Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. EE706150
ELIA, J.Pursuant to a negotiated disposition, appellant pleaded no contest to felony possession of cocaine base for sale and misdemeanor driving with a blood alcohol level of .08 or more. (Health & Saf. Code, § 11351.5, Veh. Code, § 23152, subd. (b).) The trial court sentenced appellant to four years in state prison. Shepard appeals from the judgment. We appointed counsel to represent appellant. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 . Counsel has referred this court to possible, but not arguable, issues. (Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396].) We advised appellant that he could submit any argument that he wanted us to consider and he has done so. We affirm.
Background
According to the preliminary examination transcript and the reporter's transcript of the motion to suppress, shortly after midnight on October 3, 2007, Cynthia Crane, the manager of the Motel 6 in Sunnyvale, called the police. She said that a man and a woman were in her office, that they appeared to be intoxicated, that they did not have enough money to pay for their room, and that they were creating a disturbance. Officer Devon Klein of the Sunnyvale Police Department arrived and saw appellant in the manager's office pulling on a closed door. Klein asked appellant if he would step outside to speak to him and appellant complied. Klein observed appellant to have red, glassy eyes, slurred speech, and an unsteady gait. Appellant had an odor of alcohol about him and told Klein that he had been drinking beer but that he did not know how much. Klein repeatedly asked appellant to stop yelling and using profanity.
Klein ran a warrant check on appellant which informed him that appellant was on parole. In fact, as the parties stipulated at the motion to suppress, appellant had been discharged from parole a week earlier. Meanwhile, Detective Hyun Choi of the Sunnyvale Police Department spoke with Crane. Crane told him that appellant had arrived at the motel driving a dark sedan with the female passenger. Appellant's female companion approached Klein and said that appellant was her boyfriend. She consented to a search of her purse, which revealed a small bottle of Hennessey Cognac which was "practically empty." She also had a cell phone and a piece of paper with numbers written on it.
Appellant's female passenger told Choi the license number of the car in which they had arrived. The hood of the car was still very warm. The driver's side window was down and Choi could see the keys on the driver's seat, an open bottle of King Cobra Malt liquor, a can in the center console, and a cell phone. A strong odor of an alcoholic beverage was coming from the car. In the back seat, Choi found some paperwork belonging to appellant and a bag of female clothing. In a sunglasses holder on the top of the windshield he found five clear baggies containing a white powder substance. It was later determined that the substance was rock cocaine and that each bag contained approximately seven grams. Choi looked at the text messages in the cell phone because he knew that "cell phones are used to facilitate drug transactions, and that's via text messages." Choi did not know whether the messages on this phone could be automatically or remotely erased.
Klein arrested appellant for public intoxication. Klein searched appellant and found over $500 in cash on his person. At 2:05 a.m. that day, appellant's blood was drawn and analysis revealed no trace of cocaine but a blood alcohol level of .15 percent.
Appellant was charged with possessing cocaine base for sale, driving under the influence of alcohol and driving with a blood alcohol level of .08 or more. The charging document also alleged two prior felony conviction enhancements and a prison prior conviction enhancement. (Health & Saf. Code, §§ 11370.2, 11370, subd. (a) & (c), Pen. Code, § 667.5, subd. (b).)
Defense counsel brought a motion to suppress evidence. Klein and Choi testified at the hearing on the motion. At the conclusion of the hearing, the trial court said that "clearly, there [were] sufficient objective facts to believe that a DUI occurred; therefore, to justify further inquiry into the contents of the car that might support that suspicion, whether or not that was an officer's primary motivation for going into the car and looking." The court took the issue of the search of the cell phone under submission, and later ruled "Cell phone contents is no different than a piece of paper or day-planner or logbook that is found once the police were lawfully within the vehicle and found that relatively large quantity of drugs in the car. They then had further cause to search for the other indicia of ownership of the drugs, ownership of the car, and of intent to sell."
Following the denial of his motion to suppress, appellant pleaded no contest to possession of cocaine base for sale and driving with a blood alcohol level of .08 or greater. The misdemeanor driving under the influence count was dismissed. The trial court, on its own motion and pursuant to Penal Code section 1385, struck the enhancement allegations. The court sentenced appellant to a state prison term of four years.
Discussion
Appellate counsel has identified three possible issues. She cites People v Willis (2002) 28 Cal.4th 22, in which the court suppressed evidence from a search of a defendant who was not in fact on parole, although the searching officers had believed him to be on parole. Shepard also points out that he had been discharged from parole at the time of his arrest and the officer did not have a warrant to search his car. Here, however, the trial court specifically found that there was probable cause to arrest appellant for driving under the influence.
Citing United States v. Park, No. CR-05-375SI, U.S. Dist. LEXIS 40596 (N.D. Cal. May 23, 2007), counsel suggests as a possible issue that the trial court erred in finding the search of appellant's cell phone to be permissible, "because a cell phone is analogous to a computer for which a warrant is required." Shepard also complains that the officer did not have a warrant for the search of his cell phone. The Park decision "stands contrary to eleven other decisions upholding the searches of cell phones incident to arrest." (Gershowitz, The Iphone Meets the Fourth Amendment, (2008) 56 UCLA L. Rev. 27, 58, fn. 83.)
Counsel suggests that the trial court may have erred in permitting Detective Choi to testify to his opinion as to whether the suspected drugs were possessed for sale without qualifying him as an expert. During the preliminary examination, before the same trial judge that heard the motion to suppress, Detective Choi's credentials as an expert in identifying rock cocaine were established, and the issue of whether the cocaine was possessed for sale was not a critical issue at the motion to suppress.
Shepard asserts that he kept telling his lawyers that he had not been driving the car but that his lawyers would not believe him. Shepard complains that at the time of arrest he was not given a breathalyzer test or field sobriety tests. He asserts "this should [have] been nothing more than a drunk in public." We do observe that appellant pleaded no contest, rather than guilty, to the charges and, at the time of his plea, the trial court commented that, after a lengthy discussion with counsel, "the Court has made a settlement offer substantially better at least in my opinion than the prosecution's settlement offer."
Shepard also argues that he received ineffective assistance of counsel. Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335 [83 S.Ct. 792].) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [104 S.Ct. 2052].) The record before us is insufficient to support Shepard's claims. When reviewing an appeal we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) "If the record on appeal 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 there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, and the issues raised by Shepard, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Shepard in this appeal.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.