Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV1000051 Stephan G. Saleson, Judge.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster, J.
On May 26, 2010, an information charged defendant and appellant Steven Anthony Dlugitch with one count of possession for sale of methamphetamine under Health and Safety Code section 11378. The information also alleged that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang under Penal Code section 186.22, subdivision (b)(1)(A). The information further alleged that defendant suffered the following prior convictions under Penal Code sections 667, subdivisions (b) through (i), 1170.12, subdivisions (a) through (d): (1) felon in possession of a firearm under Penal Code section 12021, with a gang enhancement under Penal Code section 186.22; and (2) robbery under Penal Code section 211. Furthermore, the information alleged that defendant had served a prison term for each of the prior convictions under Penal Code section 667.5.
Defendant’s motion to suppress evidence following the preliminary hearing was denied, and his renewed motion to suppress evidence after the filing of the information was also denied. Thereafter, defendant entered into a plea agreement whereby he would plead no contest to count 1, admit the gang enhancement, and plead to an additional six counts for possession for sale under Health and Safety Code section 11378. In exchange, one of defendant’s strike priors would be dismissed, and he would receive a total determinate sentence of 18 years. The information, therefore, was amended to add counts 2 through 7. On September 8, 2010, the court imposed sentence in accordance with the plea agreement. In addition, the court ordered $79.86 in booking fees and $5,000 in restitution fines under Penal Code section 1202.4. A $5,000 parole revocation fine under Penal Code section 1202.45 was stayed pending successful completion of parole. Criminal assessment fees of $30, and court security fees of $30 were imposed to each of defendant’s seven convictions, for a total of $420. Defendant received presentence custody credit of 245 actual days and 122 days of conduct credit, for a total of 367 days.
Defendant appeals the denial of his motions to suppress under Penal Code section 1538.5.
I
Since this appeal arises from a plea of no contest, the statement of facts is derived from the preliminary hearing transcript.
On January 6, 2010, San Bernardino County Sheriff’s Deputies Dean and Peraza were in an unmarked patrol unit equipped with a red light and emergency siren. At 10:30 p.m., they saw defendant and Jennifer Ortiz exit from a room of a Travel Inn Motel in Ontario; they got into a Silver Hyundai. Defendant was the driver. As the vehicle passed them, Deputy Dean noticed that it had very dark, tinted windows, a violation of the Vehicle Code.
The vehicle left the motel at a high rate of speed and rolled through two stop signs. Deputy Dean activated his red light. At that time, he noticed movement on the passenger side. Upon making contact with defendant, Deputy Dean smelled “a strong odor of fresh marijuana coming from the interior of the vehicle.” Defendant stated that he was on active parole; a records check confirmed defendant’s parole status.
Defendant gave Deputy Dean permission to search the vehicle. A “hide-a-key” was found in the glove box, and a hotel room key was found between the passenger seat and the door. Ortiz stated that she and defendant had stayed in the room the night before, but were no longer staying there. She stated the room was in her name, but she had not completely paid for it. Defendant denied he was staying at the motel room; he just dropped off his property there.
Deputy Dean then went to the motel and spoke with the manager. The manager stated that the room, which was in Ortiz’s name, was paid in full. Deputy Dean proceeded to search the room without the consent of Ortiz or defendant. The search revealed a digital scale, containing methamphetamine residue, on top of the refrigerator. A cell phone, woman’s wallet, and purse were on the nightstand. The purse contained identification in the name of Ortiz. Another scale and 36 empty baggies were located by a large duffle bag containing men’s clothing. Under the air conditioning unit, Deputy Dean found a hide-a-key similar to the one found in the vehicle. Inside was 3.4 grams of suspected methamphetamine. The officer also found photographs of defendant and Ortiz; one photograph was of defendant at Chuck E. Cheese throwing the “F” gang sign.
Deputy Dean had experience investigating gang crimes and has had contact with over 400 gang members. Deputy Dean was familiar with The Fontana Kings (TFK) gang, which had 75 documented members. The gang’s primary activity was the sale of illegal narcotics. Deputy Dean was aware that two TFK members were convicted of robbery and for possession for sale of marijuana.
On the day defendant was stopped by Deputy Dean, defendant admitted that he was a TFK member, but not really active. Defendant stated that he stopped claiming the gang while he was in prison from 2004 through 2005. Deputy Dean testified that defendant’s monikers are Vandal and Bandit, and the deputy identified photographs of defendant throwing gang signs. A tattoo with the letters “TFK” was on defendant’s stomach.
Deputy Dean opined that the methamphetamine found in the motel room was possessed for sale because of the presence of baggies, scales, and the text messages found on Ortiz’s cell phone. The deputy also opined that the possession of methamphetamine was for the benefit of TFK.
II
ANALYSIS
After defendant appealed, and upon his request, 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 case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his three-page supplemental brief, defendant contends that (1) he received ineffective assistance of counsel (IAC) by appellate counsel because she misrepresented the facts in the brief; and (2) the trial court erred in denying the motions to suppress. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
We hereby address defendant’s contentions. We first address whether the trial court erred in denying his motions to suppress. It appears that defendant is arguing error based on his “prolonged detention.”
“Our standard of review on appeal from the denial of a motion to suppress is well established. We defer to the trial court’s factual findings where supported by substantial evidence, but we must exercise our independent judgment to determine whether, on the facts found, the search and seizure was reasonable under the Fourth Amendment standards of reasonableness. [Citation.]” (People v. Avila (1997) 58 Cal.App.4th 1069, 1073-1074 [Fourth Dist., Div. Two]; accord, People v. Memro (1995) 11 Cal.4th 786, 846; People v. Loewen (1983) 35 Cal.3d 117, 123.)
“The Fourth Amendment to the United States Constitution provides that ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....’ The protections afforded by the Fourth Amendment have been held to be applicable to the states through the due process clause of the Fourteenth Amendment. [Citation.] In deciding the reasonableness of the search and seizure at issue here, we are bound by the lower court’s findings of fact so long as they are supported by substantial evidence. [Citation.] We determine independently, however, the legal issue of whether, on the facts found, the search was reasonable within the meaning of the Constitution. [Citation.]” (People v. Gorrostieta (1993) 19 Cal.App.4th 71, 80; see also Ornelas v. U.S. (1996) 517 U.S. 690.)
In order to justify the officers’ actions, we must first determine whether they had a reasonable suspicion that defendant was involved in criminal activity, sufficient to support the detention. (See People v. Harris (1975) 15 Cal.3d 384; People v. Gatch (1976) 56 Cal.App.3d 505, 508-509 [Fourth Dist., Div. Two].) A reasonable suspicion of involvement in criminal activity will justify a temporary stop and detention even though the circumstances are also consistent with lawful activity. Typically, the purpose of the detention is to resolve the ambiguity. (People v. Souza (1994) 9 Cal.4th 224, 233; U.S. v. Arvizu (2002) 534 U.S. 266, 274-276; U.S. v. Sokolow (1989) 490 U.S. 1, 7-8.) Even if individual factors are susceptible to innocent explanation, and some factors are more probative than others, taken together they may suffice to form a particularized and objective basis for an investigatory stop. (People v. Souza, supra, at p. 233; U.S. v. Arvizu, supra, at p. 277.)
It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation. (Terry v. Ohio (1968) 392 U.S. 1, 22.) However, the police are not free to detain citizens at will. “‘[In] order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that any investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.]” (In re James D. (1987) 43 Cal.3d 903, 914, quoting In re Tony C. (1978) 21 Cal.3d 888, 893; see also People v. Renteria (1992) 2 Cal.App.4th 440, 443; People v. Souza, supra, 9 Cal.4th 224, 231 [“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.”].)
Here, the officers’ actions were reasonable, and the totality of the circumstances warranted the officers’ detention of defendant. The initial stop was justified based on the officers’ observations of defendant’s driving, as summarized above. Thereafter, when the officers learned about defendant’s status as a parolee, they conducted a search of the vehicle and the motel room. As the trial court stated, “I don’t think that [the detention] rises to any level based on the parole status of [defendant] and the search term inherent in that parole status.” Accordingly, the trial court properly denied his motion to suppress.
Next, we address defendant’s IAC claim. In order to establish a claim of IAC, defendant must demonstrate, “(1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668; accord, People v. Boyette (2002) 29 Cal.4th 381, 430.) Hence, an IAC claim has two components: deficient performance and prejudice. (Strickland v. Washington, supra, at pp. 687-688, 693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails.
In this case, defendant contends that his appellate counsel rendered IAC because counsel misstated the facts. Here, in the appellate brief, counsel wrote that “Ortiz gave consent to search her hotel room.” The preliminary hearing transcript, however, shows that Deputy Dean testified that no consent was given by Ortiz to search the room. Based on this, and counsel’s finding that that are no issues to raise on appeal, defendant claims IAC by appellate counsel.
Defendant, however, cannot demonstrate that counsel’s alleged deficient representation prejudiced him, i.e., there is a reasonable probability that, but for counsel’s purported failings, defendant would have received a more favorable result. (People v. Dennis, supra, 17 Cal.4th at pp. 540-541; Strickland v. Washington, supra, 466 U.S. at p. 687.) Even if appellate counsel properly noted that Ortiz had not given consent to search the motel room, the search was proper because of defendant’s parole status. As the trial court noted, “I think the parole status and the search status trumps that issue.... I think the parole status completely justifies the search, having not been overly prolonged and tied each case to observations made by law enforcement.” There was no prejudice. Defendant’s IAC claim, therefore, fails.
III
DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., King J.