Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner and Jerold L. Turner, Judge. Super. Ct. No. BF113647A
Judge Gildner ruled on defendant’s motion to suppress; Judge Turner accepted defendant’s plea and sentenced him.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Bobby Jean Forrest was charged with the first degree murder of his three-month-old son and with being a felon in possession of a firearm. The firearm possession charge was bifurcated from the murder charge. He was acquitted of murder, and then pleaded guilty to the possession charge and admitted a prior prison term allegation. Defendant received a four-year prison term. He appeals, claiming the trial court erred in denying his motion to suppress, his counsel was ineffective in failing to allege the search warrant contained a material omission, and the trial court abused its discretion when it sentenced him to the upper term. We affirm.
Background
The facts surrounding the death of the infant are not in issue except to the extent they are relevant to the search warrant issue; thus we shall briefly summarize the evidence from the trial.
Defendant was taking care of his three-month-old infant son on February 12, 2006. This was the first time he had taken care of the baby by himself. He returned the baby on February 13, 2006 to the paternal grandfather’s house. When the step-grandmother removed the baby from the car seat, she could not wake him. The baby was dead.
After the baby’s death, defendant agreed to come to the police station for an interview. After the interview, a search warrant was obtained to search defendant’s residence. Prior to the search, defendant told law enforcement that he was a felon and that he had a gun in his residence. At the residence law enforcement found a black case that contained a gun.
Defendant’s motion to suppress the seizure of this gun was denied.
DISCUSSION
I. Failure to Suppress the Gun
Law enforcement obtained a search warrant to search defendant’s residence. The warrant listed numerous items they were searching for, including baby-related items and documents showing residency or ownership. The warrant did not list firearms as one of the items to be searched for. The warrant was issued after law enforcement interviewed defendant. Defendant told Sergeant Martin Downs that he had previously been convicted of a felony and that there was a gun in a case in his trailer.
Downs testified that during the search an eight-by-ten black hard plastic case was found. The case had a white label on it indicating the make, model, and caliber of the firearm inside the case. The case was removed from the closet and placed on the bed. Judging from the weight of the case and the marking on the case, Downs believed there was a firearm inside of it. The case was opened and a gun was found inside.
Defendant filed a motion to suppress the gun, claiming it was property not described in the warrant and the picking up, inspection, and opening of the case constituted a search and seizure not authorized by the warrant.
The trial court denied the motion to suppress.
Defendant now argues the gun should have been suppressed because the evidence failed to show that a layperson would have known the hard plastic case discovered by the officers contained a gun.
“The plain-view doctrine permits, in the course of a search authorized by a search warrant, the seizure of an item not listed in the warrant, if the police lawfully are in a position from which they view the item, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object. [Citations.] In such circumstances, the warrantless seizure of evidence of crime in plain view is not prohibited by the Fourth Amendment, even if the discovery of the evidence is not inadvertent. [Citation.] Where an officer has a valid warrant to search for one item but merely a suspicion, not amounting to probable cause, concerning a second item, that second item is not immunized from seizure if found during a lawful search for the first item. [Citation.] This rule was stated by the high court in Horton [Horton v. California (1990) 496 U.S. 128] in the context of a search conducted pursuant to a warrant, notwithstanding the circumstance that in other cases applying the plain view doctrine in various contexts, the determination that the incriminating nature of an item was ‘immediately apparent’ was based upon whether the officers had probable cause to believe that the item was either evidence of a crime or contraband. [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1293-1294.)
Relying primarily on a case from the Ninth Circuit Court of Appeals (United States v. Gust (9th Cir. 2005) 408 F.3d 797), defendant argues that before law enforcement may properly open a container it must be one that is susceptible to ready identification by the general public as containing the item versus a container that law enforcement in their expertise would recognize as containing contraband.
First, we are not bound by cases from the federal courts of appeals. (People v. Bradford, supra, 15 Cal.4th at p. 1292.) Second, even if we adopt defendant’s legal position, his argument would fail. The gun was found in a case with a label on the outside describing exactly what the case contained. The nature of the item was immediately apparent to even an untrained eye. (See People v. Chavers (1983) 33 Cal.3d 462, 471-473.) We additionally note that defendant’s telling the officers that there was a gun in a case in his residence could be construed as a relinquishment of any claim to privacy in the container’s contents. (People v. Johnson (1981) 123 Cal.App.3d Supp. 26, 33-35.) Defendant’s argument fails.
II. Ineffective Assistance of Counsel
Defendant filed a motion to traverse the search warrant affidavit, claiming it contained deliberate or reckless misstatements necessary to the finding of probable cause. Attached to his motion was the affidavit in support of the search warrant, police reports, and a transcript of the taped interview between Downs and defendant. In the affidavit, Downs declared that he has been a law enforcement officer for the past 15 years and has investigated several infant deaths and cases involving the physical abuse of children. He was informed that the three-month-old infant was pronounced dead shortly after defendant had taken care of the child at his residence and had dropped the child off after an overnight trip. When the infant was checked, after being dropped off, he was cold to the touch. One of the deputies responding to the scene spoke to defendant, and defendant told him that he (defendant) might be going to jail today. Downs subsequently interviewed defendant. He included the following information from that interview. “Forrest [defendant] said Jordan [the infant] was fussy and making wheezing type sounds and woke several times through the night. Forrest said he had placed Jordan onto his bed in the main sleeping portion of the trailer. Forrest said he slept with his son and woke at approximately 0650 hours. Forrest said he believed Jordan was still alive when they woke up on 2-13-06. Forrest described giving Jordan a bath and I inquired if Jordan was alive at that time. Forrest broke down and said he believed Jordan was alive, but was wondering if Jordan could have been dead at the time he gave him the bath. Forrest then told me he did not want to answer any further questions regarding the events and circumstances surrounding the death of his son.”
As defendant argued in his written motion and at the oral hearing on the motion, during the interview between defendant and Downs defendant did not break down or say he wondered if the infant could have been dead at the time defendant gave him the bath. Downs testified at the hearing that defendant did make such an emotional response, but he did so after the tape was turned off. Downs admitted that he included this statement by the defendant in the affidavit in the wrong sequence. Downs testified that he thought the response was made during the taped interview, but it was not.
During the taped interview, defendant was asked about his activities during the morning before he returned the infant to his grandfather. He described bathing the child, wrapping him up, putting him in bed, and putting medication on the baby. Downs asked the defendant, “Were his eyes open at that time in the morning?” Defendant replied, “Of course his eyes were open.”
Defendant claims that Downs recklessly or intentionally omitted the above statement from his affidavit and if he had included the statement it would have placed defendant’s later emotional outburst in a substantially different light. Defendant argues that his trial counsel was ineffective by not arguing the “eyes open” statement to the trial court and if he had argued it there is a reasonable likelihood the trial court would have granted the motion to quash the warrant.
A defendant “claiming ineffective assistance of counsel has the burden to show: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. [Citations.] The same standard applies to retained and appointed counsel. [Citation.] [¶] To establish prejudice, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.] In demonstrating prejudice, the appellant ‘must carry his burden of proving prejudice as a “demonstrable reality,” not simply speculation as to the effect of the errors or omissions of counsel.’ [Citation.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.)
Here, defendant cannot show a reasonable probability sufficient to undermine confidence in the outcome. At the outset of the hearing, there was a discussion on what the court should consider. The discussion resulted in the court’s taking a recess so it could read the affidavit attached to the search warrant, the police report, and the transcript. It was agreed the court could consider these exhibits attached to defendant’s moving papers. The court took a recess, returned to court, and stated it had reviewed the exhibits. The only other evidence defendant had to offer at the hearing was the testimony of Downs.
Thus, it is clear the trial court read the transcript of the interview, including the portion regarding whether or not the infant’s eyes were open. Defense counsel had brought this statement to the court’s attention via the written transcript the trial court considered as evidence. There is not a reasonable probability that had defense counsel specifically argued the statement, the result would have been different. Defendant has failed to show ineffective assistance of counsel.
In addition, we note that defendant has not shown that the trial court erred when it denied his motion and in doing so necessarily found that the statement made by Downs in the affidavit was not made knowingly and intentionally or with reckless disregard for the truth. (People v. Luera (2001) 86 Cal.App.4th 513, 524-525.) Downs testified that the statement was made, he erroneously thought it was made during the interview, and he mistakenly put it in the wrong sequence in the affidavit. Such a mistake does not arise to the standard necessary to grant the motion.
III. Imposition of the Upper Term
Defendant was sentenced to the upper term of three years for the possession charge with a one-year consecutive sentence added for a prior prison term. He argued in his moving papers at sentencing that his statement to law enforcement prior to the search that he had a gun in his residence was an early admission of guilt and should be used in mitigation.
At sentencing the following exchange took place between the prosecutor and the trial court: “[PROSECUTOR:] The extent of Mr. Forrest’s record and given the lack of mitigating circumstances applying to him in this case, it appears to me that that would be appropriate for the court to exercise its discretion and sentence to the upper term plus the prior.
“THE COURT: I agree. I have reviewed this matter extensively, Mr. Aguilar [defense counsel]. I see no reason to come off the upper term with the prison prior in this particular case. I recognize the circumstances in this case -- let me see the file.
“(Whereupon the court reviewed the file.)”
From the above exchange defendant argues the trial court concluded there were no factors in mitigation and this was error requiring that the case be remanded for a new sentencing hearing.
We do not read the record in the same manner argued by defendant. The court stated it had reviewed the matter extensively and saw no reason to depart from the upper term. The court’s agreement with the prosecutor was in the prosecutor’s position that defendant should receive the upper term. Defendant has not shown from the above quoted exchange that the trial court failed to exercise its sentencing discretion utilizing the appropriate considerations.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DAWSON, J., KANE, J.