P. v. Podesto

Filed 4/18/07 P. v. Podesto CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Loretta Murphy Begen, Judge.

Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

On March 24, 2006, a criminal complaint was filed against appellant, Sylvia Star Podesto, alleging felony possession of methamphetamine (Health & Saf. Code,  11377, count one) and felony second degree burglary of a department store (Pen. Code,  459, count two).^[1] On April 27, 2006, appellant entered into a plea agreement in which she would admit a felony violation of count one and a misdemeanor violation of count two.

Appellant was advised of the consequences of her plea. The trial court carefully advised appellant of her constitutional rights pursuant to Boykin/Tahl.^[2] Appellant waived her constitutional rights. Appellant admitted she had enough time to consult her attorney and that she was not coerced into entering the plea. The parties stipulated that the police reports established a factual basis for the plea. Appellant pled guilty to count one and pled no contest to a misdemeanor violation of count two. Appellant was placed on probation upon various terms and conditions including that she serve 75 days in jail. Entry of judgment on count one was to be deferred pursuant to section 1000. Appellant was ordered to pay a $200 restitution fine, as well as other fees.

On July 10, 2006, new defense counsel filed a motion for appellant to withdraw her plea. After a lengthy hearing on August 21, 2006, the trial court denied the motion. The court modified its sentence so that appellant would serve only 65 days in jail and perform 160 hours of community service. Appellant filed a timely notice of appeal but did not obtain a certificate of probable cause.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel, indicating that appellant was advised she could file her own brief with this court. On December 15, 2006, we invited appellant to submit a letter stating any grounds on appeal she wished this court to consider. To date, she has not replied.

FACTS

On March 11, 2006, Casey Zapata, a Loss Prevention Officer for J. C. Penneys, observed appellant taking several items of clothing and going into a fitting room. When appellant left the fitting room, she had none of the items. Appellants purse appeared much bulkier. There was no clothing in the changing room. Appellant exited the store without paying for the concealed merchandise. Officer Hickerson was notified by the store about the theft.

Hickerson found Zapata talking to appellant at appellants car. Appellant refused to exit her car and had started the engine. Appellant told Zapata she was not going to exit her car. Hickerson told appellant she should cooperate with Zapata and that she was being detained for theft. Appellant stepped out of the car and handed Zapata clothing she took from the store. Zapata was trying to look through appellants purse because Zapata had seen evidence of merchandise in the purse. As Hickerson was handcuffing appellant, she handed her purse to Zapata.

Appellant was escorted back to the store. Hickerson read appellant her Miranda^[3] rights from the card issued by her police department. Appellant indicated that she understood her rights and proceeded to answer questions about the incident. Appellant admitted she had come to the store to take a shirt. She admitted she had no means to pay for the clothing. Appellant admitted walking into the fitting room and placing merchandise into her purse and jacket before exiting the store without paying for anything.

Appellant explained that she did not want to give her purse to Zapata because she had items in it. Hickerson looked through the purse and found a straw next to a plastic bag. Appellant said the bag contained crystal meth. A presumptive test on the substance in the bag came back positive for methamphetamine. The store had a videotape of the theft.

MOTION TO WITHDRAW PLEA

Appellant filed a motion to withdraw her plea alleging that her original defense counsel from the public defenders office, Donnell Snipes, failed to investigate her case, interview her, or discuss with her any option other than entering a guilty plea. Appellant alleged that Snipes failed to secure a copy of the videotape from the store, did not discuss appellants right to discovery, did not research the law, and did not look into the possibility of filing a suppression motion.

At the hearing, appellant testified that she went to the public defenders office three times seeking help and never saw an attorney. The first time appellant saw an attorney was the day she entered her plea. Appellant did not review a police report or see the store videotape. Appellant did not discuss the possibility of a suppression motion with Snipes. Based on the advice of counsel, appellant accepted the plea bargain.

Appellant explained that she told Officer Hickerson that she did not want her purse searched. Appellant admitted that she took merchandise from the store, had store property in her purse, and placed some stolen property under her shirt as well. Appellant said she escaped to her car before authorities caught up with her. Appellant was ordered out of her car by Zapata and was searched by Zapata and Hickerson.

Donnell Snipes testified that he was a criminal defense attorney for four years. Snipes was not assigned appellants case until the day before the hearing. Prior to his court appearance, Snipes read the complaint and the police report. Snipes did not request a copy of the videotape or request other discovery because the case was resolved before he could request it. Snipes saw no inconsistencies in the police report.

Snipes confirmed the facts in the report. Appellant told Snipes she did steal property from the store and that she possessed methamphetamine. Snipes saw no viable defenses available to appellant. The original plea offer from the prosecutor was that appellant admit two felonies and spend 90 days in jail. Snipes secured an offer that appellant admit a felony and a misdemeanor and spend only 75 days in jail, which the court later reduced to 65 days.

Prior to denying appellants motion to withdraw her plea, the trial court researched section 490.5, subdivision (f)(4) to determine if appellant had a colorable basis to file a suppression motion pursuant to section 1538.5. The court found there was no colorable basis for Snipes to file a suppression motion and that section 490.5, subdivision (f)(4) authorized Zapata to search appellants purse for stolen merchandise.^[4]

After reviewing section 490.5, subdivision (f)(4) in light of the facts of the instant action, we agree with the trial courts analysis of the viability of a suppression motion. Appellant had retreated to her car before Zapata and Hickerson could reach her. When the officers asked her to exit her car, appellant did so. The officers did not search appellants car, only her purse. Given Zapatas personal observations of appellant, the officers had probable cause to search appellants purse. The search was authorized pursuant to subdivision (f)(4) of section 490.5.

There was no merit to the other assertions appellant made in her motion to withdraw her plea. Given the facts as set forth in the police report, as well as appellants admissions to Mr. Snipes, discovery would only have confirmed that appellant took merchandise from the store. Appellants assertions that Snipes should have conducted discovery, including obtaining a copy of the store videotape, appear to have no merit. The observation Snipes made about the absence of defenses available to appellant is supported by the record. Furthermore, there is nothing in the record to support a claim of ineffective assistance of trial counsel.^[5]

Given the factual realities of appellants case, Snipes adequately represented her interests in negotiating a plea bargain. After reviewing the record, we find no arguable factual or legal issue.

DISPOSITION

The judgment is affirmed.

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^*Before Cornell, Acting P.J., Dawson, J., and Kane, J.

^[1] Unless otherwise indicated, all statutory references are to the Penal Code.

^[2]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

^[3]Mirandav. Arizona (1966) 384 U.S. 436.

^[4] Section 490.5, subdivision (f)(4) provides, in relevant part:

A merchant . . . or an agent thereof, having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises . . . may request the person detained to voluntarily surrender the item . . . . Should the person detained refuse to surrender the recording or item of which there is probable cause to believe has . . . been unlawfully taken from the premises . . . a limited and reasonable search may be conducted by those authorized to make the detention in order to recover the item. Only packages, shopping bags, handbags or other property in the immediate possession of the person detained, but not including any clothing worn by the person, may be searched pursuant to this subdivision.

^[5] 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 counsels conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsels decision making 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 counsels 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 that are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)