Filed 8/28/17 P. v. Silva CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury found defendant Kenneth Martin Silva guilty as charged of one count of first degree burglary, following which execution of sentence to state prison was suspended and defendant was admitted to probation upon specified conditions. The sole subject of this timely appeal, and a petition for a writ of habeas corpus, is a suppression motion that was not made in the right place and at the right time. These are the salient details:

At the preliminary examination, the magistrate heard testimony from the victim that on the evening of October 16, 2014, she arrived home to find personal property missing. Police were called and Vallejo Police Officer Brown arrived within 10 minutes. On the way to the victim’s home, about half a mile from the victim’s home, Officer Brown observed three males who behaved in a manner she deemed suspicious: “Their eyes got big and they looked away quickly. As I passed them, I looked in my rearview mirror and they were looking back at me, and they just seemed really nervous, and I found that suspicious.” Officer Brown testified that “As I passed them, I announced on the air to . . . Officer Kerr . . . that these gentlemen looked suspicious” and “if he could check them out.” “[G]iven the time and the distance to the residence, I believed that they could be involved.” In fact, she told Kerr to detain the three men, who were the only individuals in the area.

Officer Kerr testified that he heard Officer Brown’s call, and detained the three men, one of whom was defendant. (According to Kerr, where he encountered the men was less than a quarter of a mile from the victim’s home.) The men were “nervous” and, although the night temperature was “fairly chilly,” “they were sweating quite a bit.” Officer Kerr detained the men and searched them “because of what had happened, the area at the time and proximity of the occurrence and the information I had from Officer Brown.” The search of defendant (“nside of the front of his black hoodie”) produced “three rings and 12 gold coins.” Officer Kerr then arrested defendant “[b]ecause the items that he had, Officer Brown had broadcast that there were items matching that description that were taken in the burglary.” The victim came to the scene with Officer Brown, and identified the rings and coins as her property.

“The two-prong standard governing claims of ineffective assistance of counsel is well settled. ‘ “ ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]’ ” ’ [Citations.] [¶] This court has recognized that counsel has wide discretion in choosing the means by which to provide constitutionally adequate representation. [Citation.] We also have observed that ‘[a]n appellate court’s ability to determine from the record whether an attorney has provided constitutionally deficient legal representation is in the usual case severely hampered by the absence of an explanation of an attorney’s strategy.’ [Citation.] For this reason, we long ago adopted the rule that ‘ “[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.]” ’ [Citations.] The merits of such claims are more appropriately resolved, not on the basis of the appellate record, but rather by way of a petition for writ of habeas corpus. [Citation.]” ([i]People v. Johnson (2016) 62 Cal.4th 600, 653.)

“ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” [Citation.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” [Citation.]’ ” (People v. Stanley (2006) 39 Cal.4th 913, 954.)

Here, the only information added by the petition is a declaration by defendant’s appointed appellate counsel, who states that, when he contacted defendant’s trial counsel, Solano County Deputy Public Defender Michael Hellmann, “Mr. Hellmann stated he did not renew the [suppression] motion because he did not believe it had merit.”

One source of information we do not have is written reports of Officers Brown and Kerr. However, it is clear that defendant’s trial counsel was aware of the contents of those reports, as defendant’s motion to suppress bases its statement of facts on Officer Brown’s arrest report. And this fact is verified by this sentence in the prosecution’s written opposition to defendant’s suppression motion: Officer Brown noticed that “One of the men . . . was staggering in the roadway” and “appeared to be intoxicated.” (Italics added.)

Additionally, several bits of crucial information could have been explored more fully at the preliminary examination—precisely when did Officer Kerr receive Officer Brown’s second broadcast providing details of the rings and coins taken in the burglary; whether defendant was formally arrested after the rings and coins were discovered on his person; and whether the arrest occurred after the victim came to the scene and identified the property as hers.

In short, notwithstanding the habeas petition, this is still very much a situation where trial counsel’s reasoning for not renewing the suppression motion remains unknown. What he knew is hardly clear from the limited record before us. His ultimate decision, not to renew the motion because it would not succeed, is thus protected by the strong presumption that it was a reasonable tactical decision. It is a familiar truism that “defense counsel’s decision not to file a motion he believes will be futile does not

‘ “ ‘substantially impair’ . . . defendant’s right to effective assistance of counsel.” ’ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 804–805.)

Moreover, much as defendant might wish it otherwise, this is not an instance where there simply could not be a rational tactical reason for not renewing the motion. We are dealing with a situation where, because of time and proximity, a suspected burglar (or burglars) on foot, might be spotted. That the men stopped were the only persons on the street—if not actually in the street—and at night, were also circumstances supporting reasonable suspicion to detain them. Finally, deference must be extended to the 18 years’ experience behind Officer Kerr’s conclusion that the men were behaving suspiciously. (E.g., United States v. Arvizu (2002) 534 U.S. 266, 273–274, 277; People v. Hernandez (2008) 45 Cal.4th 295, 300.) Although the information known to Officer Kerr may appear a bit skimpy, it is not demonstrably inadequate as a matter of law. Having already lost the suppression motion, defense counsel could make a reasonable tactical decision that a renewed motion would not fare better.

While conducting the detention, Officer Kerr might have been entitled to conduct a pat search for weapons. (Illinois v. Wardlaw (2000) 528 U.S. 119, 121; People v. Huggins (2006) 38 Cal.4th 175, 242.) The Attorney General provides a plausible—and persuasive—rationale for Officer Kerr concluding that defendant and the others might be armed, thus justifying a pat search of weapons. Again, this must remain a matter of speculation because the subject was not developed at the preliminary examination. But in light of the Attorney General’s proffered justification, it cannot be said as a matter of law that only reasonably competent trial counsel would have pressed on, making Officer Kerr state his reasoning on the record. In other words, there “could be [a] satisfactory explanation,” which means defendant loses the point on direct appeal. (People v. Johnson, supra, 62 Cal.4th 600, 653.)

If the type of search Officer Kerr stated he conducted was in truth a lawful pat search under Terry v. Ohio (1968) 392 U.S. 1, and if, armed with Officer Brown’s broadcast of the victim’s stolen rings and coins, Officer Kerr’s pat search revealed those objects on defendant’s person, they could be seized. (E.g., Minnesota v. Dickerson (1993) 508 U.S. 366, 375–376; People v. Avila (1997) 58 Cal.App.4th 1069, 1075 [“if contraband is found while performing a permissible Terry search, the officer cannot be expected to ignore that contraband”].) And if defendant’s arrest occurred only after discovery of the property, and the victim’s identification of it, that arrest would plainly be based on probable cause. This is another scenario where there “could be [a] satisfactory explanation,” which means the point is resolved against defendant on this direct appeal. (People v. Johnson, supra, 62 Cal.4th 600, 653.) Yet another is the Attorney General’s intimated theory that Officer Kerr might have discovered the victim’s rings and coins because they were in plain sight in defendant’s hoodie, thus providing probable cause to arrest, leaving the actual seizure of the coins and rings to occur during a valid search incident to the arrest.

All of this we must presume on our silent record, which means defendant has not demonstrated that his trial counsel’s omission was absolutely outside professional norms of experienced criminal counsel. (People v. Johnson, supra, 62 Cal.4th 600, 653; People v. Stanley, supra, 39 Cal.4th 913, 954.) That conclusion requires affirmance on the defendant’s appeal, and the denial of his petition by separate order filed concurrently with this opinion.

The order of probation is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Miller, J.

A149372; P. v. Silva