P. v. Austin

Filed 6/25/07 P. v. Austin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Larry Donell Austin, Jr. of first degree burglary and receiving stolen property. On appeal, he contends he received ineffective assistance of counsel when his trial attorney failed to file a timely motion to suppress evidence. As we will explain, the record is insufficient for defendant to prevail on appeal.

FACTS AND PROCEDURAL BACKGROUND

About 10:30 p.m. on October 26, 2004, Anthony Robinson returned to the apartment where he lived with his mother, Wanda Hicks, and her boyfriend, and discovered that it had been burglarized. Many items, including two figurines belonging to Hicks, were missing.

Robinson suspected that defendant, who is Hickss nephew and Robinsons cousin and who had lived in the apartment in the past, was responsible for the burglary. Hours earlier, they had been together when defendant got into a confrontation with Robinsons friend, Karen Gallop. After the confrontation, Robinson drove defendant to a residence near Robinsons home. During the trip, defendant asked whether Robinson would be going back to his own apartment. Robinson replied that he was going to see some friends before going home. After dropping defendant off, Robinson returned to Gallops apartment.

The night of the burglary, the manager of the apartment complex where Robinson and Hicks lived saw defendant walking from the area near their apartment, carrying two full large trash bags.

Robinson reported the burglary and said that defendant might be responsible. Two days later, Deputy Sheriff Charles Pfau and another officer went to defendants home, knocked on the door, and asked if they could come inside to talk. Defendant allowed them to enter, and he eventually made incriminating statements, both at the apartment and at the sheriff substation.

Defendants attorney did not move to suppress the statements at the preliminary hearing, but did so at the beginning of trial pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (hereafter Miranda). The evidence at the Miranda motion hearing disclosed the following:

Deputy Pfau knocked on the door to defendants residence, obtained defendants permission to enter, and then asked defendant if he knew why Pfau and the other officer were there. Defendant inquired whether it had something to do with an incident concerning him driving a vehicle, and said his girlfriend, Mea, was in the back bedroom. After Pfau asked Mea to join them in the living room and the other officer took her outside for questioning, Pfau again asked if defendant knew why the officers were there. This time, defendant inquired whether it had something to do with the burglary of his cousins apartment. Pfau then asked defendant if he had any information about the burglary and advised him that his cooperation would be greatly appreciated.

When Pfau felt that defendant was starting to make excuses and not be as truthful, he had defendant stand up and handcuffed him. Pfau then told defendant that his fingerprints had been found at the scene (at trial, however, the prosecution did not present any fingerprint evidence). Almost immediately and without further questioning, defendant said that he would cooperate and admitted committing the burglary. Pfau removed the handcuffs and asked where the stolen property was located. Defendant showed Pfau the stolen property in his bedroom and assisted in gathering it into plastic bags and loading it into the patrol car. Thereafter, Pfau arrested defendant and transported him to the station.

Pfau did not advise defendant of his Miranda rights until after he was at the substation, at which point defendant waived his rights and admitted committing the burglary. This occurred approximately 90 minutes after Pfau had arrived at defendants apartment, and about 50 minutes after Pfau arrested him.

The trial court granted defendants motion to exclude his initial confession, finding that it was the result of custodial interrogation without an advisement and waiver of Miranda rights. However, the court denied the motion to exclude defendants second confession, finding that it was knowingly and voluntarily made after an advisement and waiver of rights. Although it found that the handcuffing of defendant might have been the officers tactic to get him to talk, the court found that Deputy Pfau did not engage in any coercion or subterfuge or any trickery . . . .

In addition to excluding the first statement, the court ruled that evidence defendant had shown Deputy Pfau the stolen items could not be introduced, and Pfau could testify regarding his observation of the stolen property.

Defense counsel then moved to suppress evidence discovered after Deputy Pfau handcuffed defendant in his apartment. Counsel argued the motion was timely because he did not know a suppression motion was an option until Pfau testified he handcuffed defendant prior to eliciting his confession. Pfau had not disclosed this information at the preliminary hearing.

The court ruled that the suppression motion was untimely.

At trial,Deputy Pfau testified he found the stolen items in defendants bedroom, put them in his patrol car, arrested defendant, and took him to the substation. After defendant waived his Miranda rights at the substation, he confessed, explaining in detail how he forced open Robinsons bedroom window and loaded the property into two backpacks defendant brought with him. All the stolen items, other than the figurines, were recovered from defendant.

Defendant testified and admitted entering the apartment and taking all the items except Hickss figurines. He claimed that the day before, he and Robinson agreed defendant would stage a burglary to conceal the fact that Robinson had accidentally broken the figurines, which were valuable. Defendant planned to return all of the items later. After the burglary, defendant told Hicks about the staged burglary, and she said it was up to Robinson if he wanted to admit that he had staged the burglary with defendant.

In rebuttal, Robinson denied there was any plan to stage the burglary and denied breaking any of Hickss figurines. Also in rebuttal, Hicks denied that defendant told her about such a plan. Hicks said that Robinson came home from school one day, upset because defendants sister was spreading a lie at school that defendant and Robinson had staged the burglary. According to Hicks, defendant told her he had broken the figurines when he dropped the bag in which he had transported them.

DISCUSSION

I

Defendant contends he received ineffective assistance of counsel when his trial attorney failed to file a timely motion to suppress the inculpatory evidence as the product of an unlawful arrest.

His suppression theory is as follows: It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. (Payton v. New York (1980) 445 U.S. 573, 586 [63 L.Ed.2d 639, 651].) Defendant consented to Deputy Pfau entering his home to talk, but did not consent to Pfau entering the apartment to arrest him without a warrant. (People v. Superior Court (Kenner) (1977) 73 Cal.App.3d 65, 69 [consent to enter to talk is not consent to arrest]; In re Johnny V. (1978) 85 Cal.App.3d 120, 131-132 [same].) When Pfau handcuffed defendant during the investigation, it was a de facto arrest as it exceeded the scope of a reasonable detention. Because Pfau did not have a warrant and did not have probable cause to arrest defendant at the time of the handcuffing, the arrest was unlawful in violation of the Fourth Amendment. (Brown v. Illinois (1975) 422 U.S. 590, 602 [45 L.Ed.2d 416, 426]) [disapproving arrests made for investigatory purposes on less than probable cause].) Because the Fourth Amendments exclusionary rule applies to statements and evidence obtained as a product of illegal searches and seizures (Wong Sun v.United States (1963)371 U.S. 471, 484-488 [9 L.Ed.2d 441, 453-455]), the stolen property and defendants incriminating statements, both at his residence and at the substation, must be suppressed. (Brown v. Illinois, supra, 422 U.S. at pp. 604-605 [45 L.Ed.2d at pp. 427-428].) Defendant does not question the trial courts determination that the second confession was admissible despite the violation of his Fifth Amendment rights; he contends that suppression was required because of the violation of his Fourth Amendment rights and that counsels performance in failing to move to suppress on this ground was deficient.

It follows, defendant argues, he was prejudiced by trial counsels failure to make a timely suppression motion because the motion would have been successful, resulting in the exclusion of his confessions and the stolen property found in his home. Absent this evidence, there was no substantial evidence to support his convictions.

There are two problems with defendants contention. As we will explain, the appellate record is insufficient to demonstrate (1) that counsels failure to bring a suppression motion earlier was the result of any deficient performance on counsels part, and (2) that defendant was prejudiced by counsels conduct.

A

To establish ineffective assistance of counsel, defendant must demonstrate that counsels performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Here, counsel belatedly moved to suppress evidence as the result of an unlawful arrest after he learned that Deputy Pfau handcuffed defendant in the apartment. Pfau did not reveal this information during the preliminary hearing. Relying on People v. Martinez (1975) 14 Cal.3d 533 (hereafter Martinez), defendant intimates that counsels lack of prior knowledge reflects a failure to perform an adequate pretrial investigation.

In Martinez, counsel moved to suppress inculpatory evidence at trial pursuant to Penal Code section 1538.5, subdivision (h), which states: 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. The court upheld the denial of the suppression motion as untimely because regardless of whether defense counsel was aware of the relevant facts prior to trial, defendant was aware of them and counsel could have learned them by interviewing him. (Martinez, supra, 14 Cal.3d at pp. 537-538.)

Viewed in context, Martinez merely held that denial of the motion was proper because a necessary prerequisite for bringing a delayed motion was not met; i.e., there was no evidence that the defendant was not aware of the grounds for the motion. (Pen. Code, 1538.5, subd. (h).) Martinezdid not hold that counsel performed an inadequate investigation or that defendant received ineffective assistance of counsel.

Here, there is no evidence that counsel failed to interview defendant or investigate the incident. It is entirely possible that his client, like Deputy Pfau, simply neglected to reveal the critical information about handcuffs despite counsels best efforts to learn what occurred during the exchange between Pfau and defendant.

The California Supreme Court has repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.(People v. Michaels (2002) 28 Cal.4th 486, 526.) If the record fails to shed any light on why counsel acted or failed to act in the manner challenged, a claim of ineffective assistance of counsel must be rejected on appeal unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Wilson (1992) 3 Cal.4th 926, 936, citing People v. Pope (1979) 23 Cal.3d 412, 426.) Under the circumstances in this case, the appropriate resolution is to affirm defendants conviction and relegate him to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsels conduct or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581-582; accord, People v. Hinds (2003) 108 Cal.App.4th 897, 901.)

B

The second problem with his contention arises from the fact that [w]hen a defendant claims ineffective assistance of counsel based on his counsels failure to bring a motion to suppress evidence on Fourth Amendment grounds, the defendant is required to show that the Fourth Amendment claim had merit. (People v. Frye (1998) 18 Cal.4th 894, 989.) However, the appellate record is insufficient to determine whether defendants Fourth Amendment claim has merit. Because the legality of the search was never . . . litigated, facts necessary to a determination of that issue are lacking. (People v. Cudjo (1993) 6 Cal.4th 585, 627.)

When a detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest (Dunawayv.New York (1979) 442 U.S. 200, 212 [60 L.Ed.2d 824, 835-836], but there is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. [Citations.] (In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385.)

That Deputy Pfau handcuffed defendant does not automatically mean defendant was arrested, rather than lawfully detained, during an investigation. (See People v. Celis (2004) 33 Cal.4th 667, 675; People v. Soun (1995) 34 Cal.App.4th 1499, 1517; In re Carlos M., supra, 220 Cal.App.3d at p. 384; United States v. Alvarez (9th Cir. 1990) 899 F.2d 833, 838-839.) The facts known to the officer are significant in determining whether his actions went beyond those necessary to effectuate the purpose of the detention and investigation. (People v. Celis, supra, 33 Cal.4th at pp. 675-676.) Furthermore, the prosecutor was deprived of the opportunity to refute that the arrest was unlawful, or to offer some other possible reason not to suppress the evidence. (People v.Mendoza Tello (1997) 15 Cal.4th 264, 267.)

An appellate court should not declare that a police officer acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence. (People v.Mendoza Tello, supra, 15 Cal.4th at p. 267.) Thus, defendants ineffective assistance of counsel claim is relegated to a habeas corpus proceeding. (Id. at pp. 266-268 [Rather than attempt to glean inferences from a record where the critical questions were irrelevant and unasked, we do not reach the merits of that issue].)

II

Defendant also claims that although his second confession was made after he was advised of and waived his Miranda rights, the trial court should have suppressed the confession because it was not sufficiently attenuated from the illegal arrest to be considered a product of free will. His claim is premised on Brown v. Illinois, supra, 422 U.S. 590 [45 L.Ed.2d 416], which held that Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation. (Id. at p. 601 [45 L.Ed.2d at p. 426], fn. omitted.) Miranda warnings, by themselves, do not attenuate the taint of an unconstitutional arrest in violation of the Fourth Amendment. (Id. at p. 602 [45 L.Ed.2d at p. 426].)

The exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth. [Citation.] Where a Fourth Amendment violation taints the confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence. [Citation.] Beyond this, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation. (Oregon v. Elstad (1985) 470 U.S. 298, 306 [84 L.Ed.2d 222, 230] (hereafter Elstad); Brown v. Illinois, supra, 422 U.S. at pp. 601-602 [45 L.Ed.2d at p. 426].)

However, as discussed in part I, ante, defendant did not timely move to exclude his confession based on an unlawful arrest in violation of the Fourth Amendment. The sole ground was the failure to give a Miranda advisement prior to defendants first confession, in violation of his Fifth Amendment rights.

In Elstad, the United States Supreme Court declined to extend the Miranda rule to exclude subsequent statements obtained after proper Miranda advisement, when the first failure to administer the Miranda warnings did not involve any coercive conduct. Elstad held that a simple failure to administer [Miranda] warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspects ability to exercise his free will . . . required only that the defendants unwarned admission be suppressed, and did not require suppression of subsequent voluntary statements that followed proper warnings. (Elstad, supra, 470 U.S. at pp. 309, 315 [84 L.Ed.2d at pp. 232, 236].)^[1]Where a properly warned confession is preceded by an unwarned but clearly voluntary admission, there is no requirement of a break in the stream of events in order to admit the warned confession. (Id. at pp. 310-311 [84 L.Ed.2d at pp. 232-233].)

When, however, the failure to administer Miranda warnings occurs in the context of coercive conduct, Fifth Amendment concerns may require exclusion of later confessions absent circumstances dissipating the coercion. (Elstad, supra, 470 U.S. at p. 310 [84 L.Ed.2d at p. 232-233] [When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession].) But absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. (Elstad, supra, 470 U.S. at p. 314 [84 L.Ed.2d at p. 235].)

The trial court excluded defendants first confession, but did not exclude the subsequent confession made at the substation because the second confession was made after an advisement and waiver of rights; the second confession was given knowingly and voluntarily; Deputy Pfau did not engage in coercion, subterfuge, or trickery; and sufficient time elapsed between the first and second confession. Having found no coercion occurred, the court was not required to find a break in the stream of events between the first and second confession in order to allow evidence of the second confession. (Elstad, supra, 470 U.S. at pp. 310-311 [84 L.Ed.2d at pp. 232-233].)

Under the circumstances, defendants challenge regarding whether the second confession was sufficiently attenuated from the illegal arrest is unavailing because he makes no attempt to demonstrate that the trial courts determination of no coercion was incorrect. He does not point to any coercive circumstance greater than the mere fact of custody and questioning (Tankleff v. Senkowski (2d Cir. 1998) 135 F.3d 235, 243-244) or establish that his will was overborne by the circumstances surrounding the giving of [the first] confession. (Dickerson v. United States (2000) 530 U.S. 428, 434 [147 L.Ed.2d 405, 413.) Defendants sole claim of error is based on Fourth Amendment grounds that were not preserved in the trial court via a timely motion to suppress.

Accordingly, his contention is forfeited. (People v. Williams (1999) 20 Cal.4th 119, 128-131 [specific ground for suppressing evidence must be litigated in the trial court]; People v.Mendoza Tello, supra, 15 Cal.4th at p. 267 [Penal Code section 1538.5 provides an orderly procedure to move to suppress

evidence at trial, which motion is a prerequisite to appellate review].)

DISPOSITION

The judgment is affirmed.

SCOTLAND , P.J.

We concur:

MORRISON , J.

ROBIE , J.

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^[1] The Supreme Court in United States v. Patane (2004) 542 U.S. 630 [159 L.Ed.2d 667] (hereafter Patane), extended the Elstad holding to allow admission of physical evidence obtained through an uncoerced, but non-Mirandized, statement. Patane explained, [t]he exclusion of unwarned statements . . . is a complete and sufficient remedy for any perceived Miranda violation. [Citation.] [] Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the fruit of the poisonous tree doctrine of Wong Sun [ ]. [Citation.] (Patane, supra, 542 U.S. at pp. 641-642 [159 L.Ed.2d at pp. 677-678], fns. omitted.)