Opinion
G052276
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. TODD MARTIN WILLIAMS, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall Einhorn, Stacy Tyler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08CF1328) OPINION Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall Einhorn, Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Todd Martin Williams of possession of methamphetamine and cocaine for sale (Health & Saf., Code §§ 11378, 11351), sale of cocaine (Heath & Saf., Code § 11352, subd. (a)), misdemeanor possession of ammunition by a prohibited person (Pen. Code, § 12316, subd. (b)(1)), and misdemeanor unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). The court sentenced defendant to three years' probation.
The case took seven years to get to trial as defendant cycled through eleven changes in counsel while three times choosing to represent himself. Four of his attorneys filed separate motions to suppress evidence or quash a search warrant, and a fifth attorney filed a reply to the People's opposition to one of the motions. Remarkably, defendant now challenges his conviction on grounds one or more of his attorneys, but does not identify which one, was ineffective in failing to overrule defendant's insistence that the motions be withdrawn. Pursuant to defendant's requests, the court never ruled on any of the suppression motions. Defendant did not receive ineffective representation but invited the error of which he now complains. We affirm the judgment.
In March 2016, we denied defendant's request for appointment of new counsel on appeal.
FACTS
In April 2008, police set up a controlled drug buy of one-sixteenth of an ounce of methamphetamine from defendant. Police had a confidential informant make the purchase. After the buy, police stopped defendant as he drove his Chevrolet Tahoe in Tustin. Officer John Cartwright searched the car and found small baggies between the seat and center console that he believed were the type used for drug sales. On the rear seat, Cartwright found a small locked safe. A police dog reacted to the safe, causing officers to believe it contained drugs. Police arrested defendant and found approximately $535 in cash in his right front pants pocket.
Cartwright took the safe back to the station. Later that night, Cartwright and another officer pried open the safe without first obtaining a warrant. It contained clear zip baggies, a small digital scale, and two baggies of powder that field tests found to be cocaine. Later that night, citing the drugs found in the safe, Detective Mark Turner obtained a warrant to search defendant's house. Defendant's mother led officers to his bedroom where Turner found paperwork in defendant's name, a .40-caliber bullet, pay/owe sheets, an electronic scale, and three counterfeit $20 bills. Another officer brought Turner a box from the garage, and it contained paperwork in defendant's name, three unused syringes, empty baggies, a bottle of pills, a baggie of marijuana, pay/owe sheets, a baggie each of what appeared to be cocaine and methamphetamine, and a videotape. The crime lab confirmed the drugs were cocaine and methamphetamine. Turner believed, based on the amounts found and other articles, the owner of the drugs possessed them with the intent to sell.
Over the course of his case, defendant changed attorneys eleven times and three times chose to represent himself. Four different attorneys filed a motion to suppress evidence under Penal Code section 1538.5. The first motion was filed in September 2012. Defendant argued all items seized pursuant to the search and impound of defendant's Chevrolet Tahoe should be suppressed as evidence because police did not have a sufficient basis to conclude the confidential informant provided them with reliable information. The second motion was filed in October 2013. Defendant sought to suppress as evidence all items seized as a result of the warrantless search of the locked safe. The third motion was filed in July 2014. Defendant argued the affidavit used to support the warrant to search defendant's home did not contain sufficient probable cause for a search, and therefore the search of defendant's home was illegal. The final motion was filed in February 2015. Defendant again attacked the warrant to search his home, arguing the affidavit used to obtain the warrant was false. In addition to these motions, a fifth attorney filed a reply to the People's opposition to the fourth motion.
None of the motions were heard because each time a motion came on for hearing, defendant, either acting alone or through counsel, requested it be withdrawn. As to the first motion, defense counsel requested the motion be withdrawn so it could be supplemented. The second motion was withdrawn at defendant's request over his counsel's objection. The third motion was withdrawn at defendant's request when he was representing himself.
When the final motion came on for hearing shortly before trial in April 2015, defendant was represented by counsel who informed the court defendant would like to withdraw the motion and be given an opportunity to refile another motion. Defendant then requested a Marsden hearing. The court held a Marsden hearing and denied defendant's request to relieve his counsel. When they returned to the courtroom, defendant told the court he wanted to withdraw the motion. His counsel then stated, "Your honor, if I may interject. This is totally over my objection as his counsel. I have just spent the good part — I don't know exactly probably seven or [eight] minutes in the hallway in a heated discussion regarding the — just the process and why we would give up an opportunity to primarily the words you just said in the last part of our Marsden. I wholeheartedly requested vigorously to have him go forward with this motion and he is choosing to — wanting to withdraw it."
The court stated there was a motion to suppress and a motion to quash on calendar, but both are contained within the same filing.
People v. Marsden (1970) 2 Cal.3d 118.
The court turned to defendant and stated, "All right. Mr. Williams, let me just reiterate with you where we are with the case. Today is the day for pretrial motions. The motions are scheduled. They have been briefed. I have read them. Everybody has done their research and everybody is ready to go. These motions pertain to the issue of whether or not the government will be able to use certain evidence against you at trial. Evidence that they claim was found in the safe in your vehicle, and evidence that they claim was found in your residence. [¶] This is the last and final chance for you to challenge the admissibility of that evidence through these motions. If you withdraw your motions, the government will have an opportunity to offer this evidence against you at trial. You will not be able to renew your motion to suppress evidence after this morning, so understand that if you choose to withdraw these motions to suppress and to traverse and quash the search warrants, you will do so understanding that the government will have a clear path to offering this evidence against you at trial. Do you understand that?" Defendant responded "yes." The court then asked defendant if he needed more time to speak with his attorney about it, and he replied yes. The court offered defendant five more minutes to again speak with counsel.
When defendant and his counsel had finished conferring, defendant stated, "I would like to withdraw those motions." The court asked counsel if it was over his objection, and counsel responded, "Over my objection, yes, your honor. I have had an additional opportunity to speak with him. I have explained every parameter of the potential benefits win or lose of a motion, and it's — I'm unable to convince him otherwise." The court allowed the motions to be withdrawn.
The case was tried to a jury in April 2015. The jury found defendant guilty as charged on all counts. In June 2015, the court granted defendant three years formal probation.
DISCUSSION
Defendant argues breaking into the locked safe was illegal under the Fourth Amendment and its fruits, including those from the house search under warrant, should be suppressed. The crux of defendant's argument is that effective counsel would have insisted the motions be litigated to preserve the Fourth Amendment issue, rather than permit him to override counsel's professional judgment. We need not address whether the evidence seized during the search of the locked safe or defendant's residence should have been suppressed because defendant has not met his burden to establish counsel's performance in allowing the motions to be withdrawn was deficient.
Defendant abandons on appeal the argument that the car stop resulted in an illegal search.
"A criminal defendant's federal and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) includes the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Defendant bears the burden of proving ineffective assistance of counsel. (People v. Haskett (1990) 52 Cal.3d 210, 248.)
Here, defendant contends strategy and tactics make up the exclusive realm of counsel, not the client, and that the client represented by counsel has a narrow class of rights limited to the right to go to trial, testify at trial, or accept a settlement. He argues whether to raise suppression issues is not one of the personal rights which a defendant is entitled to exercise over the contrary advice of counsel. Defendant's argument can be summarized as this: Whether to file and have heard a suppression motion is a strategy and/or tactic within the exclusive province of counsel, and therefore counsel's acquiescence to defendant's insistence on withdrawing the suppression motions rendered counsel ineffective under the Sixth Amendment.
Not quite. People v. Lang (1989) 49 Cal.3d 991 (Lang), cited by the People and ignored by defendant, requires a different result. In Lang, a jury convicted the defendant of first degree murder and robbery with special circumstances, resulting in a death sentence. (Id. at p. 1002.) The defendant's trial counsel agreed to the defendant's request that his grandmother not be called to testify as a defense witness at the penalty phase. (Id. at p. 1029.) On appeal, the defendant contended trial counsel was ineffective in agreeing to abide by the defendant's wishes. (Ibid.) The Supreme Court rejected the defendant's claim and held the invited-error doctrine operates to estop a defendant from claiming ineffective assistance of counsel based on counsel's acts or omissions in conformance with the defendant's own request. (Id. at p. 1032.) The Lang court observed "that defendant predicates the claim of ineffective assistance solely on his trial counsel's action in yielding to his demand, and not on any antecedent act or omission of counsel." (Ibid.)
The Supreme Court further explained the rationale of the Lang court in People v. Brown (2014) 59 Cal.4th 86. "Lang observed that 'an attorney's duty of loyalty to the client means the attorney "should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client . . . ." [Citation.]' [Citation.] Nothing in Lang suggested that such a decision by a defendant based upon nontactical factors could be overruled by counsel's assessment of the relative tactical merits of a defendant's case. Indeed, as noted, Lang suggested that such authority would be detrimental to the attorney-client relationship and might lead defendants to imprudently seek self-representation at the guilt phase. [Citation.] [¶] Lang teaches that counsel must properly investigate the case in mitigation and advise his client regarding its relative merits and significance. After having been advised by counsel, if a competent defendant decides for nontactical reasons to present no mitigating evidence, he cannot later label counsel ineffective for honoring the defendant's own wishes." (Id. at p. 112.)
Here, as in Lang, defendant predicates his claim of ineffective assistance solely on his trial counsel's action in yielding to his demand to withdraw the motions. We note it was not counsel's decision to withdraw the motions. His only decision was to make his client's wishes known to the court. Defendant does not address, and the record does not reflect, why defendant chose to withdraw the suppression motions. However, there appears to be no tactical reason for the decision, only the nontactical reason that it was defendant's wish pure and simple. There is no evidence of defendant's incompetence to make such a decision. On defendant's final opportunity to present pretrial motions, defense counsel made a record that he spoke at length with defendant in an effort to convince him to alter his course. The trial court admonished defendant that the motions relate to whether or not the People could use certain evidence against him and that this was the last and final chance for defendant to challenge admissibility of evidence through these motions. The court then confirmed with defendant if he understood and asked if he needed more time to discuss the matter with his attorney. Defendant responded yes, they spoke again, and when he returned, defendant confirmed his preference to withdraw everything on calendar over counsel's strong advice otherwise. In light of defendant's clear and unambiguous choice repeatedly demonstrated over the seven years this case was pending, he is estopped from asserting defense counsel was ineffective for allowing him to withdraw the motions. The invited-error doctrine bars defendant's claim of ineffective assistance of counsel.
Defendant concedes there was no tactical purpose in not bringing the motions, so the decision must have been nontactical. --------
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.