P. v. Vasquez

Filed 10/17/07 P. v. Vasquez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I. INTRODUCTION

Appellant Estuardo Rodriguez Vasquez (Vasquez) appeals from his conviction of possession of cocaine with intent to sell. He pled no contest to this charge following the courts denial of his motion to suppress under Penal[1] Code section 1538.5. His counsel has filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, in which no issues are raised, and asks this court for an independent review of the record. Vasquez was advised of his right to file a supplemental brief, and has not done so. He has filed a petition for writ of habeas corpus in which he asserts ineffective assistance of counsel. On our own motion, we consolidate the appeal and writ petition.

II. THE APPEAL

A. Procedural Background

Vasquez was charged by information with one count of possession of cocaine with intent to sell (Health and Saf. Code,  11351) and one count of possession of marijuana with intent to sell (Health and Saf. Code,  11359). Vasquez moved to quash the search warrant issued in the case, or in the alternative, to traverse the warrant and suppress the evidence collected under the warrant. The court denied his motions.

The district attorney then filed an amended information, adding an allegation that Vasquez possessed with the intent to sell 28.5 grams or more of cocaine or 57 grams or more of a substance containing cocaine. ( 1203.073, subd. (b)(1).) Pursuant to a plea agreement, Vasquez pled no contest to possession of cocaine with intent to sell, and admitted the new allegation. He was advised of his constitutional rights and the terms of his plea agreement prior to entering his plea. The court dismissed the second count of possession of marijuana with intent to sell.

The court sentenced Vasquez to the lower term of two years, with credit for two days time served. The court imposed a $200 restitution fine under section 1202.4, a $20 court security surcharge, and imposed but suspended a $200 fine under section 1202.45. The court also ordered Vasquez to register as a narcotics offender and submit to genetic marker testing. (Health & Saf. Code,  11590;  296.) Vasquez did not obtain a certificate of probable cause. This timely appeal followed.

B. Factual Background

On May 19, 2006,[2] a warrant was issued to search Ramon Pineda, Claudia Ovando, three vehicles registered to Ovando, and two buildings. The first, located at 231 Los Olivos in Daly City[3] (231 Los Olivos) was described as a white 3 story building with peach trim. There is a gate in the front entryway.

On May 23, San Francisco Police Officer Jacob Fegan executed the search warrant at 231 Los Olivos.[4] He described the building from the outside as a [t]hree story house on a corner. Large backyard with a wooden fence. . . . There was an iron gate to the front entrance of that building with a doorI believe a wooden doorto the front door of the address. There were two doors in the front of the house. Officer Fegan testified that he would describe the one on the right with the iron gate as the main entrance into this house, and the one on the left would seem to be leading to an alley on the side of the house where I would think the garbage or something would be kept. The house had a single mail slot in the garage door, and a single house number, 231, on the outside. Officer Fegan testified there was nothing about the building that made him think there might be two residences at 231 Los Olivos.

Officer Fegan and other officers arrived at 231 Los Olivos at approximately 11:00 a.m. on May 23 to execute the warrant. After announcing themselves, officers used an entry tool to open that iron gate. The front door was ajar, and officers pushed it open. They entered a 10 to 15-foot-long entryway or foyer. From that point, [i]f you were to continue straight through [the] 10 to 15 f[oot] entry, you go upstairs to go to the other floors of the residence or go to the left where there was a desk . . . against the wall . . . and another door. When Officer Fegan arrived, that inside door was open, leading into a kitchen. There was an unlocked closed door in the kitchen. Officer Fegan opened the door, and found Vasquez, lying on a bed. San Francisco Police Officer Lou Barberini entered the bedroom, and saw a plastic compact disc holder with apparent cocaine residue. He searched the bedroom, finding what appeared to be cocaine and marijuana in a cylindrical container. The parties stipulated to the weight of the narcotics found.

Officer Jimmy Liu came to assist Officer Barberini, and they found indicia linking Vasquez to the room. They also found packaging material and a scale. Officer Barberini saw no delineation between Vasquezs room and the rest of the house. He opined that it was not a separate in-law unit because the outside of the house had no indication that it contained more than one residence. There was only one house number and one mailbox. There was no privacy or barrier doorway separating the unit from the rest of the residence which, in his experience, 95 percent of in-law units have.

A defense investigator visited 231 Los Olivos twice in August. He observed a door going into what he termed the in-law unit in the right wall of a long hallway. The unit could be accessed by going through the front door of the house, and continuing down the hallway. The investigator found nail holes in the doorjamb of the door leading to the in-law unit, but no nails in the doorjamb or the door.

Vasquez testified at the hearing on the motion to suppress that in May, he was living at 231 Los Olivos. He was renting the premises consisting of [o]ne room, like a studio. He explained there were a separate bedroom, and a stove, refrigerator, table and chairs. At one point, there were nails in the doorjamb to prevent the opening of the door between the area in which he lived and the stairs leading to the rest of the house. On May 23, there were no nails in the doorjamb. The nails had been removed at the instigation of the owner. After the nails were removed, the owner came into the bottom portion of the house. Vasquez testified that the door into his living area was always locked, but that [i]t could be that it was open on May 23.

Police records of responses to calls received from the premises of 231 Los Olivos between 2001 and July 1, 2004, showed references in some of the reports to a lower unit or in-law unit. Vasquezs attorney argued that the police were charged with the knowledge . . . of the information that is available to other police officers.

The court found that Vasquez had not made the necessary showing that the affidavit [in support of the search warrant] contained material omissions that were made either fraudulently or were with reckless disregard for the truth. The court also denied the motion to suppress, finding that given the layout of the residence it is not improbable that the officers didnt recognize that the defendants residence was anything other than a bedroom. It didnt have a separate access to the outside or separate doorbell or mailbox. It wasnt obvious to the police there was a separate access to the outside. . . . So I find that the officers made a reasonable and honest mistake in failing to realize that the building was a multi-unit dwelling; and, thus . . . the execution of the search warrant was lawful and that the evidence should not be suppressed. Substantial evidence supports the trial courts findings, and as a matter of law, the search was reasonable. (See People v. Aguilar (1996) 48 Cal.App.4th 632, 637.)

At the preliminary examination, but not at the hearing on the motion to suppress, Broadmoor Police Officer Ignacio Reyes testified and was qualified as an expert on recognition and identification of controlled substances, as well as the possession of controlled substances for personal use and sale, and specifically as it relates to cocaine and marijuana. On May 23, Officer Reyes responded to 231 Los Olivos at approximately 12:15 p.m., after the search warrant had been executed and narcotics had been found. Another officer escorted him into the room where the narcotics [and Vasquez were] found. Officer Reyes, who was fluent in Spanish, read Vasquez his Miranda[5] rights and questioned him in Spanish.

Officer Reyes testified that the area where the narcotics were found was an in-law apartment downstairs with a separate entrance leading from the front door to a second door to the in-law apartment. He did not recall if there was a door that had been nailed shut between the in-law unit and the rest of the residence. He believed it was an in-law apartment [b]ecause it had a door, had a kitchen and a living room and a bedroom by itself, separate from the rest of the residence. . . . [A]s soon as you walk into the house, theres a little hallway . . . and to the left was a door, and to my right was a set of stairs that leads up to the upstairs portion of the residence. Officer Reyes did not testify as to his opinion regarding whether the officers executing the warrant reasonably should have realized the premises contained a second unit, or whether the exterior of the building offered any indication that it contained a second unit.

C. Discussion

Our review of the record before us demonstrates that Vasquez was represented by counsel throughout the proceedings. He had the assistance of a Spanish language interpreter. The findings and conclusions made by the court in connection with Vasquezs motion to suppress were supported by substantial evidence, and were consistent with applicable law. Upon our independent review of the record we conclude there are no meritorious issues to be argued or that require further briefing on appeal.

IV. THE Petition for Writ of Habeas Corpus

Vasquez asserts in his petition for writ of habeas corpus that he was denied the effective assistance of counsel because his trial attorney failed to call Officer Reyes as a witness at the hearing on the motion to suppress. Vasquez claims that Officer Reyess opinion that the area in which Vasquez and the narcotics were found at 231 Los Olivos was a separate unit would have contradicted the testimony of Officers Fegan and Barberini regarding their characterization of the area.

In order to demonstrate ineffective assistance of counsel, a defendant must show that trial counsels performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsels performance prejudiced defendants case is such a manner that his representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (Strickland v. Washington (1984) 466 U.S. 668, 686.)  In determining whether counsels performance was deficient, a court must in general exercise deferential scrutiny [citation][.] . . . Although deference is not abdication, . . . courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.. . . (People v. Brodit (1998) 61 Cal.App.4th 1312, 1335, citing People v. Scott (1997) 15 Cal.4th 1188, 1212.) Vasquez also must show a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different.  (People v. Staten (2000) 24 Cal.4th 434, 450-451.)

There is no question that Officer Reyes testified at the preliminary examination that he believed there was an in-law unit at 231 Los Olivos. Likewise, the law is clear that the validity of the search of [premises] pursuant to a warrant authorizing the search . . . depends on whether the officers failure to realize the overbreadth of the warrant was objectively understandable and reasonable. (Maryland v. Garrison (1987) 480 U.S. 79, 88.)

At the outset, we note that Officer Reyes, while he had a different opinion about the question of whether there was a separate residential unit at 231 Los Olivos, was not one of the officers who sought and executed the search warrant. Officer Reyes was not at 231 Los Olivos when the warrant was executed. He arrived at the premises approximately one hour after the search warrant had been executed, and the premises had been secured. His opinion regarding the existence of a separate unit was based on his observations inside the house, which took place during a time period less frenetic and less dangerous than the time when the search warrant was executed and the narcotics were found. Moreover, Officer Reyess opinion does not call into question the information relied on by the officers in obtaining the search warrant, nor does it contradict the executing officers observations concerning the exterior of 231 Los Olivos. In fact, Officer Reyes did not testify regarding any observations he may have made regarding the exterior of 231 Los Olivos, nor did he offer any opinion regarding whether there was a separate unit on the premises based on the exterior of the building.

In contrast, Officers Fegan and Barberini testified that nothing about the exterior of 231 Los Olivos suggested it contained more than one unit. They both indicated there were only one house number and one mailbox. There was no privacy or barrier doorway separating the area in which Vasquez was found and the rest of the house. The two officers observed the interior of 231 Los Olivos while in the process of executing the search warrant and securing the premises. They discovered Vasquez and the narcotics in the bedroom within approximately five minutes of their entry. Based on the information Officers Fegan and Barberini had at the time, the failure to recognize that the area in which Vasquez was found was a separate unit was objectively reasonable and understandable.

Therefore, Vasquez has not shown that his trial counsel was ineffective. Nor has he demonstrated that there was a reasonable probability that calling Officer Reyes as a witness at the hearing on the motion to suppress would have resulted in a different outcome.

V. DISPOSITION

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

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Rivera, J.

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[1] Unless otherwise noted, all undesignated statutory references are to the Penal Code.

[2] Unless otherwise indicated, all further dates referenced were in 2006.

[3] Only the search of this location is at issue here.

[4] These facts are based on evidence presented at the section 1538.5 hearing.

[5]Miranda v. Arizona (1966) 384 U.S. 436.