Opinion
B296013
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY EDWARD McGEE, Defendant and Appellant.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA145928 APPEAL from an order of the Superior Court of Los Angeles County. H. Clay Jacke II, Judge. Affirmed. Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In December 2018, following the denial of his motion to suppress evidence, defendant and appellant Johnny McGee pled no contest to one count of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)). He also admitted he had suffered five prior Health and Safety Code convictions and a conviction for possession of a firearm by narcotics addict (former § 12021, subd. (a)(1)), as alleged in count 2 of the information. The trial court sentenced defendant to the low term of 16 months in state prison to run concurrently with defendant's sentence in another case. The trial court imposed and stayed a parole revocation fine of $400 (§ 1202.45), and upon a finding that defendant had no ability to pay, imposed and permanently stayed a $400 restitution fine (§ 1202.4), a $40 court operations assessment (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373). The trial court awarded defendant 12 days of actual custody credit and 12 days of local conduct credit.
Further undesignated statutory references are to the Penal Code.
Defendant filed a notice of appeal from the order denying his motion to suppress the narcotics and firearm found in his rented vehicle during a traffic stop. We appointed counsel to represent him on appeal.
After reviewing the record, defendant's appointed counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel stated she had advised defendant of the nature of his Wende brief; she further advised her client that he had the right to file a supplemental brief within 30 days of counsel filing his opening brief. On September 4, 2019, we sent a letter advising defendant of his right to file a supplemental brief within 30 days.
After receiving several extensions of time, defendant filed a supplemental brief on December 5, 2019 contending (1) the trial court erred in accepting the testimony of the arresting officer that there was a plastic packet of narcotics in plain sight on the vehicle's console and (2) defense counsel's failure to obtain a color version of a photograph of the vehicle's interior constituted ineffective assistance of counsel. Trial courts are particularly well situated to make credibility determinations, and we defer to the trial court's determination when, as here, it is supported by substantial evidence. Defendant has not shown that a more favorable result would have been reasonably probable if counsel had obtained the color photograph, assuming it exists.
Having considered defendant's contentions of error and conducted our own examination of the record, we are satisfied defendant's attorney on appeal has complied with the responsibilities of counsel and no arguable issue exists. (Wende, supra, 25 Cal.3d at p. 441; see also Smith v. Robbins (2000) 528 U.S. 259, 278-282; People v. Kelly (2006) 40 Cal.4th 106, 122-124.)
BACKGROUND
In his supplemental brief on appeal, defendant sets forth his own account of the April 6, 2018 traffic stop, his subsequent arrest, a visit he made to the public defender's office, and discussions with his first appointed counsel Carl Russ. He also provides an account of discussions with the public defender's office and with his new counsel, Janelle Mims, which occurred after the denial of the motion to suppress. Our review is confined to evidence in the record, as set forth below.
The trial court held a combined preliminary hearing and hearing on defendant's motion to suppress. Evidence introduced at this hearing shows that on April 6, 2018, Los Angeles County Sheriff's Deputy Rothrock observed defendant fail to fully stop his vehicle at a stop sign and then fail to signal a left turn. Deputy Rothrock and his partner Deputy Mahood initiated a traffic stop.
Deputy Rothrock testified that when he approached defendant's vehicle during the traffic stop, he observed a clear plastic packet containing a white crystalline-like substance resembling methamphetamine "sitting on the center console area" of the truck. After waiving his rights, defendant stated the truck was a rental vehicle; he admitted the methamphetamine was his and was for personal use. Deputy Rothrock and his partner then searched the truck and found a loaded "Tech 9" firearm under the driver's seat and a box of ammunition under the driver's side rear seat.
On cross-examination, defense counsel showed the deputy Defense Exhibit A, a black and white photograph "of a jar." Rothrock testified that he did not take the photograph. Defense counsel asked if the photograph "appear[s] to be the center console of the truck that you arrested Mr. McGee in" and the deputy replied "I believe so." Defense counsel asked "is that what the center console looked like when you first approached the truck that day" and the deputy replied that he did not recall. The deputy then agreed that the "area where [the] jar is" was the location where he observed the packet. Defense counsel asked Deputy Rothrock "[D]o you see any drugs in that picture?" The deputy replied, "No, I do not."
When the combined hearings resumed about three weeks later, the defense presented its case. Defendant testified that there was no packet on the center console during the traffic stop. He acknowledged that he failed to stop completely at the stop sign.
The prosecution then recalled Deputy Rothrock and showed him Defense Exhibit A. The prosecutor asked the deputy "[D]o you see the white crystalline substance that is resembling methamphetamine in this photograph?" The deputy replied "I'm unable to determine from this exact photograph." The prosecutor then asked, "[W]here in the vehicle was that crystalline substance?" He replied: "Right on top." The court noted that the deputy was pointing to the right side of the jar. The prosecutor asked: "Can you see that on the photograph?" Deputy Rothrock replied: "It's right on top of the cup holder." The court stated: "And he's pointing to what looks like to be a light-colored object. It's hard for the court to tell. It's a black and white photo."
On cross-examination, defense counsel reminded the deputy that he had previously testified that "there's no drugs shown in that picture, correct?" Deputy Rothrock replied, "I believe I said I was unable to tell from the picture itself." The deputy added, "I could have possibly been unclear with what exactly you were asking me at that time." Defense counsel pressed: "So there's nothing there that says that those are drugs?" The deputy replied, "No, sir."
The trial court found Deputy Rothrock's testimony about his observations during the traffic stop credible and denied defendant's motion to suppress.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion In Denying The Motion To Suppress
Defendant contends the trial court erred in denying the motion to suppress because the photograph did not show any drugs and Deputy Rothrock changed his testimony during the hearing and so was not credible. The trial court did not err.
" 'The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.' " (People v. Weaver (2001) 26 Cal.4th 876, 924.) More specifically, "we defer to the trial court's resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence." (Id. at p. 918.) "[D]etermining the credibility of witnesses is a task uniquely for the trial court." (Id. at p. 924.)
The court stated that "what is clear is today [Deputy Rothrock] said this item is there when he had not said that before. [¶] However, I have the sworn testimony of this officer both on direct and cross prior to being shown this photograph that the bindle was visible in the center console. That came out on direct and cross." The court found that under the totality of the circumstances, the officer's testimony about his direct observations during the stop was credible.
The trial court's credibility determination is supported by substantial evidence. As the trial court noted, the deputy was clear and consistent in his testimony about what he directly observed during the traffic stop: a packet on the center console. It was only when discussing the photograph that the deputy's testimony became inconsistent. The deputy explained that in hindsight he did not believe he understood defense counsel's initial question about drugs in the photograph. He indicated that his response was meant to convey that he was unable to say from the photograph itself if there were drugs in the photograph. Similarly, on the second day, the deputy repeated it was unclear from the picture itself whether there were drugs present. The court's remarks show the photograph was not clear, and the reporter's transcript shows that counsel for both parties at times asked unclear questions about the photograph. Thus, we defer to the trial court's credibility determination concerning the deputy.
Deputy Rothrock's testimony showed the narcotics were in plain sight; this established probable cause for the search of defendant's vehicle which uncovered the firearm and ammunition. Thus, the search was reasonable under the Fourth Amendment and California law. The trial court did not err in denying the motion to suppress the evidence uncovered during that search. II. Counsel Was Not Ineffective Regarding The Color Photograph.
Defense Exhibit A was a black and white copy of a photograph of unknown provenance. Deputy Rothrock testified that he did not take the photograph. Following cross-examination of the deputy, defense counsel represented that the black and white copy of the photograph came to the defense as part of the original discovery and at the time of the hearing the prosecution had no copy of the photograph at all. Defense counsel asked the prosecutor to attempt to obtain a color copy of the photograph before the hearing resumed. Defense counsel did not request or receive an order for the prosecution to make such an undertaking, however. No color copy was forthcoming, and at the end of the hearing, the prosecutor represented that the People had no copy of the photograph at all in their files.
There is nothing in the record on appeal to indicate that defense counsel ever made a formal motion to obtain a color copy of the photograph, if it existed; defense counsel did not seek a continuance of the motion to suppress to investigate whether a color version of the photograph existed. The record does not show any formal efforts to obtain the color copy after the hearings were complete either. Defendant suggests this omission constituted ineffective assistance of counsel in connection with the motion to suppress.
Defendant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, defendant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
As the Supreme Court explained in Strickland, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland, supra, 466 U.S. at p. 697.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Ibid.) That is the situation here.
There is no copy of the color photograph in the record. Assuming a color photograph exists, defendant has provided no evidence of the appearance or contents of the photograph. That version might also be blurry, or it might clearly show a packet. Neither of these versions of the photograph would be helpful to defendant. Even assuming the color photograph was clearer and did not show a packet on the console, such an image would have little probative value standing alone. It would presumably show that Deputy Rothrock was mistaken in believing that a white smudge in the black and white photograph was the packet. Deputy Rothrock did not take the photograph, however, and did not recall if that was "what the center console looked like when [he] first approached the truck that day." Thus, while the photograph would show that the packet was not visible on the console from the photographer's viewpoint at the moment the photograph was taken, the photograph would not undermine Deputy Rothrock's testimony about his direct observations. The photograph would not show that the packet was never on the console, or that the packet was not visible from Deputy Rothrock's viewpoint when he approached the truck. Thus, defendant has not shown that a more favorable outcome was reasonably probable if counsel had obtained the color photograph.
There was no evidence as to when the photograph was taken during the stop. Deputy Rothrock testified that the photograph was taken "immediately after detaining the defendant and recovering the narcotics inside the vehicle" but defense counsel objected that the testimony lacked foundation, and the court sustained the objection. --------
DISPOSITION
The trial court's order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
BIGELOW, P. J.
GRIMES, J.