P. v. Littlefield
Filed 8/20/12 P. v. Littlefield 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ARTHUR RAY LITTLEFIELD,
Defendant and
Appellant.
F062793
(Super.
Ct. No. F10906103)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
County. D. Tyler
Tharpe, Judge.
Allan E.
Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the State Attorney General, Sacramento, California,
for Plaintiff and Respondent.
-ooOoo-
On April 18,
2011, defendant Arthur Ray Littlefield was charged in a
consolidated amended complaint with possession
of methamphetamine (Health & Saf. Code,
of Vicodin (§ 11350, subd. (a); count 2), driving under the influence of
alcohol or drugs (Veh. Code, § 23152, subd. (a); count 3), possession of
28.5 grams or less of marijuana (§ 11357, subd. (b); count 4),
possession of marijuana for sale (§ 11359; count 5), and possession of
concentrated cannabis (§ 11357, subd. (a); count 6). It was further alleged defendant had served
two prior prison terms (Pen. Code, § 667.5, subd. (b)) and that, when he committed
counts 5 and 6, he was released from custody on bail or own recognizance (
On April 18, 2011, the parties entered
into a plea agreement. Defendant waived
his constitutional rights pursuant to
Boykin v. Alabama (1969) 395 U.S.
238 and In re Tahl (1969) 1 Cal.3d
122. The court advised defendant of the
consequences of admitting the allegations, including that, although the maximum
exposure was five years eight months in prison, the plea agreement was for a sentence
of four years eight months. The parties
stipulated to a factual basis for the pleas, and the police reports were
incorporated into the record. Defendant
then pled guilty to counts 1, 3, and 5, and admitted the Penal Code
section 12022.1 enhancement. Upon
the People’s motion, counts 2, 4, and 6, the prior prison term allegations, and
a “trailing” misdemeanor case, were dismissed.
The court found defendant knowingly and intelligently waived his rights,
the pleas were freely and voluntarily made, and there was a factual basis for
the pleas.
On May 11, 2011, the trial court
sentenced defendant to prison for the middle term of two years on count 5, a
consecutive term of eight months (one-third the middle term) on count 1, and a
consecutive term of two years on the Penal Code section 12022.1
enhancement, for a total aggregate term of four years eight months.
ordered defendant to pay various fees and fines. Defendant filed a timely notice of
appeal. His requests for issuance of a
certificate of probable cause (Pen. Code, § 1237.5), made in conjunction
with his notice of appeal and, later, by appellate counsel, were denied.
FACTS
name="_ftnref4" title="">[3]
On August 18, 2010, Fresno
police officers found defendant unconscious behind the steering wheel of his car. The car was partly in the intersection of Fresno
and Sierra Streets; its engine was running and it was in drive, but defendant’s
foot was on the brake. Defendant had a
marijuana cigarette in his hand, and a strong odor of marijuana emanated from
the vehicle. When roused, defendant
appeared disoriented and confused. He
showed officers what he said was his marijuana card, but the card appeared
fraudulent. Defendant admitted smoking
marijuana earlier in the day and said he had taken a Vicodin around noontime. A number of prescription pills, as well as
marijuana and various sums of cash, were found in the car. Defendant showed physical signs of being
under the influence, and was unable to complete various sobriety tests. Following his arrest, defendant discarded
methamphetamine in the patrol car.
On March 19, 2011, Clovis
police officers noticed defendant driving somewhat erratically, and determined
he was on parole and had a suspended driver’s license. A vehicle stop revealed a strong odor of
marijuana emanating from the vehicle’s interior. Defendant stated he had a medical marijuana
card, but not with him. A roll of cash
was found in defendant’s pocket, and a large plastic sandwich bag and smaller
plastic baggies containing marijuana were found in the vehicle. One of the bags contained hashish or
concentrated marijuana. Also found in
the car were prescription pills. Text
messages on a cellular telephone in the car showed defendant was attempting to
buy or sell marijuana. In some of the
messages, defendant referenced selling prescription medications.
APPELLATE COURT REVIEW
Defendant’s
appointed appellate counsel has filed an opening brief that summarizes the
pertinent facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the
declaration of appellate counsel stating defendant was advised he could file
his own brief with this court. By letter
dated January 9, 2012, we
invited defendant to submit additional briefing.
Defendant
replied with two letters, contending appellate counsel was ineffective for
failing to pursue a claim of ineffective assistance of trial counsel, who in
turn was ineffective for failing to (1) advise defendant of possible defenses
to the charges prior to the change of plea, and (2) attack the validity of
law enforcement officers’ review — prior
to defendant’s arrest — of the text messages contained in the cellular
telephone.
defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) “Establishing a claim of ineffective
assistance of counsel requires the defendant to 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.]” (
540-541; see generally Strickland v.
Washington (1984) 466 U.S. 668, 687-694.)
“If the
record contains no explanation for the challenged behavior, an appellate court
will reject the claim of ineffective assistance ‘unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.’ [Citation.]” (People
v. Kipp (1998) 18 Cal.4th 349, 367.)
In other words, “in assessing a Sixth Amendment attack on trial
counsel’s adequacy mounted on direct
appeal, competency is presumed
unless the record affirmatively
excludes a rational basis for the trial attorney’s choice. [Citations.]”
(People v. Musselwhite (1998)
17 Cal.4th 1216, 1260, original italics.)
Defendant’s
claim of ineffective assistance of trial counsel fails with respect to the
search of the cellular telephone, because a warrantless search of text messages
is valid as being incident to a lawful
custodial arrest. (
90-101.) Because here, probable cause to
arrest defendant existed before the phone was searched, this is so even though
the search preceded the formal arrest. (
413; see Sibron v.
40, 62-63, 67.)
Defendant’s
claim that trial counsel was ineffective for failing to advise defendant of
possible valid defenses to the drug possession charges — specifically those
under the Compassionate Use Act of 1996 (§ 11362.5) and the Medical
Marijuana Program (§ 11362.7 et seq.) — cannot be assessed on the record
on appeal. Accordingly it should be
presented by way of a petition for writ of habeas corpus. (See In
re Hochberg (1970) 2 Cal.3d 870, 875, disapproved on another ground in
1070, fn. 3; People v. Everett (1986)
186 Cal.App.3d 274, 279, disapproved on another ground in People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098 & fns. 7-9.)
Defendant’s
claim of ineffective assistance of appellate counsel fails because the record
does not establish deficient performance by appellate counsel.
After
independent review of the record, we have concluded there are no reasonably
arguable legal or factual issues on
appeal.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Kane, J. and Detjen, J.
name="_ftn2" title="">[1] Further
statutory references are to the Health and Safety Code unless otherwise stated.
