Opinion
E053480 Super.Ct.No. FVI1000968
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. ALFONSO MIRELES, Defendant and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Marissa Bejarano, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret, Judge. Affirmed.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Alfonso Mireles appeals from judgment entered following his negotiated plea of no contest to the charge of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 2) in exchange for a two-year sentence. Pursuant to the plea agreement, the trial court dismissed count 1, possession for sale of a controlled substance (Health & Saf. Code, § 11378) and a prior prison term allegation (Pen. Code, § 667.5, subd. (b)). Defendant's guilty plea was entered after the trial court denied defendant's motion to suppress evidence, heard at the conclusion of defendant's preliminary hearing.
Defendant contends he received ineffective assistance of counsel because his trial attorney failed to renew defendant's motion to suppress, resulting in forfeiture of defendant's right to challenge the trial court's ruling denying his motion. We reject defendant's ineffective assistance of counsel claim because the record does not disclose why defendant's attorney did not renew the motion to suppress and defendant was not prejudiced as a result.
II
FACTS
Sheriff's Deputy Lukacs testified at defendant's preliminary hearing to the following facts. During the evening of April 15, 2010, Lukacs noticed defendant's license plate light was out. Lukacs pulled defendant over. Defendant parked his car in a narrow passageway between the street and a shopping center parking lot. The passageway ran along the south side of a Pizza Hut restaurant. Lukacs arrested defendant upon discovering defendant was driving with a suspended license.
Lukacs was the only witness who testified at the preliminary hearing.
Before arranging to have defendant's car towed from the scene, Lukacs conducted an inventory search of defendant's car. During the search, Lukacs looked for anything that would endanger the tow operator or Lukacs. Upon entering the driver's side of defendant's car, Lukacs smelled marijuana. Lukacs found marijuana in a pack of cigarettes on the center console. Lukacs also found a black bag on the front passenger's seat, containing a glass pipe, scale, envelope containing $500 in $100 bills, and a clear plastic baggy containing methamphetamine. The parties stipulated that the white crystallike substance in the black bag was .90 grams of methamphetamine. In Lukacs's opinion, the methamphetamine was possessed for sale.
III
INEFFECTIVE ASSISTANCE OF COUNSEL
The parties agree that in order to preserve defendant's right to challenge on appeal Lukacs's search and seizure of defendant's car, defendant was required to renew his motion to suppress, originally heard and denied during defendant's preliminary hearing. "[W]here the defendant moves to suppress evidence at the preliminary hearing, he or she must again raise the issue of the validity of a search in superior court in order to preserve the issue for appeal." (People v. Garrido (2005) 127 Cal.App.4th 359, 364, citing People v. Lilienthal (1978) 22 Cal.3d 891, 896-897.) Because defendant did not renew his motion to suppress, he forfeited his objection. Defendant acknowledges this and therefore argues that his attorney's failure to renew his motion to suppress constituted ineffective assistance of counsel.
A. Procedural Background
Defendant filed a motion to suppress evidence discovered during Lukacs's inventory search of defendant's car. Defendant argued the search was illegal because it was unreasonable to impound his car, since it was legally parked in a shopping center parking lot. The prosecution opposed defendant's motion, arguing the search was a legal inventory search. Defendant's motion was heard and denied at the close of defendant's preliminary hearing. The trial court concluded that Lukacs was justified in impounding defendant's car because it was impeding traffic flow in and out of the parking lot. In turn, the inventory search of defendant's car was lawful. At the conclusion of the preliminary hearing, the trial court found there was sufficient evidence to hold defendant to answer as charged. Thereafter, an information was filed, defendant waived formal arraignment, and defendant pled not guilty to all counts and denied all priors.
After numerous continuances of defendant's trial, primarily at defendant's request, defendant withdrew his not guilty plea and entered a plea of nolo contendere to count 2 pursuant to a plea bargain. As a condition of the plea bargain, count 1 was dismissed. Defendant signed and initialed various provisions of the plea form. Defendant did not agree to paragraph 20 of the plea form stating: "I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain." At no time during the superior court proceedings did defendant renew his motion to suppress.
B. Ineffective Assistance of Counsel Law
To secure the reversal of a conviction based on ineffective assistance of counsel, a defendant must show: (1) his counsel's performance was deficient when measured against the standard of a reasonably competent attorney, and (2) counsel's deficient performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The appellate court must presume counsel's conduct fell within the wide range of reasonable professional assistance and accord great deference to counsel's tactical decisions. (People v. Lewis (2001) 25 Cal.4th 610, 674, citing Strickland v. Washington (1984) 466 U.S. 668, 686.)
Further, because it is inappropriate for a reviewing court to speculate about the tactical reasons for counsel's actions, when the reasons are not readily apparent in the record, the court will not reverse unless the record discloses no conceivable tactical purpose. (People v. Lewis, supra, 25 Cal.4th at pp. 674-675.) If the record sheds no light on the reasons for counsel's actions, a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
C. Discussion
The record sheds no light on why defense counsel chose not to renew defendant's motion to suppress. Defendant claims there exists no satisfactory explanation, particularly since defendant refused to waive his right to appeal any motions (¶ 20 of the plea form). Defendant argues this indicated defendant intended to appeal the ruling denying his motion to suppress. Therefore there was no reasonable justification for his attorney's failure to renew the motion. We disagree. There were reasonable tactical reasons for defense counsel not renewing defendant's suppression motion. Defense counsel likely concluded that renewing the motion would be futile (People v. Hinds (2003) 108 Cal.App.4th 897, 902) and result in delaying defendant's release from custody. Under the plea bargain, defendant was to be sentenced to a low term of two years and credited with 758 days of presentence custody credits, resulting in his immediate release upon entry of judgment.
Whether defense counsel reasonably could have concluded it was futile to renew defendant's motion to suppress turns on whether there was any valid basis for granting the motion. We conclude there was none, as we explain below. Whether a search is unreasonable under the Constitution is a question of law. (People v. Lawler (1973) 9 Cal.3d 156, 160.) Under the California Constitution, the reasonableness of a search and seizure is measured against federal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674.) Under the Fourth Amendment to the United States Constitution, a warrantless search is presumed to be illegal, subject to a few exceptions. (People v. Williams (2006) 145 Cal.App.4th 756, 761; Katz v. United States (1967) 389 U.S. 347, 357.) The prosecution has the burden of justifying the search by proving the search fell within a recognized exception to the warrant requirement. (Williams, at p. 761.) One such well-recognized exception is an inventory search. (Colorado v. Bertine (1987) 479 U.S. 367, 371 (Bertine).) "An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage." (Whren v. United States (1996) 517 U.S. 806, 812, fn. 1; see also South Dakota v. Opperman (1976) 428 U.S. 364, 369 (Opperman).)
The United States Supreme Court held in Opperman, supra, 428 U.S. at pages 375-376, that the Fourth Amendment requirement of "reasonableness" is satisfied when the police, following standardized procedures, conduct an inventory of a vehicle that has been impounded pursuant to the exercise of police community caretaking functions. The court in Bertine, supra, 479 U.S. 367, reaffirmed the reasonableness of police inventory searches of impounded vehicles. The Bertine court held that vehicle inventory searches were justified by three "strong governmental interests," namely, the "protect[ion of] an owner's property while it is in the custody of the police, . . . insur[ing] against claims of lost, stolen, or vandalized property, and [the] guard[ing of] the police from danger." (Id. at p. 372; see also People v. Williams (1999) 20 Cal.4th 119, 126.)
Defendant argues the inventory search in the instant case was unlawful because the impounding of his car was not in furtherance of a community caretaking function. As explained in People v. Williams, supra, 145 Cal.App.4th at pages 761-762, "As part of their '"community caretaking functions,"' police officers may constitutionally impound vehicles that 'jeopardize . . . public safety and the efficient movement of vehicular traffic.' [Citation.] Whether 'impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers' duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft.' [Citation.] If officers are warranted in impounding a vehicle, a warrantless inventory search of the vehicle pursuant to a standardized procedure is constitutionally reasonable. [Citation.] When an inventory search is conducted based on a decision to impound a vehicle, we 'focus on the purpose of the impound rather than the purpose of the inventory,' since an inventory search conducted pursuant to an unreasonable impound is itself unreasonable. [Citation.] Although a police officer is not required to adopt the least intrusive course of action in deciding whether to impound and search a car [citation], the action taken must nonetheless be reasonable in light of the justification for the impound and inventory exception to the search warrant requirement. Reasonableness is '[t]he touchstone of the Fourth Amendment.' [Citation.]"
Under Vehicle Code section 22651, subdivision (h)(1), an officer is authorized to impound a car incident to an arrest. But as the court in People v. Williams, supra, 145 Cal.App.4th at page 762 notes, "While the statute authorizes law enforcement officers to 'remove' a vehicle when they make a custodial arrest of a person 'driving or in control of' the vehicle, this statutory authorization does not, in and of itself, determine the constitutional reasonableness of the seizure. [Citations.]" The prosecution also has the burden of "establishing that impounding appellant's car was constitutionally reasonable under the circumstances" (ibid.), and this requires "showing that removal of the car from the street furthered a community caretaking function." (Ibid.; see also Opperman, supra, 428 U.S. at pp. 368-369, 373.)
Defendant asserts that impounding his car, after he parked it on the south side of a Pizza Hut restaurant, was unreasonable and not justified as a community caretaking function because his car was not illegally parked and was not preventing cars from entering and leaving the shopping center parking lot. Lukacs testified there was enough room to drive around defendant's parked car and there was no "no parking" sign where defendant parked his car. We conclude that, despite these facts, Lukacs's testimony established that impounding defendant's car was justified and reasonable. (People v. Williams, supra, 145 Cal.App.4th at pp. 761-762.) Lukacs testified that, although he did not always tow a car when the driver was arrested, he decided to tow defendant's car because it was parked in a hazardous location. Defendant's car impeded the flow of traffic in and out of a shopping center. Although there was room to pass defendant's parked car, the passageway was only wide enough for one car. If someone drove into the parking lot from Walnut, the driver would have had to drive on the wrong side of the entranceway, around defendant's car. Defendant's car was not parked in a marked parking space in the parking lot.
In addition, in Lukacs's opinion, as a law enforcement officer, the location was known for excessive crime. Defendant's car would have been a target for vandalism and theft, if left in the parking lot. The area where Lukacs stopped defendant was known for break-ins of businesses, residences, and vehicles, and graffiti. Lukacs concluded this based on his personal experience working in the city. Although Lukacs was unable to state how many break-ins had occurred in the area within the past year, he recalled one instance, in which he had investigated a break-in that occurred within the past five years. Lukacs was aware of other instances as well, including the Pizza Hut being robbed. There also was a vehicle "window smash break-in" within a half a block south of where defendant's car was parked within the past 18 months of when defendant was pulled over.
Under circumstances, in which defendant's car was a hazard to other drivers and subject to being vandalized, towing defendant's car was a proper exercise of the community caretaking function. Because defendant's car was lawfully impounded, the inventory search was lawful as well. Defendant's trial attorney reasonably could have concluded it was futile to renew defendant's motion to suppress. Likewise, defendant was not prejudiced by defense counsel not renewing defendant's motion to suppress, since it was highly probable the motion would have been denied once again. Therefore nonrenewal of the motion did not constitute ineffective assistance of counsel.
Defendant argues that, because his car was not parked on a public roadway, Deputy Lukacs was not authorized to enforce vehicle regulations or control the location where defendant parked his car. Defendant acknowledges that Vehicle Code section 21107.8 provides law enforcement with limited authority to enforce vehicle regulations at private parking facilities. Defendant, however, claims that no evidence was presented establishing that the shopping center lot was subject to public regulations and control under Vehicle Code section 21107.8. That statute requires enactment of a city or county ordinance or resolution allowing law enforcement regulation and control of off-street parking facilities and posting notice on such property that the parking facility is subject to public traffic regulations and control. (Veh. Code, § 21107.8.) Defendant forfeited this argument by not raising it in the trial court or in his appellate opening brief. (People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 728; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
Ramirez
P.J.
King
J.