Opinion
B157853.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. TONY BARRIOS, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Jeffrey A. Hoskinson, Deputy Attorneys General, for Plaintiff and Respondent.
In late 2000, drug charges (and a variety of allegations concerning his prior convictions) were filed against Tony Joe Anthony Barrios. After his arraignment, Barrios moved to suppress evidence obtained in a warrantless search, and the motion was granted by Judge Arthur Jean, Jr., who then dismissed the case. The charges were immediately refiled, and the case was assigned to Judge Richard R. Romero. On June 19, 2001, Barrios again moved to suppress the drugs, and in his papers asked Judge Romero to transfer the case to Judge Jean so the renewed motion could be heard by the same judge who heard and granted the earlier motion. (Pen. Code, § 1538.5, subd. (p); Soil v. Superior Court (1997) 55 Cal.App.4th 872.)
Undesignated section references are to the Penal Code.
On October 22, "[w]hile informally and ex parte speaking to Judge Romero at side bar, [Barrioss lawyer] advised the judge that he intended to make a motion to send the matter back to Judge Jean. Judge Romero [said] that he wanted to have this matter heard formally on the record. All parties were then at counsel table and [Barrioss lawyer] was about to orally move the court to transfer the case back to Judge Jean, when a last day murder trial was transferred to Judge Romero and the case was sent to Judge [Gary J.] Ferraris court for reassignment to a trial court. [¶] On October 24, . . . with both [the deputy district attorney and defense counsel] present, Judge Ferrari transferred the case, without objection, to Judge [Bradford L.] Andrews for trial."
In response to Barrioss request for a settled statement of facts, we ordered Judge Jean to hold a hearing and prepare a record of the proceedings "concerning the attempts by [defense] counsel to move the court to transfer the matter back to Judge Jean." The quotation in the text is from the minute order documenting the hearing on the settled statement. In support of his application for that hearing, Barrioss trial counsel explained his silence at the time the case was transferred to Judge Andrews: On July 27, just after defense counsel filed his written request to transfer the case to Judge Jean, the deputy district attorney, "in an endeavor to forum shop, . . . showed [defense counsel] a motion to recuse Judge Jean pursuant to Code of Civil Procedure section 170.6. [The prosecutor] advised [defense counsel] that if the matter were to be transferred back to Judge Jean, she would file the 170.6 challenge. . . . In addition, the [prosecutor] gave [defense counsel] a copy of a [then] recent appellate decision, People v. Superior Court (Jimenez) (2001) [90 Cal.App.4th 267, review granted Oct. 10, 2002, S099542]. [¶] . . . [¶] [Later, the] matter was transferred to Judge . . . Andrews. [Based on] the [prosecutors] inten[t to] fil[e] the 170.6 challenge, the Jimenez decision, and the obvious shortcomings in the prosecutions case, [defense counsel] did not further object to this transfer on the record."
Judge Andrews heard and denied Barrioss renewed suppression motion. Barrios then pleaded no contest to one count of possessing marijuana for sale, and one count of selling or transporting marijuana, and admitted the truth of numerous prior prison term and prior conviction allegations (including six that qualified as strikes). He was sentenced to state prison for a term of 25 years to life. Barrios appeals, challenging the order denying his suppression motion on a variety of procedural and substantive grounds. We affirm.
DISCUSSION
I.
We agree with Barrioss contention that his renewed suppression motion should have been heard by Judge Jean, but agree with the People that the issue was waived.
A.
As Division Two of our court explained in Soil v. Superior Court, supra, 55 Cal.App.4th 872, 877-879, subdivision (p) of section 1538.5, which provides that relitigation of a suppression motion "shall be heard by the same judge who granted the motion at the first hearing if the judge is available," was added by the Legislature as a "prohibition against the evil" of forum shopping when criminal charges are dismissed, then refiled.
Although it is true, as Barrios points out, that (about 10 days after Barrios filed his renewed suppression motion) we published an opinion in which we held that the prosecutors use of a peremptory challenge (Code Civ. Proc., § 170.6) against the judge who decided the first suppression motion makes that judge "unavailable" to hear the renewed motion (People v. Superior Court (Jimenez), supra, 90 Cal.App.4th 267), the Supreme Court granted review on October 10, 2001, two weeks before this case was transferred to Judge Andrews — which meant Jimenez was no longer citable. (Cal. Rules of Court, rules 976, 977.) Thus, at the time the case was transferred to Judge Andrews rather than Judge Jean, the trial court was bound by Soil and required to transfer the case to Judge Jean (although Soil did not reach the issue that arises when a peremptory challenge is used against the original judge).
The Supreme Court ultimately reversed our decision, holding in Jimenez that the prosecutor cannot use a peremptory challenge to make a judge "unavailable" to hear a renewed suppression motion. (People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 807-809; and see Barnes v. Superior Court (2002) 96 Cal.App.4th 631, 631-633.)
B.
When Barrios allowed the case to be transferred to Judge Andrews without objection, he waived his right to have the suppression motion heard by Judge Jean. The prosecutors threat to disqualify Judge Jean with a peremptory challenge is interesting but irrelevant — because (1) there was (at the time the case was transferred) no authority suggesting that a prosecutor could use a peremptory challenge to make a judge "unavailable" in this context, and because (2) the threat was just that, not an established fact. Under those circumstances, defense counsel should have pursued his written request to transfer the case to Judge Jean by requesting a ruling on the written request and by objecting to the transfer to Judge Andrews and, if all else failed, by filing a petition for a writ of mandate. (Barnes v. Superior Court, supra, 96 Cal.App.4th at p. 633.) Since defense counsel did none of these things, the issue was waived.
II.
Barrios of course contends that counsels omissions deprived him of the effective assistance of counsel. We disagree.
Assuming counsels failure to object was a mistake rather than a tactical decision (People v. Ray (1996) 13 Cal.4th 313, 349), there was no resulting prejudice to Barrios and thus no basis for reversal. (Strickland v. Washington (1984) 466 U.S. 668, 690-696; People v. Ledesma (1987) 43 Cal.3d 171, 215-217; People v. Waidla (2000) 22 Cal.4th 690, 718; People v. Hester (2000) 22 Cal.4th 290, 296.) As we explain below in response to Barrioss contention that his renewed motion to suppress should have been granted by Judge Andrews (Part III, post), Judge Jean did not (as Barrios contends) "hear[] the same evidence that was presented to Judge Andrews." By the time the second motion was heard, the People presented substantially more evidence about the investigation that resulted in Barrioss detention, and it is plain that Judge Jean would have reached the same result reached by Judge Andrews — and by us. Counsels mistake was plainly non-prejudicial.
III.
Barrios contends his renewed suppression motion should have been granted because, he claims, he was detained without probable cause or even a reasonable suspicion that he was involved in criminal activity. We disagree.
A.
Based on an informants tip, Agent Rigo Polanco and his eight-member task force began an investigation into major narcotics trafficking in June 2000. Initially, the task force focused on Victor Murillo, his Downey house, and the people who went in and out of that house. From June to August, the members of the task force watched as people took bags into the house and left without them, loaded bags, backpacks, and suitcases into vehicles, drove the vehicles into the garage and then left, and people stopping at pay phones, meeting in public places, and engaging in counter-surveillance activities. These observations led to several arrests and prosecutions, and to the task forces familiarity with Roberto Ortiz.
In the course of surveillance at Ortizs house on August 31 (during which the task force members were able to communicate with each other from their vehicles), the agents saw Ortiz leave his house in a green Dodge Intrepid and drive to Murillos house in Downey, using counter-surveillance techniques as he drove. When Ortiz left Downey, he was in a blue Buick, again with counter-surveillance efforts, and he ultimately drove into a garage off an alley at the back of a Cerritos condominium complex. Agent Polanco walked by, stopped for a few moments by the open garage door, heard Ortiz say "hurry up," and watched as an Hispanic man handed a black backpack to Ortiz as the two men stood by the drivers side of the Buick. After about 15 minutes, Ortiz left, stopped at a pay phone, then drove back to Murillos house and went inside.
Knowing that contraband is frequently delivered in a bag into which payment is placed and then taken to a place where money is stored, Agent Polanco believed a delivery had been made to the man in the Cerritos garage, and had the task force members return to Cerritos. In Cerritos, a task force member reported to Agent Polanco that he was watching a Nissan Quest van driven by a woman (Christina Gutierrez) with a man (Barrios) in the front passenger seat. As the agent watched, the van drove into the alley and pulled partially into the same garage that Ortiz had driven into. Barrios got out of the van and walked empty-handed into the garage. Minutes later, he returned to the van carrying something wrapped in a white T-shirt. The van left, and the agents followed.
The van drove to Long Beach, where Gutierrez and Barrios dropped off a 10-year-old boy, then drove to Torrance and into a residential driveway. As an agent watched, Barrios got out of the van carrying a heavy bag and entered the house through its front door. Minutes later, Barrios returned to the van with a bag that appeared to be lighter (by weight and volume), got back into the van, and drove off. The agents followed.
The van drove onto the freeway and to Long Beach, then left the freeway and began counter-surveillance efforts — while signaling a left turn, Gutierrez abruptly turned right, drove into a residential area, stopped, then drove slower than normal to a main street. Concerned that the agents surveillance had been compromised, Agent Polanco activated his flashing lights and siren and the van began a slow turn toward the curb. Before it came to a stop, the front passenger door was opened, and Barrios got out and ran. While another agent chased Barrios, Agent Polanco approached the driver, saw a bag in plain view on the floor by the passenger seat, smelled marijuana, retrieved the bag, and found a plastic bag containing marijuana (later determined to be 2,400 grams of marijuana). Barrios, who was captured in the area, gave a false name to the agents. At the station, the agents learned Barrioss true name and found there was an outstanding warrant for his arrest.
B.
We reject Barrioss claim that his conduct, viewed in isolation, was nothing more than "innocent . . . daily activity." As the trial court noted, neither law enforcement nor the court is required to view a suspects conduct in a vacuum. The guiding principle is that 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." (People v. Souza (1994) 9 Cal.4th 224, 229-231; In re Tony C. (1978) 21 Cal.3d 888, 893; United States v. Cortez (1981) 449 U.S. 411, 417-418; United States v. Arvizu (2002) 534 U.S. 266, 277-278; Ornelas v. United States (1996) 517 U.S. 690, 699-700; People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
The facts amply support the trial courts decision (and show also that, presented with all of this evidence, Judge Jean would have denied the renewed motion). Agent Polanco and the members of his task force saw Ortiz enter the home of a known drug dealer, drive off using counter-surveillance methods, drive into the Cerritos garage, accept a backpack, and drive back to the drug dealers house. When the agents returned to the same Cerritos garage, they saw Barrios leave with something wrapped in a T-shirt, drive to Torrance, drop off a heavy package and leave with a lighter one, and then engage in counter-surveillance efforts. This was more than enough to suggest that narcotics were being sold and that Barrios was involved in the trafficking of illegal narcotics. No more was required.
Barrios contends he was "detained when the stop occurred" without regard to his flight from the van and the scene. We have assumed as much. (But see California v. Hodari D. (1991) 499 U.S. 621, 625-626 .) We note also that the sufficiency of the articulable facts, which amply and objectively suggested Barrioss involvement in criminal activity, makes it unnecessary to consider Barrioss contention that his outstanding warrant could not justify the stop.
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P.J. and MALLANO, J.