P. v. Ring
Filed 7/29/13 P. v. Ring CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARK ALAN RING,
Defendant and
Appellant.
G047315
(Super. Ct.
No. 10HF1919)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Frank F. Fasel, Judge. Affirmed.
Esther K. Hong, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Andrew Mestman and Steve Oetting, Deputy
Attorneys General, for Plaintiff and Respondent.
*
* *
A jury convicted Mark
Alan Ring of possession of
methamphetamine for sale (Health & Saf. Code, § 11378), and
Saf. Code § 11350, subdiv. (a)). Ring
contends his trial attorney rendered constitutionally ineffective assistance by
failing to bring a midtrial motion to suppress evidence (Pen. Code,
§ 1538.5, subd. (h))
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after a police officer testified she opened his car door, which Ring asserts
lacked legal justification. For the
reasons expressed below, we affirm.
I
Factual and Procedural Background
On October
23, 2010 around 12:30 a.m., Irvine Police Officer Nicole Frantz
observed Ring’s car blocking the driveway of a hotel parking lot. Ring was asleep in the backseat. After backup arrived, the officers approached
Ring’s car, knocked on the window, and shined flashlights in Ring’s face. Ring appeared disoriented. Frantz opened the rear passenger side door,
identified herself, and asked Ring what he was doing. He replied his vehicle had broken down and he
had called his daughter to pick him up.
The officer asked Ring to exit the vehicle, and asked him if he had
anything illegal inside. Ring said no. The officer asked if she could search his
person and he said “yes.†She then asked
if she could search his vehicle, and he replied “yes.â€
Searching
the vehicle, the officers found a black bag in the back seat next to where Ring
had been. The bag contained six smaller
Ziploc baggies, a spoon with white cotton, a small digital scale, two
methamphetamine pipes, a lighter, four syringes, papers with numbers written on
them, and two inoperable cell phones.
Ring had a third working cell phone on his person. Ring admitted the black bag belonged to
him. Five of the baggies contained
methamphetamine in various amounts. The
sixth baggie contained four hydrocodone pills.
A drug sales expert opined at least some of the methamphetamine was
possessed for purposes of sale.
Following
trial in January 2011, a jury found Ring guilty of possession of methamphetamine
for sale and possession of hydrocodone.
In June 2011, the court sentenced Ring to the middle term of two years
in prison for the methamphetamine conviction, plus three years for a prior
§ 11370.2, subd (c)).
II
Discussion
Before trial, Ring filed
a motion to suppress evidence as the
product of an illegal search or seizure (§ 1538.5). The prosecution filed opposition asserting,
among other things, sleeping in a vehicle at the time of the encounter violated
the city’s municipal code, and Ring appeared “possibly†under the influence of
a drug or alcohol. The prosecution also
asserted the initial contact was a “consensual encounter†and Ring subsequently
agreed to a search of the vehicle.
Ring’s assigned deputy
public defender who filed the suppression motion resigned suddenly. Ring’s newly appointed deputy public defender
subsequently asked the court to take the suppression motion off calendar
because Ring refused to agree to a trial date continuance, explaining he was
“tired†and did not “want to come to court anymore.†The deputy public defender did not attempt to
file another suppression motion. Counsel
explained after trial during a Marsden
hearing he did not file a motion because he had been assigned to the case four
days before trial and Ring “was positive†and “confirmed it . . . multiple
times†“that he did not want to waive time†and continue the trial. Counsel explained to Ring there would be no
motions without a time waiver. Counsel
also felt prior counsel’s motion to suppress lacked merit because it did not
state specific allegations, and he did not want to argue the motion as
written. Counsel informed Ring a
suppression motion had only a “slim†chance of prevailing because the officer
would testify Ring had consented to the search.
Ring contends his trial
counsel acted ineffectively by failing to move to suppress evidence
(h). “To prevail on a claim of
ineffective assistance of counsel, defendant ‘must establish not only deficient
performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice.
[Citation.]’†(People v. Hart (1999)
20 Cal.4th 546, 623.) Prejudice occurs
only if the record demonstrates “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.†(Strickland v. Washington (1984)
466 U.S. 668, 694; People v. Lucero (2000) 23 Cal.4th 692, 728.) In the present context, the defendant must
demonstrate the suppression motion would have been successful (People v.
Gonzalez (1998) 64 Cal.App.4th 432, 437).
A meritless motion could
not affect the trial outcome and therefore an attorney does not render
ineffective assistance for failing to raise the issue. Even if the motion appears to have merit, but
“‘“the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation,†the claim on appeal must be rejected.’ [Citation.]â€
(People v. Mendoza Tello (1997)
15 Cal.4th 264, 266 (Mendoza Tello).)
Section
1538.5 provides in relevant part: “(a)(1) A defendant may move for the return
of property or to suppress as evidence any tangible or intangible thing
obtained as a result of a search or seizure on either of the following grounds:
was unreasonable. . . .†Ordinarily the
motion is made at the preliminary hearing, or at a special hearing before
trial. (§ 1538.5, subd. (i).) But subdivision (h) of section 1538.5
provides, “If, prior to the trial of a felony or misdemeanor,
the defendant was not aware of the grounds for the motion, the defendant shall
have the right to make this motion during the course of trial.†(Italics added.)
subdivision (h), a motion filed during trial would not have been successful
because Ring had an opportunity to bring the motion before trial, and he also
was aware of the grounds for bringing the motion. As noted above, Ring filed a motion to
suppress evidence seized from the car before trial, the prosecution opposed the
motion, and Ring elected to take the matter off calendar and proceed to trial
without recalendaring or filing another motion.
Ring refused to continue the trial to allow counsel to file a new
motion.
The record is clear the
defense was well aware before trial Frantz “opened Mr. Ring’s car door.†This
fact was contained in Frantz’s police report dated October 25, 2010, and
attached to Ring’s motion to discover officer personnel records (
Cal.3d 531; Pen. Code, §§ 832.5, 832.8) dated December 30, 2010, and filed with
the court January 3, 2011, the same day Ring filed the original motion to
suppress. Frantz wrote in her report, “I
opened the back passenger door and identified myself as an Irvine police
officer and asked the male if he needed assistance.†Frantz explained that while conversing with
Ring about why he was sleeping in the car and obtaining identifying
information, Frantz noticed “[Ring] appeared very confused and
disoriented. Believing that Ring could
possibly be under the influence of a drug or alcohol, coupled with the fact
that he was in violation of [the municipal code] and [Frantz] asked [Ring] if
he would step out of the vehicle, and he complied.†The same facts were mentioned in the
prosecution’s opposition papers to the original suppression motion. The facts of the encounter were certainly
known to Ring himself before trial since he was in the car at the time of the
search. Because Ring did not have the
right during trial to make a suppression motion under subdivision (h) the
failure to lodge such a futile motion does not constitute ineffective
assistance.
Ring’s arguments on
appeal are not entirely clear on whether he claims his lawyer acted
ineffectively in failing to file a suppression motion before trial. Regardless, a
motion to suppress evidence before or during trial was unlikely to succeed
based on the limited record before us. (Mendoza Tello, supra, 15 Cal.4th at p. 266.)
There is no evidence Frantz “entered
[] Ring’s car . . . without his consent.â€
(Italics added.) True, Frantz
a “warrantless search,†but one that evidently produced no evidence, and
directed Ring out of the car. The
officer acted reasonably in opening the door to investigate whether Ring
violated Irvine’s municipal code against sleeping in a vehicle and to ascertain
whether Ring was under the influence of drugs or alcohol. While conducting her investigation, the
officer was entitled to ask Ring to exit the car for officer safety purposes. (People
v. Harris (1986) 184 Cal.App.3d 1319, 1320 [officer properly told appellant
to get out of his vehicle “‘to make sure that he was okay and just check on his
well being’â€; no detention occurred because there was no indication appellant
was not free to leave]; Pennsylvania v.
Mimms (1977) 434 U.S. 106 [officer
safety is a legitimate reason to order a person out of their vehicle];
order that an intoxicated person get out of legally parked vehicle
permissible].) The limited record also
reflects Ring consented to the search of the car that followed. Consent to a search obtained from a person
who is legally detained is valid. (
163 [consent valid if not obtained by unlawful conduct].)
In any event, because no
suppression motion was brought, “[n]o one gave [the officer] the opportunity to
point to any specific and articulable facts justifying [her] actions. Nor did the prosecution have the opportunity
to offer some other possible reason not to suppress the evidence.†As the Supreme Court in Mendoza Tello, supra, 15 Cal.4th at p. 267 observed, “[p]erhaps, as the
majority below assumed, [the officer] would have had no good reason [to
search]. But perhaps he did have a
reason, of which defense counsel was aware, and which justified counsel’s
actions. Perhaps there was some other
reason not to suppress the evidence. An
appellate court should not declare that a police officer acted unlawfully,
suppress relevant evidence, set aside a jury verdict, and brand a defense
attorney incompetent unless it can be truly confident all the relevant facts
have been developed and the police and prosecution had a full opportunity to
defend the admissibility of the evidence.â€
The appellate record does not support Ring’s contention trial counsel
rendered constitutionally ineffective assistance in failing to bring a
suppression motion.
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III
Disposition
The
judgment is affirmed.
ARONSON,
J.
WE CONCUR:
O’LEARY, P.
J.
MOORE, J.
All further undesignated
statutory references are to the Penal Code unless otherwise indicated.
The clerk’s transcript contains
an order by the trial court denying Ring’s petition for writ of habeas
corpus. The order reflects Ring claimed,
among other things, counsel was ineffective for failing to file a pretrial
motion to suppress. The trial court
summarily denied the petition for failure to state a prima facie basis for
relief.
