Opinion
F052294
4-14-2008
THE PEOPLE, Plaintiff and Respondent, v. RENARD ANDERSON, Defendant and Appellant.
Mark Shenfield, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
A jury convicted appellant, Renard Anderson, of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and possession for sale of heroin (Health & Saf. Code, § 11351). In a separate proceeding, the court found true a prior conviction enhancement (Health & Saf. Code, § 11370.2, subd. (a)). On February 9, 2007, the court sentenced appellant to an aggregate term of seven years, the middle term of four years on his possession for sale of cocaine base conviction, a three-year prior conviction enhancement, and a concurrent term on his possession for sale of heroin conviction. On appeal, Anderson contends: 1) the court abused its discretion in denying his motion to suppress a statement he made to police; and 2) he was denied the effective assistance of counsel. We will affirm.
FACTS
On February 17, 2006, Bakersfield police officers found Anderson in a motel room where they went to arrest Michelle Wilson, a parolee at large. They arrested Anderson after finding cocaine base, heroin, and drugs sales paraphernalia in the room.
On November 27, 2006, Anderson moved in limine to suppress a statement he made to an officer that day on the grounds that it was obtained by the officer in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
During the hearing on Andersons motion, Bakersfield Police Officer Richard Dossey testified that on February 17, 2006, he and Officers James Jones, Hernandez, and Hanna went to the office of the Extended Stay America Motel in Bakersfield, confirmed Wilson was renting room 227, and obtained a key to the room. The officers went to the room and knocked on the door. Anderson opened the door and told the officers Wilson was in the laundry room. Officers Dossey and Hernandez went to the laundry room but did not find Wilson. However, she soon arrived at the motel in a car and was eventually detained and escorted to room 227.
Officer Jones testified he unlocked room 227s door while simultaneously opening it and announcing, "Police Department; Parole Search." Anderson was lying on a bed in the room. After Anderson told the officers that Wilson was doing laundry, Anderson was handcuffed and seated on a chair while the officers searched him and the room. Within a minute of handcuffing Anderson, Officer Jones located a wallet in a nightstand drawer. Jones asked Anderson whose wallet it was and Anderson stated it belonged to him. Jones looked inside the wallet and found $ 665. He then placed the wallet on the nightstand. Anderson was not given any Miranda warnings prior to Officer Jones asking him who the wallet belonged to. According to Jones, Anderson was not under arrest at the time.
The court denied the suppression motion finding that Anderson was not in custody when Officer Jones asked him about the wallet. Defense counsel then moved for permission to bring a motion to suppress on Fourth and Fourteenth Amendment grounds arguing that until he heard Officer Joness testimony that day, he did not know Jones searched the wallet after finding out it belonged to Anderson. The court denied the motion as untimely.
During the trial, the manager of the motel testified that Wilson rented room 227 from February 5, 2006, through February 17, 2006.
Officer Jones testified that the nightstand he searched was located next to the bed where Anderson had been lying prior to the officers arrival. Jones opened a drawer on the nightstand and saw a brown, mens-style wallet inside. He asked Anderson about the wallet and Anderson said it was his. Officer Jones continued looking in the drawer and found a clear plastic baggie containing three "good-sized rock-like" objects weighing approximately 3.6 grams that Officer Jones recognized as cocaine base. Officer Jones also found a sock that contained a clear plastic baggie with five larger rocks of cocaine base weighing a total of 81.5 grams and a second plastic baggie containing 4 grams of heroin. After locating the drugs, Jones searched the wallet and found $665 in various denominations including twenty-five $20 bills, but did not find any identification. Jones continued searching the drawer and found a vehicle registration form from the state of Washington with Andersons name on it, an envelope with a return address in Andersons name, and an envelope addressed to Anderson. A key to the room was located on the dining table in the room. The officers also found two cell phones, a digital gram scale, a second scale in the kitchen area, a green razor blade, a sock containing white plastic trash bags, which could be used to make plastic bindles, and the corner of what appeared to be a pay-and-owe sheet.
Officer Dossey testified that Wilson had her own key to the room.
In the closet, Officer Jones found womens clothing and a large quantity of mens clothing on the ground in a large duffle bag and hanging in the closet. The mens clothes appeared to be Andersons size.
Andersons probation report, prepared in early 2007, indicates Anderson was 6 feet 1 inch tall and weighed 275 pounds at the time.
DISCUSSION
The Miranda Issue
Anderson contends his statement identifying the wallet in the drawer as his was inculpatory and the court should have suppressed it because he was not advised of his Miranda rights prior to being questioned about the wallet. He further contends that the admission of this answer was prejudicial because the currency in the wallet tended to tie him directly to the drug sales that were going on in the room. We will reject these contentions.
"An appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial courts granting or denial of a motion to suppress a statement under Miranda insofar as the trial courts underlying decision entails a measurement of the facts against the law." (People v. Waidla (2000) 22 Cal.4th 690, 730.)
"`Miranda requires that a criminal suspect be admonished of specified Fifth Amendment rights. But in order to invoke its protections, a suspect must be subjected to custodial interrogation .... [Citation.] `Thus two requirements must be met before Miranda is applicable; the suspect must be in "custody," and the questioning must meet the legal definition of "interrogation." [Citation.] The prosecution has the burden of proving that a custodial interrogation did not take place. [Citation.]
"A person is in custody for purposes of Miranda if he is `deprived of his freedom in any significant way or is led to believe, as a reasonable person, that he is so deprived. [Citation.] `Interrogation consists of express questioning or of words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. [Citation.]" (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
Here, when Jones asked Anderson who the wallet belonged to, Jones did not have any reason to believe his question was likely to elicit an incriminating response because, according to Joness suppression hearing testimony, at that point he had not searched the wallet or the drawer. Thus, even assuming Anderson was in custody when Officer Jones asked him about the wallet, Miranda was not applicable because Joness question did not amount to an interrogation.
However, even if we concluded that Officer Joness question to Anderson violated Andersons Miranda rights we would also conclude the Miranda error was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 310; Chapman v. California (1967) 386 U.S. 18, 24; People v. Cahill (1993) 5 Cal.4th 478, 509-510.)
"The essential elements of the offense of unlawful possession of a controlled substance are actual or constructive possession in an amount sufficient to be used as a controlled substance with knowledge of its presence and its nature as a controlled substance. [Citations.]" (People v. Rushing (1989) 209 Cal.App.3d 618, 621.) "Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.] [¶] "The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citation.]" (People v. Williams (1971) 5 Cal.3d 211, 215.)
It was undisputed at trial that Officer Jones found 85.1 grams of cocaine base and 4 grams of heroin in the drawer of a nightstand located next to where Anderson was lying when the officers arrived. Officer Jones found a vehicle registration form and two envelopes with Andersons name and a mens-style wallet in the drawer. A second key to the room was found on a table in the room and lots of large, mens clothes that appeared to be Andersons size were found hanging in the closet and in a large duffel bag. Thus, even without considering Andersons admission that the wallet was his, the evidence tying him to the drugs and the wallet was overwhelming, particularly in light of the defenses failure to rebut any of it. Similarly, even without considering the money found in the wallet, the evidence that Anderson possessed the drugs for sale was compelling and unrebutted by the defense. Besides the substantial quantity of each type of drug, the officers found two scales, plastic bags that could be cut up to make plastic bindles, and a part of a pay-and-owe sheet in the room. Accordingly, we conclude that any error in admitting Andersons statement acknowledging ownership of the wallet was harmless beyond a reasonable doubt.
The Ineffective Assistance of Counsel Claim
Anderson concedes the search of room 227 was lawful because Wilson was a parolee. However, he contends the officers did not have a lawful basis to search his wallet because the evidence showed he was no more than a transient guest in the room. Thus, according to Anderson, defense counsel provided ineffective representation by his failure to timely move to suppress on Fourth Amendment grounds the money found in Andersons wallet. We will reject these contentions.
"`Defendant has the burden of proving ineffective assistance of counsel. [Citation.] To prevail on a claim of ineffective assistance of counsel, a defendant must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance.... Moreover, prejudice must be affirmatively proved; the record must demonstrate a reasonable probability that, but for counsels 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.] [Citation.]" (People v. Valencia (2006) 146 Cal.App.4th 92, 101.)
"`It is settled Fourth Amendment doctrine that a police officer may, incident to a lawful arrest, conduct a contemporaneous warrantless search of the arrestees person and of the area into which the arrestee might reach to retrieve a weapon or destroy evidence. [Citation.] Such searches may be made whether or not there is probable cause to believe the arrestee may have a weapon or is about to destroy evidence. [Citation.] `The potential dangers lurking in all custodial arrests make warrantless searches of items within the "immediate control" area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. [Citations.] ...
"... The `"search incident to arrest" rule has been interpreted to include [e.g.,] a womans purse as a normal extension of the person subject to search as an item "customarily carried by an arrested person ... [and] within the area of [his or] her immediate control." [Citation.] Further, so long as the purse [or wallet] is in use by the arrestee at the time of [his or] her arrest, it does not need to be on [his or] her person at that moment to be subject to search. [Citation.]" (People v. Ingham (1992) 5 Cal.App.4th 326, 330-331.)
For the reasons discussed, ante, we reject Andersons contention that the evidence showed he was no more than a transient guest in room 227. Further, Officer Jones testified during the trial that he did not search the wallet until after he found the drugs in the nightstand drawer. At that point, the officers could lawfully search Andersons wallet because Andersons apparent dominion and control over the drugs and drug sales paraphernalia in the room provided the officers with probable cause to arrest him. (Cf. People v. Johnson (1981) 123 Cal.App.3d Supp. 26, 31-32 [officer had probable cause to arrest defendant in motel room based on seeing what officer believed were drugs and drug paraphernalia in the room].) Moreover, even if Jones searched the wallet prior to discovering the drugs in the drawer, once he discovered the drugs he would have had probable cause to arrest Anderson and search his wallet. Thus, it was inevitable that Jones would have searched Andersons wallet and found the money inside. (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1214 [tainted evidence is admissible if it inevitably would have been discovered by the police].) It follows that defense counsel was not ineffective by his failure to file a motion to suppress on Fourth Amendment grounds because in either case described above a suppression motion on these grounds should have been denied. (People v. Memro (1995) 11 Cal.4th 786, 834 ["The Sixth Amendment does not require counsel `"to waste the courts time with futile or frivolous motions""].)
Nor can Anderson show he was prejudiced by the failure to file a motion to suppress the money found in his wallet. As discussed earlier, even without considering this money, the evidence tying him to the drugs in the room was overwhelming. Accordingly, we reject Andersons ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.