Opinion
C040299.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. SUSAN YVONNE EVERSOLL, Defendant and Appellant.
After the preliminary hearing magistrate denied her motion to suppress evidence, defendant Susan Yvonne Eversoll pled no contest to possession of methamphetamine while armed with a firearm in violation of Health and Safety Code section 11370.1, subdivision (a). On appeal, defendant seeks review of the magistrates ruling. We conclude that defendant has waived her right to appeal by failing to renew her suppression motion before the trial judge. We further conclude that defendants assertion of ineffective assistance of trial counsel fails because, as the motion to suppress was properly denied, defendant suffered no prejudice. We, therefore, affirm the judgment.
FACTUAL BACKGROUND
Viewed in the light most favorable to the trial courts denial of defendants motion to suppress (People v. Miranda (1993) 17 Cal.App.4th 917, 922), the record reveals the following facts taken from the combined preliminary hearing and suppression hearing held in municipal court:
On June 1, 2001, California Highway Patrol officers from the auto theft task force were conducting surveillance of a residence located at 5421 North Parkway in Sacramento County. At approximately 9:20 a.m., officer Bridges saw defendant drive by, make a U-turn, and pull up to the residence. When defendant got out of her car, she appeared to be carrying a very large black purse. Bridges view was blocked but he assumed she entered the residence.
Ten minutes later, detectives Kennedy and Carper arrived at the residence. The three officers walked up to the residence. Bridges went to the front door because he wanted to talk to the occupant about a stolen vehicle. He left the other two officers by the garage. Bridges knocked repeatedly but there was no answer. He then heard voices by the garage where the other officers had been waiting.
While Bridges had gone to knock on the door, Carper walked alongside the garage and observed defendant standing on an overturned plastic bucket and leaning and reaching over the fence. She had both hands over the fence and was wearing a backpack.
Defendant became very nervous when Carper contacted her. Carper brought defendant around to the front of the garage, removed her backpack and set it on the ground approximately six to ten feet away. Bridges approached the officers talking to defendant in front of the garage, who were all standing very close together. He heard Carper ask her about the black bag, which turned out to be a backpack. Defendant pointed to the backpack and said "Thats my personal stuff in there." Bridges continued to listen to the conversation and, at this point, they were all standing with the bag more or less at the center of them.
In response to Carpers request for identification, defendant indicated it was in her car and gave Carper the keys. Carper informed Kennedy and Bridges that he was going to retrieve defendants identification and run a records check. As Carper was walking away, Bridges bent down to pick up the backpack which was immediately at defendants feet. Bridges was concerned for officer safety because the bag was so close and defendant "appeared very nervous and agitated, constantly moving." Although Bridges was not trained in drug recognition evaluations, he believed she may have been under the influence of an amphetamine. People in possession of narcotics frequently carry weapons and those involved in auto theft carry weapons on a "fairly regular basis."
Bridges was picking up the bag to move it away from defendant and to feel the heft of it to address his concern that it may contain a weapon. As soon as he picked it up, defendant said, "I dont know whats in there. Thats not my bag." As Bridges picked it up, he felt the bottom and could feel a revolver barrel inside.
At this point, Bridges opened the backpack and found a loaded Smith and Wesson .357 revolver. He immediately handcuffed defendant. Carper then searched the backpack and found a drug kit and a useable quantity of methamphetamine.
PROCEDURAL BACKGROUND
A felony complaint was filed on June 8, 2001, alleging defendant possessed methamphetamine while armed with a loaded firearm. (Health & Saf. Code, § 11370.1, subd. (a).) On August 13, 2001, defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5.
On November 27, 2001, a combined preliminary hearing and hearing on the suppression motion was held in front of Magistrate John R. Morrison. At the conclusion of the evidence, the magistrate denied the motion to suppress and held defendant to answer. The parties then stipulated to deem the complaint an information and defendant pled not guilty to the charge.
On December 18, 2001, defendant appeared in superior court in front of Judge Gary E. Ransom, withdrew her plea of not guilty and entered a negotiated plea of no contest to the charged offense with the understanding that she would not be sentenced to state prison at the outset and there would be an initial maximum county jail sentence of 120 days. At no time after the initial denial of her suppression motion did she renew her motion to suppress.
Defendant seeks review of the magistrates denial of her suppression motion.
DISCUSSION
I
Generally, a defendant must renew her motion to suppress in superior court in order to preserve the issue of the legality of a search for appeal. (People v. Lilienthal (1978) 22 Cal.3d 891, 896-897, 150 Cal. Rptr. 910, 587 P.2d 706.) Trial court unification has not altered this rule. (People v. Hoffman (2001) 88 Cal.App.4th 1, 2-3; People v. Hart (1999) 74 Cal.App.4th 479, 485-486 (Hart).) To the extent that People v. Callahan (1997) 54 Cal.App.4th 1419 may hold otherwise, we decline to follow it.
Defendant concedes that the "mechanical application" of this rule compels the conclusion that she waived review of the magistrates ruling for appeal. She argues that adherence to the rule in this case should not be required because the rule would have permitted her to renew her motion to Judge Morrison after he deemed the complaint an information pursuant to stipulation, which was only moments after he denied her motion. She argues that had she done so, she would have complied with the rule but almost surely would have had her renewal motion denied.
Defendants argument is incorrect and uninformed, by law and in practice. Both the applicable statute and the California Constitution contemplate that a different judge will rule on a renewed motion to suppress. Penal Code section 1538.5 provides that when a defendant renews a motion to suppress, "the court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the court as to evidence or property not affected by evidence presented at the special hearing." (Pen. Code, § 1538.5, subd. (i).) Likewise, the California Constitution specifically provides that "Penal Code procedures that necessitate superior court review of, or action based on, a ruling or order by a [magistrate] shall be performed by a superior court judge other than the judge who originally made the ruling or order." (Cal. Const., art. VI, § 23, subd. (c)(7).)
Thus, once defendant was arraigned in superior court, she had to raise the issue again before a different judge (Cal. Const., art. VI, § 23, subd. (c)(7)) to preserve it for appeal. Defendant did not make any such attempt, nor does she explain how renewal of her motion before her change of plea to no contest in front of Judge Ransom would have been futile. In any event, she concedes she did not at any time renew her motion in the trial court. Therefore, despite defendants attempt to avoid application of the waiver rule, we conclude she failed to preserve the issue of the legality of the search for appeal.
II
Defendant asserts her trial counsel was constitutionally ineffective for failing to preserve the legality of the search as an issue to be considered on appeal. To prevail on a claim of ineffective assistance of counsel, defendant must establish her attorneys representation fell below professional standards of reasonableness and must affirmatively establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L. Ed. 2d 674, 693, 104 S. Ct. 2052]; People v. Hart (1999) 20 Cal.4th 546, 624, 976 P.2d 683; People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal. Rptr. 855, 659 P.2d 1144.) If the defendants showing is insufficient as to one component of this claim, we need not address the other. (Strickland v. Washington, supra, at p. 697.)
A claim on appeal of ineffective assistance of counsel must be rejected if "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Wilson (1992) 3 Cal.4th 926, 936, 838 P.2d 1212, citing People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal. Rptr. 732, 590 P.2d 859.) Unless the record affirmatively discloses that counsel had no tactical purpose for his act or omission, "the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsels conduct or omission." (People v. Fosselman, supra, 33 Cal.3d at pp. 581-582.)
Quoting from our decision in Hart, defendant insists we must necessarily consider the merits of her suppression motion on appeal because there can be no satisfactory reason for counsels failure to renew it in the trial court. In Hart, we concluded it was necessary to determine the legality of the search in order to determine whether counsel was constitutionally ineffective for failing to preserve the issue for appeal. (Hart, supra, 74 Cal.App.4th at pp. 486-487.) We stated that raising the issue of ineffective assistance of counsel effectively neutralized the Lilienthal waiver, requiring appellate review of the legality of the search. (Id. at p. 486.)
However, as we recently explained in People v. Hinds (2003) 108 Cal.App.4th 897, "language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered. (McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38, 4 Cal. Rptr. 176, 351 P.2d 344 . . . and cases there cited.) (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal. Rptr. 377, 393 P.2d 689.) The defendant in Hart did not enter into a negotiated or stipulated plea, but rather, proceeded through a jury trial after the denial of her suppression motion. (Hart, supra, 74 Cal.App.4th at pp. 483-484.) Hence, when deciding whether there could be a satisfactory reason for the failure of counsel to renew the suppression motion in the trial court, we considered what reasons, if any, counsel could have had under those circumstances.
"Our determination in Hart that raising the issue of ineffective assistance of counsel neutralizes the waiver applies only where the defendant proceeds through a jury trial after the denial of [her] suppression motion. Under such circumstances, we saw no sound tactical reason for failing to pursue a meritorious motion which, had it been properly granted, would have suppressed most of the evidence against defendant and perhaps resulted in a dismissal of the charges. (See Hart, supra, 74 Cal.App.4th at pp. 486-487, 494 (dis. opn. of Hull, J.).)" (People v. Hinds, supra, 108 Cal.App.4th at pp. 901-902.)
Here, however, counsel was not given an opportunity to explain why the motion was not renewed, and a satisfactory explanation could exist. For instance, the availability of the plea bargain accepted by the defendant may have been dependent upon not further pursuing the suppression motion in superior court.
III
Looking beyond the obvious procedural frailty of this case, it is evident from the record that because there was no basis upon which to suppress the evidence against her, defendant was not prejudiced by trial counsels failure to renew the suppression motion.
Defendant contends her encounter with the officers was at all times an unconstitutional detention because there was no reasonable, articulable suspicion that she was engaged in any illegal conduct at the time of the contact. We disagree.
Appellate review of a trial courts ruling on a motion to suppress is governed by well-settled principles. We review for substantial evidence with respect to historical factual findings, express or implied, but give independent review to the applicable rule of law and application of the facts to resolve whether there has been a constitutional violation. (People v. Glaser (1995) 11 Cal.4th 354, 362, 902 P.2d 729;People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal. Rptr. 834, 756 P.2d 221.)
"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, 231, 885 P.2d 982.) "Where there is a rational belief of criminal activity with which the suspect is connected, a detention for reasonable investigative procedures infringes no constitutional restraint. [Citation.]" (People v. Flores (1974) 12 Cal.3d 85, 91, 115 Cal. Rptr. 225, 524 P.2d 353.) "The possibility of an innocent explanation does not deprive the officer of the capacity to entertain 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 . . . ." (In re Tony C. (1978) 21 Cal.3d 888, 894.) In determining the reasonableness of a detention, "the guiding principle . . . is the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security." (In re Tony C., supra, 21 Cal.3d at p. 892, quoting Terry v. Ohio (1968) 392 U.S. 1, 19 [20 L. Ed. 2d 889, 904, 88 S. Ct. 1868].)
Here, defendant was found standing on an overturned bucket and reaching over a fence to someones backyard. When approached, instead of providing a reasonable explanation for her conduct, she became extremely nervous. It was reasonable at this point for the officers to detain her for identification purposes and to investigate her suspicious actions. Moreover, further detention after learning the occupant of the residence was not home was warranted to resolve whether her activity was legal or not.
The "particular governmental invasion" of defendants "personal security" was at all times reasonable in light of the totality of the circumstances known to the officers. We conclude the detention was reasonable under the Fourth Amendment. (See People v. Glaser, supra, 11 Cal.4th at pp. 365-366, 374 ["touchstone" of the Fourth Amendment is reasonableness considering the totality of the circumstances].)
Defendant next contends that the patdown search of her backpack was unlawful because the officers had no reasonable, articulable suspicion that she may be armed and presently dangerous. We find the minimal intrusion reasonable under the circumstances.
A law enforcement officer may conduct a patdown search when the officer reasonably suspects the person is armed and dangerous. (Minnesota v. Dickerson (1993) 508 U.S. 366, 373 [124 L. Ed. 2d 334, 344, 113 S. Ct. 2130], citing Terry v. Ohio, supra, 392 U.S. 1; People v. Limon (1993) 17 Cal.App.4th 524, 534.) The reasonableness of the patdown is determined by examining the totality of the circumstances under which the patdown took place. (Terry v. Ohio, supra, 392 U.S. at p. 27; People v. Hannah (1996) 51 Cal.App.4th 1335, 1343.)
Bridges testified, and the trial court believed, that defendants nervousness and constant movement, combined with the possibility that she was under the influence of a narcotic, resulted in a concern that a weapon may be inside the backpack. The trial court also found, at least implicitly, that the backpack was close enough to the defendant that, if it contained a weapon, it would pose a danger to the officers safety. Those facts are supported by the evidence, as both Bridges and Carper testified that, just prior to Bridges picking it up, the backpack was directly at defendants feet. Moreover, there was testimony that both persons who possess narcotics and persons involved in auto theft often carry weapons. The minimal intrusion of lifting the backpack and touching the outside of the bag to check for weapons was reasonable under the circumstances.
The judiciary should not lightly second-guess a police officers decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations. (People v. Koelzer (1963) 222 Cal. App. 2d 20, 27, 34 Cal. Rptr. 718; People v. Cove (1964) 228 Cal. App. 2d 466, 470, fn. 1, 39 Cal. Rptr. 535.)
Because the suppression motion had no merit, defendant was not prejudiced by defense counsels failure to renew the motion in the trial court.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., HULL, J. --------------- Notes: Defendant places great weight in her brief that Bridges did not perform a patdown search of her clothing, arguing this proves he could not have been concerned for officer safety. First, as the trial court noted, Bridges may not have known whether Carper had already performed a patdown search. Second, the officers could very well be able to visually access that she did not have a weapon hidden in her clothing due to the nature of her attire, as this incident took place in June. Thus, we do not agree that Bridges failure to perform a patdown search of defendants clothing mandates a finding that he was not concerned for officer safety.