Filed 10/3/17 P. v. Morris CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant William Robert Morris pleaded no contest to unlawful possession of a firearm and several other offenses arising from a search and seizure of him and his car. The trial court imposed an aggregate term of 32 months in state prison.

Prior to the preliminary hearing, Morris moved to suppress the fruits of the search under Penal Code section 1538.5.[1] Based on the testimony of the police at the preliminary hearing, the magistrate denied the motion to suppress and held Morris to answer. Counsel for Morris did not renew the motion to suppress.

Morris now contends his counsel provided ineffective assistance by failing to renew the motion to suppress. Alternatively, he contends we should review the magistrate’s order denying the motion.

We conclude Morris has forfeited any challenge to the magistrate’s order denying the motion to suppress under People v. Lilienthal (1978) 22 Cal.3d 891 (Lilienthal). We further conclude Morris did not suffer ineffective assistance of counsel. We will affirm the judgment.[2]

1. Factual and Procedural Background

A.Facts of the Offense[3]

Around 9 p.m. on July 31, 2015, Officer Jordan Fachko of the Santa Clara Police Department drove his patrol car into the parking lot at 4200 Great America Parkway. About 15 minutes earlier, Fachko had received a bulletin from police dispatch stating that the nearby area of Lawrence Expressway and Highway 101 was experiencing a large number of auto thefts. Fachko went to the parking lot at 4200 Great America Parkway because the area around Mission College had also been experiencing frequent auto thefts. He testified that auto thieves normally travel from one area to the other.

Fachko spotted a newer model black Mercedes with dealer tags parked in the lot. Based on several factors, Fachko considered the vehicle suspicious. First, he knew auto thieves frequently use vehicles with stolen license plates or dealer tags to make it more difficult for police to track them. Second, the car door was slightly ajar, but nobody was entering or exiting the vehicle. Third, Fachko had received a report three or four weeks earlier from a nearby security guard who had witnessed multiple cars being stolen by the occupants of a newer model black Mercedes.

The Mercedes was parked “nose-in” facing a building. Fachko stopped his patrol car behind the Mercedes, blocking it in. He could not see into the Mercedes because the rear windows were tinted. He walked to the driver’s side of the car and saw Morris seated in the driver’s seat. Fachko asked Morris if the Mercedes was his car, and Morris responded affirmatively. When Fachko asked why the car did not have license plates, Morris said he had just purchased it. Fachko saw that the vehicle identification number was blocked by a piece of paper, which made him suspicious that someone was trying to conceal the identity of the car. Fachko requested the car’s documentation from Morris, whereupon Morris supplied DMV paperwork listing the license plate and vehicle identification numbers. Fachko called in the license plate number to dispatch, who responded that the vehicle was not stolen and the registration was current.

Fachko also took Morris’ driver’s license. When Fachko transmitted the information to dispatch, Morris began acting nervously. He looked forward and began breathing heavily. Morris was wearing a baggy shirt, and Fachko observed a large number of gang related tattoos on his arms and hands. Fachko became concerned that Morris might be armed, so Fachko ordered Morris to exit the car for a pat down. Morris did not immediately get out, so Fachko ordered him “a little more sternly” to exit the car. Morris then got out of the car, turned left, and began running away. Fachko ran after him.

As Morris was running, Fachko saw him holding his right arm to the side of his body by his waistband. Fachko ordered Morris to stop, but Morris kept running, so Fachko deployed his taser on Morris. Morris fell to the ground, and after a struggle, Fachko handcuffed him.

In his front waistband, Morris had a nine-millimeter pistol with a round in the chamber and 17 rounds in the magazine. In his pocket, he had an extra magazine with 10 rounds. Morris also had a baggie of methamphetamine weighing a total of 7.2 grams in his pocket. In the car, police found a glass pipe, additional ammunition, and a stun gun. Morris’s blood later tested positive for methamphetamine.

Fachko estimated that less than two minutes had passed from the time when he arrived at Morris’ car to the time when Morris ran from the car.

B.Procedural Background

Prior to the preliminary hearing, Morris filed a written motion under section 1538.5 to suppress the seized evidence as the fruits of an illegal search and seizure. He raised arguments substantially the same as those he raises here. At the preliminary hearing, the police testified to the facts of the stop as set forth above. The magistrate denied the motion to suppress on the ground that the police had reasonable suspicion to detain Morris. After the magistrate held Morris to answer, Morris failed to renew the motion to suppress before the trial court.

The prosecution charged Morris by information with nine counts: Count 1—Possession of a firearm by a person convicted of a prior violent offense (§ 29900, subd. (a)(1)); Count 2—Possession of a firearm by a felon (§ 29800, subd. (a)(1)); Count 3—Possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1); Count 4—Possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)); Count 5—Possession of a firearm while under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (e)); Count 6—Receiving stolen property with a value exceeding $950 (§ 496, subd. (a)); Count 7—Possession of a stun gun by a person convicted of a specified prior offense (§ 22610, subd. (a)); Count 8—Possession of controlled substance paraphernalia (Health & Saf. Code, § 11364); and Count 9—Resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1)). The information alleged Morris had suffered a prior conviction for a violent or serious felony. (§§ 667, subds. (b)-(i), 667.5, subd. (c), 1192.7, subd. (c).)

Morris pleaded no contest to Count 1 and Counts 4 through 9. He admitted the prior conviction. The trial court denied probation and imposed a total term of 32 months in prison. The term consisted of double the mitigated term on Count 1 with all terms on the remaining counts to run concurrently.

2. Discussion

Morris contends his trial counsel was constitutionally ineffective by failing to renew the motion to suppress. Alternatively, Morris contends we should review the magistrate’s denial of the motion. The Attorney General contends trial counsel was not deficient for failing to renew the motion to suppress because the motion lacked merit. We conclude Morris did not suffer ineffective assistance of counsel because he cannot show prejudice.

A.Legal Principles

To demonstrate ineffective assistance of counsel, a defendant must first show trial counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688) Second, the defendant must show prejudice flowing from counsel’s performance or lack thereof. (Id. at pp. 691-692.) “Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 93, citing Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 693-694.) It is the defendant’s burden on appeal to show by a preponderance of the evidence that he or she was denied effective assistance of counsel and is entitled to relief. (People v. Dowdell (2014) 227 Cal.App.4th 1388.)

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .” (U.S. Const., 4th Amend.) This guarantee applies to the states through the Due Process Clause of the Fourteenth Amendment. (Mapp v. Ohio (1961) 367 U.S. 643.) When a defendant moves to suppress evidence seized in a warrantless search, the prosecution bears the burden to prove police conducted the search under a valid exception to the Fourth Amendment’s warrant requirement. (People v. Camacho (2000) 23 Cal.4th 824, 830.) “In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.” (People v. Lenart (2004) 32 Cal.4th 1107, 1119.)

B.Morris Did Not Suffer Ineffective Assistance of Counsel

Trial counsel’s failure to renew the motion to suppress in the trial court forfeited the claim on appeal. (Lilienthal, supra, 22 Cal.3d at p. 896 [under section 1538.5, subdivision (m), a motion to suppress must be made in the superior court to preserve the claim for review on appeal].) Although this rule arose prior to the unification of municipal courts and superior courts, California courts have continued to enforce the rule that a motion to suppress must be renewed after the denial of the motion by a magistrate. “[T]he Lilienthal rule continues to apply even in the wake of trial court unification because that rule never rested on the distinction between the municipal court and the superior court; rather, it rests on the distinction between magistrates and superior court judges—a distinction that remains valid even following unification.” (People v. Richardson (2007) 156 Cal.App.4th 574, 589 [collecting cases].)

The Attorney General contends trial counsel had a tactical reason not to renew the motion. We are not persuaded on this point, but assuming trial counsel’s failure to renew the motion constituted deficient performance, Morris has not shown he was prejudiced. To show prejudice, Morris must show a reasonable probability that the result of the proceedings would have been different—e.g., that the trial court would have granted his motion upon renewal, or that he could have reached a more favorable plea agreement if counsel had renewed the motion. As to the latter possibility, Morris offers no evidence or facts to support it. And as to the possibility that the trial court would have granted the motion, Morris has not shown this was reasonably likely.

“Ordinary traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed.” (In re Raymond C. (2008) 45 Cal.4th 303, 307.) “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity” (People v. Souza (1994) 9 Cal.4th 224, 231.) Fachko was aware that the area had recently experienced a rash of auto burglaries, and he had recently received a report of nearby auto burglaries by the occupants of a newer model black Mercedes. He also saw that Morris’ newer model black Mercedes only had dealer tags. (See People v. Greenwood (2010) 189 Cal.App.4th 742, 748 [if the officer does not see a temporary permit and the vehicle has no license plates, it is reasonable for the officer to make a traffic stop].) On these facts, Fachko had reasonable suspicion to briefly investigate the Mercedes and its occupants.

Once Fachko encountered Morris and submitted his driver’s license to dispatch, Morris became visibly nervous. Fachko also observed gang related tattoos on Morris’ arms and hands, and Morris was wearing a baggy shirt. At that point, Fachko’s request to pat down Morris for safety purposes was reasonable. Once Morris fled and appeared to be holding a weapon in his waistband, Fachko was justified in arresting him. Morris argues that Fachko prolonged the stop for longer than necessary, but Fachko testified that the stop lasted for less than two minutes, and he had not yet completed his records check. “nvestigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take.” ([i]People v. Brown (1998) 62 Cal.App.4th 493, 498.)

Under the totality of the circumstances, we find the record holds specific articulable facts showing reasonable suspicion sufficient to justify a brief stop of Morris and his car. It is therefore not reasonably likely the trial court would have granted the motion to suppress if defense counsel had renewed it. We conclude Morris has not suffered ineffective assistance of counsel.

3. Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.