P. v. >Sparks>

 

 

 

 

 

 

 

 

 

 

Filed 8/14/13  P. v. Sparks CA2/8

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TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.

 

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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
EIGHT

 

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   JOHN JAMES SPARKS,   Defendant and Appellant.

B240763         (Los Angeles County        Super. Ct. No. NA090975)

 

 

            APPEAL
from the judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Charles D.
Sheldon and James D. Otto, Judges. 
Affirmed.

 

            John
J. Uribe, under appointment by the Court of Appeal, for Defendant and
Appellant.

 

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.,
and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

 

* *
* * * * * * * *

            A
jury convicted defendant and appellant John James Sparks of one count of
vehicular burglary and one count of possession of burglar’s tools.  The sole issue on appeal is defendant’s
contention his trial counsel was ineffective within the meaning of the Sixth
Amendment for failing to file a motion to suppress evidence.  We conclude defendant has failed to establish
a claim of ineffective assistance of
counsel, and therefore affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

Eric Swenston
operates a shop in an industrial area of Long Beach,
where he builds race cars and performs general automotive repair.  On the evening of December 30, 2011, he closed his shop and
headed to his Ford Bronco parked outside. 
Mr. Swenston always locks his car when he parks it outside his shop, and
he had locked it that day.  As he walked
toward the car, he noticed the hood was up and someone was under the hood,
leaning on the left side of the car.    

            When
Mr. Swenston got to within about 15 feet of his car, the individual looked up,
saw Mr. Swenston approaching, and started running in the opposite
direction.  Mr. Swenston immediately
started to chase after him but he slipped and fell, and the man was able to put
some distance between them.  After a
couple of minutes of chasing him, Mr. Swenston saw the man turn left on San
Francisco Street, at which point he lost sight of him.  Mr. Swenston called 911 and described the
suspect as a white male with long, light-colored hair, 5 feet 10 inches tall,
approximately 40 to 50 years old, and wearing a dark green, Army-style
jacket.  By the time Mr. Swenston walked
back to his car, a responding officer from the Long Beach Police Department
(LBPD) had already arrived.  

            The
officer and Mr. Swenston saw the driver-side window vent on his Bronco was broken,
through which someone could reach in and open the door.  The cables to his battery were also nearly
cut all the way through.  Within some 10
minutes, the officer received a radio call from another officer that a suspect
was being detained.  Mr. Swenston
was taken to view the suspect, given an admonishment, and asked whether the
individual appeared familiar to him.  Mr.
Swenston identified defendant, stating he looked like the man he saw tampering
with his car under the hood.  At the time
of the identification, Mr. Swenston noticed defendant was no longer wearing a
jacket, and had on only a short-sleeved T-shirt even though it was a cold
night.  

            Leonel
Valdez, a patrol officer with the LBPD, was the officer who first spotted
defendant.  Officer Valdez, who was on
patrol without a partner, received a radio broadcast about an auto burglary,
the suspect description given by Mr. Swenston, and the fact the suspect had
been last seen fleeing the scene in a southwesterly direction.  Within a few minutes, Officer Valdez saw
defendant on a bike path at a location southwest of the reported scene of the
burglary.  Defendant largely fit the
description given of the suspect, as he was a white male with “long blondish”
hair.   

            Officer
Valdez pulled his patrol car over and asked defendant if he would speak with
him.  Defendant cooperated, and agreed to
jump over the fence that separated the bike path from where Officer Valdez was
standing.  Officer Valdez noticed
defendant was not wearing a dark green jacket as had been reported, and that he
was younger than the age given for the suspect, but, in his experience,
discrepancies by witnesses and victims in estimating age were “common.”  He performed a “patdown” search, and recovered
a socket wrench and pair of pliers from defendant’s rear pants pocket.  Officer Valdez took possession of the tools
because he believed they could be used as weapons.  Several other officers arrived on the scene,
including Officer Demarco and Officer Jonathan Calvert.  Officer Valdez did not attempt to interview
defendant, but left him with the other officers to search for other evidence,
including for a discarded jacket matching the description given by Mr.
Swenston.  

            When
Officer Calvert arrived on the scene, he noticed the other officers already had
a suspect being detained.  Defendant was
leaning or sitting on the push bar attached to the front of one of the patrol
cars.  He was not handcuffed.  Officer Calvert walked over to speak with
defendant.  He told defendant he was
investigating an auto burglary. 
Defendant initially denied having anything to do with it, but then told
Officer Calvert his truck had broken down, he saw the Bronco, and broke into it
to steal the battery.  He had cut the
battery cables when the owner of the car came towards him and he ran off.  Officer Calvert asked him how he was able to
cut the battery cables, and defendant pointed to Officer Valdez and said “those
tools.”  Shortly thereafter, defendant
was placed under arrest. 

            Defendant
was charged by information with one count of burglary of a vehicle (Pen. Code,
§ 459)href="#_ftn1" name="_ftnref1" title="">^[1],
and one count of possession of burglary tools (§ 466).  It was also specially alleged defendant had
suffered three prior felony convictions, and had served a prior prison term (§§
667.5, 1203, subd. (e)(4)).  Defendant
pled not guilty and denied all allegations.   


            Before
the start of trial, the court held a hearing pursuant to Evidence Code section
402 (402 hearing) concerning the circumstances surrounding the statements made
by defendant to Officer Calvert. 
Defendant contended the statements were not admissible because defendant
had not been read his rights pursuant to Miranda.href="#_ftn2" name="_ftnref2" title="">^[2] 

Officer Calvert
testified at the hearing that he responded to Officer Valdez’s call that he had
a burglary suspect detained.  When he
arrived, defendant was sitting on the front push bar of a patrol car.  Defendant asked Officer Calvert if he could
sit in the back of a patrol car because his leg was hurting.  Defendant was not handcuffed and was allowed
to sit in the back of the car, with the door open.  Officer Calvert spoke with defendant briefly,
no more than a few minutes.  He admitted
defendant was not free to leave and that he did not read defendant his >Miranda rights before speaking with
him.  Officer Calvert testified defendant
admitted he had broken into the Bronco because his truck was not working.  After hearing argument from counsel, the
trial court ruled defendant’s statements to Officer Calvert were admissible. 

            Both
Officer Calvert and Officer Valdez testified during trial, as did
Mr. Swenston.  The jury found
defendant guilty on both counts.   

Defendant waived
his right to a trial on the bifurcated priors and admitted his prior felony
convictions.  The court imposed the low
term of 16 months on count 1, and a consecutive six-month term on count 2, the
misdemeanor.  The court awarded defendant
234 days of presentence custody credits, and imposed various fines and
fees.  This appeal followed. 

>DISCUSSION

            Defendant’s
sole contention is that his trial counsel rendered ineffective assistance in
violation of the Sixth Amendment to the federal
Constitution by failing to move to suppress evidence pursuant to section
1538.5, specifically (1) his pre-arrest statements to Office Calvert, (2) the
tools recovered from him during the patdown search by Officer Valdez, and (3)
the in-field identification made by Mr. Swenston.  Defendant contends all such evidence was
tainted by the wrongful initial detention or “Terry stop”href="#_ftn3"
name="_ftnref3" title="">^[3] by Officer Valdez.

            The
burden is on defendant to establish ineffective assistance by a preponderance
of the evidence.  (People v. Ledesma (1987) 43 Cal.3d 171, 218.)  There are two elements to an ineffective
assistance claim.  A defendant “must show
both that trial counsel failed to act in a manner to be expected of reasonably
competent attorneys acting as diligent advocates, and that it is reasonably
probable a more favorable determination would have resulted in the absence of
counsel’s failings.”  (>People v. Cudjo (1993) 6 Cal.4th 585,
623, citing Strickland v. Washington
(1984) 466 U.S. 668, 687-696.)

            On
direct appeal, as here, this burden can be stringent.  When the record on appeal “‘“sheds no light
on why counsel acted or failed to act in the manner challenged[,] unless
counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be rejected.’  [Citation.] 
A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding.” 
(People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267 (Mendoza
Tello), italics added; see also People
v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance claim
properly resolved on direct appeal only where record affirmatively discloses no
rational tactical purpose for counsel’s actions].)

            Our
Supreme Court has cautioned that, if not for this standard, “appellate courts
would become engaged ‘in the perilous process of second-guessing.’  [Citation.] 
Reversals would be ordered unnecessarily in cases where there were, in
fact, good reasons for the aspect of counsel’s representation under attack.  Indeed, such reasons might lead a new defense
counsel on retrial to do exactly what the original counsel did, making manifest
the waste of judicial resources caused by reversal on an incomplete
record.”  (People v. Pope (1979) 23 Cal.3d 412, 426, overruled in part on
other grounds as stated in People v.
Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)

            Defendant
concedes the factual circumstances surrounding his initial detention and search
by Officer Valdez were “never properly explored,” but nonetheless argues the
record of the 402 hearing is “sufficiently complete” to resolve the ineffective
assistance claim on direct appeal.  We
are not persuaded.  The issue in the 402
hearing was whether defendant should have been read his Miranda rights before Officer Calvert spoke with him, and whether
his confession to the burglary was admissible in light of the fact that he was
not read his rights before that statement was made.  In contrast, defendant’s ineffective
assistance claim is based on trial counsel’s failure to contest the initial
warrantless detention by Officer Valdez. 
The facts concerning the basis for the initial detention and patdown
search were not developed at the 402 hearing. 
Neither the transcript of that hearing nor the trial transcript provide
this court with the information necessary to determine whether trial counsel
performed competently in choosing not to bring a href="http://www.mcmillanlaw.com/">motion to suppress.

Moreover, the
validity of a warrantless detention, or Terry
stop, of the type involved here is necessarily fact-intensive, judged on a
case-by-case basis using a totality of the circumstances approach.  (See People
v. Souza (1994) 9 Cal.4th 224, 229-231 (Souza),
discussing Terry and its
progeny.)  There is no bright-line rule
that a detention made in a certain fashion or under a certain set of facts is
per se violative of an individual’s Fourth Amendment rights.  (Michigan
v. Chesternut (1988) 486 U.S. 567, 572-573; see also Souza, supra, at pp.
237-238.) 

Nevertheless,
defendant suggests the existing factual record establishes that any competent
lawyer would have determined the detention here was improper because he was
simply walking down a bike path at night when he was detained by Officer
Valdez, he did not match the reported age of the burglary suspect, and there
were no facts indicating he was armed and dangerous to justify a patdown
search.  We disagree.  “‘The possibility of an innocent explanation
does not deprive the officer of the capacity to entertain a reasonable
suspicion of criminal conduct.  Indeed, the
principal function of [police]> investigation is to resolve that very
ambiguity and establish whether the activity is in fact legal or illegal . . . .’  [Citation.]” 
(Souza, supra, 9 Cal.4th at p. 233, italics added.)  And, the fact that an officer is investigating
a burglary, a crime in which the perpetrators are often armed with weapons or
at least “tools of the trade” that can be used as weapons, has been held
relevant to judging the validity of a patdown search for weapons.  (See, e.g., People v. Osborne (2009) 175 Cal.App.4th 1052, 1060-1061; >People v. Castaneda (1995) 35
Cal.App.4th 1222, 1230.)

“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.”  (Mendoza Tello, supra, 15
Cal.4th at p. 267.)  The present record is
not adequate to establish any improper police tactics were used in detaining
defendant without a warrant, or ineffective assistance of counsel for failing
to challenge same.

>DISPOSITION

            The
judgment of conviction is affirmed.

 

                                                                                    GRIMES,
J.

We concur: 

 

BIGELOW,
P. J.                                RUBIN,
J.