Opinion
G056915
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. DANIEL FREDDY RUIZ, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18WF0371) OPINION Appeal from a judgment of the Superior Court of Orange County, Kathleen E. Roberts, Judge. Affirmed. Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Garden Grove police officers stopped a vehicle driven by Daniel Freddy Ruiz for a Vehicle Code violation. Ruiz and his passenger were ordered out of the car, and the detaining officer informed Ruiz that he was going to pat him down. Before the officer could conduct the pat-down, Ruiz admitted he was carrying a firearm. A subsequent search of the vehicle's trunk yielded a bag containing ammunition and a set of shaved keys.
The trial court denied Ruiz's pretrial motion to suppress evidence. The court also denied Ruiz's request to discharge his appointed counsel and appoint new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). At trial, Ruiz was convicted on count 1, unlawful possession of a firearm by a felon; count 2, unlawful possession of ammunition by a felon; and count 3, possession of burglary tools. He was thereafter sentenced to six years and eight months in state prison.
On appeal, Ruiz argues that his motion to suppress evidence was improperly denied because the officers did not have probable cause to stop the vehicle that he was driving, and the stop was unlawfully prolonged when the officers ordered him out of the vehicle. He also argues that his motion to substitute counsel should have been granted because he and his appointed counsel had suffered an irreparable breakdown in their relationship, largely due to threats Ruiz made against his lawyer. Finally, Ruiz argues that there was insufficient evidence to convict him of possession of burglary tools. Since we find none of his arguments meritorious, we affirm.
FACTS
1. The Marsden Motion
After his case was sent to the trial court, Ruiz made a motion to replace his appointed counsel pursuant to Marsden, supra, 2 Cal.3d 118. The court conducted the required hearing. Ruiz explained he wanted his attorney relieved because of problems that dated back to the beginning of their attorney-client relationship in 2015. He said that he felt like hurting his attorney because he did not "see another way of . . . getting rid of him or anything." Ruiz added that he did not see any effort from his attorney.
The court asked Ruiz to provide instances where he had asked his attorney to do specific things that were not done, or to describe "how you are communicating with him and where a breakdown is happening." Ruiz again said that he was considering hurting his counsel because it was the only way to get him removed from the case. Regarding his communication with his attorney, Ruiz said, "[O]ur communication is just - he tried - he tells me what I want to hear, which is fine, but that's not what I want. I don't want to hear, 'yeah, yeah, yeah," and that's that." He then added that he thought that his counsel was "a fine attorney." The only specific complaints made by Ruiz were that he wanted motions filed, including a "13, 13.58 [sic], under the First Amendment . . . ."
Ruiz's counsel in turn told the court that he understood Ruiz wanted motions filed and that he had already filed a motion to suppress evidence pursuant to Penal Code section 1538.5; counsel added that in his opinion there were no other viable motions to be filed. Counsel explained that Ruiz was often frustrated with him because he was "always the bearer of bad news." Counsel said that the district attorney was not willing to resolve any of Ruiz's cases, adding Ruiz "doesn't deal with that stress well." Counsel admitted he had a "rotten bedside manner," but said he did not think changing lawyers would benefit Ruiz's cases. Regarding the physical threats, counsel said that he did not fear Ruiz. At the conclusion of the hearing, the court denied Ruiz's request for new counsel.
All subsequent statutory references are to the Penal Code unless otherwise indicated. --------
2. The 1538.5 Motion
The court received the following evidence during the hearing on the 1538.5 motion.
On January 20, 2018, while on routine patrol, Garden Grove police officers Jeff Nguyen and Patrick Murphy surveilled a house known to be involved in narcotics activity. Nguyen saw a white BMW with expired registration tags parked in front of the house. He ran the BMW's plates to confirm that the tags were expired. About an hour later, the officers observed what they believed was the same BMW leave the house. Although it was dark, the BMW was driving without its headlights. As the officers were observing the vehicle, its headlights came on. Nguyen stopped the vehicle for driving without headlights and driving with expired registration tags.
The vehicle had two occupants; Ruiz was the driver and Hossein Yaqubi was the front passenger. Nguyen recognized Yaqubi from prior contacts and knew he had previously been on probation. Nguyen asked Ruiz for his license and vehicle registration; Ruiz was unable to provide them. Nguyen then asked Ruiz about the expired registration, and Ruiz said the car belonged to his sister.
As the officers asked Yaqubi about his probation status, Ruiz began to argue with Nguyen. The officers decided to search the passenger area of the car, and Murphy asked Yaqubi to exit the vehicle. Murphy then patted Yaqubi down for weapons.
Nguyen asked Ruiz to exit the car so he could pat him down for any weapons. Nguyen testified, "if I am going to search a vehicle, I always search passengers and drivers . . . for our safety." Ruiz admitted he was carrying a firearm before Nguyen began to pat him down.
3. The Trial
At trial, the officers testified concerning stopping the BMW and discovering the firearm. After Ruiz admitted having a firearm, Murphy assisted Nguyen by removing it from Ruiz's waistband. Murphy testified that the firearm was a Hi-Point 9-millimeter semi-automatic and stated it was loaded.
After recovering the firearm, the officers searched the trunk of the vehicle and found a bag that contained 45 rounds of ammunition and a set of car keys. There were three different calibers of ammunition: .357 caliber rounds, .22 caliber rounds, and .40 caliber rounds. Both officers opined that all of the keys seized appeared to be shaved. Nguyen testified that a shaved key could be "used to effectuate the theft of [a] vehicle." Murphy testified that shaved keys were "used to open and unlock vehicle doors or start vehicles with their ignition that the keys aren't assigned to."
DISCUSSION
1. The Marsden Motion
A defendant who is represented by appointed counsel is entitled to new counsel "'"if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result."'" (People v. Memro (1995) 11 Cal.4th 786, 857.) Ruiz argues that because there was a complete breakdown in communication between him and his attorney, he was entitled to new counsel. We disagree.
"'"When a defendant seeks to discharge his appointed counsel and substitute another attorney . . . the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance."'" (People v. Memro, supra, 11 Cal.4th at p. 857.) "[T]he decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney." (Marsden, supra, 2 Cal.3d at p. 123.)
Following his request to discharge his appointed lawyer, the court conducted a hearing during which it gave Ruiz ample opportunity to explain why he thought that he and his counsel had an irreconcilable conflict. Ruiz's initial statements focused on his desire to have his lawyer replaced and his plan to hurt his counsel if his request was not granted. The court asked numerous follow-up questions. Ruiz's only specific complaint was that he wanted his counsel to file motions. However, his counsel had filed a suppression motion; he informed the court that he did not see any other viable motions. While Ruiz expressed frustration with his counsel's manner of communicating, "the way in which one relates with his attorney, does not sufficiently establish incompetence." (People v. Silva (1988) 45 Cal.3d 604, 622.)
Ruiz argues that his threat to harm his lawyer created a de facto conflict of interest between the two of them. We disagree. The California Supreme Court has rejected the idea that a defendant's threat to harm his attorney creates an automatic conflict: "We are reluctant to recognize a rule of law that would empower criminal defendants to inject reversible error into their trials by simply threatening their lawyers." (People v. Roldan (2005) 35 Cal.4th 646, 674, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In order for a conflict of interest claim to warrant the replacement of counsel, a defendant must demonstrate (1) counsel's performance was deficient in some way due to the conflict; and (2) without this deficiency, there was a reasonable probability that the outcome of the case would have been different. (People v. Doolin, supra, 45 Cal.4th at p. 421.)
Ruiz made no showing that his counsel's performance was deficient as a result of the threat. Nor does the record support such a conclusion. Ruiz's counsel pursued his only viable motion. He cross-examined the witnesses presented by the prosecution during the motion and at trial. He argued the case. There is nothing in the record to suggest Ruiz's counsel could have presented any other witnesses or evidence. The trial court also specifically inquired as to what effect, if any, the threat had on counsel. In response, counsel said that he was not afraid of Ruiz and that he did not want to be removed from the case. A criminal defense attorney "is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial." (Holloway v. Arkansas (1978) 435 U.S. 475, 485, quoting State v. Davis (Ariz. 1973) 514 P.2d 1025, 1027.)
Ruiz's complaints were insufficient to warrant the replacement of counsel. Therefore, the trial court did not abuse its discretion in denying Ruiz's motion.
2. The 1538.5 Motion
A traffic stop is lawful when "the police have probable cause to believe that a traffic violation has occurred." (Whren v. United States (1996) 517 U.S. 806, 810.) A traffic stop may last only as long as is reasonably necessary for the officer to effectuate the purpose of the stop. (People v. McGaughran (1979) 25 Cal.3d 577, 587.) A driver's inability to produce a driver's license or registration provides a justifiable basis to extend the duration of the stop. (People v. Webster (1991) 54 Cal.3d 411, 430-431.)
"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. Glaser (1995) 11 Cal.4th 354, 362.)
The officers here had probable cause to stop Ruiz's vehicle for two violations: (1) he was driving without headlights after dark (Veh. Code, § 24400); and (2) he was driving with expired registration tabs (Veh. Code, § 5204). It is undisputed that the officers observed Ruiz driving after dark without his headlights on. Nonetheless, Ruiz argues that the officers could not pull him over for the headlight violation because he turned his headlights on prior to the stop. Once again, we disagree. Vehicle Code section 24400, subdivision (b), requires that a motor vehicle "shall be operated during darkness . . . with at least two lighted headlamps . . . ." The fact that the officers saw Ruiz driving without his headlights on provided a legitimate basis for the stop.
The officers also had a reasonable basis to believe that the vehicle had expired registration tabs in violation of Vehicle Code section 5204 since it appeared to be the same vehicle they had personally confirmed had expired tabs just an hour earlier.
Ruiz argues that the officers illegally prolonged the stop by ordering him to exit his vehicle because they could have cited him for the violation and released him. The United States Supreme Court addressed this issue in Pennsylvania v. Mimms (1977) 434 U.S. 106, 111, fn. 6: "We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." We are bound by this ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Shortly after he was ordered to exit the vehicle, Ruiz admitted that he was in possession of a firearm. Based on the video admitted into evidence and played in court, less than four minutes elapsed between the vehicle stop and Ruiz's admission to having a firearm. During that brief time, the officers asked Ruiz for his license and registration (which he was unable to provide), discussed the expired registration tab, and asked him to step out of the vehicle. These activities did not unreasonably prolong the stop.
The court did not err in denying the motion to suppress evidence.
3. Sufficiency of the Evidence Regarding Count 3
The jury convicted Ruiz of count 3, possession of burglary tools. He challenges the sufficiency of the evidence as to that count.
"In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)
As relevant here, section 466 provides, "Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, . . . or vehicle as defined in the Vehicle Code . . . is guilty of a misdemeanor." (Pen. Code, § 466.)
The record contains substantial evidence to support the jury's verdict on count 3. The shaved keys were found in the trunk of the car Ruiz was driving. The jury could reasonably infer that Ruiz was aware of, and had control over, the contents of the trunk of the car that he was driving. The keys were in a bag along with ammunition. Since Ruiz was the only occupant in the car who was in possession of a firearm, it was reasonable for the jury to conclude that the bag of keys and ammunition belonged to him.
Ruiz argues that the evidence also potentially supports the conclusion that the bag could have belonged to the passenger. He is right, but that is not the issue before us. Our sole consideration is whether the evidence reasonably supported the jury's verdict. "[I]f the circumstances reasonably justify the trier of fact's findings, the reviewing court's view that the circumstances might also be reasonably reconciled with a contrary finding does not warrant reversal of the judgment." (People v. Hubbard (2016) 63 Cal.4th 378, 392; see also People v. Abilez (2007) 41 Cal.4th 472, 504.)
Both officers testified that all of the keys appeared to be shaved. Both officers testified that shaved keys are used to unlock and start vehicles to which they did not belong. At least some of the shaved keys belonged to Hondas and Toyotas while Ruiz was driving a BMW. From this evidence, the jury could reasonably conclude that Ruiz possessed the shaved keys for the purpose of breaking into a Honda or Toyota that did not belong to him.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: MOORE, P. J. ARONSON, J.