Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR511245
Jones, P.J.
Daniel Adrian McGillicuddy appeals from a judgment entered after a jury convicted him of possessing a short-barreled shotgun, (Pen. Code, § 12020, subd. (a)(1)) being a felon in possession of a firearm, (§ 12021, subd. (a)(1)) and being a felon in possession of ammunition (§ 12316, subd. (b)(1)). He contends his conviction must be reversed because (1) he received ineffective assistance of counsel, and (2) the court erred when it admitted certain evidence. We affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDRUAL BACKGROUND
On April 25, 2007, near 7:00 p.m., Coast Guard Officers Nathan Burns and Wade Carr received a report that a sailboat, later identified as the Hapi, was in trouble in rough seas near Bodega Bay. The Hapi had furled its sail and was attempting to power its way back to port, however, the winds were too strong and the Hapi was being blown backwards.
Burns and Carr boarded their Coast Guard vessel and went to the Hapi’s aid. When they arrived, they saw two persons aboard, appellant and a man later identified as Merv Tomago. Burns asked appellant if he needed help. Appellant replied that they were unable to steer and that they had lost the dinghy they were towing. Burns and Carr told appellant they would tow the Hapi back to the marina. They threw him a line. Appellant attached the line to the bow of the Hapi and the Coast Guard vessel towed it back to the dock.
The Coast Guard boards every vessel it tows back to port. Acting pursuant to standard Coast Guard protocol that is designed to protect the safety of those conducting the boarding, Burns asked appellant whether there were any weapons on the sailboat. Appellant replied, “[n]ot really.” Burns said, “It’s yes or no. You do or you don’t.” Appellant then said there was a loaded firearm in the boat’s cabin next to the mattress.
Burns asked Carr to retrieve the weapon. Carr boarded the Hapi and went below. He saw a 12-gauge shotgun wedged between the mattress and the wall. The gun was clearly visible and Carr did not have to move anything to see it. Carr checked the shotgun to see if it was loaded. It was. He removed the shell and took the gun upstairs to the deck.
The shotgun was operable; however, both the stock and the barrel had been shortened. Burns and Carr took the shotgun onto the Coast Guard vessel and measured it. It was about 25 inches long and had a barrel of 18 inches. Appellant said the gun was not registered.
Burns informed the Sonoma County Sheriff’s office that appellant had an illegal firearm. The sheriff’s office was not able to dispatch an officer at that time. Coast Guard officials in San Francisco then instructed Burns and Carr not to keep the shotgun and to simply return it to appellant. They did.
A little more than a week later on May 4, 2007, sheriff’s deputies executed a warrant that authorized a search of the Hapi. There was no one on board at the time. The deputies found a live shotgun shell inserted into the latch of the wheelhouse door and five live shotgun shells in a drawer under the bed. The deputies did not find the shotgun or any other firearms.
Based on these facts, an information was filed charging appellant with the offenses we have set forth above. The case proceeded to a jury trial where appellant testified on his own behalf. He conceded the Hapi was his and he acknowledged that as a convicted felon, he was not permitted to possess guns. However, appellant said the shotgun and shells belonged to Tomago, not him. Appellant said that on the date of the rescue, he and Tomago were sailing to Sausalito. The seas got rough and the boat started to take on water. Afraid for his life, appellant went below to get some life jackets. When he did, he saw a shotgun wedged against the wall near the bed. Appellant was not happy when he saw the gun because he knew he was not allowed to have weapons. Although the shotgun was the “least of [his] concerns” at that point given the possibility that he might drown. Appellant returned to the deck and resumed his efforts to gain control of his sailboat. About 40 minutes later, he heard the Coast Guard vessel’s approach. He gladly accepted their offer of assistance.
Once they were back in port, appellant submitted to “what they call a safety inspection, ” thankful that the Coast Guard had just saved their lives. The Coast Guard officers who found the gun took it on to their vessel to measure it. They returned it a short time later and told appellant to “make it go away.” Appellant thanked the officers for saving his life and told them to have a nice evening.
After the officers left, appellant told Tomago do “what the man said.” Appellant never saw the shotgun again.
The jurors apparently rejected appellant’s version of the incident and convicted him on all three counts. Subsequently, the court sentenced appellant to three years in prison.
II. DISCUSSION
A. Ineffective Assistance
Appellant contends his conviction must be reversed because he received ineffective assistance of counsel.
The standard of review we must apply is settled. A defendant who contends he received ineffective assistance has the burden of proving that (1) trial counsel’s performance was deficient in that it fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Here appellant contends trial counsel was ineffective because he failed to file a motion to suppress the gun and ammunition that had been found on board his sailboat.
An appellant who alleges ineffective assistance on direct appeal bears an especially heavy burden of proof: “‘[I]f 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, ’ the claim on appeal must be rejected. [Citations.]” (People v. Wilson (1992) 3 Cal.4th 926, 936, quoting People v. Pope (1979) 23 Cal.3d 412, 426.)
Our Supreme Court applied these principles when faced with a similar argument in People v. Mendoza Tello (1997) 15 Cal.4th 264. The defendant there was convicted by a jury of possessing cocaine. A divided Court of Appeal reversed the conviction ruling trial counsel was ineffective because he failed to file a motion to suppress. (Id. at p. 266.) The Supreme Court reversed the Court of Appeal’s decision noting that because the legality of the search had not been challenged, the facts necessary to determine whether trial counsel was ineffective were lacking. (Ibid.) As the high court explained, “we do not know what Deputy [Sheriff] Gomez would have said had he been asked at a suppression hearing why he did what he did. Perhaps, as the majority below assumed, he would have had no good reason. But perhaps he did have a reason, of which defense counsel was aware, and which justified counsel’s actions. Perhaps there was some other reason not to suppress the evidence. An appellate court should not declare that a police officer acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence.” (Id. at p. 267.)
We reach a similar conclusion here. We do not know why trial counsel declined to file a motion to suppress. It is possible Officer Burns and Officer Carr possessed specific information that would have justified a search. It is also possible that appellant consented to the search. However, because the relevant facts have not been developed, it would be inappropriate for us to find unlawful what appears to have been exemplary conduct of the Coast Guard, to brand defense counsel as incompetent and reverse a duly rendered jury verdict.
We also reject appellant’s argument on the merits.
Several federal statutes address the Coast Guard’s authority to search vessels under its jurisdiction. The most relevant for present purposes is title 14 United States Code section 89, subdivision (a), that states: “The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon... waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance.”
This statute grants the Coast Guard plenary authority to conduct what are commonly called “document and safety inspections.” (United States v. Watson (9th Cir. 1982) 678 F.2d 765, 771.) However, United States Code section 89, subdivision (a), like all federal statutes, is subject to constitutional limitations. (Ibid.) The Fourth Amendment mandates a reasonableness standard which requires that competing governmental and individual interests be balanced. (Ibid.) In deciding whether a particular law enforcement practice is permissible, we balance the intrusion on the defendant’s Fourth Amendment interests against the promotion of legitimate governmental interests. (Ibid.; see also United States v. Villamonte-Marquez (1983) 462 U.S. 579, 588.)
Here, the government has an interest in promoting safety and in detecting violations of applicable safety regulations. (United States v. Watson, supra, 678 F.2d at p. 772.) That interest was particularly strong in this case. The Hapi had ventured into rough seas, it had lost the dinghy it was towing, and it was filling with water. It is likely the Hapi would have sunk had the Coast Guard not saved it by towing it back to the marina. It was entirely reasonable for the Coast Guard to board this particular sailboat in order to conduct a document and safety inspection.
The conclusion we reach on this point is fully supported by case law. Our colleagues in Division Four recently addressed a similar issue in People v. Eng (2001) 94 Cal.App.4th 1184. In Eng, members of the Coast Guard received a distress call that a person needed medical assistance on a disabled vessel outside the San Leandro channel. A Coast Guard crew located the vessel. It was a small sailboat. The defendant was on board with another man who was below deck and who apparently was about to have a seizure. Coast Guard officers transferred the ailing man to the Coast Guard vessel and brought him to the marina. Two Coast Guard crew members stayed with the defendant and anchored the sailboat. After ensuring that the victim was safely ashore, the Coast Guard officers returned to assist appellant with his sailboat. They towed the boat to the marina and moored it to the pier. Two Coast Guard officers and a fire fighter then conducted a postsearch-and-rescue (SAR) boarding to ensure that the boat was in compliance with federal rules and regulations. During the search, a firefighter noticed the head was pumping sanitation overboard illegally. As the firefighter was pointing this out to the defendant, he noticed a small baggie of heroin on the floor. (Id. at pp. 1186-1187.) On appeal, the defendant argued search of his sailboat was illegal. (Id. at p. 1187.) The Eng court disagreed, finding the search valid under title 14 United States Code, section 89, subdivision (a), the same statute we have discussed here. As the court explained, “the government has a strong, legitimate public safety interest in detecting violations of safety regulations and securing compliance therewith. This interest was heightened in the present case because the Coast Guard had just towed the vessel to safety after finding it disabled and adrift in the San Francisco Bay. The radio was not working and there were no lights, although it was after dark. The purpose of the search was underscored by the fact that the officers discovered that the ‘head’ was illegally pumping sewage overboard because it was not properly secured. [¶] The intrusion was minimal since appellant himself had summoned help and received requested assistance in handling his passenger’s medical emergency and the boat’s incapacity. The post-SAR search was conducted pursuant to standard procedure, not pursuant to an individual officer’s discretion.” (Id. at p. 1188.)
Here, as in Eng, we conclude the Coast Guard was fully justified when it decided to conduct a document and safety inspection of a vessel that it had just rescued.
Because a document and safety inspection was justified, it was also reasonable for Coast Guard officials to secure any possible weapons that might be on board before commencing that inspection. (See, e.g., U.S. v. Todhunter (9th Cir. 2002) 297 F.3d 886, 891 [“Once Todhunter admitted the presence of a loaded weapon on board, Officer Wong had... a duty to secure the weapon for the protection of the boarding party.”] As Officer Burns explained, the purpose of the procedure is to “make sure that myself and my boarding team are safe - the people are fine to have the weapon if they have them. It’s their right. But we would like to know if it’s there so that we can make sure it’s safe and they’re not going to touch it and anything happen during the boarding that would cause any problems to arise.” Here, the additional intrusion required to obtain the shotgun was minimal. Officer Burns went only to where appellant said the gun was located and the gun itself was plainly visible. We conclude it was reasonable for the Coast Guard to secure the shotgun before conducting the document and safety inspection.
In sum, we conclude the Coast Guard’s actions in this case were fully justified. Appellant’s trial counsel was not ineffective when he failed to file a motion to suppress.
None of the arguments appellant advances convince us that the search was illegal and that counsel should have filed a motion to suppress. First, citing language in cases that indicates safety regulations apply only to pleasure vessels that are in use, (see United States v. Piner (9th Cir. 1979) 608 F.2d 358, 359-360; United States v. Watson, supra, 678 F.2d at p. 772) appellant suggests the Hapi was not in use when the document and safety inspection was conducted because it was tied up to a dock. We simply disagree. The Hapi was in use when the search at issue was conducted. It had just ventured out into the sea and it had nearly sunk. This vessel was being used. Indeed, the interpretation of the statute appellant suggests would have required the document and safety inspection to have taken place in the open sea on board a vessel in danger of sinking which its occupants could not steer. We decline to adopt such an absurd reading of the statute. (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567.)
Next, appellant argues the search here was invalid under language contained in United States v. Piner, supra, 608 F.2d at page 361. That language states: “the random stop and boarding of a vessel after dark for safety and registration inspection without cause to suspect noncompliance is not justified... and constitutes a violation of the Fourth Amendment.” However, this was not a random stop and boarding of a vessel. This was the boarding of a sailboat that had lost its dinghy, could not be controlled, and was at risk of sinking. A safety inspection of this vessel was fully justified.
Appellant next argues that “[a]nother problem with the weapon-seizure here” is that it occurred during a “[p]rolonged [d]etention.” In a related argument, appellant argues that he was “in custody” when he was asked about that gun, and he argues he should have been provided his Miranda rights before being questioned. We reject both these arguments because appellant was not detained on the night of his rescue, nor was he under arrest. Indeed, appellant admitted that during his testimony at trial.
The relevant colloquy is as follows:
Finally, appellant argues the document and safety search conducted here was not legal because it was conducted without a warrant. Appellant has not cited any case that holds a document and safety search such as the one that occurred here must be conducted with a warrant and the cases he does cite do not so hold. In the absence of such authority, we will rely on cases such as Eng that plainly hold such searches are valid pursuant to statutory authority.
We conclude the search conducted here was valid. Trial counsel was not ineffective because he failed to file a motion to suppress.
B. Admission of Evidence
Prior to trial, the prosecutor filed a motion asking that he be allowed to impeach appellant with a 1990 felony conviction for receiving stolen property, (§ 496, subd. (a)) and a 2001 misdemeanor conviction for the same offense. The trial court conducted a hearing on the prosecutor’s motion and granted it.
At trial, appellant’s attorney choose to disclose the prior convictions preemptively through the following questioning:
“Q. Okay. Let me ask you also, have you ever been convicted of a felony for possession of stolen property?
“A. Yes, sir.
“Q. Do you know when that was?
“A. That was in 1990, I think.
“Q. And were you ever convicted for a misdemeanor possession of stolen property case?
“A. Yes, sir.
“Q. Do you know when that was?
“A. I don’t quite remember the date.
“Q. About how long ago?
“A. I’m not sure.”
Appellant now contends the trial court erred when it allowed him to be impeached with the prior misdemeanor conviction.
The People concede the court erred when it allowed appellant to be impeached with the fact of the prior misdemeanor conviction. (See, e.g., People v. Wheeler (1992) 4 Cal.4th 284, 297-300.) However, the People argue the court’s error was harmless.
We agree with the People. Even if we were to assume the trial court erred when it allowed appellant to be impeached with his misdemeanor conviction, the jurors knew appellant was no saint. The court properly allowed appellant to be impeached with his felony conviction for the same offense. Under these circumstances, the effect of the additional impeachment was likely to have been minimal. Furthermore, we do not view this as a particularly close case. We conclude it is not reasonably probable appellant would have achieved a more favorable result absent the error alleged. (People v. Watson (1956) 46 Cal.2d 818, 836.) Any possible error was harmless.
By order of this same date, we have denied appellant’s companion petition for a writ of habeas corpus in case No. A126520.
The judgment is affirmed.
We concur: Simons, J., Bruiniers, J.
“Q. Did they tell you that you were under arrest or you were being detained or anything like that?
“A. No. It wasn’t that kind of a deal. They just saved our lives so I was like thankful that they were there. You know what I mean? It wasn’t a bad thing.”