P. v. Solomon
Filed 7/16/12 P. v. Solomon CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
PETER PIERO
SOLOMON,
Defendant and Appellant.
A129352
(Contra
Costa County
Super. Ct. No. 5-100197-3)
A
search of the residence of defendant Peter Piero Solomon, conducted pursuant to
a warrant, yielded evidence of his illegal
possession of methamphetamine and items forbidden to defendant as a
convicted felon. After the trial court
denied defendant’s motion to quash or traverse the
of being a past‑convicted felon in possession
of a firearm and ammunition (Pen. Code, former §§ 12021, subd.
(a)(1), 12316, subd. (b)(1)), possession of methamphetamine for the purpose of
sale (Health & Saf. Code, § 11378), and the actual sale of that
controlled substance (Health & Saf. Code, § 11379). The trial court found true enhancement allegations
that defendant had two prior felonies (Pen. Code, § 667.5, subd. (b)), and
then sentenced him to state prison
for an aggregate term of three years and eight months.
Defendant
advances three contentions on this appeal.
First, defendant argues that his trial counsel was constitutionally
incompetent for not seeking suppression of the evidence on the additional
ground that the search was improperly conducted at night, which requires
reversal of all defendant’s convictions.
Second, defendant argues the jury was improperly instructed on the
principles of accomplice credibility, which assertedly requires reversal of the
two drug-related convictions. Concerning his second contention, defendant
faults the trial court for neglecting its duty to instruct the jury on the
applicable principles of law; if this approach fails, defendant again wants to
have responsibility placed on his trial counsel. Third, on the assumption that his first and
second contentions are valid, defendant asserts his trial counsel prejudicially
failed to move for acquittal on all charges at the close of the prosecution’s
evidence. We see no reversible error and
affirm.
Michael
Renschler was an employee of a gas station, a long-time user of methamphetamine,
and a friend of defendant, who sold him methamphetamine. On the evening of January 2, 2010, defendant
was on his way to the station to deliver some methamphetamine to Renschler when
he was spotted by Deputy Sheriff Pliler driving a vehicle without current
registration. At Pliler’s request,
Deputy McDevitt began observing defendant.
When
defendant got to the station, he exchanged a small bindle for cash from
Renschler. Defendant also asked
Renschler to retrieve “something†from the car ashtray, “hang on to it and he
will pick it up later.†Renschler
reached inside the car and pulled out of the dashboard ash tray a sandwich
baggie containing what Renschler assumed was methamphetamine. When defendant left the station, Deputy
McDevitt radioed what he had seen, namely, “a drug transaction,†to Deputy
Pliler.
Deputy
Pliler stopped defendant’s car. Deputy
McDevitt then arrived with a dog trained to detect the smell of
methamphetamine. The dog “alerted,â€
signaling the smell of a controlled substance.
However, although defendant had a considerable amount of cash, no
“contraband†was found on him or in his car.
The
deputies believed defendant was under the influence of a controlled
substance. After he was arrested for
that offense, the deputies took defendant back to the gas station. After a fair amount of questioning of
Renschler, the deputies concluded that he, too, was under the influence. Renschler refused permission to search the
gas station office, where he’d secreted the baggie taken from defendant’s
car. After the dog “alerted†in the
station office, Renschler admitted to have methamphetamine on him. The bindle defendant sold him was found in
Renschler’s wallet, and Renschler too was arrested. After he and defendant were taken to a police
station, Renschler told the deputies that he “bought the meth†from
defendant. He also revealed the location
of the baggie he took from defendant’s car.
The baggie contained a lump of white crystal substance that Deputy
McDevitt described as being of “golf-ball size.â€
Deputy
McDevitt applied for a warrant authorizing a search of defendant’s
apartment. The search, conducted the
next day, January 3, 2010, with the dog, produced the following: in the living room, a scale with
methamphetamine residue, a glass pipe for smoking methamphetamine, and “a
single .25 caliber unexpended bulletâ€; in the bedroom, “a .25 caliber
handgun with a magazineâ€; and in the kitchen, another scale and packaging that
matched that used in the bindle found on Renschler. Expert testimony established that the
substances seized were in fact methamphetamine.
The testimony of another expert constituted a basis for the jury
concluding that defendant possessed methamphetamine for the purpose of selling
it.
Defendant
did not testify or present evidence on his behalf.
Defendant’s
first contention is that his trial counsel was constitutionally incompetent
because, although he did move to suppress evidence generated by the search, he
did not do so on the ground that the warrant did not authorize nighttime
service of the warrant, and thus the search was conducted in violation of Penal
Code section 1533. Ordinarily, appellate
review of a suppression motion that was not made is problematic. (See People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [no direct review of counsel’s
failure to challenge legality of search].)
Here, however, a motion was made, and the factual basis for defendant’s
contention is uncontradicted. In these
somewhat unusual circumstances, we will address the merits of that contention.
Penal
Code section 1533 provides in pertinent part:
“Upon a showing of good cause, the magistrate may, in his or her
discretion, insert a direction in a search warrant that it may be served at any
time of the day or night. In the absence of such a direction, the warrant shall
be served only between the hours of 7 a.m. and 10 p.m.†There is no dispute that the warrant, which
was issued at 4:10 a.m. on January 3, 2010, did not authorize nighttime
service, and that defendant’s apartment was searched approximately 50 minutes
later at 5:00 a.m. Thus, a violation of
Penal Code section 1533 appears to have occurred.
However,
that is a matter of state law, and
suppression is required only if mandated by federal law. (Cal. Const., art. I, § 28, subd. (d);
601, 608; People v. Hines (1997) 15
Cal.4th 997, 1043-1044.) Following
adoption of the cited constitutional provision, California accepts the rule
that a violation of Penal Code section 1533 does not constitute a
federally-required rule of exclusion if the search was otherwise
reasonable. (Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 1467-1470;
see People v. Glass (1976) 56 Cal.App.3d
368, 372‑373.)
The
only federal counterpart to Penal Code section 1533 is Rule 41(e)(2)(A)(ii) of
the Federal Rules of Criminal Procedure.
Federal courts have not treated a violation of Rule 41 as compelling
suppression. (E.g., United States v.
Spencer (8th Cir. 2006) 439 F.3d 905, 913; United States v. Schoenheit (8th Cir. 1988) 856 F.2d 74, 76-77; United States v. Comstock (5th Cir. 1986) 805 F.2d 1194,
1205-1206.)
Defendant
aims to trump this body of precedent with a decision of the United States
Supreme Court, claiming that Jones v.
United States (1958) 357 U.S. 493 establishes that an unauthorized
nighttime residential search is a Fourth Amendment violation. Defendant’s claim is immediately suspect
because Jones involved a federal
prosecution, did not mention state law, and occurred three years before the
exclusionary rule was made applicable to the states in Mapp v. Ohio (1961) 367 U.S. 643.
Moreover, defendant is unable to point to any decision by a state or
federal court squarely holding that Jones
states a constitutional rule that is applicable to state prosecutions. And while it is true that
authorized by the magistrate’s warrant, and the Supreme Court did conclude that
the conviction “cannot be squared with the Fourth Amendment†(
subsequently made it clear that the sole constitutional dimension of
challenge the legality of a search. Otherwise Jones was only applying Rule 41.
(Rakas v. Illinois (1978) 439
U.S. 128, 132‑133, fn. 2; Alderman
v. United States (1969) 394 U.S. 165, 173, fn. 6.) Defendant does not argue that the search of
his residence, notwithstanding the issue of timing, was otherwise constitutionally
unreasonable. (See Rodriguez v. Superior Court, supra,
199 Cal.App.3d 1453, 1470.)
Defendant
has marshaled an impressive amount of material to substantiate his claim that
residential searches conducted at night were regarded as unreasonable by the
Framers. Whether we find it persuasive
of defendant’s thesis is unimportant.
What is important is whether defendant’s trial counsel could make a
reasonable tactical decision not to seek suppression on the ground appointed
appellate counsel has developed.
Assuming that he did not have had the benefit of the scholarship evident
in defendant’s opening brief, trial counsel could make that decision, based on
the absence of any authority interpreting Jones
as defendant now reads it, and counsel’s anticipation that if this new basis
for suppression was advanced the trial court would reject it on the basis of
chance of success rested with a suppression motion focused on a single
issue. Such a decision would be a
reasonable tactical choice, and thus insufficient to compel reversal. (E.g., Yarborough v. Gentry (2003) 540 U.S. 1, 8;
People v. Gutierrez (2009) 45 Cal.4th 789, 804-805;
Renschler
testified only with the benefit of a grant of immunity. His situation clearly obligated the trial
court to instruct the jury with CALCRIM 334, which it did, as follows:
“Accomplice
testimony must be corroborated.
“Before
you may consider the statement of Michael Renschler as evidence against the
defendant regarding the crime of possession of methamphetamine for sale, you
must decide whether Michael Renschler was an accomplice to that crime. A person is an accomplice if he or she is
subject to prosecution for the identical crime charged against the
defendant. Someone is subject to
prosecution if he or she personally committed the crime or if:
“One,
he or she knew of the criminal purpose of the person who committed the crime;
“And,
two, he or she intended to and did, in fact, aid, facilitate, promote,
encourage or instigate the commission of the crime, or participate in a
criminal conspiracy to commit the crime.
“The
burden is on the defendant to prove that it is more likely than not that
Michael Renschler was an accomplice.
“An
accomplice does not need to be present when the crime is committed. On the other hand, a person is not an
accomplice just because he or she is present at the scene of the crime, even if
he or she knows that a crime will be committed or is being committed and does
nothing to stop it.
“A
person who lacks criminal intent but who pretends to join in a crime only to
detect or prosecute those who may commit that crime is not an accomplice.
“A
person may be an accomplice even if he or she is not actually prosecuted for
the crime.
“If
you decide that a witness was not an accomplice, then supporting evidence is
not required and you should evaluate his or her testimony as you would that of
any other witness.
“If
you decide the witness was an accomplice, then you may not convict the
defendant of possession for sale of methamphetamine based on his or her
statement or testimony alone. You may
use the statement or testimony of an accomplice to convict the defendant only
if:
“One,
the accomplice’s statement or testimony is supported by other evidence that you
believe;
“Two,
that supporting evidence is independent of the accomplice’s statement or
testimony.
“And,
three, that supporting evidence tends to connect the defendant to the
commission of the crime.
“Supporting
evidence, however, may be slight. It
does not need to be enough by itself to prove that the defendant is guilty of
the charged crimes, and it does not need to be enough by itself to prove that
the defendant is guilty of the charged crimes, and it does not need to support
every fact mentioned by the accomplice in the statement or about which the
accomplice testified. On the other hand,
it is not enough if the supporting evidence merely shows that a crime was
committed or the circumstances of its commission. The supporting evidence must tend to connect
the defendant to the commission of the crime.
“Any
statement or testimony of an accomplice that tends to incriminate the defendant
should be viewed with caution. You may
[not], however, arbitrarily disregard it.
You should give that testimony or statement the weight you think it
deserves after examining it with care and caution and in light of all of the
other evidence.â€
Renschler’s
testimony has nothing to do with the possession of an illegal firearm and
ammunition. But defendant contends the
instruction was erroneous in limiting Renschler’s status as a possible
accomplice to the possession for sale charge, and not including the sales charge. Defendant further contends that the jury
should have been instructed with CALCRIM 335 that Renschler was an accomplice
as a matter of law.
“The
buyer of narcotics cannot be prosecuted for selling them to himself or herself,
hence is not an accomplice of the seller.
(People v. Hernandez (1968)
263 Cal.App.2d 242, 247.†(3
Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 98, p.
135.) In his brief, defendant cites five
other decisions supporting this rule, and only one (People v. Ramirez (1952) 113 Cal.App.2d 842) opposing it. From this supposed conflict, defendant offers
that we should choose “which decisional line to follow.†We already have. One of the five decisions cited by defendant,
People v. Freytas (1958) 157
Cal.App.2d 706, is from this court, and the most recent opinion on the point,
following Hernandez, is from another
Division of this District. (
766.) More significantly, our Supreme
Court appears to agree with us. (See
[in liquor possession case, court stated that “The later possession of the
purchaser is not the possession of the seller.â€].) We cannot fault the trial court for not
ignoring Freytas,
the court to flout these binding authorities and ask that the jury be
instructed that Renschler was an accomplice as a matter of law to both of the
drug charges.
Defendant’s
final contention is that his trial counsel should have moved for directed
acquittal on all counts pursuant to Penal Code section 1118.1, and was
incompetent in not doing so. The obvious
predicate for this contention is defendant’s assumption that his other
contentions will succeed. The preceding
discussion demonstrates that the predicate fails.
The
sole surviving particular is that a motion
for acquittal would have to have been granted because the prosecution
closed its case-in-chief without submitting proof of defendant’s status as a
convicted felon, an element of the gun and ammunition charges. The record shows that the prosecution’s final
witness left the stand during the morning session on June 7, 2010, and the
prosecution rested. When the afternoon
session commenced, the court advised the jury:
“The People have rested.
[¶] Mr. Lepie [defense counsel], I understand that you have a
stipulation that you would like to read into the record?†Defense counsel then told the jury “Ladies
and Gentlemen, Mr. Solomon and the prosecution have stipulated or agreed that
Mr. Solomon was previously convicted of a felony.†It is a reasonable inference that defendant’s
ex-felon status was deemed unworthy of the jury’s time because there was no
question of the prosecution’s ability to prove it, and both sides agreed to put
the information before the jury in the form of a stipulation. It is also reasonable to assume that such an
agreement had been reached before the prosecution rested its case-in-chief. Thus, if the motion for acquittal defendant
now embraces had been made, it might have evoked an outraged accusation of bad
faith by the prosecution. And the trial
court could have frustrated such a motion by simply permitting the prosecution
to reopen its case to establish what nobody denied, least of all trial counsel,
who was reasonably trying to avoid having the jury informed that defendant had
were three drug convictions and one for the identical weapons charge. Acting to prevent that damaging information
brought to the jury’s attention would obviously qualify as a reasonable
tactical objective.
All
the advanced instances of incompetent conduct have justifications within the
range of reasonable professional choice.
For this reason, and because we see no reasonable probability of a more
favorable result had trial counsel acted differently, all of the present
attacks on trial counsel’s competence must fail. (See, e.g., People v. Lopez (2008) 42 Cal.4th 960, 966; People v.
Maury
(2003) 30 Cal.4th 342, 389.)
The
judgment of conviction is affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
