From Casetext: Smarter Legal Research

People v. Do

California Court of Appeals, Fourth District, Third Division
Mar 28, 2008
No. G038401 (Cal. Ct. App. Mar. 28, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. KHANH THANH DO, Defendant and Appellant. G038401 California Court of Appeal, Fourth District, Third Division March 28, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Appeal from a judgment of the Superior Court of Orange County, Daniel B. McNerney, Judge. Super. Ct. No. 06WF2533

William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SILLS, P. J.

Khanh Thanh Do appeals from the judgment sending him to prison for 32 months after a jury convicted him of cocaine possession and he admitted he had a prior “strike” conviction. (See Pen. Code, §§ 667, subds. (d), (e), 1170.12, subds. (b), (c); Health & Saf. Code, § 11350, subd. (a).) On appeal, he contends his attorney ineffectively assisted him by failing to bring a motion to suppress the evidence seized from his motel room. We affirm the judgment.

FACTS

In the late afternoon of an early fall day, three Garden Grove police officers went to the Little Saigon Inn to break up a reported fight between some patrons. When they arrived at the motel lobby, they found no fisticuffs, but noticed Do, a registered guest, after the staff identified him as one of those in the brawl. Moreover, he was acting strangely: He appeared very agitated for no apparent reason and kept asking, while glancing over his shoulder, “who is watching us?” The officers, concerned for Do’s well-being, asked his consent to search his room at the motel. Do consented. The officers entered the room and almost immediately noticed a foil bindle sitting on top of the television set in the room. As such foil bindles are commonly used to hold single dosages of cocaine, they opened it, finding 1.9 grams of cocaine base.

DISCUSSION

Ineffective Assistance of Counsel

Do’s sole issue on appeal is that his counsel failed to effectively represent him. He argues that, at a minimum, his counsel should have brought a motion to suppress the cocaine base found in his room. He conjectures that, although no hearing was ever held, there “was a reasonable possibility that [the] motion to suppress would have been granted[,]” based on the evidence introduced at trial and some assertions found in the probation report. He argues that he merely submitted to the color of authority exerted by the police because he was under arrest for outstanding warrants when he consented to the search. He also maintains that the officers could not have reasonably concluded that he was intelligently consenting to the search because he was obviously under the influence of drugs at the time.

No admissible evidence was received intimating any arrest for outstanding warrants. To the contrary, the testimony from the arresting officer—both at trial and at the preliminary hearing—was that Do was arrested after discovery of the cocaine bindle and for no other reason. However, the probation report, prepared by a probation officer, indicated that the officers arrested Do for both the cocaine possession and outstanding warrants.

Do essentially requests we review matters never litigated below and for which no explanation for counsel’s failure to object is evident. In such cases, it is preferable that the issue of counsel’s competency be raised via a petition for writ of habeas corpus. (See People v. Pope (1979) 23 Cal.3d 412, 426.) However, as Do chose not to file such a petition and join it with this appeal, we proceed to review the matter with the limited record available to us.

When “the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. . . . [¶] Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus. In habeas corpus proceedings, there is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner complained of. [Citations.]” (People v. Pope, supra, 23 Cal.3d at p. 426.)

The burden is on the defense to show that counsel’s performance was deficient. (See Strickland v. Washington (1984) 466 U.S. 668, 688.) Once that is shown, it must be able to then show that counsel’s deficiencies were such that, but for his or her errors, the result of the proceeding would have been different. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)

“‘Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”’” (In re Harris (1993) 5 Cal.4th 813, 833.)

“In undertaking our independent review, we turn first to the question whether counsel’s representation was deficient, i.e., whether it ‘fell below an objective standard of reasonableness.’ [Citation.] . . . ‘[I]n evaluating a defendant’s showing of incompetence, we accord great deference to the tactical decisions of trial counsel. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” [Citations.]’ [Citation.]” (In re Jackson (1992) 3 Cal.4th 578, 610, original italics.)

Do fails to follow this sound advice, assuming that there was no “satisfactory” tactical explanation for counsel’s decision for not bringing a suppression motion. (Cf. People v. Ledesma, supra, 43 Cal.3d at 218.) Basing his assessment on assertions found in the probation report prepared for sentencing as well as testimony from the preliminary hearing and trial, he concludes that there was an arguable possibility that the motion would have been granted, thus resulting in a far different—and more advantageous—end to the proceedings.

We, however, cannot assume that there was no satisfactory explanation for counsel’s decision. On the contrary, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (Strickland v. Washington, supra, 466 U.S. at p. 689.) Usually, matters involving evidentiary questions are tactical concerns lying within the discretion of trial counsel. (See People v. Jackson (1980) 28 Cal.3d 264, 291-292.) Moreover, counsel “is [never] required to make futile objections or motions merely to create a record impregnable to assault for claimed inadequacy of counsel. [Citation.]” (People v. Weston (1981) 114 Cal.App.3d 764, 780.) Thus, we examine the merits of such a motion, had it been brought and based on the testimony actually received.

Warrantless searches, although carrying a presumption of invalidity, are permitted when the person consents to that search. (See People v. Woods (1999) 21 Cal.4th 668, 674.) That consent, however, must be voluntarily given. The determination of voluntariness can only be based on an examination of the totality of the circumstances surrounding the grant of consent. (See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227-234.) It is not pivotal that the officers did not inform the person that he or she could refuse to consent; nor must the officers inform the person of the rights under Miranda v. Arizona (1966) 384 U.S. 436. (Id. at pp. 231-234.) Moreover, the mere request for consent, and its subsequent granting, is sufficient to establish its voluntariness if circumstances contradicting that character are not present. (See People v. James (1977) 19 Cal.3d 99, 116.)

No contradictory evidence is present here. The officers confronted Do who appeared to act in a strange manner and whom the motel staff identified as having been involved in a fight requiring the officers’ summons. In questioning him, the officers found he laughed inappropriately and acted slightly paranoid, but he appeared fully aware of what he wanted them to hear and what he desired to keep from them: He would not answer any of their questions concerning his involvement in the earlier fight but easily answered all of their general questions as to his health, status, residence and identity. When they asked him if they could search his room, he said they could and then handed them his key, indicating his permission to search. Nothing in the record indicates that a suppression motion would have prevailed and thus, counsel had no duty to raise it. (See In re Lower (1979) 100 Cal.App.3d 144, 149, fn. 3.)

The judgment is affirmed.

WE CONCUR: O’LEARY, J., ARONSON, J.


Summaries of

People v. Do

California Court of Appeals, Fourth District, Third Division
Mar 28, 2008
No. G038401 (Cal. Ct. App. Mar. 28, 2008)
Case details for

People v. Do

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KHANH THANH DO, Defendant and…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 28, 2008

Citations

No. G038401 (Cal. Ct. App. Mar. 28, 2008)