Opinion
2d Crim. No. B279891
03-07-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MANUEL DIAZ, SR., Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16F-04095)
(San Luis Obispo County) OPINION FOLLOWING REHEARING
Robert Manuel Diaz, Sr. appeals a judgment following conviction by plea of possession of a firearm by a felon with an admission that he served three prior prison terms. (Pen. Code, §§ 29800, subd. (a)(1), 667.5, subd. (b).) The trial court denied Diaz's motion to withdraw his plea. We affirm. (§ 1018; People v. Patterson (2017) 2 Cal.5th 885, 894 [statement of rule regarding plea withdrawal].)
All further statutory references are to the Penal Code unless otherwise stated. --------
FACTUAL AND PROCEDURAL HISTORY
On May 2, 2016, the San Luis Obispo County District Attorney charged Diaz with possession of a firearm by a felon (count 1); carrying a concealed firearm (count 2); offering to sell or transport methamphetamine (count 3); and possession of methamphetamine with a firearm (count 4). (§§ 29800, subd. (a)(1), 25400, subd. (a)(2); Health & Saf. Code, §§ 11379, subd. (a), 11370.1, subd. (a).) The four-count felony complaint also alleged that Diaz suffered two prior drug convictions and served four prior prison terms. (Health & Saf. Code, § 11370.2, subd. (c); § 667.5, subd. (b).)
Diaz withdrew his not guilty plea, waived his constitutional right and right to a preliminary examination, and pleaded guilty to count 1, possession of a firearm by a felon. He also admitted that he served three prior prison terms. The parties stipulated that the police report provided a factual basis for the guilty plea.
Police Report
In the early afternoon of April 21, 2016, Pismo Beach Police Officer Brenden Neary responded to a call reporting that two tall, dark-skinned, bearded men wearing gray clothing were knocking on the doors of vacant rental properties in the 300 block of Park Avenue. Neary immediately saw Diaz standing on the corner of Park and Dolliver Avenues; he matched the physical description provided by the complaining party. Diaz looked around several times as he spoke on his cellular telephone. Neary stopped his patrol vehicle and spoke with Diaz, who held one hand inside his pants pocket. Diaz also held two cigarettes in his right hand.
Neary asked Diaz to sit on the curb and he complied. Diaz stated that he was knocking on doors to obtain assistance in starting his vehicle. Diaz added that the man with him left to obtain jumper cables.
A second police officer soon arrived. Neary asked Diaz to place his hands on top of his head so that he could be searched for weapons. Diaz stated that he did not consent to a patdown for weapons. Neary replied that Diaz's consent was not necessary. Neary then asked if Diaz had any weapons. Diaz replied: "Yes I do. That's my issue though." He added that he had a ".380" in his pocket. Neary placed Diaz in handcuffs and searched his pockets. Diaz had a .380 caliber firearm, $120 currency, a used hypodermic syringe, and a baggie containing 4.4 grams of methamphetamine in his pants pockets. The detention was captured by Neary's vest video-camera. The recording was later uploaded to the 911 server and marked with this case number as evidence.
Neary arrested Diaz and discovered that the firearm had a bullet in the chamber ready to fire and that Diaz was a convicted felon and member of the North West criminal street gang.
Motion to Withdraw Plea
Approximately six months later, Diaz moved to withdraw his guilty plea, claiming that his former attorney did not advise him that he had a meritorious motion to suppress the evidence seized during his unlawful detention. The trial court denied the plea withdrawal motion.
Sentence, Conviction, and Appeal
In accordance with the plea agreement, the trial court sentenced Diaz to five years in prison, consisting of a midterm of two years and three one-year terms for the prior prison term enhancements. The court also imposed a $1,500 restitution fine; a $1,500 parole revocation restitution fine (suspended); a $40 court security assessment; and a $30 criminal conviction assessment. The court awarded Diaz 209 days' presentence custody credit and then dismissed the remaining charged counts and allegations.
Diaz appeals and contends that the trial court erred by denying his motion to withdraw his plea. We granted Diaz relief from default and permitted him to file a second notice of appeal and to request a certificate of probable cause from the trial court. The certificate was granted on April 12, 2017.
DISCUSSION
Diaz argues that the trial court abused its discretion by denying his withdrawal motion because his detention and patdown for weapons were unreasonable pursuant to the Fourth Amendment. He asserts that he received the ineffective assistance of counsel because his former attorney did not advise him that he had a viable motion to suppress evidence.
At any time before judgment, a trial court may permit a defendant to withdraw a guilty plea for "good cause shown." (§ 1018; People v. Patterson, supra, 2 Cal.5th 885, 894.) Mistake, ignorance, or any factor overcoming the exercise of free will is good cause to withdraw a guilty plea. (Patterson, at p. 894.) Section 1018 states that its provisions "shall be liberally construed . . . to promote justice." A defendant seeking to withdraw a guilty plea on the grounds of mistake or ignorance must present clear and convincing evidence to support his claim. (Patterson, at p. 894.) A court's decision regarding a defendant's withdrawal motion is reviewed for an abuse of discretion. (Ibid. [an abuse of discretion exists where the court's decision rests upon an error of law].)
We review the facts in the police report from which there is the obvious absence of direct and cross-examination. This may limit our perspective, but we recognize this approach may stem from a reasoned trial strategy, such as a "slow plea."
To establish a claim for ineffective assistance of counsel, defendant must establish that counsel's performance was deficient and that defendant suffered prejudice thereby. (Strickland v. Washington (1984) 466 U.S. 668, 687-692; People v. Patterson, supra, 2 Cal.5th 885, 900; People v. Mickel (2016) 2 Cal.5th 181, 198.) In demonstrating deficient performance, defendant bears the burden of showing that counsel's performance fell below an objective standard of reasonableness. (Mickel, at p. 198; People v. Orloff (2016) 2 Cal.App.5th 947, 955-956.) In demonstrating prejudice, defendant bears the burden of establishing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (Patterson, at p. 900.) "To establish that he was prejudiced by counsel's alleged errors, [appellant] must show, 'that a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty'" and would have insisted, instead, on proceeding to trial. (Id. at p. 901.)
We presume that counsel's actions fall within the broad range of reasonableness, and afford great deference to counsel's tactical decisions. (People v. Mickel, supra, 2 Cal.5th 181, 198.) For this reason, a reviewing court will reverse a conviction based upon the ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had no rational tactical purpose for an action or omission. (Ibid.; People v. Orloff, supra, 2 Cal.App.5th 947, 955.) Moreover, counsel's failure to make an unmeritorious motion does not constitute ineffective assistance of counsel. (People v. Jennings (2010) 50 Cal.4th 616, 667, fn. 19; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Navarette v. California (2014) ___ U.S. ___, ___ [134 S.Ct. 1683, 1687]; People v. Casares (2016) 62 Cal.4th 808, 837; People v. Suff (2014) 58 Cal.4th 1013, 1053-1054.) A detention is reasonable pursuant to the Fourth Amendment when the detaining officer can point to specific articulable facts that, in light of the totality of circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (Navarette, at p. ___ [p. 1687]; People v. Zaragoza (2016) 1 Cal.5th 21, 56.)
While there may be differing views in our analysis of the legal issues, the detention appears to be reasonable.
A reasonable suspicion of criminal activity requires less information than a finding of probable cause. (Navarette v. California, supra, ___ U.S. ___, ___ [134 S.Ct. 1683, 1687]; People v. Wells (2006) 38 Cal.4th 1078, 1083.) "[T]he level of suspicion the standard requires is 'considerably less than proof of wrongdoing by a preponderance of the evidence,' and 'obviously less' than is necessary for probable cause." (Navarette, at p. _ [p. 1687].) Law enforcement may base a finding of reasonable suspicion on its observations, together with information from other sources, including an anonymous tip. (Wells, at p. 1083.) "The standard takes into account 'the totality of the circumstances—the whole picture.'" (Navarette, at p. ___ [p. 1687].) This standard necessarily precludes a "divide-and-conquer" analysis. (U.S. v. Arvizu (2002) 534 U.S. 266, 274.)
Pursuant to the totality of the circumstances, Neary lawfully detained Diaz based upon a reasonable suspicion that he may have been involved in criminal activity. Neary responded to a police call that two men were knocking on the doors of vacant rental homes. Diaz's physical description matched that provided by the complaining party. Neary saw Diaz standing in the area, looking around as he spoke on the telephone, but keeping his hand in his pocket. Neary may have reasonably believed that Diaz was involved in burglarizing homes or in engaging in lookout behavior. The temporary detention allowed Neary to resolve any ambiguity in Diaz's behavior and establish whether the behavior was lawful. (People v. Souza (1994) 9 Cal.4th 224, 233 [possibility of an innocent explanation does not preclude police officer from entertaining a reasonable suspicion of criminal conduct].) "'Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . .'" (Ibid.)
We acknowledge there may be differing views concerning the search. (People v. Parrott (2017) 10 Cal.App.5th 485, 495 [statement of rule regarding patdown search].) Diaz had his hand in his pocket during the detention, and when asked if he was carrying a weapon, he stated that he had a .380 firearm. Whether that alone justifies a search under the circumstances may be open to question.
Whether there may be differing analyses on either or both the detention and search is beside the point. We recognize that defense counsel may have had a valid reason to submit the matter on the police report. The resolution of that question, if necessary, we do not consider here. The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
PERREN, J.
TANGEMAN, J.
Michael L. Duffy, Judge
Superior Court County of San Luis Obispo
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.