Opinion
E066680
02-03-2017
THE PEOPLE, Plaintiff and Respondent, v. HOWARD BAIN, Defendant and Appellant.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1102428) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant, Howard Bain, pled guilty to possession of a prohibited short-barreled shotgun or rifle (count 7; Pen. Code, § 12020, subd. (a)); six counts of possession of prohibited assault weapons (counts 8-13; § 12280, subd. (b)); the manufacture, distribution, transportation, importation, or possession for sale of an assault weapon or .50-caliber Browning machine gun (count 14; former § 12280, subd. (a)(1)); and an interlineated count of assault by means likely to cause great bodily injury (count 15; § 245, subd. (a)(4)). Pursuant to his plea agreement, the court sentenced defendant to an aggregate term of eight years' imprisonment with credit for time served. The court released defendant that day.
All further statutory references are to the Penal Code unless otherwise indicated.
After defendant filed a notice of appeal, and an attorney from Appellate Defenders, Inc. filed an amended notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying three potentially arguable issues: (1) whether the court erred in denying defendant's motion to quash the warrant and suppress the evidence because there was a purported lack of corroboration of the victim's account of the incident; (2) whether defense counsel provided constitutionally ineffective assistance of counsel by failing to advance the argument that the affidavit in support of the warrant contained deliberately false information and failed to included material information which would have negated probable cause to issue the warrant; and (3) whether the warrant provided for an invalid, overly broad, general exploratory search. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant stipulated that the police report and the preliminary hearing transcript would provide the factual basis for his plea. We take our factual recitation from the preliminary hearing transcript; however, the facts contained in the police report are largely identical.
At the preliminary hearing held on November 15, 2011, the victim testified she needed a new bumper for her car. Her friend had given her defendant's telephone number saying that she and her brother had previously purchased car parts from defendant. The victim's friend said she had located defendant on craigslist. The victim spoke with defendant five or six times; defendant said he had the part she was looking for. The victim made arrangements to meet with defendant on one occasion, but she failed to show.
During their telephone calls, defendant had asked the victim for a picture of herself; she did not send him one. He also asked if she wanted to go out for drinks sometime; she declined.
On October 17, 2011, the victim drove alone to defendant's residence in a remote desert location at night in order to purchase the car bumper. When she arrived, defendant told her he had already gotten rid of the part. She began to drive home, but her car became stuck on the dirt road.
The victim called defendant and told him she was lost. Defendant arrived and hit her in the face with either his fist or the long-handled flashlight he had in his hand. He then put a gun to the victim's side and told her to do what he wanted. Defendant walked her to his car and told her to give him oral sex; she did so. Defendant told her to pull her panties down; he fondled her thereafter. He then asked the victim to urinate on him; she said it was too cold, so they walked to his house.
When they arrived at defendant's house, he took the victim to the bathroom where he had her take off her clothes and urinate on him while he sat on the toilet. He then obtained a thick, padded belt, bent her over, and slapped her on the buttocks with it twice. Defendant told the victim to go upstairs where he had her paddle his buttocks several times. He brought the gun with him when they went upstairs.
Defendant told the victim to give him oral sex again, so she did so. He then told her to lay down; he then orally copulated her. Defendant attempted to have sex with the victim, but he could not achieve an erection; however, the tip of his penis penetrated her vagina.
Defendant asked the victim for oral sex again, which she then performed. He then told her to manually stimulate him, which she did for approximately 15 minutes. Defendant asked the victim if she wanted to have sex with him or go home. She said she wanted to go home. He started to orally copulate her again, but then said he would let her go home.
When they went downstairs, he looked at her eye, which was really swollen and black. He asked her what happened to it. She said, "You hit me." Defendant said the victim must have tripped.
The victim put her clothes back on and they went back to her car. Defendant dug her tire out of the dirt, but told her the brake line had been cut. He told her she could not obtain a taxi, so he drove her home. During the trip, he made repeated offers to kill members of law enforcement for her. Referring to her failure to show at their previously appointed meeting, defendant told her she "should really keep [her] word next time." When they reached her home, he told the victim that if she told the police he would be back.
In the police report, the victim is reported as stating that defendant said he cut the brake lines.
The victim went to sleep. In the morning, defendant called her and told her her car was fixed. He said he had moved it onto city property. The victim then reported the incident to the police.
A detective assigned to investigate the incident interviewed defendant on October 19, 2011, after defendant waived his Miranda rights. The detective asked defendant when was the last time he had a female visitor at his house. Defendant said a few days earlier. Defendant described the visitor. The description matched the victim.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant said the victim had come to his house briefly, left, and then called him when her car got stuck on his property. Defendant said he went out with a flashlight and found her. Her tire was stuck. They talked for a while and the subject of sex came up. They went back to his house and engaged in rough, consensual sex play with one another. She urinated on him. Defendant gave her a ride home. The next day he moved her car to the adjacent city.
The police report reflects defendant admitted having his gun on his seat, grabbing it, and putting it in his pocket, all of which the victim witnessed. Defendant also admitted his elbow hit the victim in the eye during their sex play.
On November 5, 2012, defense counsel filed a motion to quash the warrant and suppress the evidence obtained from a search of defendant's house. Defense counsel argued that insufficient evidence established probable cause to issue the warrant because the information received from the victim was not independently corroborated by the police.
Defense counsel attached a copy of the items retrieved from the search of defendant's house, which included 22 guns, one high powered flashlight, and a black belt with a buckle. Defense counsel additionally attached the affidavit in support of the search warrant dated October 20, 2011. The facts recited in the affidavit largely mirror those adduced at the preliminary hearing. The affidavit additionally affirmed that the victim positively identified defendant from a photographic lineup, the officer observed the victim had an injury to her eye consistent with being struck by an object, the officer had confirmed that defendant had several guns registered in his name, and the officer confirmed that defendant had several listings for car parts on craigslist.
The victim confirmed to police that neither the belt nor the flashlight were the objects used upon her the night of the incident.
Although, since the affidavit predated the preliminary hearing, the facts contained in the affidavit must have come from the officer's interviews with the victim, including the information contained in the police report.
However, several facts from the police report were not reflected in the affidavit: (1) that the victim and detective had conducted a pretextual telephone call with defendant during which defendant failed to admit to any of the criminal conduct the victim alleged she had sustained at defendant's hands; and (2) the victim positively identified one of the guns seized at defendant's house as the one he used on her. The affidavit also included an assertion that the victim had told officers that defendant had several long guns and had booby trapped and fortified his house to repel law enforcement. These facts are not reflected in the police report. On November 14, 2012, the People filed opposition to defendant's motion.
However, defendant did admit during the pretextual telephone call that the victim had been at his house that night.
On November 16, 2012, the court held a hearing on and denied defendant's Marsden motion. On May 10, 2013, the court held a hearing on and denied defendant's motion to suppress. On August 2, 2013, the court held a hearing on and denied defendant's second Marsden motion. However, the court granted defendant's motion to represent himself.
People v. Marsden (1970) 2 Cal.3d 118.
On March 13, 2015, defendant retained new counsel. On April 10, 2015, defendant's counsel declared a conflict. Defendant retained another attorney on May 8, 2015.
On January 26, 2016, defense counsel filed another motion to traverse the warrant and suppress the evidence. The basis of the motion was that previous defense counsel had committed prejudicial ineffective assistance of counsel by failing to argue that the affidavit in support of the warrant contained numerous misstatements and omissions of facts. Additionally, counsel argued authorization of a general, exploratory search warrant was invalid. On February 10, 2016, the People filed opposition.
It was noted in defense counsel's affidavit that defendant had had a total of four attorneys representing him at that point, in addition to representing himself at one point.
On June 2, 2016, the People filed the first amended information charging defendant with three counts of forcible oral copulation (counts 1, 3, & 4; § 288, subd. (c)(2)(A)); kidnapping to commit another crime (count 2; § 209, subd. (b)(1)); forcible rape (count 5; § 261, subd. (a)(2)); dissuading a witness by force or threat (count 6; § 136.1, subd. (c)); possession of a prohibited short-barreled shotgun or rifle (count 7; § 12020, subd. (a)); six counts of possession of prohibited assault weapons (counts 8-13; § 12280, subd. (b)); and the manufacture, distribution, transportation, importation, or possession for sale of a prohibited assault weapon or .50-caliber Browning machine gun (count 14; former § 12280, subd. (a)(1)). The People additionally alleged as to counts 1 through 5 that defendant had personally used a handgun (§ 12022.53, subd. (b)); as to counts 3 through 5 that defendant had personally used a dangerous or deadly weapon or kidnapped the victim (§ 667.61, subds. (a), (b), (e)); as to counts 3 through 5, that defendant had kidnapped the victim and the movement substantially increased the victim's risk of harm (§ 667.61, subds. (a), (d)); and as to count 1, that defendant had personally used a deadly weapon (§ 667.61, subds. (b), (e)).
Defendant faced exposure of approximately 100 years' incarceration. --------
On June 3, 2016, the court heard and denied defendant's second motion to traverse the warrant and suppress the evidence. On July 15, 2016, defendant entered a guilty plea as recited above. The remaining counts and allegations were dismissed. The court released defendant on parole.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. HOLLENHORST
J.