Opinion
A128761 A130630
10-14-2011
THE PEOPLE, Plaintiff and Respondent, v. PAUL EUGENE VEAL, Defendant and Appellant. In re PAUL EUGENE VEAL, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC069756B)
Paul Eugene Veal (appellant) was convicted, following a jury trial, of possession of a controlled substance and possession of narcotics paraphernalia. On appeal, appellant contends police lacked reasonable suspicion to detain him and, therefore, the magistrate should have granted his motion to suppress evidence. In an accompanying petition for writ of habeas corpus (habeas petition), he contends defense counsel's failure to renew the motion to suppress in the superior court constituted ineffective assistance of counsel. We shall affirm the judgment and deny the habeas petition.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with possession of a controlled substance, i.e., cocaine base, a felony (Health & Saf. Code, § 11350, subd. (a)); being under the influence of a controlled substance, i.e., cocaine base, a misdemeanor (Health & Saf. Code, § 11550, subd. (a)); and possession of narcotics paraphernalia, a misdemeanor (Health & Saf. Code, § 11364). The amended information further alleged that appellant had suffered two prior felony convictions (Pen. Code, § 1170.12, subd. (c)(1)), and one prior conviction for which he had served a prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
At the conclusion of the preliminary hearing, a superior court judge acting as magistrate denied appellant's motion to suppress evidence. (See § 1538.5.)
Following a jury trial, the jury found appellant guilty of possession of a controlled substance and possession of narcotics paraphernalia. The jury deadlocked on the charge of being under the influence of a controlled substance and the trial court declared a mistrial as to that count. Appellant waived his right to a jury trial on the prior conviction allegations and, following a court trial, the trial court found all of the allegations true.
Appellant moved to dismiss a prior strike and, on May 20, 2010, the trial court granted the motion and dismissed the prior strike and prison term allegations. The court then sentenced appellant to the middle term of two years in prison on the possession of a controlled substance count, suspended execution of that sentence, and placed him on probation for three years. The court also suspended imposition of sentence on the possession of paraphernalia count.
On June 9, 2010, appellant filed a notice of appeal. On December 17, 2010, appellant filed a related habeas petition.
FACTUAL BACKGROUND
On July 15, 2009, at approximately 1:38 a.m., San Mateo County Sheriff's Deputies Patrick Carey and James Goulart were dispatched to a vehicle in a mobile home park in an unincorporated part of Redwood City; another deputy and a sergeant also responded. The mobile home park was divided into three rows, "A," "B," and "C," which were connected by a fire lane that is wide enough for one car to drive on. The vehicle was described as a black and white Chevrolet van that was parked between rows B and C. The deputies located the vehicle, which was parked exactly where dispatch had said it was, in the fire lane. The area around the van was not well lit.
The deputies approached the vehicle and Carey observed two people inside. Goulart saw "a flickering light coming from inside the vehicle." The light was "somewhere in the middle" of the vehicle; "it wasn't distinct." At that point, the deputies approached the front of the van and Carey used his flashlight to illuminate the inside of the van. He clearly saw the two occupants inside. The passenger stayed still, but the driver "immediately took his hands and leaned down and started . . . ruffling underneath the seat." Carey asked the driver and passenger to put their hands on top of their heads, which they did. He then asked them to step out of the van, which they also did. At trial, Carey identified the person who had been in the van's driver's seat as appellant.
Carey asked both men for identification. He also asked appellant if the vehicle was his, and appellant said it was. He asked appellant why he was making furtive movements underneath the seat and appellant did not answer. The deputies did a record check on both men and Carey shined his flashlight into the van through the driver's side window. On the center console, he observed several white rocks and residue, which, based on his training and experience, he believed were rock cocaine. He scraped the white substance into a plastic bag. The quantity he found was a usable amount of suspected rock cocaine.
The white substance was later found to weigh 0.03 grams and contain cocaine base.
Carey also looked under the driver's seat, where he had seen appellant reaching, and found a glass pipe. There was residue inside the pipe and a brillo pad had been shoved inside. Carey recognized the pipe as a type used to ingest narcotics, including cocaine base. Next to the driver's seat, he also found a five- to six-inch long metal rod, of a kind that is used to push the brillo pad into the pipe to clean the residue from the inside.
Goulart performed a "drug abuse recognition seven step process" test on appellant to evaluate whether he was under the influence of a controlled substance. Based on the results of the test, Goulart believed appellant was under the influence of cocaine. Appellant was arrested at the scene.
DISCUSSION
I. Direct Appeal
Appellant contends police lacked reasonable suspicion to detain him and, therefore, the magistrate should have granted his motion to suppress evidence.
Appellant failed to renew the motion to suppress in the superior court. (See § 1538.5, subd. (i).) Our Supreme Court has held that a motion to suppress must be renewed in the superior court to preserve the issue for appeal, "for it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention." (People v. Lilienthal (1978) 22 Cal.3d 891, 896; see People v. Richardson (2007) 156 Cal.App.4th 574, 589 ["the consensus is that the Lilienthal rule continues to apply even in the wake of trial court unification because that rule never rested on the distinction between the municipal court and the superior court; rather, it rests on the distinction between magistrates and superior court judges—a distinction that remains valid even following unification"].) Accordingly, appellant's failure to renew the motion forfeits the issue on appeal.
Appellant asserts that he tried to raise the issue again on his own, both during and after trial, and that, therefore, we should find that he preserved the issue for appeal. Appellant provides no argument or citation to authority to support this claim, but instead merely provides a record cite to two letters he wrote to the trial court after the jury had already found him guilty, in which he (1) referred to alleged discrepancies between Deputy Carey's testimony at the preliminary hearing and trial regarding what was in plain sight in the van, and (2) stated that a hearing on a motion to suppress should have been held at trial because new evidence was admitted at trial, specifically referring to a photograph that was enlarged 150 percent. Among the problems with appellant's claim that these posttrial letters should preserve the issue for appeal, we note that neither letter argues that the evidence should have been suppressed on the same grounds raised on appeal. (See People v. Kain (1989) 212 Cal.App.3d 816, 822 [party moving to suppress "must make the basis for the motion clear and 'seek and obtain an unambiguous ruling on the motion.' [Citation]"]; see pt. II, post.) We reject appellant's assertion that the references in these letters make his claim cognizable on direct appeal.
Appellant also contends that, to the extent his claim is forfeited due to defense counsel's failure to renew the motion to suppress, he received ineffective assistance of counsel. We shall address this issue in part II of this opinion, post, in the discussion of appellant's habeas petition.
II. Habeas Petition
Appellant contends defense counsel's failure to renew the motion to suppress evidence in the superior court constituted ineffective assistance of counsel.
A. Trial Court Background
The following evidence was presented at the preliminary hearing. On July 15, 2009, at 1:38 a.m., a San Mateo County 911 dispatcher received a phone call from an anonymous male who said that a black and white Chevy van was currently parked in between and to the rear of rows B and C at an address on Barron and appeared to be occupied. The van had been there for over an hour and the caller thought the occupants were "doing HS."
"Doing HS" is apparently police slang for illegal drug use.
Deputies Carey and Goulart arrived at the scene at 1:44 a.m. Carey testified that he and Goulart were dispatched "to a suspicious vehicle parked at the trailer park located on [Barron] Avenue possibly occupied by two to three people, maybe more, and they might be using narcotics." Dispatch had told them that the vehicle was "a white Chevy van that was [parked] in the alleyway between rows B and C." The deputies entered the mobile home park on foot, along with another deputy and their sergeant, and located a black and white Chevy van parked in the alleyway between the rows. It was dark where the van was parked, with no lights on in the area.
The two deputies peeked around a corner at the van and observed that there were two people inside. From about 15 or 20 feet away, Goulart saw "a flickering light coming from inside the van." When asked what kind of light he saw, Goulart said, "It looked like a flame." He could not see the source of the flame, which remained illuminated only momentarily.
The deputies then approached the van from the front, and Carey shined his flashlight inside the van and saw a man he identified at the preliminary hearing as appellant in the driver's seat and another man he identified as Jason Creekpaum in the front passenger seat. As Carey shined the light, appellant "started to reach down between his legs, appearing to either grab something or hide something." For officer safety, Carey ordered the men to put their hands on top of their heads, and both men complied. He then asked them to step outside the van, which they did. Neither officer had a weapon out. At that point, the other deputy was behind the van and the sergeant was in the alleyway about 15 or 20 feet away.
The deputies asked each of the men for identification and appellant proffered a driver's license. Dispatch informed them that appellant had a recent arrest for possession of a controlled substance and Creekpaum, who lived in the trailer park, was on probation with a search condition. Carey asked appellant if the van was his. Appellant said it was. Carey then asked if there was anything illegal inside the van and appellant said there was not. When Carey asked "why he had made those movements with his hands when the light was shining inside the vehicle," appellant did not answer.
Carey used his flashlight to scan the interior of the van and saw a white substance on the center console, which he believed was narcotics. He placed the substance into an envelope and had it analyzed. The parties stipulated that the substance was .03 grams of cocaine base, which was a usable quantity. Carey checked under the driver's seat and found a glass pipe with a brillo pad on the tip, which is used to ingest controlled substances. He also located a yellow rod, which he believed was used to clean the pipe.
Carey ultimately arrested appellant for possession of narcotics and paraphernalia. Goulart conducted a drug evaluation of appellant at the jail and concluded that appellant had "a central nervous system stimulant on board."
After the preliminary hearing, and following the arguments of counsel, the magistrate denied the motion to suppress, first stating that it was "in fact a very close case. But I think the fact that Deputy Goulart saw the flame, and he described it as I believe a flame, not a flicker, but the record will reflect what's accurate in that regard. But there's enough there in conjunction with the time of day and the fact that it's late at night and that the description of what was going on was consistent with what the caller had relayed to the dispatcher that there would be a basis then to further detain both Mr. Creekpaum and [appellant]."
In a declaration submitted with appellant's habeas petition, defense counsel stated that he did not renew the suppression motion in the superior court after the preliminary hearing because he did not believe the court would grant a renewed motion based on the same evidence. He further stated that, had he been aware of the differences between Deputy Goulart's testimony at the preliminary hearing (he saw a "flame") and at trial (he saw a "flicker"), and recalled the court's ruling, he would have renewed the motion to suppress "since the trial testimony undercut a key factor the court relied on" in denying the motion.
B. Legal Analysis
To prove ineffective assistance of counsel, a defendant must show that "counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
In the present case, appellant argues that counsel was ineffective because he failed to renew the motion to suppress in the superior court either before trial, pursuant to section 1538.5, subdivision (i), or during trial, pursuant to section 1538.5, subdivision (h), which provides: "If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial."
Respondent counters that counsel was not incompetent for failing to renew the motion to suppress in the superior court either before or during trial because he had no viable grounds for doing so. We agree.
First, counsel could have brought a renewed motion to suppress before trial based only on the evidence introduced at the preliminary hearing. (See § 1538.5, subd. (i).) At the conclusion of the preliminary hearing, the magistrate found that the deputies had reasonable suspicion to detain appellant and his passenger based on (1) the anonymous caller's description of the van and its location, which were consistent with what the deputies found, (2) the time of day (after 1:30 a.m.), and (3) Deputy Goulart's testimony that he saw a flicker of light or flame coming from the van.
We shall discuss the purported significance of the deputy's use of the words "flicker" and "flame" post.
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Reasonable suspicion for an investigatory stop exists "when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.) "The guiding principle in determining the propriety of an investigatory detention is 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' [Citations.] In making our determination, we examine 'the totality of the circumstances' in each case. [Citations.]" (People v. Wells (2007) 38 Cal.4th 1078, 1083.)
Assuming, as appellant argues, that appellant was detained when the deputies first approached the van, rather than when Deputy Carey subsequently shined his flashlight inside the vehicle, we nonetheless find that the deputies had reasonable suspicion to detain appellant at that point. Appellant focuses on the anonymous caller, asserting that the tip, which merely described the location of the van, was not sufficient to provide reasonable suspicion. Appellant cites, inter alia, Florida v. J.L. (2000) 529 U.S. 266, 268, in which an anonymous caller told police that a young Black male in a plaid shirt standing at a particular bus stop was carrying a gun. The United States Supreme Court held that the tip was insufficient to justify a brief detention and pat down search, absent some independent corroboration of the reliability of the tip. (Id. at pp. 270-272; accord, Alabama v. White (1989) 496 U.S. 325, 329 ["an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity"]; People v. Saldana (2002) 101 Cal.App.4th 170, 175 [same]; compare People v. Butler (2003) 111 Cal.App.4th 150, 161-162 [detention was justified where anonymous call was corroborated by officer's observation of apparent drug transaction].)
While the cases cited by appellant state that an anonymous tip that lacks predictive value is not sufficient, alone, to establish reasonable suspicion, the present case involved an anonymous tip and independent corroboration of the tip, including the lateness of the hour and the brief flame/flicker of light Goulart saw in the van, which corroborated the report of possible drug activity. Thus, looking at the totality of the circumstances in this case, we find that the magistrate properly concluded that the deputies had reasonable suspicion to detain appellant and counsel therefore was not ineffective for failing to renew the motion to suppress in the superior court before trial. (See Florida v. J.L., supra, 529 U.S. at pp. 270-272; People v. Wells, supra, 38 Cal.4th at p. 1083; see also Strickland, supra, 466 U.S. at p. 688.)
Second, counsel could have brought another motion to suppress during trial only if "opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion" before trial began. (§ 1538.5, subd. (h).) Appellant claims that new evidence was presented at trial that should have alerted counsel to the need to file a new motion to suppress. Specifically, appellant asserts that Deputy Goulart changed his testimony at trial in a significant way that would have warranted the filing of a renewed motion to suppress.
At the preliminary hearing Goulart described the light he saw when he approached the van as follows:
"Q. As you approached the van did you see any light sources coming from the van?
"A. When we first saw the van we peeked around the corner and saw a flickering light coming from inside the van.
"Q. Okay. What kind of light did you see?
"A. It looked like a flame.
"Q. How far away from the van were you when you saw this?
"A. Fifteen to twenty feet.
"Q. Could you see the source of that flame?
"A. No.
"Q. Did it remain illuminated only momentarily or was it sustained?
"A. Momentarily."
At trial, Goulart testified that when he peeked around the corner, he "saw a flickering light coming from inside the vehicle." He said the light was "somewhere in the middle" of the van and "it wasn't distinct." He did not use the word "flame" in describing the light he saw.
Appellant is incorrect when he argues that the magistrate relied on Goulart's use of the word "flame" at the preliminary hearing in denying the motion to suppress. In his ruling on the motion, the magistrate said, "But I think the fact that Deputy Goulart saw the flame, and he described it as I believe a flame, not a flicker, but the record will reflect what's accurate in that regard." (Italics added.) The magistrate's comment plainly shows that he was merely trying to accurately repeat what the deputy had said, not that he was giving any particular significance to the use of the word "flame" versus the word "flicker."
Indeed, earlier in the hearing, the magistrate had responded to defense counsel's argument that the anonymous caller's tip was uncorroborated and did not provide reasonable suspicion to detain appellant by stating, "How about, though, in this case you've got individuals in a car early in the morning, I think it was around 1:30 a.m. and they have the information they got from the dispatcher and then they see a flicker of light, I think Deputy Goulart testified to that, wouldn't that arouse a [suspicion] reasonably to at least stop and detain the defendants?"
It is clear from the record that the magistrate found Goulart's use of the words "flicker of light" and "flame" interchangeable and equally persuasive in providing evidence to support the detention, and we do not find convincing appellant's attempt to attribute significance to the fact that Goulart did not use the word "flame" during trial. This minor change in Goulart's testimony did not provide a viable ground for filing a renewed motion to suppress during trial pursuant to section 1538.5, subdivision (h). Consequently, notwithstanding defense counsel's statement in his declaration in support of the habeas petition that Goulart's "trial testimony undercut a key factor the court relied on" in denying the motion, we conclude that counsel was not ineffective for failing to bring such a motion. (See Strickland, supra, 466 U.S. at p. 688.)
For the reasons already discussed, appellant's ineffective assistance of counsel claim also fails due to his inability to show that he was prejudiced by counsel's failure to renew the motion to suppress in the superior court. (See Strickland, supra, 466 U.S. at p. 694.)
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
Kline, P.J. We concur: Haerle, J. Richman, J.