P. v. Austin

Filed 4/24/07 P. v. Austin CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Albert Harutunian III, Judge, and a petition for writ of habeas corpus. Judgment affirmed; petition denied.

Robert Austin was convicted of one count of possessing a controlled substance for sale and one count of possession of a controlled substance. It was found true that he had suffered two prison priors within the meaning of Penal Code^[1]section 667.5, subdivision (b), and one strike prior within the meaning of section 667, subdivisions (b)-(i). Austin was sentenced to a prison term of five years. He appeals, arguing he was denied the effective assistance of counsel when no motion was made to suppress evidence he now claims was unlawfully seized.

FACTS

On the evening of June 24, 2005, police officers made contact with the occupant of a parked Ford Escort that had been reported stolen. Officers also contacted appellant and a person named Cormick Tremble. Both were sitting in a Lincoln automobile parked immediately in front of the Escort. Tremble, who was sitting in the driver's seat, consented to a search of the vehicle. Both men were asked to get out of the car. As appellant did so, he placed a black nylon bag inside a shopping bag that was sitting on the floorboard of the car. A search of the nylon bag revealed three baggies containing a total of 113 grams of cocaine.

DISCUSSION

On appeal and in his accompanying petition for writ of habeas corpus, appellant argues the discovery of cocaine in the black nylon bag was the result of a series of illegal acts by the police. He argues he and Tremble were unlawfully detained, that while the record indicates appellant consented to a search of his person, it does not establish that he consented to the search of the nylon bag that the officers knew was his personal property and not, therefore, covered by Tremble's consent to a search of the vehicle. He concedes no motion was made to suppress the evidence found but attributes that omission to the ineffective assistance of trial counsel.

A. Background

There was no preliminary hearing in this case and no motion to suppress evidence. The only source of facts concerning the search comes from the trial transcript at which, of course, issues of the legality of the search were irrelevant and not explored by the parties.

Testimony at trial indicates that on the evening of June 24, 2005, police officers on patrol drove past a parked Ford Escort. A woman was sitting in the driver's seat of the car talking to a man standing in the street next to her vehicle. A second man was standing on the sidewalk next to the passenger's door of the car. A check of the license number of the Escort indicated it had been reported stolen. The officers turned around and returned to the scene. The woman was still sitting in the driver's seat but the two men were now sitting in a Lincoln automobile parked directly in front of her car.

The officers stopped and approached the woman. As they did do so, the men in the Lincoln remained seated but turned around periodically to watch the activity behind them.

Other officers soon arrived. One of those officers, Paul Phillips, was told the men in the Lincoln had been talking to the occupant of the Escort. Phillips was asked to speak to them. Phillips approached the driver, Tremble. Phillips asked if there was anything illegal in the car. Tremble hesitated and then said "there shouldn't be." Phillips asked if he could check. When Tremble again hesitated, Phillips stated: "Look, you seem like you're nervous. Is there something illegal in the car?" Tremble replied that he might have some medicinal marijuana, and then stated "Go ahead" and got out of the car.

Tremble was searched. The officer noticed Tremble had a bulge in his front lower waistband area. Phillips inquired about it and Tremble stated it was a diaper he used because of a medical condition. The officer later determined -- apparently after the search of the car -- that Tremble had wadded up baggies down the front of his pants that contained a white powdery substance. Also on Tremble's person were found two cell phones and $375.

As Phillips talked to Tremble, another officer, Nestor Hernandez, spoke with appellant who was sitting in the Lincoln's passenger seat. Hernandez explained that the Escort was reported stolen and that because appellant was seen talking to the driver of that vehicle, the officers wanted to determine his involvement with the car. Hernandez noticed appellant had a black plastic bag in one hand and a black nylon bag in the other.

Hernandez was aware Tremble had consented to a search of the car and asked appellant to get out of the vehicle. Before appellant got out, he placed the black nylon bag inside the black plastic bag and left both in the vehicle. After getting out, appellant consented to a search. There are no details in the record concerning Hernandez's request to search or appellant's reply. Hernandez searched appellant and found various items but no contraband.

Officer Michael Usrey stood behind Hernandez as he talked to appellant. After Tremble and appellant got out of the car, Usrey searched the portion of the car where appellant had been sitting. As part of that search he opened the black nylon bag appellant left on the floorboard of the vehicle and found various items, including three baggies of cocaine.

Attached to the petition for habeas corpus is a declaration by appellant's counsel relating statements made to him by trial counsel. Trial counsel is reported to have said that no motion to suppress was made because she believed it would be futile. Trial counsel stated she had no other reason for not making the motion.

There are no declarations from police officers or appellant concerning the events relevant to claims now advanced.

B. Discussion

Appellant contends trial counsel provided ineffective assistance when she failed to bring a motion to suppress the evidence seized during the search of the vehicle and his person. He argues both he and Tremble were unlawfully detained and that, in any event, their consents to search did not cover a search of the black nylon bag in which the cocaine was found. Appellant argues the motion had merit and would have resulted in the suppression of the evidence offered against him.

A criminal defendant is entitled to the effective assistance of counsel. It is the defendant's burden to demonstrate the inadequacy of trial counsel. A defendant must show both that the assistance given was deficient, that is, it fell below an objective standard of reasonableness under prevailing professional norms, and that it was prejudicial. We defer to counsel's reasonable tactical decisions and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)

"Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. (See generally, People v. Eckstrom (1974) 43 Cal.App.3d 996, 1002-1003.)" (People v. Freeman (1994) 8 Cal.4th 450, 509.)

Appellant, on a wholly inadequate record unimproved by his pro forma petition for habeas corpus, asks this court to find trial counsel incompetent and reverse his convictions. Appellant argues that he and Tremble were unlawfully detained by the officers. Looking only at the slender record before us, we conclude it would be reasonable for trial counsel to decide that given the circumstances it was prudent for the officers to talk to appellant and Tremble and if necessary to detain them and that nothing would have been served by arguing to the contrary. More importantly, we do not know what facts trial counsel was aware of that did not make their way into the trial transcript. What other observations did the officers make, what other information did they have that, irrelevant to the trial proceeding and perhaps prejudicial to appellant, were not offered at trial? We simply do not know.

Appellant argues in any case Tremble's consent to a search of his car could not lawfully be a consent to a search of the nylon bag that the police knew, or had strong reason to believe, was appellant's property. Likewise, he argues, his own consent to search was inadequate because it was only consent to a search his person and not a consent search the bag he left in the car.

Based on the skeletal record before us, it is unclear what appellant consented to. On direct examination, Officer Hernandez did not mention that appellant consented to a search. On cross-examination, the only discussion of appellant's consent to a search was the following question and answer:

"I want to talk to you about the search that you conducted of [appellant]. You asked for consent to search and he gave it to you?

"Yes."

There is no evidence that the request to search or appellant's consent was limited to his person. We simply do not know what consent was given because the issue at trial was irrelevant and was not addressed.

The Attorney General offers an additional possible reason why defense counsel might have decided not to bring a suppression motion. The probation report indicates that at the time of the search appellant was on probation after a conviction in Arizona and was being supervised in California by the San Diego County Probation Department. There is evidence that at some point during the night of his arrest the officers became aware of appellant's status as a probationer. Exactly when they became aware is unclear. It is possible appellant had a search condition as part of his probation and the police were aware of it. We simply do not know.

Judgments are not reversed and attorneys are not found incompetent based on surmise and speculation. The legality of the police conduct in this case was never the subject of a hearing. The police were never asked to justify their actions or to offer evidence concerning those justifications. Appellant has failed both on appeal and in his petition for habeas corpus to demonstrate the ineffective assistance of counsel.

The judgment is affirmed; the petition for a writ of habeas corpus is denied.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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^[1] All further section references will be to the Penal Code unless otherwise specified.