Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF129708B Michael G. Bush and H.A. Staley, Judges.
Judge Bush denied appellant’s motion to suppress evidence. Judge Staley presided over appellant’s trial and sentencing hearing.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Kane, J., and Detjen, J.
STATEMENT OF THE CASE
On November 10, 2009, appellant, Leon Ziegler, Jr., was charged in an information with possession of marijuana for sale (Health & Saf. Code, § 11359, count one). The information alleged a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). The trial court denied appellant’s suppression motion filed pursuant to section 1538.5.
Unless otherwise stated, all statutory references are to the Penal Code.
Appellant waived his constitutional rights and admitted the prior prison term enhancement. At the conclusion of a jury trial on January 12, 2010, appellant was found guilty. On February 19, 2010, the trial court sentenced appellant to prison for the low term of 16 months plus one year for the enhancement for a total prison term of two years four months. Appellant contends his trial counsel was ineffective for failing to renew his suppression motion when additional evidence was introduced at trial by an investigating officer.
Appellant received custody credits for 130 actual days in custody prior to sentencing plus 130 conduct credits pursuant to section 4019 as amended on January 25, 2010. Appellant received the full conduct credits he was entitled to receive under the amended version of section 4019.
FACTS
At the suppression hearing, the court heard a tape recording of a telephone call made to 911. The tape recording was also transcribed. An anonymous male told the dispatcher he was “a concerned citizen” and he suspected drug trafficking was occurring at the intersection of Niles and Miller at the corner apartments. The dispatcher noted there were apartments on three of the four corners of that intersection. The caller explained that turning off of Niles, it was the apartment complex on the left-hand side in front of Fontana Liquor. The apartments were painted a shade of yellow.
The caller saw “a bunch of black guys and some kids in there and stuff.” The caller stated that every time he went through there, really bad drug trafficking was going on. The caller reported the traffickers were using kids to traffic drugs. The caller reported he saw a “little kid and he took it [drugs] to some car that was parked on the side.”
Officer Short of the Bakersfield Police Department testified that on October 13, 2009, she was dispatched at 4:49 p.m. to an apartment building on the 1200 block of Miller Street. Short had been to this location numerous times and made arrests for narcotics sales. She also contacted numerous individuals there who were involved with narcotics. At 1229 Miller Street, an apartment complex, Short saw three Black males, including appellant and an individual named Jackson. Appellant was sitting on the trunk of a car located in front of the apartment complex. Jackson was leaning against a fence.
Short walked up to the passenger side door of the car and asked a third person, Sutton, what he was doing. Short asked Sutton if he was on probation or parole. Sutton said he was on parole. Appellant remained sitting on the trunk of the vehicle. Short had her partner, Officer Schlecht, maintain visual contact with appellant and Jackson.
Short walked over to appellant and asked him what he was doing and whether he was on probation or parole. Appellant said he was on parole. A minute or two had passed since Short arrived at the scene. Short did not have her patrol car lights on. Neither Short nor Schlecht made any commands and they did not have their guns drawn.
Short asked appellant to get off of the vehicle and told him she was going to search him. Short found six individually wrapped packages of marijuana in appellant’s right pocket. Short arrested appellant. When Short arrived at the scene, there were children in the general area of the intersection. Short and Schlecht were in uniform and driving a marked patrol car. Short denied telling appellant not to move when she walked over to talk first to Sutton.
In denying appellant’s suppression motion, the trial court noted that the telephone call was irrelevant because the officers had the right to talk to anyone on the street and to ask if they are on parole as long as there was no evidence of harassment. The court noted there was no such evidence. The court found the encounter consensual and the search valid because it was a condition of appellant’s parole.
At trial, Short testified that when she arrived at the scene, she first contacted Sutton, who was seated in the vehicle. Sutton was holding a brown paper known as a blunt wrap. Short searched Sutton and came over to appellant within two minutes. Appellant remained seated on the trunk as Short searched Sutton.
Schlecht testified at trial that when they arrived at the scene, appellant was sitting on the trunk of the vehicle. When they first arrived, Short went directly to Sutton, who was inside the car to see what he was doing. Schlecht had visual contact with appellant and Jackson. When Short walked over to Sutton, appellant got off the trunk and started walking toward the front yard of the apartment complex. Schlecht told appellant that he needed to stay where he was for a moment. Short’s back was turned toward appellant, so she could not see that he had gotten off the trunk.
DISCUSSION
Appellant contends his trial counsel was ineffective for failing to renew a suppression motion after Schlecht testified that he ordered appellant not to walk away from the scene. Appellant argues that the trial court’s rationale for denying the motion was negated by this additional fact. Although appellant’s brief detention by the officer was not presented at the suppression hearing, we conclude it would not have been a sufficient additional basis for the trial court to grant the suppression motion.
There is ambiguity in the evidence. Short remembered that appellant was still on the trunk when she asked him his probation and parole status. Schlecht testified at trial that appellant got off the trunk and began to walk away until Schlecht told him to stay. The officers clearly remembered the events differently. We do not find, however, that this discrepancy makes either officer’s testimony untrustworthy. For the purposes of our analysis, we assume Schlecht told appellant not to leave the scene, and that appellant was briefly detained.
The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, protects the right to be free of unreasonable searches and seizures. (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) A detention, or a brief investigative stop, is a seizure within the meaning of the Fourth Amendment. (People v. Souza (1994) 9 Cal.4th 224, 229 (Souza).)
The Fourth Amendment permits an officer to “conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot” and that the person detained is engaged in that activity. (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow); Souza, supra, 9 Cal.4th at p. 230.)
Appellant ignores the area’s extremely high crime rate. A high crime area is a factor to be considered within the totality of circumstances. (Souza, supra, 9 Cal.4th at p. 240.) In Wardlow, supra, 528 U.S. at p. 124, the United States Supreme Court declared a high-crime area to be among relevant contextual considerations in a detention analysis. (See United States v. Cortez (1981) 449 U.S. 411, 419 [giving “critical importance” to fact border agents knew area as being usual site for illegal border crossings]; Adams v. Williams (1972) 407 U.S. 143, 147-148 [finding area’s crime rate as important factor in detention analysis].)
The anonymous caller specifically identified one apartment complex out of three. The description included the specific street corner and a description of the building. Although the description of the drug traffickers was general, the caller stated that children were present and being used as couriers to facilitate drug sales. When Short and Schlecht arrived at the apartments, they saw three people, including appellant. There were also children present as described by the anonymous caller. The area was known by Short for its drug activity.
When Short and Schlecht approached the three men, they were not flashing their patrol car lights, did not have their weapons drawn, and began their encounter with Sutton with conversation. Short learned that Sutton was on parole. Short, whose back was turned toward Schlecht and appellant, was apparently unaware that appellant left the trunk of the vehicle where he had been sitting and started to walk away from the officers.
A detention is reasonable under the Fourth Amendment when it is based on an objective manifestation that criminal activity is afoot and that the person stopped is engaged in that activity. (Souza, supra, 9 Cal.4th at p. 230.) The detaining officer must articulate more than an inchoate, unparticularized suspicion, or hunch, of criminal activity. (Wardlow, supra, 528 U.S. at pp. 123-124.) The officer must be able to point to specific articulable facts that, considered under the totality of the circumstances, provide an objective manifestation that the person detained may be involved in criminal activity. (Souza, supra, 9 Cal.4th at p. 231.)
The possibility of an innocent explanation for a person’s conduct does not prevent the officer from entertaining a reasonable suspicion of criminal conduct. The principal function of police investigation is to resolve any ambiguity in the person’s conduct and to establish whether the activity is legal. (Souza, supra, 9 Cal.4th at p. 233.)
Flight is a proper consideration, and indeed, a key factor in determining whether police have sufficient cause to detain. (Souza, supra, 9 Cal.4th at p. 235.) Flight affords a basis for an inference of guilt, especially where a person is aware an officer seeks to talk to him and the person flees the scene. (In re Rafael V. (1982) 132 Cal.App.3d 977, 982-983; also see People v. Johnson (1991) 231 Cal.App.3d 1, 13-15 [flight and struggle with officers is more than evidence of innocent intent]; People v. King (1977) 72 Cal.App.3d 346, 349-350 [flight establishing right of officer to detain].)
Short explained that she only spent about one or two minutes with Sutton before she turned her attention to appellant. Although appellant did not run away and did not struggle with officers, he did try to leave the scene as Short was interacting with Sutton. Under these circumstances, Schlecht could reasonably infer that appellant was attempting to flee. This fact, combined with the anonymous caller’s observations including the specific location and the presence of children, were corroborated by the officers when they reached the scene. Indeed, the possibility that the children were being used to facilitate narcotics transactions increased the necessity of the officers to determine what was happening at the scene. This location was a place where there were many drug transactions. These facts justified Schlecht’s brief detention of appellant to resolve any ambiguity in appellant’s conduct, and to establish whether the activity was legal. (Souza, supra, 9 Cal.4th at p. 233.)
Appellant also argues that the Supreme Court’s decision in Florida v. J.L. (2000) 529 U.S. 266 (J.L.) is controlling and mandates reversal. In that case, there was only an anonymous tip that an unidentified African American male wearing a plaid shirt at a specific bus stop was in possession of a weapon. When officers arrived at the bus stop, they conducted a pat down search of the defendant, who was one of three African American males at the bus stop who was wearing a plaid shirt, and found a weapon. (Id. at p. 268.) Because the only information came from an anonymous tipster, the Supreme Court held this was not enough reasonable suspicion to conduct a pat down search. (Id. at pp. 272-274.)
J.L. is factually distinguishable from this case because the officers here had additional corroborating facts such as the known drug activity at this particular apartment complex and the presence of children. J.L. recognized an anonymous tip that is suitably corroborated exhibits sufficient indicia of reliability to provide reasonable suspicion for an investigatory stop. (J.L., supra, 529 U.S. at p. 270.) J.L. is further distinguishable from the instant action because there the officers immediately conducted a pat down search of the defendant. Here, the officers determined that appellant was on parole before searching him. We conclude J.L. is factually inapposite to this case.
We, therefore, find that appellant’s detention was justifiable under the circumstances, and defense counsel’s failure to renew his suppression motion during trial, in light of Schlecht’s testimony, did not fall below professional standards of representation or advocacy.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
DISPOSITION
The judgment is affirmed.