Filed 5/16/22 In re Roberts 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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*

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Jeanne Schechter, Judge.

Richard Jay Moller, under appointment by the Court of Appeal, for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Catherine Chatman, Deputy Attorneys General, for Respondent.

-ooOoo-

Petitioner Luke Steven Roberts seeks relief in habeas corpus for ineffective assistance of trial counsel in failing to preserve his claim that the evidence against him was the result of an illegal search. Roberts contends that, after the motion to suppress was denied at the preliminary hearing, counsel should have either renewed his suppression motion as provided by Penal Code section 1538.5, subdivision (i)[1], or filed a motion to dismiss under section 995, and failing to do so rendered counsel ineffective. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) Roberts also avers that he would not have pleaded no contest if he had been informed that he would not be able to raise the meritorious search issue on direct appeal.

Roberts was charged with one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)), and one count of unlawful possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)). It was further alleged Roberts had suffered one prior strike (§§ 667, subds. (b)-(j), 1170.12.) After the trial court denied Roberts’s motion to suppress evidence at his preliminary hearing and denied his motion to strike the prior strike, Roberts entered a no contest plea to possession of a firearm by a felon and admitted the prior strike. The trial court denied probation and sentenced Roberts to the midterm of two years, doubled pursuant to the Three Strikes law.

Roberts filed a notice of appeal based on the denial of the motion to suppress evidence (case No. F082247)[2], which was later stricken on Roberts’s motion.[3] A brief pursuant to People v. Wende (1979) 25 Cal.3d 436 in case No. F082247 followed.

Roberts subsequently filed a petition for writ of habeas corpus in this court. We requested and received an informal response. We then issued an order to show cause why relief should not be granted and directed the Attorney General to file a written return.

We deny the petition.

BACKGROUND[4]

On February 7, 2020, Merced Police Officer Steven Odom, assigned to the Gang Violence Suppression Unit, along with his partner Officer Barajas, drove by Roberts, who was walking on a well-traveled road in Merced. Roberts was wearing a solid red hat and shoes, and he had a very noticeable tattoo on his face—a large letter N with red shading. Officer Odom recognized Roberts “instantly” from a previous contact, but neither he nor Officer Barajas recalled Roberts’s name. Eighteen months earlier, Officer Barajas, with Officer Odom’s assistance, had registered Roberts as an active Norteño gang member. At that time, Roberts, who already had the face tattoo, was on probation and Post Release Community Supervision (PRCS).

When the officers saw Roberts on the street, Officer Odom believed Roberts was still on “active probation or parole” and “was acting on that,” meaning Roberts was subject to search. After seeing Roberts on the sidewalk, Officer Odom and Officer Barajas made a U-turn, parked next to Roberts, and exited their vehicle to contact him. Roberts continued walking and talking on his cell phone the entire time. He had his right hand next to his ear and his left hand inside the front pocket of his sweatshirt. According to Officer Odom, Roberts kept backing up and asking why the officers were contacting him as he was on the phone.

Officer Odom testified that he had “officer safety concerns” based on these circumstances, as well as Roberts’s active gang membership and red clothing, his demeanor and the fact that he kept his left hand in his pocket. Officer Barajas asked Roberts to take his hand out of his pocket, but he did not comply and asked why the officers were stopping him. Officer Odom then grabbed Roberts’s right hand and said he was going to do a pat-down search. Officer Barajas grabbed Roberts’s left hand and the officers put both hands behind Roberts’s back. Officer Odom lifted Roberts’s shirt and saw a black Masterpiece Arms nine-millimeter firearm, with a fake silencer attached to the barrel and live ammunition, in his waistband. An extended magazine with live ammunition was found in Roberts’s left front pocket. The officer secured the gun and ammunition and handcuffed Roberts.

At the time of the search, Roberts was actually no longer on PRCS from Merced County, which Officer Odom and Officer Barajas wrongly believed he was. Roberts was, however, on probation for a misdemeanor driving under the influence with search conditions out of Stanislaus County, a fact not known to the officers until after Roberts was detained.

At the hearing on the motion to suppress, defense counsel argued that the fact that Roberts was on probation out of Stanislaus County was not known by the officers and they had “no articulable facts to support any sort of detention whatsoever.” Instead, Roberts argued, the officers “profiled” Roberts for past gang activity and were “simply acting on a hunch believing he was still on probation or supervision.”

The prosecutor did not dispute Roberts’s argument that the officers did not know anything about the Stanislaus County case, but that it was sufficient that Officer Odom recognized Roberts, although not by name, and was “certain at the time he conducted the detention that [Roberts] was subject to search and seizure.” The prosecutor also argued that Roberts was “acting fidgety” and would not take his hands out of his pocket, raising “officer’s safety concerns” justifying the pat-down search. The prosecutor also alleged the gun would have been found eventually “had he searched him subject to probation.”

In dismissing the motion, the trial court stated:

“I think the issue here is whether the officer had an objectively reasonable belief, rather than an absolute certainty, and that’s my understanding of the case law as well with respect to the totality of the circumstances as to whether somebody is on PRCS, or parole, or felony probation supervised probation that it’s standard for them to have search terms.

“And I think that under the totality of the circumstances here, Officer Odom testified that he immediately recognized Mr. Roberts. He remembered him talking to him from a year and a half ago when he came in to register and knew that that time he was on searchable probation, or PRCS. He just couldn’t remember which. Turns out he is on searchable probation, parole.

“So I do think under the totality of the circumstances he – had an objectively reasonable belief that Mr. Roberts was searchable and subject to search conditions, so I’m going to deny the motion.”

DISCUSSION

“ ‘ “A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] ‘Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.’ ([Citation] ….) In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness ... under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” [Citation.] The United States Supreme Court recently explained that this second prong of the Strickland test is not solely one of outcome determination. Instead, the question is “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” ’ ” (In re Richardson (2011) 196 Cal.App.4th 647, 657, italics omitted; In re Harris (1993) 5 Cal.4th 813, 832–833, disapproved on other grounds in Shalabi v. City of Fontana (2021) 11 Cal.5th 842; Strickland, supra, 466 U.S. at pp. 687–688.)

“Because a petition for a writ of habeas corpus is a collateral attack on a presumptively final criminal judgment, [the petitioner] bears the burden of proving his entitlement to relief by a preponderance of the evidence.” (In re Gay (2020) 8 Cal.5th 1059, 1072.)

Here, trial counsel provided a declaration in which he stated he was unaware after the denial of the suppression motion at the preliminary hearing of the requirement to renew the motion under section 1538.5, subdivision (i) or file a section 995 motion to reserve the search and seizure issue for appeal after a no contest/guilty plea. Counsel states that it was not part of the plea agreement to abandon the search and seizure issue and that he advised Roberts he would be able to appeal the denial of the suppression motion after his plea.

Trial counsel’s declaration alone, however, does not overcome the presumption of competence. The omission of a claim or act “whether tactical or inadvertent, does not of itself demonstrate ineffectiveness unless it was objectively unreasonable, meaning that the omitted claim was one that any reasonably competent counsel would have brought.” (In re Reno (2012) 55 Cal.4th 428, 465, ital. omitted.) Accordingly, we consider whether Roberts was prejudiced by trial counsel’s deficient performance.

As discussed below, we conclude Roberts has failed to show prejudice in the form of a reasonable probability of a different outcome had the trial court renewed the suppression motion.

“ ‘In reviewing a suppression ruling, “we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found.’ ” [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 979.) “ ‘As the finder of fact ... the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.’ [Citation.] We review its factual findings ‘ “ ‘under the deferential substantial-evidence standard.’ ” ’ [Citation.] Accordingly, ‘[w]e view the evidence in a light most favorable to the [trial court’s] order[,] ...’ and ‘[a]ny conflicts in the evidence are resolved in favor of the superior court ruling’ [citation]. Moreover, the reviewing court ‘must accept the trial court’s resolution of disputed facts and its assessment of credibility.’ ” (Ibid.)

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. (U.S. Const., 4th Amend.) Warrantless searches and seizures are per se unreasonable, “subject only to a few specifically and well-delineated exceptions.” (Katz v. United States (1967) 389 U.S. 347, 357.) Among these exceptions are searches conducted pursuant to the terms of a subject’s probation, parole, or PRCS, so long as they are not conducted arbitrarily, capriciously, or for the purposes of harassment. (People v. Douglas (2015) 240 Cal.App.4th 855, 860-861, 865 (Douglas).) Thus, “an individual who has been released from custody under PRCS is subject to search (and detention incident thereto) so long as the officer knows the individual is on PRCS.” (Id. at p. 865.)

The prosecution always bears the burden of proving, by a preponderance of the evidence, that a warrantless search falls within an exception. (People v. Williams (1999) 20 Cal.4th 119, 136-137; People v. Romeo (2015) 240 Cal.App.4th 931, 940.)

In the context of probation, that means the prosecution must prove that the officer had pre-search knowledge both of the defendant’s probationary status and the existence of a search condition to which he or she consented as part of his or her probation; search conditions are not mandated by statute for every probationer, and probation search clauses are not uniformly worded. (Douglas, supra, 240 Cal.App.4th at pp. 861, 863.) However, when a defendant is on parole or PRCS, “t is not necessary for the officer to recite or for the People to prove the precise terms of release, for the search condition is imposed by law, not by consent.” ([i]Douglas, supra, 240 Cal.App.4th at pp. 865; see §§ 3067, subd. (b)(3) [parole], 3453, subd. (f) [PRCS].) “As in the case of a parole search, an officer’s knowledge that the individual is on PRCS is equivalent to knowledge that he or she is subject to a search condition.” (Douglas, supra, 240 Cal.App.4th at p. 865.)

“An officer ‘knows’ a subject is on PRCS if the officer’s belief is objectively reasonable” under the totality of the circumstances. (Douglas, supra, 240 Cal.App.4th at p. 865.) The question is “whether, judged against an objective standard, the facts available to [the officer] at the moment he [or she] detained [the defendant] would have warranted an officer of reasonable caution to believe [the defendant] was on PRCS.” (Id. at p. 868.)

Douglas is instructive. After examining warrantless search cases, the court found “[t]he formulation most faithful to the analogous precedents is the ‘objectively reasonable belief’ standard: the officer’s belief in the subject's status as a probationer [or] parolee ... must have been objectively reasonable in the totality of the circumstances.” (Douglas, supra, 240 Cal.App.4th at p. 865.) The Douglas court found that under the circumstances there, the officer held an objectively reasonable belief the defendant was on PRCS subject to mandatory search conditions at the time he detained the defendant. (Id. at p. 870.) Those circumstances included the following: the officer was part of a special investigation division parole unit responsible for monitoring individuals on probation or parole; a regular part of the officer’s job was to regularly monitor a list of persons on probation and parole; the officer had seen defendant on a list of active probationers within the preceding two months; the officer had arrested defendant on a weapons charge two years earlier, and given the charges knew the usual length of PRCS, enabling the officer to roughly calculate that defendant would still be on PRCS; and prior to detention, defendant engaged in furtive action by initially pulling away from the curb in his car when first contacted by the officer. (Id. at pp. 857-858, 870-872.)

Here, the totality of the circumstances surrounding the officers detention of Roberts supported a finding that it was objectively reasonable. The evidence before the trial court was that Officers Odom and Barajas were both assigned to the Gang Violence Suppression Unit and recognized Roberts as a Norteño gang member from previous contact with him. Although they could not recall his name, Roberts was immediately recognizable as he had a very noticeable tattoo on his face. The officers had registered Roberts as a gang member 18 months earlier and knew he was on probation and PRCS at that time. When the officers saw Roberts on the street, Officer Odom believed Roberts was still on “active probation or parole” and “was acting on that,” meaning Roberts was subject to search. In addition, Roberts engaged in actions that concerned the officer—when contacted by the officers, Roberts continued walking and talking on his cell phone the entire time with his right hand next to his ear and his left hand inside the front pocket of his sweatshirt. When asked to take his hand out of his pocket, he did not comply, causing the officers concern for their safety.

Based on the foregoing, substantial evidence supports the finding that the officers had a reasonable belief Roberts was on probation or parole and subject to search, and Roberts was therefore not prejudiced by counsel’s failure to preserve the issue for appeal.

We also briefly address the fact that Roberts avers that he would not have pleaded no contest if he had been informed by counsel that he would not be able to raise the search issue on direct appeal. We have, however, discussed the search issue on the merits, within the context of Roberts’s ineffective assistance of counsel claim, and found no error. Accordingly, we deny the petition.

DISPOSITION

Petition for writ of habeas corpus is denied. This opinion is final forthwith as to this court.

* Before Franson, Acting P. J., Peña, J. and Smith, J.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The court hereby takes judicial notice of the record in case No. F082247.

[3] Appellate counsel recognized that the search warrant issue was not preserved for appeal. (See case No. F082247, request to strike the appellant’s opening brief filed Feb. 16, 2021, which this court granted on Mar. 1, 2021.)

[4] Taken from the preliminary hearing held February 20, 2020.