P. v. McAteer

Filed 10/27/08 P. v. McAteer CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Reversed and remanded with direction.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Ivan McAteer appeals from the judgment entered following his plea of guilty to the sale or transportation of methamphetamine (Health & Saf. Code,  11379, subd. (a)) and his admissions that he previously had been convicted of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and previously had suffered a conviction for the transportation or sale of narcotics (Health & Saf. Code, 11370.2, subd. (a)). The trial court sentenced McAteer to seven years in prison. Because imposition of an enhancement pursuant to subdivision (a) of Health and Safety Code section 11370.2 resulted in an unauthorized sentence, we reverse the judgment and remand the matter to the trial court to allow McAteer to withdraw his plea should he choose to do so.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.^[1]

On the evening of February 20, 2007, Los Angeles Police Officer Noreen Herbert telephoned McAteer and made arrangements to meet him at the intersection of Lassen and Mason Streets in the County of Los Angeles. Herbert had indicated to McAteer that she wished to purchase 40, or $40 worth of narcotics. During one of their telephone conversations, McAteer told Herbert, who was dressed in plain clothes,  I can see you. Im on my way now. 

McAteer got out of the passenger side of a car, approached Herbert and asked her for the money. After Herbert gave to McAteer $40 of pre-recorded buy money, he told her to go down the block to a trailer park where he lived and to wait for him while he went to get the narcotics. McAteer then got back into the car and the female driver drove off.

Herbert went to the trailer park on Lassen and waited in front of McAteers trailer. Approximately 45 minutes later, McAteer arrived. When Herbert asked him if she could have the stuff, McAteer said,  No, not out here. Just come back to my [trailer].  Herbert did not wish to go into McAteers trailer. She told McAteer that she had to go and let [her] grandma know that [she] was going to be late. McAteer then walked with Herbert back toward his trailer. He pointed out which one it was and told Herbert that he would be waiting there for her.

When Herbert advised her cover officers that she would not be able to complete the narcotics transaction without going inside McAteers trailer, a group of uniformed officers, including Officer White, responded, knocked on McAteers door, entered the trailer and searched it. Inside the trailer, on a table in one of the bedrooms, White observed a baggie with a crystalline substance resembling methamphetamine[,] . . . a thin line of crystal, loose, also resembling methamphetamine . . . , [and] a glass pipe. A cell phone was sitting on an entertainment unit in the same room. McAteer told White that the drugs in that room were his, but that the locked bedrooms were his parents and the officers could not search them.

Herbert, a narcotics expert, testified she believed that McAteer possessed the substance found in his trailer for sale. She based her opinion on the fact that her undercover actions and those of McAteer were consistent with the call and delivery operation of buying and selling narcotics. Herbert explained that she, as [a] prospective buyer, called McAteer, a prospective dealer, asked him for a certain amount of narcotics, which he agreed to sell when they met at a particular specified location. Here, McAteer possessed approximately the amount of narcotics that Herbert had asked to buy.

It was stipulated for purposes of the preliminary hearing that one Zip-lock baggie taken from McAteers trailer contained .55 grams net weight of a substance containing methamphetamine. The $40 in prerecorded bills was found in the vehicle in which McAteer had ridden as a passenger.

2. Procedural history.

McAteer was charged by information with one count of the sale or transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a)) and one count of possession for sale of a controlled substance (Health & Saf. Code, 11378). It was further alleged that McAteer previously had been convicted of the serious felony of committing a lewd act upon a child under the age of 14 years (Pen. Code, 288, subd. (a)) within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that he had served prison terms for two prior felony convictions (Pen. Code, 667.5, subd. (b)) and that he had suffered a prior conviction for the transportation or sale of narcotics (Health & Saf. Code, 11370.2, subd. (a)).

On August 7, 2007, counsel for McAteer filed a notice of motion and motion to suppress evidence pursuant to Penal Code section 1538.5. Counsel asserted that [w]itnesses to the incident [had] reported that the officers version of events [was] not true, at least to the extent that no consent to search was requested, or given, by the defendant. It [was] on that basis that the defendant [sought the] suppression of all fruits of the aforementioned search.

A hearing was held on the motion on August 21, 2007. The parties initially stipulated that there had been no warrant to arrest McAteer or to search his residence. Los Angeles Police Department Detective Robert Holcomb then testified that on the evening of February 20, 2007, he and other officers in the L.A.P.D. narcotics buy team were involved in the surveillance of McAteer at his trailer on Lassen Street. After putting on a blue, L.A.P.D. raid jacket, Holcomb, accompanied by five or six other officers, approached McAteers trailer. As the officers reached the trailer door, McAteer opened it and walked outside. Holcomb identified himself as a police officer and asked McAteer whether the girl who had driven McAteer around earlier was in the trailer. McAteer said she was not, but that she lived in the trailer across the way. McAteer then started rambling about how he didnt do anything wrong, how there was no one else inside the trailer, how he didnt have anything. And if [the officers] didnt believe him [they] could check.

Holcomb sent four officers inside the trailer to search. When, several minutes later, the officers informed Holcomb that they had discovered narcotics, Holcomb went inside the trailer and saw a white, crystalline substance resembling methamphetamine. The officers who had entered the trailer informed Holcomb that some of the rooms inside were locked and the officers asked Holcomb if they should attempt to search them. Holcomb directed the officers not to attempt to search the locked rooms since they only had . . . consent to check for the other person and Holcomb had been informed that she was in the trailer across the way.

When Holcomb told McAteer about the locked doors, McAteer told the detective that the trailer belonged to his parents, that no one else was at home, that the girl they were looking for lived across the way and that he did not want the officers in his trailer any more unless they came with a warrant. At that point, Holcomb directed the officers to recover the narcotics they had found in plain view and to leave the trailer.

On McAteers behalf, defense counsel called as a witness Virginia Juarez. Juarez testified she lived in the trailer across from McAteers trailer. Sometime after 6:00 p.m. on February 20, 2007, Juarez and McAteer went to get ice cream and coffee and to return movies to two different video stores. Juarez was home and back in her trailer by 8:30 p.m. At approximately that time, Juarez heard a mans voice outside. She looked out her open bedroom window to see a man on a bicycle talking into his shirt. A short time later, several cars pulled into the trailer park and stopped in front of McAteers trailer. At least two of the vehicles were marked police cars.

Before the officers approached his trailer, McAteer came outside. No officer ever knocked on McAteers trailer door. Juarez heard someone tell McAteer to get down. Juarez then heard McAteer ask the detective if he had a warrant and the detective tell McAteer to  [s]hut the fuck up.  Holcomb never asked McAteer if he could search McAteers residence and McAteer never said  I didnt do anything. I aint got shit. You can go look[.] 

In denying McAteers motion to suppress evidence, the trial court stated, Initially, between Ms. Juarez and Detective Holcomb, I specifically believe Detective Holcomb and specifically disbelieve Ms. Juarez. [] Detective Holcombs testimony makes complete sense. Defendant gave a limited consent to search for other suspects. If the defendant gave a consent to search for property, there would be no issue relating to the closed doors. Detective Holcombs completely truthful.

At proceedings held on August 23, 2007, McAteer entered into a plea agreement under the terms of which he was to plead guilty to count one, the sale or transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a), admit the strike prior and admit the allegation that he previously had suffered a conviction for the transportation or sale of narcotics within the meaning of Health and Safety Code section 11370.2, subdivision (a). In exchange for his plea, the trial court was to sentence McAteer to a total term of seven years in state prison.

After waiving his right to a jury trial, his right to confront and cross-examine the witnesses against him, the right to present a defense and his privilege against self-incrimination, McAteer pleaded guilty to the sale or transportation of methamphetamine, admitted previously having been convicted of committing lewd conduct upon a child, a serious or violent felony within the meaning of the Three Strikes law, and admitted previously having been convicted of the sale of a controlled substance within the meaning of Health and Safety Code section 11370.2, subdivision (a).

For his conviction of the sale or transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) the trial court sentenced McAteer to the low term of two years in prison, doubled to four years pursuant to the Three Strikes law (Pen. Code,  667, subds. (b)(i), 1170.12, subds. (a)(d)). The trial court then imposed a three-year enhancement for McAteers admission he previously had been convicted of the sale of narcotics. (Health & Saf. Code, 11370.2, subd. (a).) In total, McAteer was sentenced to seven years in prison. The trial court ordered McAteer to pay a $200 restitution fine (Pen. Code, 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (Pen. Code, 1202.45), a $50 lab analysis fee (Health & Saf. Code, 11372.5, subd. (a)) and a $20 security fee (Pen. Code, 1465.8, subd. (a)(1)). McAteer was awarded 277 days of presentence custody credit consisting of 185 days actually served and 92 days of conduct credit. The trial court dismissed all remaining counts and allegations.

McAteer filed a timely notice of appeal on October 18, 2007.

This court appointed counsel to represent McAteer on appeal on January 22, 2008.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed February 25, 2008, the clerk of this court advised McAteer to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. After receiving several extensions, on April 2, 2008, McAteer filed a supplemental brief^[2]in which he asserted his trial counsel had been ineffective, there had been insufficient evidence to hold him to answer to the charges, the search of his trailer and seizure of the narcotics had been unlawful, the three-year enhancement imposed pursuant to Health and Safety Code section 11370.2, subdivision (a) was unlawful and his plea had been involuntary.

DISCUSSION

1. McAteers trial counsel was not ineffective.

McAteer claims his trial counsel refused to file a Romero^[3]motion to strike his prior conviction, failed to file a Pitchess^[4]motion and complaints regarding police officer misconduct, failed to provide McAteer with a copy of the tape recording from Officer Herberts wire and neglected to subpoena witnesses he had requested.

In assessing claims of ineffective assistance of trial counsel, we consider whether counsels representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a

reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)

Initially, McAteer fails to indicate what witnesses he wished to have testify that counsel did not call. Counsel called as a witness Juarez, the only other person who saw or heard any of the events leading to McAteers arrest. With regard to a tape recording made from Herberts wire, apparently no such recording exists. Herbert used the one-way wire simply to communicate with other officers.

As to counsels failure to file a Pitchess motion, a Romero motion and a complaint regarding the police officers conduct, McAteer has failed to show he suffered any detriment as a result of counsels choices. Counsel negotiated a plea agreement under the terms of which McAteer was sentenced to only seven years in prison when he faced a sentence of 13 years. Under these circumstances, McAteer has failed to show he suffered prejudice as a result of counsels tactical decisions.

2. McAteer was properly held to answer to the narcotics charges.

McAteer claims that, if Herberts wire communications had been tape recorded, the recording would have shown that he never offered to sell her drugs. Instead, he told the officer that he did not use drugs, but offered to take the $40 to buy alcohol to share with Herbert. Accordingly, the police had no cause to arrest him.

As noted above, Herberts wire communications were not tape recorded. At the preliminary hearing, Herbert testified she telephoned McAteer and made arrangements to meet with him to purchase $40 worth of narcotics. After Herbert gave to McAteer the $40 of prerecorded buy money, he told her to go down the block and wait at the trailer park, and that he was going to go get the narcotics for [her].

The trial court found Herbert credible and that her testimony was sufficient to hold McAteer to answer to the narcotics charges. (See People v. Maxwell (1979) 94 Cal.App.3d 562, 577-578.) There was nothing about [Herberts] testimony suggesting in any way that it was inherently improbable. (Id. at p. 578.)

3. The warrantless search of McAteers trailer was lawful and the trial court properly denied his motion to suppress evidence.

McAteer contends Detective Holcomb had no probable cause to enter his trailer to search for a female suspect. He stated the car he had been riding in was parked in front of the trailer across the street and, had the officers been watching, they would have seen Juarez enter her own trailer, not McAteers. In addition, McAteer claims he only gave the officers permission to search his person, not the trailer in which he lived. Finally, McAteer asserts he was taken into custody at gunpoint by a plain clothes officer who did not identify himself as a police officer, made to face a wall and told that, if he did not cooperate, his friends and family would also be arrested.

As the finder of fact in a proceeding to suppress evidence (Pen. Code,  1538.5), 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.] Accordingly, in reviewing the instant suppression order, we consider the record in the light most favorable to defendants as respondents since all factual conflicts must be resolved in the manner most favorable to the [superior] courts disposition on the [suppression] motion. [Citation.] But while we defer to the superior courts express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found. [Citations.] (People v. Woods (1999) 21 Cal.4th 668, 673-674.)

Here, at the hearing held on McAteers motion to suppress evidence, Holcomb testified that when the officers reached the trailer door, McAteer opened it and walked outside. Holcomb identified himself as a police officer and asked McAteer whether the girl who had driven McAteer around earlier that evening was in the trailer. McAteer said she was not and that she lived in the trailer across the way. McAteer then started rambling about how he didnt do anything wrong, how there was no one else inside the trailer, how he didnt have anything. And if [the officers] didnt believe him [they] could check. Holcomb then sent four officers inside the trailer to search. When several minutes later the officers informed Holcomb they had discovered narcotics, Holcomb went inside the trailer and saw a white, crystalline substance resembling methamphetamine.

On this record, the trial court properly decided the search of McAteers trailer was lawful. The trial court specifically found Holcomb to be credible and his determination McAteer gave to the officers permission to search the trailer is supported by substantial evidence. (See People v. Szabo (1980) 107 Cal.App.3d 419, 431 [Mrs. Csemer actually invited the police to investigate the apartment for possible armed individuals . . .].) Although, as the trial court indicated, McAteer gave a limited consent to search the trailer for other suspects, the officers could properly seize the narcotics found in plain view. Police officers do not have to blind themselves as to what is in plain sight . . . simply because it is disconnected with the purpose for which they entered the premises. [Citation.] Objects falling in plain view of a law enforcement officer who has a lawful right to be in a position to have that view are subject to seizure and may be introduced into evidence. (Id. at pp. 431-432.) The trial court properly denied McAteers motion to suppress evidence.

4. McAteer did not plead guilty to a strike offense.

McAteer asserts he unknowingly and involuntarily pleaded guilty to a strike offense. However, the sale or transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a) is not an offense referred to in the Three Strikes sentencing scheme. (See Pen. Code, 667, subd. (d).) Accordingly, McAteer did not acquire another strike when he entered his plea in the present case.

5. The trial court improperly imposed a three-year Health and Safety Code section 11370.2, subdivision (a) enhancement.

McAteer contends the trial court erred in imposing a three-year enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a). He asserts [t]here has been a washout period of five years between convictions. Apart from whether there has been a washout period, the enhancement provided for in subdivision (a) of Health and Safety Code section 11370.2 cannot be applied to McAteer.

The People charged, and McAteer admitted, having suffered a prior conviction for purposes of a Health and Safety Code section 11370.2, subdivision (a) enhancement. That subdivision provides in relevant part: Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law . . . a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment. (Italics added.) While the enhancement embodied in subdivision (a) of Health and Safety Code section 11352 applies to one convicted of section 11351, 11351.5 or 11352, McAteer pleaded guilty to a violation of Health and Safety Code section 11379.^[5]

Although the cases are varied, a sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. (People v. Scott (1994) 9 Cal.4th 331, 354.) Further, in computing ones sentence under a plea bargain, even though agreed to by the parties, the court may not give effect to an enhancement unauthorized by law. (People v. Harvey (1980) 112 Cal.App.3d 132,139.) It follows that the unauthorized sentence, which could not have been lawfully imposed must be vacated, and the trial court must give [McAteer], if [he] chooses, the opportunity to withdraw [his] plea since it cannot be honored. (People v. Baries (1989) 209 Cal.App.3d 313, 319; see In re Williams (2000) 83 Cal.App.4th 936, 945 [ Since the plea bargain cannot be carried out according to its terms, the orders entered on the basis of the plea bargain must be vacated ]; People v. Jackson (1981) 121 Cal.App.3d 862, 869 [That portion of the plea bargain having become impossible . . . to perform, the trial court had no alternative but to permit defendant to withdraw his pleas of guilty].)^[6]

APPELLATE REVIEW

We have examined the entire record and are satisfied McAteers counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court to allow McAteer to withdraw his plea should he choose to do so.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] The facts have been taken from the transcript of the preliminary hearing.

^[2] McAteer filed his contentions on a form entitled Petition for Writ of Error Coram Vobis/Nobis. However, because McAteer filed the document under the case number of this appeal and indicated it was an Appeal from the Judgment of the Superior Court, we deem the petition to be McAteers supplemental brief.

^[3]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

^[4]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

^[5]In a letter to the parties, this court asked them to brief [w]hether, since appellant pled guilty to the sale or transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a), the imposition of an enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a) was unauthorized. (See People v. Scott (1994) 9 Cal.4th 331, 354.) If imposition of the enhancement was unauthorized, what is the remedy?

Appellant filed a response on June 2, 2008.

The People, after having been granted a number of extensions, filed a response on August 15, 2008.

^[6] We note that subdivision (c) of Health and Safety Code section 11370.2, provides for a three-year enhancement of a conviction of Health and Safety Code section 11379 when the defendant previously has suffered certain other drug-related crimes. However, in the present case, the People charged in the information, and McAteer admitted, the enhancement set forth in subdivision (a) of section 11370.2. This court cannot simply alter the information and substitute subdivision (c) of section 11370.2 for subdivision (a). (See People v. Mancebo (2002) 27 Cal.4th 735, 750 [ Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise . . . ].)