Opinion
D070048
04-27-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS LEYVA, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN338350) APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Harry M. Elias, Judges. Affirmed. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Carlos Leyva pleaded guilty to transporting methamphetamine and possessing methamphetamine for sale, and admitted possessing more than 10 kilograms of methamphetamine. (Health & Saf. Code, §§ 11378, 11379, subd. (a), 11370.4, subd. (b)(3).) The court imposed a 13-year sentence, with five years of actual custody and eight years of supervised release.
Leyva contends the trial court erred in denying his motion to suppress the methamphetamine and other evidence found during a traffic stop. Leyva claims the law enforcement officer lacked reasonable suspicion to stop his vehicle and the officer's continued detention and search violated Leyva's Fourth Amendment rights. Leyva also contends his counsel provided ineffective assistance by failing to challenge the constitutionality of the automobile search. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Summary
We summarize the relevant facts based primarily on the evidence presented at the suppression hearing.
In the morning of October 20, 2014, San Diego Harbor Police Officer Michael Hart was at a freeway rest stop in the Camp Pendleton area. He was participating in a joint federal-state drug interdiction program. Although not a primary duty, one of Officer Hart's responsibilities was traffic patrol. Officer Hart had conducted approximately 100 traffic stops during his 12-year career with the Harbor Police.
Officer Hart was aware the rest stop was a popular location for drug traffickers to use the restrooms. At about 10:00 a.m., the officer noticed a Ford Mustang leaving the parking lot. The vehicle had a dark tint covering the rear taillights and the stoplamps (brake lights) on either side of the vehicle. Officer Hart followed the vehicle onto the freeway believing the dark tint to be in violation of the Vehicle Code. He followed the vehicle for about four miles. During this time, Officer Hart ran a query with a Border Patrol database to determine whether the vehicle had any recent border crossings (the Mexico border is about 40 miles from the rest stop). The query came back with a positive hit.
About four miles north of the rest stop, Officer Hart activated his lights and signaled for the vehicle driver to stop. When the driver (19-year-old Leyva) began to stop his vehicle, Hart noticed the brake lights emitted a dark gray light (rather than a red light). After the vehicle stopped and Officer Hart approached the vehicle, the officer smelled the odor of marijuana coming from the vehicle. Based on that smell, the officer ordered Leyva out of the vehicle. Leyva said he had a valid medical marijuana card and a small baggie of marijuana in his pocket. Officer Hart performed a search of Leyva's person and retrieved the small baggie from Leyva's pocket. After retrieving the marijuana, Officer Hart asked permission to search the vehicle. Leyva did not consent to the search.
As the marijuana issue was not raised at the suppression hearing, our description of the facts relating to the marijuana odor and the subsequent search of the vehicle is based on the facts contained in the parties' papers filed below.
Officer Hart then requested the border patrol's assistance to have a dog conduct an exterior sniff of the vehicle. When the border patrol agent arrived, his dog gave a positive alert after passing the vehicle's exterior. The agent then opened the vehicle's trunk and found 42.6 pounds of methamphetamine wrapped in cellophane. Officer Hart placed Leyva under arrest for transporting methamphetamine for sale.
Motion to Suppress Hearing
In February 2015, Leyva moved to suppress evidence from the traffic stop. Leyva argued primarily that Officer Hart had no reasonable suspicion to stop the vehicle because the officer had no reasonable basis to believe the tinting on the vehicle's rear lights violated the Vehicle Code. Leyva also argued the marijuana odor did not justify the search because Leyva's possession of the medical marijuana was legal.
In response, the prosecutor argued Officer Hart had reasonable grounds to stop Leyva's vehicle based on the officer's observation that the "taillights of [Leyva's] vehicle were tinted black" in violation of the statute requiring vehicles to have mounted rear red reflectors. (Veh. Code, § 24607.) This was the statute cited in Officer Hart's police report. In a supplemental brief, the prosecutor argued the tinting also violated other Vehicle Code sections, including section 24603, requiring stoplamps to emit a visible red light. The prosecutor also maintained the vehicle search met constitutional requirements based on the marijuana odor and the marijuana found on Leyva's person, and the fact that the canine unit arrived "[a]bout two minutes" after Officer Hart requested the assistance.
Statutory references are to the Vehicle Code unless otherwise specified.
The trial court held the suppression hearing in May 2015. At the outset of the hearing, defense counsel said he intended to limit the scope of the hearing to the issue whether Officer Hart was justified in stopping Leyva, and that he would not be raising issues pertaining to the later search of the vehicle based on the marijuana smell or the canine unit inspection. The court responded that defense counsel was free to raise these issues at the hearing if he wished to do so. But defense counsel reiterated that he was challenging only the grounds for the traffic stop and that "everything that came after it is outside the scope of . . . this hearing." Defense counsel said this limitation would "expedite [the] hearing."
Officer Hart was the sole witness at the hearing. He testified that when he first saw Leyva's vehicle leaving the rest stop parking lot, he observed the vehicle's "tail lamps" had a "very dark" black tint. Officer Hart said that at that point he made the decision to stop Leyva's vehicle because he believed the dark tint violated the Vehicle Code (without specifying any particular section of the code). Officer Hart explained that he had recently received a police department handout that was tailored to concerns associated with stopping vehicles with altered lighting equipment. Officer Hart also said he had previously stopped vehicles based on tinted tail lenses and that this stop was no different. Officer Hart said the information that the vehicle had recently crossed the border added to his suspicion, but he would have stopped the vehicle regardless of this information.
Although Officer Hart referred to the darkened equipment as "tail lamps," he later clarified that he was referring to both the taillights and the stoplamps. There was substantial confusion at the hearing regarding the distinction between reflectors, stoplamps, and taillamps (or taillights). But this confusion was cleared up after the prosecutor recalled Officer Hart as a witness. According to Officer Hart, "reflectors" reflect light from headlights of other vehicles; "stoplamps" are brake lights that generally emit red when the brake pedal is pressed; and "taillamp[s]" emit a constant glow when the headlights are on. Separate code sections govern the requirements for each of these equipment items. (See §§ 24603 [stoplamps], 24607 [reflectors], 24600 [taillamps].)
On cross-examination, Officer Hart reiterated that he decided to stop the vehicle "from the initial time" he saw Leyva's car with the rear tinting. He said he made this decision even though the car was accelerating and he did not have the opportunity to view whether the brake lights would in fact emit a red color. Officer Hart said that when Leyva's car began to slow down after he initiated the stop, he noticed the light emitting from the stoplamps was "a gray color [¶] . . . [¶] . . . like a light shining through a black surface, appearing gray." In response to the court's questions, Officer Hart said he made this observation of a "grayish black color" after he initiated the traffic stop. He also testified he never saw any red light coming from the vehicle, except that a "middle brake light . . . may have been red."
After Officer Hart's testimony, the prosecutor argued Leyva's stop was justified under numerous provisions of the Vehicle Code (including the reflector statute), but ultimately focused on section 24603, which governs stoplamp requirements. Specifically, section 24603 requires vehicles manufactured after January 1, 1979 to have two rear stoplamps on either side of the vehicle (even if there is a middle brake light), and the two stoplamps must "emit a red light" that is "plainly visible and understandable from a distance of 300 feet from the rear of the vehicle both during normal sunlight and at nighttime . . . ." (§ 24603, subds. (d), (e)(1), (f).) The prosecutor argued that even if Officer Hart "initially stopped the vehicle for the wrong" code section, the traffic stop was justified under this stoplamp statute.
Defense counsel countered that the officer's citation for a violation of the reflector statute (§ 24607) was erroneous because there was no visible defect with the vehicle's reflectors. Defense counsel also argued the prosecutor's reliance on the stoplamp statute (§ 26403) was misplaced because Officer Hart testified he saw the gray light coming from the stoplamps only after he initiated the traffic stop.
After considering the evidence and argument, the court (Judge Blaine Bowman) denied Leyva's motion. The court agreed with defense counsel that section 24607 (the reflector statute) was inapplicable because the officer acknowledged the vehicle had the proper reflector equipment, which was corroborated by the photographs. The court also found the information that the vehicle had crossed the border to be irrelevant given the 40-mile distance between the stop and the border. But the court found the officer had reasonable cause to stop Leyva's vehicle based on the stoplamp statute. (§ 24603.) The court said it found Officer Hart to be credible that the brake light did not emit a red color, and instead the lamps had "black tinted lenses over the top of them" in violation of section 24603.
The court rejected defense counsel's argument that the stop was unconstitutional because Officer Hart did not know whether the vehicle's stoplamps in fact met statutory requirements before the officer initiated the stop. The court stated: "I understand there could be an argument that [Leyva] stopped without applying his brakes. But the officer did say he did see the lights illuminated and that they were not emitting the red light, which leads the court to believe that he was applying his brakes. And certainly I don't think anyone is going to come to a coasting stop on the freeway where the speed limit is 55 miles an hour by downshifting or using a rolling stop or the emergency brake. It's just not reasonable, and the court finds the testimony of the officer to be credible." In reaching its conclusions, the court found it significant that there "was an actual Vehicle Code violation in this case" because the two rear stoplamps did not in fact emit the required red color in violation of section 24603.
Leyva later pleaded guilty to the methamphetamine charges.
DISCUSSION
Leyva contends the court erred in denying his motion to suppress the evidence.
I. Review Standard
The Fourth Amendment provides "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." (U.S. Const., 4th Amend.) "In ruling on a motion to suppress, the trial court finds the historical facts, then determines whether the applicable rule of law has been violated." (People v. Hernandez (2008) 45 Cal.4th 295, 298.) "We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Saunders (2006) 38 Cal.4th 1129, 1134.)
II. Traffic Stop
"[A] brief stop of a vehicle to pose a question to an occupant constitutes a 'seizure' for purposes of the Fourth Amendment." (People v. Bennett (2011) 197 Cal.App.4th 907, 912.) However, the Fourth Amendment's probable cause and warrant requirements do not apply because a brief vehicle stop is a lesser intrusion into a person's privacy than an arrest or other extended detention. (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881.) These stops are akin to the on-the-street encounters considered in Terry v. Ohio (1968) 392 U.S. 1. As in Terry, an officer may stop and detain a motorist on "reasonable suspicion" that the driver has violated the law. (Ornelas v. United States (1996) 517 U.S. 690, 693; Terry, at p. 22; People v. Wells (2006) 38 Cal.4th 1078, 1082.) Reasonable suspicion is a lesser standard than probable cause. (People v. Wells, at p. 1083.) To be reasonable, an officer's suspicion must be supported by some specific, articulable facts that are "reasonably 'consistent with criminal activity.' " (In re Tony C. (1978) 21 Cal.3d 888, 894; see People v. Casares (2016) 62 Cal.4th 808, 837-838.) The test is objective. (People v. Suff (2014) 58 Cal.4th 1013, 1054.) "The motivations of the officer are irrelevant to the reasonableness of a traffic stop under the Fourth Amendment." (Id. at p. 1055.)
Under this standard, a "traffic stop is justified at its inception if based on . . . reasonable suspicion that the driver has violated the Vehicle Code or some other law." (People v. Bell (1996) 43 Cal.App.4th 754, 761; accord, People v. Suff, supra, 58 Cal.4th at p. 1054.) This rule applies even if the officer's suspicion later proves incorrect. (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510 (Brierton); see People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1148-1149.) "A traffic stop is lawful . . . if it is based on a reasonable suspicion that any traffic violation has occurred, even if it is ultimately determined that no violation did occur." (Brierton, at p. 510.) Additionally, an officer's reliance on a wrong statute does not render his actions unlawful if there is a correct statute that applies to the defendant's conduct. (In re Justin K. (2002) 98 Cal.App.4th 695, 700.)
Applying these principles, the traffic stop here met constitutional standards. The trial court expressly credited the officer's testimony, which was consistent with the photographs, that there was a very dark tint over the vehicle's taillights and stoplamps. Based on his training and experience, Officer Hart suspected a Vehicle Code violation because he believed the dark tint would block the functionality of the vehicle's lighting equipment. Although the officer initially cited the statute requiring reflectors, the officer's testimony supported that he was concerned primarily that the tinted stoplamps would not emit a red color as required by law. (§ 24603.) Based on the totality of the circumstances, this belief was reasonable. The officer had received training materials pertaining to legal requirements for modifying taillights and stoplamps, and he had stopped vehicles for similar violations in the past. The evidence showed the vehicle's brake lights did in fact violate statutory requirements (by emitting a gray color rather than a red light). Although this subsequent evidence cannot be used to justify the traffic stop, the evidence is relevant to show the reasonableness of the officer's belief that the tinting was sufficiently dark that it would prevent a red light from shining through the dark colored lenses.
Leyva contends an officer cannot as a matter of law stop a vehicle for a suspected stoplamp violation unless the officer first observed "the vehicle braking, and [saw] that red light is not emitted." He argues the Vehicle Code allows stoplamp modifications (see §§ 26100, 26104) and therefore stopping a vehicle for a modification is per se unreasonable.
This argument is inconsistent with the authority given to law enforcement officers to investigate possible traffic violations. With respect to tinting requirements, officers cannot be expected to know with any certainty whether a deviation from the norm constitutes a statutory violation, particularly given the many possible variations of shading. (See People v. Niebauer (1989) 214 Cal.App.3d 1278, 1293 [window tinting violation upheld].) The courts thus take a "common sense approach" to enforcing these statutes and in evaluating related traffic stops. (Id. at p. 1292.) If an experienced officer who has been trained on vehicle safety equipment laws forms an opinion that a film or tint placed on the back rear panel would obstruct the necessary lighting, this evidence is sufficient to support a traffic stop for further investigation, and it is not necessary for the officer to wait for the driver to apply the brake pedal.
An officer has the "duty . . . to resolve—through investigation—any ambiguity presented as to whether the activity observed is, in fact, legal or illegal." (Brierton, supra, 130 Cal.App.4th at p. 510.) 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 his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal—to "enable the police to quickly determine whether" ' " a traffic violation has been committed. (People v. Leyba (1981) 29 Cal.3d 591, 599; accord, People v. Brown (2015) 61 Cal.4th 968, 985; People v. Souza (1994) 9 Cal.4th 224, 233.) " '[T]he ultimate touchstone of the Fourth Amendment is "reasonableness." ' [Citation.]" (Heien v. North Carolina (2014) 135 S.Ct. 530, 536.) "To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them 'fair leeway for enforcing the law in the community's protection.' " (Ibid.)
Based on Officer Hart's observations of the dark covering on Leyva's brake lights, it was objectively reasonable for him to suspect that a red light would not emit if Leyva stepped on the brakes. The suspicion was confirmed when Leyva slowed down and pulled to the side of the freeway and Officer Hart saw a dark gray light shining through the black tinting rather than a red light. The court properly denied the motion to suppress based on a challenge to the traffic stop.
III. Automobile Search
Leyva contends that even if the traffic stop was constitutional, the later search of his car was unreasonable and violated his Fourth Amendment rights. He argues primarily that the marijuana odor did not support the search or a delay for a canine unit to arrive at the scene. However, Leyva's counsel specifically declined to raise these issues at the suppression hearing although he was provided the opportunity to do so. Leyva thus forfeited the right to raise the argument on appeal. (See People v. Riccardi (2012) 54 Cal.4th 758, 801, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Williams (1999) 20 Cal.4th 119, 136.)
Leyva alternatively contends his counsel was ineffective by waiving the vehicle-search challenge at the suppression hearing. As we shall explain, the contention is without merit on the appellate record before us.
A. Legal Principles
"[T]o establish a claim for ineffective assistance of counsel, a defendant must show his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance ' " ' "fell below an objective standard of reasonableness . . . under prevailing professional norms." ' " ' [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. [Citations.]" (People v. Mickel (2016) 2 Cal.5th 181, 198.)
Under these standards, an ineffective assistance claim is rarely successful on appeal. As the California Supreme Court recently reiterated, "certain practical constraints make it more difficult to address ineffective assistance claims on direct appeal rather than in the context of a habeas corpus proceeding. [Citations.] The record on appeal may not [reflect] why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable. [Citation.] [¶] Moreover, [a reviewing court] begin[s] with the presumption that counsel's actions fall within the broad range of reasonableness, and afford 'great deference to counsel's tactical decisions.' [Citation.]" (People v. Mickel, supra, 2 Cal.5th at p. 198.)
B. Analysis
On the appellate record before us, counsel's decision to forgo a challenge to the vehicle search did not constitute deficient performance because Leyva would not have prevailed on this contention. (See People v. Constancio (1974) 42 Cal.App.3d 533, 546 [trial counsel not required "to advance meritless arguments"].)
"[A] warrantless search of an automobile is permissible [if] the police have probable cause to believe the car contains evidence or contraband." (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225 (Robey).) "A police officer has probable cause to conduct a search when 'the facts available to [him or her] would "warrant a [person] of reasonable caution in the belief" ' that contraband or evidence of a crime is present." (Florida v. Harris (2013) ___ U.S. ___ [133 S.Ct. 1050, 1055]; see Maryland v. Dyson (1999) 527 U.S. 465, 466.)
The appellate record shows Officer Hart called for a canine unit after finding marijuana on Leyva's person and smelling an odor of marijuana from the car. The parties agree Leyva had a marijuana card in his wallet. However, because there was no challenge below, the record is unclear whether the marijuana odor was of burnt or unburnt marijuana. The record is also unclear as to the amount of time for the canine unit to arrive, but the prosecutor asserted in her papers below that it was only a brief (two-minute) delay. The parties agree that once the canine unit arrived, the dog indicated a positive smell of drugs. The officers then opened the trunk and found the substantial quantity of methamphetamine.
Leyva contends his counsel should have challenged the search because Officer Hart did not have probable cause to search the vehicle or to further detain him based on the marijuana odor and the small amount of marijuana on his person.
This contention is inconsistent with settled authority. It has long been established that the odor of marijuana may furnish probable cause to search a vehicle under the automobile exception to the warrant requirement. (See People v. Cook (1975) 13 Cal.3d 663, 667-669, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421; People v. Gale (1973) 9 Cal.3d 788, 794; see also Robey, supra, 56 Cal.4th at p. 1253 (conc. opn. of Liu, J.) [noting it is a "settled proposition that the smell of marijuana can establish probable cause to search and, in the context of an automobile search or exigent circumstances, can provide a sufficient basis to proceed without a warrant"]; People v. Waxler (2014) 224 Cal.App.4th 712, 719 (Waxler); People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059 (Strasburg).)
In Strasburg, the court rejected the argument that a different rule applies if the defendant possessed a physician's recommendation for medical marijuana or a state-issued medical marijuana card. (Strasburg, supra, 148 Cal.App.4th at pp. 1059-1060.) The court reasoned that the medical marijuana laws provide a "limited immunity—not a shield from reasonable investigation." (Id. at p. 1060.) An officer who detects a marijuana odor in a vehicle has probable cause to search the automobile to "determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession." (Ibid.)
Leyva recognizes this settled law but argues that his counsel should have requested the trial court to revisit this law given changes in the legal treatment of marijuana.
Three years ago, a Court of Appeal rejected the identical argument. (Waxler, supra, 224 Cal.App.4th at pp. 720-721.) In Waxler, the automobile search based on marijuana odor occurred in 2012. (Id. at p. 716.) As in this case, the marijuana laws in existence provided that the possession of 28.5 grams or less of marijuana was punishable as an infraction (Health & Saf. Code, § 11357, subd. (b)), and a person possessing more than 28.5 grams of marijuana was guilty of a misdemeanor (Health & Saf. Code, § 11357, subd. (c)).
The Waxler defendant argued that the officer did not have probable cause to search the vehicle because the penalties for marijuana possession had been substantially reduced from the prior stricter laws. (Waxler, supra, 224 Cal.App.4th at p. 720.) The Waxler court disagreed, concluding the fact "[t]hat California has decriminalized medicinal marijuana in some situations and has reduced the punishment associated with possession of up to an ounce of marijuana does not bar a law enforcement officer from conducting a search pursuant to the automobile exception." (Id. at p. 723.) The Waxler court reasoned that an officer is entitled to investigate whether an individual possessed medical marijuana for personal medical needs, and although possession of small quantities of nonmedical marijuana is a minor offense, marijuana is still " 'contraband' " and thus may provide probable cause to search a vehicle. (Id. at p. 721.)
The Waxler court specifically declined to follow the contrary Massachusetts decision (Commonwealth v. Cruz (Mass. 2011) 945 N.E.2d 899) relied upon by Leyva. (Waxler, supra, 224 Cal.App.4th at pp. 722-723.) The Waxler court noted that in Massachusetts, the possession of one ounce or less of marijuana is a civil offense rather than a criminal offense, whereas in California "possession of up to an ounce of nonmedical marijuana in California [remains] a 'crime.' (Pen. Code, § 16.)" (Id. at p. 723.) The Waxler court also stated that "neither the California Supreme Court nor the United States Supreme Court has limited the automobile exception to situations where the defendant possesses a 'criminal amount of contraband.' As our high court recently stated, the automobile exception applies when 'the police have probable cause to believe the car contains evidence or contraband.' . . . We are bound by the rulings of our Supreme Court [citation], not out-of-state authority [citation.]" (Ibid.)
As have many other courts, we find Waxler persuasive as applied to the laws in existence at the time of the search at issue here. (See, e.g., People v. Steele (2016) 246 Cal.App.4th 1110, 1120.) Leyva does not present any valid factual or legal grounds for distinguishing Waxler. The circumstances here present an even stronger case because unlike the officer in Waxler, Officer Hart did not immediately search the vehicle and instead took the extra precaution of calling for a canine unit to confirm his suspicions that the vehicle contained contraband. Because the record was not developed, we do not know the precise amount of time for the canine unit to appear, but in evaluating an ineffective assistance claim, we must assume counsel had a factual basis for concluding the delay was brief (the prosecutor asserted that it was about two minutes) and did not provide grounds for an unreasonableness challenge. There is no basis on the record before us to conclude defense counsel was ineffective by failing to challenge the reasonableness of the delay for the canine unit.
Leyva's traffic stop occurred in 2014, two years before the passage of Proposition 64 in November 2016, which further altered the laws applicable to recreational marijuana. We do not address the impact (if any) of the new laws on the reasonableness of a search arising from burnt or unburnt marijuana odor in a vehicle.
On the appellate record, counsel's decision to forgo a challenge to the search of Leyva's vehicle did not constitute deficient performance. Counsel may have reasonably believed his challenge to the traffic stop was strong (particularly if the trial court did not find the officer credible as to his seeing the gray lights coming from the stoplamps), and counsel may not have wanted to dilute the argument by raising other issues relating to the vehicle search when he had no meaningful possibility of prevailing on those arguments given the current state of the law. Trial counsel do not perform below constitutionally reasonable norms when they decide not to bring motions that lack merit. (See People v. Lewis (1990) 50 Cal.3d 262, 289.)
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.