Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA069426 Katherine Mader, Judge.
ORIGINAL PROCEEDINGS; petition for a writ of habeas corpus. Writ denied.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Christopher Taylor appeals his conviction by jury on one count of attempted second degree robbery of Ja-Hong Kim. (Pen. Code, §§ 211, 664.) In addition to his appeal, appellant filed a petition for writ of habeas corpus in this court, alleging ineffective assistance of counsel based on his trial counsel’s failure to file a motion to suppress evidence. We affirm the judgment and deny the habeas petition.
On November 4, 2008, around 8:00 a.m., Caitlin Greene saw appellant engaged in suspicious behavior near the intersection of Strathmore and Levering in Westwood, California, near the University of California at Los Angeles (UCLA) campus. Appellant was standing along a retaining wall, slightly obscured, shifting back and forth on his feet. Greene saw someone sitting in a silver car in the otherwise vacant parking lot next to where appellant was standing. Although appellant was not committing any crime, Greene thought he looked suspicious and out of place, so she called the UCLA police department. Greene knew there had been a number of robberies in the area and was concerned for her own safety. Several weeks later, Greene identified appellant in a photo lineup at the police station.
Between 8:00 a.m. and 8:20 a.m. on the same date, Clarisse Vidal was walking near Weyburn Terrace in Westwood, approximately 500 yards from the corner of Levering and Strathmore. Vidal noticed a man, identified at trial as appellant, running up a hill near her.
Appellant approached Vidal and said, “Excuse me. Can you give me your purse?” When Vidal said no, appellant grabbed the handles of her purse and told her he had pepper spray. Vidal saw a black nozzle in appellant’s other hand. Vidal was face-to-face with the man and focused on his eyes.
Vidal heard someone walking behind them, so she said “no” loudly to get the person’s attention, and appellant let go of her purse and walked away. Vidal sent her friends a text message immediately after the incident, but she did not report the incident to police until 5:00 or 6:00 in the evening because she wanted to go to class. Vidal told the police the incident occurred at 8:20 a.m. because that was the time her friends said they received her text message. Vidal initially told the police that the man did not have any facial hair and was wearing a striped polo shirt, baggy khakis, and a baseball cap.
Vidal went to the police station and chose appellant’s photo from a photo lineup. Vidal testified that she chose appellant’s photo because his eyes were “small and squinty, ” which was the feature that struck her during the incident. Vidal later went to the police station again and identified appellant in a live lineup.
Dr. Ja-Hong Kim was walking in Westwood the same morning, listening to music on her iPhone. Kim approached the corner of Levering and Strathmore around 8:10 a.m.
As Kim was walking, she saw a man, identified at trial as appellant, who had a well-trimmed goatee and was wearing a black knit cap, black jacket, and dark grey pants. Appellant approached her and said, “that’s a nice iPod.” Kim took out one earpiece, and appellant moved closer to her and said, “I like your iPod. Give it to me.” Kim said “no, ” and began to back away because she felt uncomfortable, but the man moved closer to her and demanded the iPod again. Kim saw the man’s face clearly because it was daylight and he was so close to her.
Appellant opened his coat and showed Kim what she thought was a handgun and continued to ask for her iPod, but Kim walked away. She looked behind her to see if he was pursuing her, but he was not. Kim stated that she did not comply with his demand because it was daylight and there were people nearby, so she did not think he would hurt her. Kim walked back to her apartment, a few blocks away, and immediately called the UCLA police.
The police received the report of the attempted robbery of Kim around 8:20 a.m. on November 4, 2008. The suspect was described as a male Black in his 20’s, wearing a black knit cap, oversized black jacket, and baggy dark jeans. UCLA Police Officer London McBride and his partner Officer Chavez saw appellant in the passenger seat of a car that drove past Officer McBride’s car near the intersection of Strathmore and Kelton, very close to where the attempted robbery had occurred. The driver of the car later was identified as Shannon Garth. Appellant initially was sitting up, but, when the police car drove by, he reclined so far back that his upper body was in the back seat and only his head was visible.
Appellant fit the description of the suspect given in the dispatch report, so the officers reported a description of the car in which they saw appellant. The officers followed the car without activating their lights or siren. Garth passed the police car and then she pulled her car over to let the police car pass. Officer McBride then passed Garth’s car and pulled over to the side of the road. After Garth passed the police car a second time, the officers conducted a traffic stop. According to the police report, appellant was detained by 8:18 a.m.
The officers ordered appellant and Garth out of the car and searched the car. As they began to search, appellant told them there was a BB gun in the car. The officers discovered a silver plastic BB gun in the front seat and a black jacket, a black baseball cap, and two iPods in the rear seat.
After the police detained appellant, UCLA Police Detective Genaro Gorostiza brought Kim from her apartment to identify appellant. When Kim first saw appellant, from about 100 feet away, she did not think he was the man who tried to rob her because he was not wearing a hat or jacket. Kim “had a feeling this was the person, ” but she wanted to be certain, so she got closer and asked the officer to have appellant put on a black cap and black jacket that were in Garth’s car. After appellant put on the cap and jacket, Kim was almost certain he was the man, but, because she was unsure, she wanted to look at a second suspect the police had detained. Kim said she was “75 percent sure that’s him, ” but she still wanted to see the second suspect.
As the police drove Kim past the second suspect, she immediately knew that he was not the person because she thought he was much older, taller, and skinnier than the person who attempted to rob her. She did not get out of the police car to view the second suspect, but when she viewed him from about 25 feet away, she immediately told Detective Gorostiza that was not the person. Detective Gorostiza testified that he thought the second suspect appeared to be in the same age range as appellant.
Because Kim wanted to be “even more sure” about her identification, she was taken back to appellant’s location, and she asked the police to have appellant say, “Let me see your iPod.” After appellant looked at Kim eye-to-eye and spoke the words, Kim was “100 percent sure” appellant was the person. Several months later, Kim identified appellant at a live lineup.
Appellant was charged by information with attempted second degree robbery of Kim and Vidal. The information alleged several prior convictions that came within the meaning of the Three Strikes law. (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667, subd. (a)(1); 667.5, subd. (b); & 1203, subd. (e)(4).) Appellant entered not guilty pleas, and a jury trial was held.
On the second day of voir dire, September 24, 2009, the court heard and denied three Wheeler motions brought by appellant and one brought by the prosecution. (People v. Wheeler (1978) 22 Cal.3d 258.)
During the trial, defense counsel asked the court not to allow the prosecution to impeach appellant with his prior convictions if appellant chose to testify, or, in the alternative, to not allow the jury to know the nature of his prior convictions. The court declined the request, reasoning that the offenses involved moral turpitude and were relevant to the jury’s evaluation of his character.
Appellant did not testify; he called only Detective Gorostiza as a witness. Appellant subsequently waived his right to a jury trial on his prior convictions.
The jury found appellant guilty of count one, attempted second degree robbery of Kim, and not guilty of the attempted second degree robbery of Vidal.
On November 5, 2009, appellant waived a court trial on his prior convictions and admitted to three prior convictions alleged in the information: one prior strike of first degree burglary (Pen. Code, §§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d)), another first degree burglary conviction (Pen. Code, § 667, subd. (a)), and a forgery conviction (Pen. Code, § 667.5, subd. (b)). Appellant was sentenced to the midterm of two years, doubled to four years pursuant to the Three Strikes law, plus two additional five-year terms pursuant to Penal Code section 667, subdivision (a), for a total of 14 years. An additional one-year term was imposed pursuant to Penal Code section 667.5, subdivision (b), to be served concurrently with the 14-year sentence. The court awarded appellant credit for 366 days of actual custody and 54 days of conduct credit, for a total of 420 days, and imposed various fines and fees. Appellant filed a timely notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On September 9, 2010, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.
On September 28, 2010, appellant filed a petition for writ of habeas corpus. On October 7, 2010, determination of the habeas petition was deferred. An informal response to the petition was filed on October 22, 2010, and a reply in support of the petition was filed on November 8, 2010.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
In his habeas petition, appellant claims ineffective assistance of counsel based on his attorney’s failure to file a motion to suppress evidence. Appellant asserts that his detention was illegal because the officers did not have reasonable suspicion to detain him. He challenges his detention on three grounds: (1) the only way in which appellant matched the description of the suspect in the police report was that he was a Black male in his 20’s on the UCLA campus; (2) his location near the incident did not provide reasonable suspicion to detain him; (3) he did not engage in nervous or evasive behavior that would support his detention. The ineffective assistance claim is based on the contention that Kim’s identification of him constituted fruit of the illegal detention that should have been suppressed.
“There are two components to an ineffective assistance of counsel claim: deficient performance of counsel and prejudice to the petitioner. Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 2069, 80 L.Ed.2d 674], informs us that ‘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. The object of an ineffectiveness claim is not to grade counsel’s performance. 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.’” (In re Cox (2003) 30 Cal.4th 974, 1019-1020.) To show ineffective assistance of counsel, appellant must show that he “suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]” (People v. Gray (2005) 37 Cal.4th 168, 207.)
The record indicates that appellant’s detention was reasonable. “[A] ‘detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.’ [Citation.]” (People v. Logsdon (2008) 164 Cal.App.4th 741, 744.) Although appellant attacks each individual basis for his detention, we may not “apply a ‘divide-and-conquer’ analysis in determining if the officer’s conduct was reasonable, as factors which by themselves were ‘“quite consistent with innocent”’ activity may collectively amount to reasonable suspicion. [Citation.]” (People v. Osborne (2009) 175 Cal.App.4th 1052, 1058.)
Examining the facts in light of the totality of the circumstances, the record clearly indicates that appellant’s detention was reasonable. He matched the description of the suspect, was near the location where the incident occurred at the time the incident occurred, and he appeared to try to hide himself in the car when the police drove past him. There is no indication here that appellant suffered prejudice by his counsel’s failure to file a suppression motion because it is not reasonably probable that it would have been granted. Defense counsel’s failure to file a motion to suppress accordingly did not constitute ineffective assistance. (See People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.”].) The habeas petition is denied.
DISPOSITION
The judgment is affirmed, and the habeas petition is denied.
We concur: EPSTEIN, P. J., WILLHITE, J.