People v. Minjarez, E042193 (Cal. App. 1/18/2008)

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THE PEOPLE, Plaintiff and Respondent, v. MICHAEL OSCAR MINJAREZ, Defendant and Appellant In re MICHAEL OSCAR MINJAREZ, on Habeas Corpus.

E042193

E044058

Court of Appeals of California, Fourth Appellate District, Division Two

January 18, 2008

NOT TO BE PUBLISHED

Appeal from the Superior Court of Riverside County, No. INF055575, H. Morgan Dougherty, Judge. Affirmed.

Original Proceeding: Petition for writ of habeas corpus. H. Morgan Dougherty, Judge. Petition Denied.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RICHLI, J.

Following the trial court's denial of defendant's motion to suppress evidence (Pen. Code, § 1538.5)¹ at the preliminary hearing, and pursuant to a negotiated plea agreement, defendant pleaded guilty to possession of metal knuckles (§ 12020, subd. (a)(1)). In exchange, defendant was placed on formal probation for three years on various terms and conditions.

In his appeal, defendant contends (1) the court erred in denying his motion to suppress evidence, as the initial detention and search of defendant was unlawful; and (2) the suppression motion should be reviewed on the merits, as any failure of trial counsel to renew the suppression motion prior to entering a guilty plea constituted ineffective assistance of counsel.² Because defendant failed to renew his suppression motion before the superior court to preserve the issue for appeal, we find the issue has been waived.

In his petition for writ of habeas corpus, defendant claims his counsel was ineffective for failing to preserve his right to appeal the suppression motion. We reject this contention and deny defendant's petition, because defendant cannot show his counsel was ineffective for not renewing his suppression motion in the superior court.

I FACTUAL AND PROCEDURAL BACKGROUND³

On the night of August 31, 2006, between 10:00 p.m. and 11:00 p.m., Desert Hot Springs Police Officer Matthew Drew and another officer responded to a dispatch call advising them of a disturbance at the Firehouse Tavern, a local sports bar, on Palm Drive. The area was known as a high-crime area. Dispatch also advised the officers of the description of the suspect and that he "possibly had a weapon." The officers were advised that the suspect was a Hispanic male, wearing shorts and a shirt. Dispatch was uncertain of the type of weapon the suspect had.

Officer Drew and his partner responded to dispatch's call within one to one and a half minutes. Upon arrival, Officer Drew observed two male subjects arguing in the middle of the street in front of the Firehouse Tavern. One of the men matched the description of the suspect provided by dispatch.

Officer Drew approached defendant and spoke with him. Based on the circumstances of the call, that defendant fit the description given, and that he possibly had a weapon, Officer Drew detained defendant and told him to place his hands above his head and to spread his legs. Defendant was then patted down for weapons. While conducting the patdown, Officer Drew felt an unknown hard object in defendant's front pocket. Based on his training and experience, Officer Drew believed the object might be a gun. Officer Drew reached into defendant's pocket and retrieved the object, which he recognized as a pair of brass knuckles. The brass knuckles were described as a series of rings that are connected together through which four fingers can be placed. The officer thought they were"[k]ind of circular." Defendant was handcuffed and arrested.

On September 5, 2006, the Riverside County District Attorney's office filed a complaint against defendant alleging that he had unlawfully possessed metal/brass knuckles. (§ 12020, subd. (a)(1).)

On October 2, 2006, defendant filed a motion to suppress evidence pursuant to section 1538.5.

On October 18, 2006, the preliminary hearing and the hearing on the suppression motion were heard together. Following testimony from Officer Drew and argument from counsel,⁴ the court denied defendant's motion to suppress evidence, and defendant was held to answer in the superior court.

On November 14, 2006, an information was filed charging defendant was one count of unlawful possession of metal knuckles in violation of section 12020, subdivision (a)(1). Defendant was arraigned the following day. He was represented by a different deputy public defender (Deputy Public Defender (DPD) Kenneth Gregory) than he had been when his suppression motion was heard and denied.

On January 5, 2007, defendant, again represented by DPD Gregory, withdrew his plea of not guilty and pleaded guilty to possession of metal knuckles. Defendant was subsequently sentenced to three years' probation.

On January 11, 2007, defendant filed his notice of appeal based on the denial of his suppression motion.

On June 8, 2007, appellate counsel filed defendant's opening brief, claiming the trial court erred in denying the suppression motion and that DPD Gregory was ineffective for failing to renew the suppression motion.

On August 3, 2007, the People filed their response, arguing defendant's appeal must be dismissed because defendant waived the issue by failing to renew his suppression motion in the superior court and that defendant had failed to establish that his trial counsel was ineffective for failing to renew the suppression motion.

On September 13, 2007, appellate counsel filed defendant's reply brief as well as a petition for writ of habeas corpus and supporting exhibits (case No. E044058) based on trial counsel's failure to renew the suppression motion in the superior court.

On October 2, 2007, this court informed the parties that defendant's writ petition would "be considered with the appeal" in case number E042193 "for the sole purpose of determining whether an order to show cause should issue."

II DISCUSSION

A. Defendant's Appeal

In his appeal, defendant contends the trial court erred in denying his motion to suppress the evidence. We agree with the People that defendant waived his right to appeal the denial of the suppression motion by failing to renew it in the superior court. (People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal); People v. Hoffman (2001) 88 Cal.App.4th 1, 3 (Hoffman).)

Our Supreme Court in Lilienthal, supra, 22 Cal.3d 891 held that a defendant must seek review of the magistrate's suppression ruling in the superior court "to preserve the point for review on appeal, for it would be wholly inappropriate to reverse a superior court's judgment for error it did commit and that was never called to it's attention." (Id. at p. 896, fn. omitted.) In Hoffman, supra, 88 Cal.App.4th 1, our colleagues in Division Three concurred with the holding in Lilienthal and held the unification of the municipal and superior courts did not affect the Lilienthal mandate that a defendant must renew the suppression motion before the trial court to preserve the issue for appeal. (Hoffman, at p. 3.)

In the present matter, as defendant acknowledges, DPD Gregory failed to renew defendant's motion to suppress the evidence in the superior court. Because defendant pleaded guilty without renewing his motion to suppress, the superior court did not have the opportunity to review the magistrate's conclusions of law. Accordingly, since defendant failed to renew his suppression motion, we find the issue has been waived. (Hoffman, supra, 88 Cal.App.4th at p. 3.)

B. Defendant's Petition for Writ of Habeas Corpus

Defendant contends his trial counsel was ineffective for failing to renew the suppression motion in the superior court.

In order to establish a claim of ineffective assistance of counsel, defendant must demonstrate "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a `reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A `reasonable probability' is one that is enough to undermine confidence in the outcome. [Citations.]" (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Hence, such a claim has two components: deficient performance and prejudice. (Strickland v. Washington, at p. 687; People v. Williams (1997) 16 Cal.4th 153, 214-215; In re Avena (1996) 12 Cal.4th 694, 721; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails.

In evaluating trial counsel's actions, "[a] court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]" (People v. Dennis, supra, 17 Cal.4th 468, 541.) Where as here the claim is that counsel's performance was deficient because counsel failed to renew defendant's suppression motion in the superior court, the defendant must show that reasonably competent counsel would have renewed such a motion and that the motion would have been successful. (See, e.g., People v. Grant (1988) 45 Cal.3d 829, 864-865; People v. Frye (1998) 18 Cal.4th 894, 989.) In other words, to prove counsel's performance was deficient for failure to make a motion or renew a motion, the defendant must prove the motion would have been meritorious. It is well settled that "[c]ounsel does not render ineffective assistance by failing...