factually distinguish Berkemer are similarly unavailing. The points he emphasizes go more to reminding us Mena was not free to leave, i.e., he was detained, than to highlighting indicia of the kinds of restraints normally characteristic of a custodial setting.
Considering the totality of the circumstances surrounding Mena's questioning, and our independent review of the record, we conclude Mena's interrogation by police officers was not custodial and therefore he was not entitled to Miranda warnings beforehand. We find this case falls well within the guidelines set out in Berkemer. The suppression motion he claims his attorney should have pursued would have been futile, and as a result, he was not denied effective assistance of counsel.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. MOORE, J.