Santana v. Unknown
Filing
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ORDER Denying Petition for Writ of Habeas Corpus and DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY; ORDER Granting 35 Application for Leave to File Oversized Brief signed by Magistrate Judge Michael J. Seng on 08/04/2015. CASE CLOSED. (Flores, E)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Case No. 1:13-cv-02034 MJS (HC)
JOSE LUIS SANTANA
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v.
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ORDER DENYING PETITION FOR WRIT
Petitioner, OF HABEAS CORPUS AND DECLINING
TO ISSUE CERTIFICATE OF
APPEALABILITY
ORDER GRANTING APPLICATION FOR
LEAVE TO FILE OVERSIZED BRIEF (Doc.
35)
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FRED FOULK, Warden,
Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Respondent, Fred Foulk, Warden of High Desert
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State Prison is hereby substituted as the proper named respondent pursuant to Rule
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25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Mark A.
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Johnson of the office of the California Attorney General. Both parties have consented to
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Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 16, 24.)
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I.
PROCEDURAL BACKGROUND
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Petitioner is currently incarcerated pursuant to a judgment of the Superior Court of
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California, County of Kern, following his no contest pleas on July 19, 2010 of two counts
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of possession of methamphetamine, felon in possession of a firearm, possession of a
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loaded firearm in a vehicle, and felon in possession of ammunition. (Clerk's Tr. at 2121
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13.) On September 10, 2010, the trial court sentenced Petitioner to a determinate term of
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ten (10) years in state prison. Id.
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Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate
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District. (Lodged Doc. 1.) On May 30, 2012, the court struck a duplicative enhancement
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allegation, but otherwise affirmed the judgment. (Lodged Doc. 3.) Petitioner filed a
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petition for review with the California Supreme Court on July 10, 2012. (Lodged Doc. 4.)
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The Supreme Court summarily denied the petition on August 29, 2012. (Lodged Doc. 5.)
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Petitioner did not seek collateral review of his convictions in the state courts.
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Petitioner filed the instant federal habeas petition on December 2, 2013. (Pet.,
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ECF No. 1.) On March 11, 2014, Petitioner filed an amended petition that serves as the
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operative petition in this matter. (1st Am. Pet., ECF No. 12.) In the amended petition,
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Petitioner presents three claims for relief: 1) that his due process rights were violated
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due to the failure of the prosecution to disclose the reasons for police investigation and
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arrest of Petitioner; 2) that his due process rights were violated by the court not providing
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adequate time for defense counsel to investigate and argue his motion to withdraw his
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plea; and 3) that trial counsel was ineffective in presenting his motion to withdraw the
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plea. (1st Am. Pet.)
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Respondent filed an answer to the petition on June 11, 2014, and Petitioner filed
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a traverse to the answer on October 29, 2014. (Answer and Traverse, ECF Nos. 22, 34.)
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With respect to his traverse, Petitioner filed an application for leave to file an oversized
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brief, as the traverse is thirty-three (33) pages long. (ECF No. 35.) The application is
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hereby GRANTED. Accordingly, the matter stands fully briefed and ready for
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adjudication.
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II.
STATEMENT OF THE FACTS1
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INTRODUCTION
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On the evening of February 12, 2010, Officer Ryan Kroeker
conducted a traffic stop of appellant/defendant Jose Luis Santana's
vehicle in a motel parking lot, after Kroeker saw the vehicle traveling on
the wrong side of the adjoining road. Defendant admitted he was on
parole. As Kroeker attempted to conduct a parole search, defendant tried
to escape, but he was restrained by Kroeker and his partner. Defendant
was found in possession of over 100 grams of methamphetamine, a
loaded firearm was in his vehicle, and his motel room contained packaging
materials and ammunition.
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Defendant was arrested and charged with multiple narcotics-related
offenses. He filed a motion for disclosure of Officer Kroeker's confidential
personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d
531 (Pitchess), and claimed Kroeker's account of the traffic stop was false.
The court conducted an in camera hearing and ordered disclosure of
certain Pitchess information to defense counsel.
Defendant also filed a suppression motion and argued that Kroeker
performed an illegal traffic stop and his account of the incident was not
credible. During the suppression hearing, defense counsel extensively
cross-examined Kroeker as to his account of the traffic stop, but she did
not impeach Kroeker with any information obtained from the Pitchess
motion. She did not introduce any evidence to impeach Kroeker's
testimony that defendant said he was on parole. The court denied
defendant's suppression motion and found the traffic stop was valid based
on the officer's testimony that defendant had been driving on the wrong
side of the road. Thereafter, defendant entered into a negotiated plea to
the narcotics charges and was sentenced to 10 years.
During the course of the criminal proceedings, defendant was
represented by two deputy public defenders. Leticia Perez represented
him when the complaint was filed, when defendant rejected an initial plea
offer of six years, and at the preliminary hearing. Janice Kim filed the
Pitchess and suppression motions; represented him when he rejected a
plea offer of nine years; was the subject of defendant's motion pursuant to
People v. Marsden (1970) 2 Cal.3d 118 (Marsden); and she represented
defendant when he entered into the negotiated plea for a term of 10 years.
Defendant was represented by retained counsel, Arturo Revelo, at the
sentencing hearing when he received the 10-year term.
On appeal, defendant contends that the superior court should have
granted his motion to suppress the evidence, and asserts that Kroeker's
testimony about the traffic stop was not credible.
Also on appeal, defendant asserts that Mr. Revelo, his retained
attorney at the sentencing hearing, was prejudicially ineffective for failing
The Fifth District Court of Appeal’s summary of the facts in its May 30, 2012 opinion is presumed
correct. 28 U.S.C. § 2254(e)(1).
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to file a motion to withdraw his plea; defendant's three attorneys were
prejudicially ineffective because they failed to realize he was charged with
and admitted a duplicative fifth prior prison term enhancement; the
sentencing court improperly prevented defendant and Mr. Revelo from
pursuing a motion to withdraw his pleas and admissions; and the
sentencing court should have asked defendant to explain why he wanted
to file a motion to withdraw.
Defendant further requests this court to review the entirety of the
Pitchess proceedings to determine if the superior court should have
disclosed additional confidential records. We will strike defendant's
admission to a duplicative enhancement and otherwise affirm.[Fn1]
FN1: While the instant appeal was pending, defendant filed
a petition for writ of habeas corpus with this court, In re Jose
Santana (F063135). By separate order, we will deny
defendant's writ petition without prejudice. In this appeal,
however, we grant defendant's motion for judicial notice of
the existence of the writ petition and the issues raised
therein. In several footnotes in this opinion, information from
the petition for writ of habeas corpus is summarized solely
to provide a complete factual and legal history. Such
information was not relied upon by this court to resolve any
issues in this appeal. In this appeal, this court is also not
deciding any issues in the writ.
In his habeas petition, defendant contends Ms. Kim
was prejudicially ineffective during the suppression hearing
because she failed to investigate and introduce
impeachment evidence against Officer Kroeker based on
the Pitchess information that was disclosed to the defense.
Defendant further contends that Ms. Perez and Ms. Kim
were prejudicially ineffective for failing to accurately
calculate his maximum possible exposure, which
purportedly led him to turn down the prosecution's plea
offers of six and nine years; Mr. Revelo was prejudicially
ineffective for failing to discover various errors allegedly
committed by Ms. Perez and Ms. Kim, and failing to renew
his suppression motion; and all of his attorneys were
ineffective for failing to discover, and permitting him to
admit, the duplicative fifth prior prison term enhancement.
PART I
DEFENDANT'S ARREST AND THE CHARGES
We begin with Officer Kroeker's account of defendant's arrest,
based on his police report which was made part of the appellate record
during the Pitchess motion. According to the police report, Officers
Kroeker and Holcomb were on patrol in a marked patrol car on the
evening of February 12, 2010, on Olive Tree Court near Knudsen Drive in
Kern County. The report states they were driving behind a Toyota Prius,
and Kroeker noticed it was traveling on the wrong side of the road.
Kroeker activated the patrol car's flashing lights to conduct a traffic stop.
The Toyota pulled into the parking lot of Sleep Inn on Knudsen Drive.
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The report states that there were two people in the Toyota:
defendant was the driver and Breeann Oxford was the passenger. Officer
Kroeker contacted defendant while Officer Holcombe spoke to Oxford.
Kroeker noticed that defendant was very nervous. Kroeker asked
defendant if he was on probation or parole, and defendant said he was on
parole. Kroeker asked defendant to get out of the car for a parole search,
and defendant complied. Kroeker ordered defendant to put his hands
behind his head, and defendant turned and tried to run away. Kroeker held
onto defendant as he tried to run. Defendant kept trying to reach inside his
jacket for something, and kicked at Kroeker as he tried to escape.
Defendant ignored Kroeker's orders to stop. Officer Holcombe used his
baton and hit defendant twice on the left leg. Defendant went down, but he
put his hand inside his jacket, and Kroeker thought he was reaching for a
weapon. Defendant continued to resist. Holcombe again hit defendant's
leg with his baton, and the officers were able to place defendant in
handcuffs.
According to the police report, Kroeker searched defendant and
found a bag, which contained approximately 111 grams of apparent
methamphetamine, and a small bindle, which contained 0.7 grams of the
same substance. Defendant had a room key for Sleep Inn. Officer
Holcombe found a loaded .32-caliber semiautomatic pistol in the Toyota.
Kroeker advised defendant of the warnings pursuant to Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda), and defendant agreed to answer
questions. Defendant said he tried to escape because he had a large
amount of methamphetamine. Defendant admitted the gun belonged to
him.
Defendant said he was staying in a room at Sleep Inn, and the key
belonged to his room. Kroeker and another officer entered the room with
the key and found digital scales, packaging materials, a substance which
appeared to be marijuana, and a large amount of ammunition.
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Also according to the police report, Kroeker interviewed Oxford,
defendant's passenger, after advising her of the Miranda warnings. Oxford
said she was a stripper and defendant had just picked her up and hired
her to perform a private dance for him. Defendant said they were going to
his residence. Oxford said they drove to two unknown houses, defendant
went inside for a few minutes, and then returned to the car. Oxford said
she noticed the patrol car's flashing lights as defendant pulled into the
motel's parking lot.
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The complaint
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Based on this incident, on February 18, 2010, a complaint was filed
in the Superior Court of Kern County charging defendant with count I,
possession of methamphetamine while in the possession of a loaded
firearm (Health & Saf. Code, § 11370.1, subd. (a)); count II, possession of
methamphetamine for sale with a prior conviction for possession of
methamphetamine for sale (Health & Saf. Code, §§ 11378, 11370.2, subd.
(c)); count III, felon in possession of a firearm (Pen. Code,[fn2] § 12021,
subd. (a)(1)); count IV, possession of a loaded firearm in a vehicle (§
12031, subd. (a)(2)(A)); count V, felon in possession of ammunition (§
12316, subd. (b)(1)); and count VI, misdemeanor resisting arrest (§ 148,
subd. (a)(1)).
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FN2: All further statutory citations are to the Penal Code
unless otherwise indicated.
As to counts I through V, it was alleged that defendant had served
five prior prison terms (667.5, subd. (b)).[fn3]
FN3: As we will explain post, the parties agree [*9] that the
complaint erroneously alleged that defendant had five prior
prison term enhancements. Defendant had served only four
prior prison terms, and allegation Nos. 4 and 5 were
duplicative and based on the same prior conviction. This
pleading error continued in both the information and
amended information. Defendant admitted the duplicative
fifth enhancement when he entered his pleas, but he was
only sentenced based on four enhancements. As we will
explain post, however, the error was not prejudicial and it did
not affect defendant's sentence.
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Also on February 18, 2010, defendant pleaded not guilty and
denied the enhancements, and the court appointed the public defender's
office to represent him.
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Rejection of plea offer
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On March 3, 2010, defendant appeared with Deputy Public
Defender Leticia Perez for the pre-preliminary hearing. The court stated
that defendant had received an offer to plead to count II, possession of
methamphetamine for sale, and admit the Health and Safety Code section
11370.2 allegation, for a total of six years. Ms. Perez stated defendant had
rejected the plea offer.
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On March 4, 2010, the preliminary hearing was held and defendant
was held to answer.
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The information
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On March 9, 2010, the information was filed which alleged the
same six counts as in the complaint, and the same five prior prison term
enhancements as to felony counts I through V.[fn4]In addition, the
information further alleged as to the five felony counts that defendant was
personally armed with a firearm during the commission of the offenses (§
12022, subd. (c)).[fn5]
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FN4: As in the complaint, the information erroneously
alleged defendant had five prior prison term enhancements,
and allegation Nos. 4 and 5 were duplicative and based on
the same prior conviction.
FN5: In his writ petition, defendant contends that Ms. Perez
was prejudicially ineffective during the initial plea
negotiations because she failed to anticipate that he would
later be charged with this special allegation for possession of
a firearm, which would have increased his maximum
exposure by five years. Defendant asserts he would have
accepted the six-year offer if he had known his potential
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sentence. At this court's invitation during informal briefing on
the writ, Ms. Perez filed a responsive declaration regarding
her alleged ineffectiveness, and declares that she advised
defendant of his maximum exposure based on the charges
filed at the time, and not based on potential or unfiled
charges.
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On March 15, 2010, defendant pleaded not guilty.
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PART II
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PRETRIAL MOTIONS
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The Pitchess motion
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On May 4, 2010, defendant filed a Pitchess motion for discovery of
records regarding inmate or citizen complaints against Officers Kroeker
and Holcombe. The motion was prepared by Deputy Public Defender
Janice Kim.
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Defendant's Pitchess motion was supported by Ms. Kim's
declaration that Kroeker's police report contained material false
statements about the facts and circumstances surrounding defendant's
arrest. As to both officers, defendant sought discovery pertaining to acts
constituting threats and excessive force. As to Kroeker, defendant
requested discovery pertaining to acts constituting dishonesty and false
statements.
According to Ms. Kim's declaration, defendant disputed Kroeker's
entire account of the alleged traffic stop as stated in Kroeker's police
report. Defendant claimed he was not driving in front of a patrol car or on
the wrong side of the road, and that he was parked in Sleep Inn's parking
lot when the officers initially contacted him.
According to Ms. Kim's declaration, defendant further claimed that
he was sitting in his car when Kroeker ran up to the driver's side with his
gun drawn, pointed his weapon at defendant, and yelled "'Where's the
gun?'" Defendant said Kroeker never asked him about driving on the
wrong side of the road, and defendant never said he was on parole.
Defendant further claimed that he never tried to run away or kick
Kroeker. Instead, defendant got out of the car, and Kroeker pushed him to
the ground. Holcombe hit defendant's legs with his baton numerous times,
and defendant blacked out from the pain of the baton strikes. Defendant
claimed he never admitted that he had a large amount of
methamphetamine, made certain statements about the gun, said that he
lived in the motel, or that the room key belonged to him.
The Bakersfield City Attorney's office, as custodian of records, filed
opposition to defendant's Pitchess motion, but acknowledged that
defendant had shown good cause for an in camera review of Kroeker's
records for dishonesty and excessive force, and Holcombe's records for
excessive force.
Defendant's motion to suppress
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On May 5, 2010, defendant filed a motion to suppress pursuant to
section 1538.5. The motion was prepared by Ms. Kim. Defendant argued
the officers detained and searched him without a warrant and without
lawful justification. Defendant sought to suppress all the contraband found
by the officers when they searched the Toyota, defendant, and the motel
room, and suppress defendant's statements at the scene. The prosecution
filed opposition, and argued the officers had reasonable suspicion to
conduct the traffic stop because they saw defendant driving on the wrong
side of the road, and the searches were lawful pursuant to the terms of his
parole.
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The Pitchess hearing
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On June 7, 2010, Judge Bush conducted a hearing on defendant's
Pitchess motion and advised the parties that he would conduct an in
camera review of the confidential records for complaints about threats and
excessive force as to Officers Kroeker and Holcomb, and for false reports
as to Officer Kroeker.
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Thereafter, the court conducted the confidential hearing, and
ordered disclosure of certain information from Kroeker's files to the
defense. The court granted defendant's motion to continue the
suppression motion.
PART IV
THE SUPPRESSION HEARING
On July 1, 2010, Judge Bush, who heard defendant's Pitchess
motion, conducted an evidentiary hearing on defendant's motion to
suppress. Defendant appeared with Ms. Kim.
Officer Kroeker's Testimony
Officer Kroeker was the first witness for the prosecution. Kroeker
testified that around 8:00 p.m. on February 12, 2010, he was on patrol
with Officer Holcombe in the area of Olive Tree Court and Knudsen Drive.
The Sleep Inn, Econo Lodge, and Motel 6 were all located at Knudsen
Drive and Olive Tree Court.
Kroeker testified about his first observation of defendant's car:
"Initially, I observed the vehicle as I was in the northern parking lot of the
Econo Lodge. I noticed that it appeared to be traveling on the wrong side
of the road from a distance. [¶] As I continued toward the vehicle, I noticed
that it was, in fact, traveling on the—in the eastern portion of the roadway
as it was traveling westbound, in violation of Vehicle Code [section]
21657." Kroeker testified there were no marked lines on the road, but
defendant's car was "definitely on that wrong side," a violation of Vehicle
Code section 21650.
Kroeker testified he conducted a traffic stop because defendant had
been driving on the wrong side of the road. Kroeker contacted defendant
in the driver's seat of the car, and defendant appeared very nervous.
Kroeker testified that he asked defendant if he was on probation or
parole, and defendant said he was on parole.
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Kroeker testified he asked defendant to get out of the car and put
his hands behind his head. Defendant got out but refused to put his hands
behind his head. Defendant started to run, Kroeker followed him, and
Kroeker was "able to grab a hold of him." Defendant ignored Kroeker's
orders to stop, and repeatedly tried to run away. Officer Holcombe used a
baton to take defendant into custody.
Officer Kroeker testified he arrested defendant for resisting arrest.
He searched defendant pursuant to the terms of his parole and also
incident to his arrest. Kroeker found approximately 0.7 grams of
methamphetamine in the right front coin pocket of defendant's pants.
Defendant was wearing a large coat, and Kroeker found a bag with 111
grams of methamphetamine in an inside coat pocket. Defendant also had
a cellphone, a small amount of cash, and a room key for Sleep Inn.
Officer Kroeker testified that Holcombe conducted a parole search
of defendant's car, and found a loaded .32-caliber handgun in the center
console.
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Kroeker testified he asked defendant where he was staying.
Defendant said he was staying in a room at the Sleep Inn, and the key
belonged to that room. Kroeker testified he conducted a parole search of
the motel room, and found two digital scales, packaging materials, a
narcotics smoking pipe, and 46 live rounds of .22-caliber ammunition.
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Defense counsel's cross-examination of Kroeker
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On cross-examination, defense counsel asked Kroeker to explain
where he was when he initially saw defendant's car. Kroeker said he and
Holcombe had been on patrol, and they turned onto Knudsen Drive. They
turned onto Olive Tree Court, and then turned into Econo Lodge's parking
lot. Kroeker testified he was in the northern parking lot of the Econo Lodge
when he first saw defendant's car.
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Kroeker testified that when he first saw defendant's car, it had
"turned onto Olive Tree Court from Knudsen," and it was driving
westbound "partially in the eastbound lane," which is "what caught my
attention." Defendant's car was the only vehicle traveling on the road.
Kroeker's patrol car was about a half-mile away in the Econo Lodge's
northern parking lot when he first saw defendant's car traveling on Olive
Tree Court. Kroeker testified he next saw defendant's car turn from Olive
Tree Court into Sleep Inn's parking lot.
Also on cross-examination, defense counsel asked Kroeker if he
contacted any member of Sleep Inn staff prior to conducting the traffic
stop of defendant's car. Kroeker replied, "I don't recall if I had or not."
Defense counsel asked Kroker if he or Holcombe contacted the motel staff
to ask about defendant. Kroeker replied, "I don't recall if we had gone in
prior. I know we went in after. I don't recall if we went in beforehand."
Defense counsel asked Kroeker if he was familiar with defendant
prior to arresting him that night. The prosecutor objected to the question
as beyond the scope of the suppression motion. Defense counsel replied
the question was relevant because defendant was going to argue the
traffic stop was pretextual. The court overruled the prosecutor's objection
and directed Kroeker to answer the question.
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Instead of answering the question, Kroeker advised the court that
he was claiming a privilege pursuant to Evidence Code section 1041.
Defense counsel asked the court to conduct an in camera hearing with
Kroeker. The court agreed and cleared the courtroom.
Thereafter, the court conducted an in camera hearing. After
completion of the hearing, the court recalled the parties into the
courtroom. The court advised the parties that it was going to uphold the
privilege. Defense counsel resumed cross-examination of Officer Kroeker,
and asked whether the only reason he stopped defendant's car was
because it was traveling in the wrong lane. Kroeker said yes. Defense
counsel asked if he had only contacted Sleep Inn staff on February 12,
2012. Kroeker said he did not recall if he had gone to the motel during the
week prior to February 12, 2012. Kroeker replied: "I don't believe so. It's
been several months now. I really don't recall."
Defense counsel asked Kroeker if he recognized defendant when
he initially approached the car. Kroeker said no. Kroeker admitted he
already had defendant's booking photograph, but based on the way
defendant looked that night, "it didn't stick out in my head when I initially
contacted him, no, until he told me his name."
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Defense counsel asked a series of questions and the court
overruled the prosecutor's repeated objections: "[DEFENSE COUNSEL]:
So on February 12, were you in that vicinity where you were—you said
that you were in the parking lot of the Econo Lodge. Were you looking for
[defendant]? [¶] ... [¶]
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"[KROKER]: Yes.
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"Q. You knew what vehicle he would be driving, correct? [¶] ... [¶]
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"[KROEKER]: I had a description of the vehicle."
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Defense counsel asked Kroeker why he was looking for defendant.
The prosecutor objected, Kroeker claimed the privilege, and the court
sustained the privilege based on the prior in camera ruling.
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Defense counsel pointed out that in his report, Kroeker wrote that
he was traveling from Knudsen Drive to Olive Tree Court when he saw
defendant's car. Counsel asked Kroeker if he failed to indicate in his report
that he was in the Econo Lodge's parking lot when he first saw
defendant's car, and Kroeker said yes.
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Breeann Oxford
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Breeann Oxford was called as a defense witness. She had been in
the car with defendant when he was searched and arrested by Officer
Kroeker. Oxford testified she was a dancer and worked for Top Notch
Adult Entertainment. Defendant had hired Oxford to perform a lap dance
and a show for him. She thought that she was going to perform for
defendant at Sleep Inn.
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Oxford testified that she first noticed the police car when defendant
was driving on Knudsen and turning into Sleep Inn. Defendant was driving
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northbound on Knudsen, while the patrol car was driving southbound on
Knudsen, in front of defendant's car and driving toward them.
Oxford testified that defendant pulled into Sleep Inn's parking lot,
parked, and turned off the car. After they had been parked for about two
minutes, two officers approached the driver's side window of the car. The
officers asked defendant for his name and to get out of the car. A few
minutes later, the officers asked Oxford some questions. Several more
patrol cars arrived about 10 minutes later.
Oxford testified she never noticed any lights from the patrol car.
She was confronted with her prior statement to the officers, that she saw
the patrol car's lights as they turned into the motel's parking lot. Oxford
said that she never made that statement, and she never saw any flashing
lights that night.
Oxford did not dispute Officer Kroeker's testimony that defendant
said he was on parole.
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Noe Esquivel
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Defense counsel called Noe Esquivel as a witness, who testified
that on the night of February 12, 2010, he was parked on the side of Olive
Tree Court, in front of Econo Lodge. He was with his girlfriend, Lorena
Chavez, and they were waiting to pick up some friends. He did not notice
any police cars when he arrived in that location, and he did not see any
moving vehicles.
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Esquivel testified that a couple of minutes after he parked, he
noticed a patrol car was behind him. The patrol car drove past Esquivel's
parked vehicle, and then it circled Econo Lodge, drove behind it, and
returned to the front. Esquivel testified the patrol car then drove across the
street and into the parking lot of Sleep Inn. The patrol car entered Sleep
Inn's parking lot from Olive Tree Court.
Esquivel testified he was concerned about the patrol car and kept
watching it because he didn't have a driver's license. Esquivel testified the
patrol car parked, the officer got out of the vehicle, and he approached a
gray car in Sleep Inn's parking lot. Esquivel admitted he did not notice the
gray car until the officer approached it.
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Esquivel testified he stayed in his own car during the entire
incident, and he was about 40 to 50 yards from the parked car. Esquivel
testified that he never heard a siren or saw flashing lights to pull over the
car that the officer approached. He thought the car had already been
parked because he never noticed any movement in Sleep Inn's parking
lot. "The only movement I followed was the officer when he crossed over
to the Econo Lodge. That's the only moving vehicle that I seen that
night.""THE COURT: ... Are you saying that the patrol car never turned on
its red lights?
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"[ESQUIVEL]: There was no sign of a car getting pulled over.
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"THE COURT: So the police officer simply parked his vehicle and
walked up to the gray car?
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"[ESQUIVEL]: Right."
Esquivel thought the officer reached for his hip as he approached
the car. He heard the officer tell the vehicle's occupant to get out. Esquivel
later noticed another officer approach the car. Several other patrol cars
arrived within two minutes.
Esquivel testified he did not know defendant or Breeann Oxford. He
got involved in this case because he had been picking up some girls that
night. The girls were dancers and strippers, and Esquivel knew them as
"Sherry" and "Lady Bug." Esquivel testified the girls knew defendant and
heard about his arrest. They told Esquivel about the incident. "And then
what they told me was a lot different from what I'd seen."
Esquivel admitted that in 2005, he had felony convictions for
violating section 496, subdivision (a), receiving stolen property, and
Vehicle Code section 10851, unlawfully taking or driving a vehicle.
Lorena Chavez
Lorena Chavez was called as a defense witness, and testified she
was in Esquivel's car that night. They were parked on the side of Olive
Tree Court, by Econo Lodge, when she saw a patrol car on Knudsen. The
patrol car drove into Econo Lodge's parking lot, drove around and behind
Econo Lodge, returned to the front, and then crossed the street to Sleep
Inn.
Chavez testified that she noticed a gray vehicle parked across the
street in Sleep Inn's parking lot. Chavez testified the gray vehicle was
already parked in Sleep Inn's parking lot when she first saw the patrol car.
She never saw any vehicle move or drive through Sleep Inn's parking lot.
Chavez never saw any flashing lights or heard a siren from the patrol car,
and she never saw the patrol car follow the gray car.
Chavez admitted that her driver's license was suspended, and that
she was convicted of receiving stolen property in 2004 and using force on
officers in 2005. She did not know defendant and had no relationship with
him. She got involved in the case when she was contacted by Esquivel's
friends, known as Sherry and Lady Bug.
Maria Arismendi
Maria Arismendi, the desk clerk at Sleep Inn, testified for the
defense. Arismendi testified that sometime in February 2012, police
officers contacted her at the motel about defendant and said they were
looking for him. They arrived around 5:00 p.m. or 6:00 p.m. She could not
recall if they showed her a photograph of defendant.
27
Arismendi testified that she told the officers that she had seen
defendant once or twice at the motel. Arismendi told the officers that
defendant once entered the office and asked for change for the vending
machine, and he said that he was staying at the motel. She did not tell the
officers which room defendant was staying in. Arismendi also thought she
went to high school with defendant, but they had not been friends.
28
Arismendi reviewed the motel's records and determined defendant
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was not registered as a guest at the motel. Defendant was staying in a
room that had been rented by Christina Lascano from February 11 to 13,
2010.
Arismendi was asked if she recognized Officer Kroeker, who was
sitting in the courtroom. Arismendi said she did not remember, but she
thought the officer would remember if he spoke to her.
Officer Kroeker's additional testimony
Officer Kroeker was recalled as a witness, and testified that he
never activated the patrol car's siren that night, and he only activated the
red lights on the side of the patrol car.
Kroeker testified that he never saw or spoke to Esquivel and
Chavez that night. Based on their descriptions of where they were parked,
Kroeker believed they would not have been able to see the red lights on
his patrol car when they were activated because "our red lights were
forward facing lights," based on the position of the flashing-light bar.
Kroeker testified that he activated the patrol car's red lights when
he was on Olive Tree Court. Based on the testimony of Esquivel and
Chavez, they would have been to the right of the patrol car. Kroeker
entered Sleep Inn's parking lot from the entrance on Olive Tree Court and
not from Knudsen. When Kroeker activated the red lights, defendant's car
was pulling into Sleep Inn's parking lot from the Olive Tree Court entrance.
"[DEFENSE COUNSEL]: So you were never actually behind that
vehicle, correct?
"A. Yes, I was momentarily because I pulled out onto Olive Tree
Court. It was making a left turn into the parking lot. I wasn't directly behind
it. I was behind it from a distance, but I was behind it.
"Q. About how far away?
"A. Well, as I pulled out on Olive Tree Court from the north parking
lot of the Econo Lodge, the vehicle was getting ready to make its descent.
That looks like it's probably—I don't know—30 or 40 yards, roughly. I was
behind it and then I accelerated. I was able to catch up to the vehicle as it
was stopping in the parking stall.
"Q. How long did that take you to travel?
"A. A few seconds. Five seconds, maybe."
Kroeker testified he interviewed Oxford that night, and she said that
she saw the patrol car's lights as defendant pulled into Sleep Inn's parking
lot.
27
The court asked Kroeker how he found out defendant was on
parole. Kroeker testified he contacted defendant from the driver's side of
the car, he noticed defendant was nervous, and he asked defendant if he
was on parole.[fn6]
28
FN6: Defendant did not introduce any evidence at the
26
13
1
suppression hearing to refute Officer Kroeker's testimony
that defendant said he was on parole.
2
The parties' arguments
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At the conclusion of the evidence, the prosecutor argued the
officers conducted a valid traffic stop because defendant violated the
Vehicle Code by driving on the wrong side of the road, and the searches
of defendant, his car, and his room were valid parole searches.
Defense counsel argued the officers were looking for defendant
because they had contacted the motel clerk to ask about his whereabouts.
"They were looking for him. This was a pretext contact. There was
no [probable cause], there was no driving on the wrong side of the road,"
and no justification for stop of defendant's car.
The prosecutor replied that Kroeker saw defendant's car driving the
wrong way when Kroeker pulled onto Olive Tree Court. As for the motel
clerk, she did not remember speaking to Kroeker, and she was not
specific as to the time or day when officers contacted her. The prosecutor
also argued that Oxford had given different stories about the incident, and
Esquivel and Chavez were not credible because they had prior convictions
of moral turpitude and they gave inconsistent statements.
The court's ruling
The court denied defendant's motion to suppress. "The officer's
testimony was very straightforward that he saw the traffic violation.
"When you look at or consider Ms. Oxford's testimony, she had
been picked up by the defendant, apparently, because she said they were
going to there, I believe was her words, something along those lines, to
have a lap dance. I assume she didn't mean inside the car. Yet the other
folks never saw this car moving, which means that when you put Oxford's
testimony together with the other two, it doesn't make sense because the
other folks said that this gray car never moved, and Oxford said we were
moving, saw the patrol car moving.
"Why were they just sitting there in that car? It doesn't make sense
why they would have been sitting in that car. They would have gotten out
and headed towards the room to have a lap dance. It doesn't make sense.
"There was a traffic violation, parole search. Motion denied."
PART V
REJECTION OF THE PLEA OFFER AND THE MARSDEN HEARING
Rejection of second plea offer
27
On July 2, 2010, Judge Bush conducted a trial confirmation
hearing. Defendant appeared with Ms. Kim. The court stated that
defendant's maximum exposure was 15 years, and he had received a plea
offer for nine years. Ms. Kim stated that they wanted to confirm for trial.
28
The court asked defendant if he understood that if he pleaded guilty
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or no contest, he would get nine years in prison. Defendant said he
understood. The court further advised defendant that if he went to trial and
was convicted of all charges, and all special allegations were found true,
he could get a maximum term of 15 years. Defendant said he understood.
The court asked if he still wanted to go to trial, and defendant said
yes.[fn7]
FN7: In his writ petition, defendant argues Ms. Kim was
prejudicially ineffective because she failed to properly
calculate his maximum possible exposure, since she
allegedly did not realize that he was charged with a
duplicative fifth prior prison term enhancement. At this
court's invitation during informal briefing on the writ, Ms. Kim
filed a declaration regarding her alleged ineffectiveness, and
declares that while she failed to notice the pleading error in
the information, she always knew that defendant only had
four prior prison term enhancements, all her plea
negotiations with the prosecution were based on the
existence of four and not five enhancements, and she
advised defendant that his maximum possible exposure was
18 years 8 months if he was convicted of all charges and
enhancements. Ms. Kim further declares that defendant
wanted a plea bargain of less than the six years which had
been originally offered, the prosecution offered nine years
after the suppression motion was denied, defendant refused
and said it was too much time, he demanded a counteroffer
of three years, and the prosecution rejected it.
The Marsden hearing
On July 19, 2010, an amended information was filed against
defendant, which was identical to the prior information. The amended
pleading corrected the dates of his prior convictions in support of the prior
prison term enhancements.[fn8]
FN8: The amended pleading corrected the dates of the
fourth and fifth prior prison term enhancements, but both
allegations were again duplicative and based on the same
prior conviction, which had been corrected to February 10,
2006.
Also on July 19, 2010, Judge Lewis called the matter for a jury trial.
Defendant appeared with Ms. Kim and made a Marsden motion to
discharge her. Judge Lewis transferred the matter to Judge Wallace to
conduct a Marsden hearing.
Judge Wallace presided over the Marsden hearing and asked
defendant to explain why he was dissatisfied with Ms. Kim. Defendant
complained that there were "a lot of lies that the police are putting forward"
about his case. Defendant said he had asked Ms. Kim to request all the
police reports from his arrest, because the police falsely claimed that they
stopped his car, but he was never stopped. He also wanted the
surveillance videos "from the place where I was arrested," which would
"prove everything and would prove that I was never stopped," and to find
out why the police drew their guns when they arrested him.
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Defendant complained Ms. Kim never introduced anything against
the arresting officer even though he had a record of false reports.
Defendant said that they got the personnel records and there were 12
complaints against the officers who arrested him. Defendant complained
Ms. Kim never told the court about this evidence.
The court asked Ms. Kim to respond. Ms. Kim stated the defense
investigator went to the arrest scene, contacted neighboring businesses,
and could not find any surveillance tapes that showed the incident.
As for the Pitchess motion, Ms. Kim explained the court granted the
Pitchess motion and she received certain information, but "my investigator
wasn't able to—there [were] no witnesses that we had been able to get in
contact with. So nothing came out of the Pitchess motion as far as our
investigation." Ms. Kim further explained: "And [defendant] mentioned
something about how I had never brought up some of the complaints from
the Pitchess motion at the time of a prior hearing. [¶] I believe that prior
hearing was a suppression motion, and at that time there was no—there
were no witnesses that came out of the Pitchess motion that we thought
we were able to get in contact with, so none of those Pitchess witnesses
were produced at the time of the suppression motion. So I could not bring
up the fact that these complaints existed without the witnesses being there
at the suppression motion."[fn9]
FN9: In defendant's writ petition, he argues Ms. Kim was
prejudicially ineffective for failing to introduce any evidence
which had been disclosed pursuant to Pitchess, to impeach
Kroeker's credibility at the suppression hearing. In support of
this argument, he has submitted declarations from three
people who had filed the disclosed internal affairs complaints
against Kroeker, and they declared that they could have
been easily located and would have testified against
Kroeker. In Ms. Kim's responsive declaration to the writ's
allegations, she declares that she is "quite certain" that she
checked the criminal records of these same three people,
they had criminal records, and they would not have been
good witnesses.
Ms. Kim also addressed the suppression motion. "At the
suppression motion I did call several witnesses, two witnesses; Noe
Escoville and Lorena Chavez were witnesses that [defendant] informed
me. My investigator was also able to find a witness, the motel clerk from
the motel that [defendant] was arrested in front of. And I did call that
person as a witness.
"The suppression motion, the issue was basically a stop, whether
the officers actually stopped [defendant] based on a traffic violation. And
the traffic violation was basically [defendant] crossing the lane of travel
and going into the opposite traffic. And that was pretty much the issue at
the suppression motion.
27
"So [defendant] mentioned something about me not bringing up the
fact that officers pulling out their weapons to [defendant], but that wasn't
an issue at the time of the suppression motion, so that wasn't brought up."
28
The court denied defendant's Marsden motion and found Ms. Kim
16
3
was doing "a good journeyman's job in representing you.""There is a finite
issue with the suppression motion that makes certain evidence that might
be relevant for trial, not relevant for the suppression motion. And again, it
is best for the defense not to disclose any more than is absolutely
necessary in order to properly present evidence on the issues that are
before the court."
4
PART VI
5
DEFENDANT'S PLEAS AND RETENTION OF MR. REVELO
6
Defendant's no contest pleas
7
Also on July 19, 2010, after defendant's Marsden motion was
denied, Judge Wallace reconvened the matter for the scheduled jury trial.
Defendant appeared with Ms. Kim.
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The court stated that the parties had met in chambers and agreed
to a disposition, that defendant would plead no contest to all charges and
admit all special allegations as set forth in the amended information, with
an indicated 10-year lid. Ms. Kim and the prosecutor agreed with the
court's statement, but the prosecutor stated that the People objected to
the proposed disposition.
The court asked defendant if "that [is] what you want to do," and
defendant said yes. The court advised defendant of his constitutional
rights, and defendant stated that he understood and waived his rights. Ms.
Kim stipulated to the factual basis for the pleas. The court stated: "I know
you have had an opportunity to discuss this matter at some length with
Ms. Kim," and asked if he had any further questions for the court or Ms.
Kim. Defendant said no.
Defendant pleaded no contest to count I through VI, and admitted
all the special allegations, as set forth in the amended information.[fn10]
The court set the sentencing hearing for August 2010.
FN10: In doing so, defendant admitted the duplicative fifth
prior prison term enhancements.
20
Relief of Ms. Kim and retention of Mr. Revelo
21
On August 11, 2010, Ms. Kim moved to continue the sentencing
hearing.
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On August 13, 2010, Judge Wallace convened the scheduled
sentencing hearing. Defendant appeared with both Ms. Kim and attorney
Arturo Revelo. The instant record does not contain a reporter's transcript
for this hearing. According to the minute order, however, the court granted
defendant's request to relieve Ms. Kim, and acknowledged that defendant
had retained Mr. Revelo to represent him. The court granted defendant's
pending motion to continue the sentencing hearing.
PART VII
DEFENDANT'S REQUEST
SENTENCING HEARING
TO
WITHDRAW
17
HIS
PLEA
&
THE
1
The probation report
2
According to the probation report, defendant was found in
possession of 112.75 grams of a substance containing methamphetamine.
Defendant was statutorily ineligible for probation, except in an unusual
case, because he had previously been convicted more than twice of a
felony. (§ 1203, subd. (e)(4).) The probation report further stated that even
if he was eligible for probation, he would be unsuitable because of his
lengthy criminal history, his four prior prison terms, he was on parole when
he committed the crime, and he admitted to officers that he was selling
methamphetamine to make his income.
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The probation report stated there were no mitigating circumstances
and four aggravating circumstances: his prior convictions were numerous;
the crime involved a large amount of narcotics; he was on probation and
parole when he committed the crime; and his prior performance on
probation and parole was not satisfactory.
The probation report recommended an aggregate term of 10 years,
based on the upper term of three years for count II, a consecutive term of
three years for the firearm allegation, and four consecutive one-year terms
for the prior prison term enhancements, with the terms for the remaining
counts stayed pursuant to section 654.[fn11]
FN11: The probation report stated that defendant only had
four prior prison terms, but did not state that the amended
information erroneously included a duplicative fifth
enhancement, or that defendant admitted the fifth
enhancement.
16
Defendant's request to withdraw his plea
17
On September 10, 2010, Judge Wallace convened the sentencing
hearing. Defendant appeared with Mr. Revelo. Mr. Revelo stated that
defendant wanted to file a motion to withdraw his plea because of "the
number of years he's getting as a sentence." The court said the number of
years was not a basis to move to withdraw the plea because "that was the
plea bargain."
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Mr. Revelo stated that defendant had just told him about this matter
shortly before the hearing. Mr. Revelo asked for some time to consult with
defendant so he could determine if there were legal grounds for a motion
to withdraw. The court agreed and trailed the matter so Mr. Revelo could
consult with defendant.
After a recess, the court reconvened the sentencing hearing. Mr.
Revelo advised the court that there was "no legal [cause] basis for
withdrawing the plea," and agreed to proceed with the sentencing
hearing.[fn12]
FN12: As we will discuss post, defendant argues on appeal
that the sentencing court improperly asked Mr. Revelo to
explain the basis for a motion to withdraw, Mr. Revelo was
prejudicially ineffective for failing to make the motion based
on the duplicative fifth enhancement, and the court was
18
required to ask defendant about the reason he wanted to file
a motion to withdraw. In his writ petition, defendant argues
Mr. Revelo was prejudicially ineffective for failing to
investigate the alleged ineffectiveness of Ms. Kim and Ms.
Perez, as the basis for a motion to withdraw.
1
2
3
Sentencing
4
The court reviewed the probation report and asked Mr. Revelo if he
had any comments. Mr. Revelo replied that he would submit the matter on
the probation report and the plea bargain. The prosecutor stated the plea
bargain was a "very fair and generous offer" of 10 years, and argued that
defendant should receive the entire 10 years because of his lengthy
criminal history and conduct in this case.
5
6
7
8
The court found there were no unusual circumstances to justify a
grant of probation, and defendant would be ineligible because of his prior
criminal history and failure to comply with the terms of probation. The
court found the aggravating circumstances were defendant's prior
numerous convictions, the large amount of narcotics involved in this case,
defendant was on both probation and parole when he committed the
offenses, and his prior performance on probation and parole had been
unsatisfactory. The only possible mitigating factor was that defendant
entered a plea and admitted wrongdoing. The court found the upper term
was justified and consistent with the plea bargain.
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12
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The court sentenced appellant to an aggregate term of 10 years,
based on the upper term of three years for count II, a consecutive term of
three years for the firearm enhancement, and four one-year terms for four
prior prison term enhancements. The court imposed and stayed the terms
for the other offenses.[fn13]
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16
FN13: In his writ petition, defendant argues Mr. Revelo was
prejudicially ineffective for failing to introduce mitigating
evidence at the sentencing hearing about his good
character, and failing to argue for a lesser term.
17
18
19
Notice of appeal/certificate of probable cause
20
On September 15, 2010, defendant filed a timely notice of appeal,
and the court granted his request for a certificate of probable cause as to
the denial of his suppression motion.
21
22
People v. Santana, 2012 Cal. App. Unpub. LEXIS 4073, 1-39 (May 30, 2012).
23
III.
GOVERNING LAW
24
A.
Jurisdiction
25
Relief by way of a petition for writ of habeas corpus extends to a person in
26
custody pursuant to the judgment of a state court if the custody is in violation of the
27
Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §
28
2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he
19
1
suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the
2
conviction challenged arises out of the Kern County Superior Court, which is located
3
within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court
4
has jurisdiction over the action.
5
B.
6
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death
7
Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus
8
filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,
9
114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of
10
Legal Standard of Review
the AEDPA; thus, it is governed by its provisions.
11
Under AEDPA, an application for a writ of habeas corpus by a person in custody
12
under a judgment of a state court may be granted only for violations of the Constitution
13
or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n.
14
7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in
15
state court proceedings if the state court's adjudication of the claim:
16
17
18
19
20
21
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
1.
Contrary to or an Unreasonable Application of Federal Law
22
A state court decision is "contrary to" federal law if it "applies a rule that
23
contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts
24
that are materially indistinguishable from" a Supreme Court case, yet reaches a different
25
result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06.
26
"AEDPA does not require state and federal courts to wait for some nearly identical
27
factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that
28
even a general standard may be applied in an unreasonable manner" Panetti v.
20
1
Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The
2
"clearly established Federal law" requirement "does not demand more than a ‘principle'
3
or ‘general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state
4
decision to be an unreasonable application of clearly established federal law under §
5
2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle
6
(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-
7
71 (2003). A state court decision will involve an "unreasonable application of" federal
8
law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at
9
409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the
10
Court further stresses that "an unreasonable application of federal law is different from
11
an incorrect application of federal law." 131 S. Ct. 770, 785 (2011), (citing Williams, 529
12
U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks
13
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the
14
correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541
15
U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts
16
have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.
17
Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established
18
Federal law for a state court to decline to apply a specific legal rule that has not been
19
squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419
20
(2009), quoted by Richter, 131 S. Ct. at 786.
21
2.
Review of State Decisions
22
"Where there has been one reasoned state judgment rejecting a federal claim,
23
later unexplained orders upholding that judgment or rejecting the claim rest on the same
24
grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the
25
"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198
26
(9th Cir. 2006).
27
unreasonable legal or factual conclusion, "does not require that there be an opinion from
28
the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.
Determining whether a state court's decision resulted from an
21
1
"Where a state court's decision is unaccompanied by an explanation, the habeas
2
petitioner's burden still must be met by showing there was no reasonable basis for the
3
state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does
4
not require a state court to give reasons before its decision can be deemed to have been
5
‘adjudicated on the merits.'").
6
Richter instructs that whether the state court decision is reasoned and explained,
7
or merely a summary denial, the approach to evaluating unreasonableness under §
8
2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments
9
or theories supported or, as here, could have supported, the state court's decision; then
10
it must ask whether it is possible fairminded jurists could disagree that those arguments
11
or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
12
Thus, "even a strong case for relief does not mean the state court's contrary conclusion
13
was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves
14
authority to issue the writ in cases where there is no possibility fairminded jurists could
15
disagree that the state court's decision conflicts with this Court's precedents." Id. To put
16
it yet another way:
17
19
As a condition for obtaining habeas corpus relief from a federal
court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.
20
Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts
21
are the principal forum for asserting constitutional challenges to state convictions." Id. at
22
787. It follows from this consideration that § 2254(d) "complements the exhaustion
23
requirement and the doctrine of procedural bar to ensure that state proceedings are the
24
central process, not just a preliminary step for later federal habeas proceedings." Id.
25
(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977).
18
26
3.
Prejudicial Impact of Constitutional Error
27
The prejudicial impact of any constitutional error is assessed by asking whether
28
the error had "a substantial and injurious effect or influence in determining the jury's
22
1
verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551
2
U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the
3
state court recognized the error and reviewed it for harmlessness). Some constitutional
4
errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.
5
Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659
6
(1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective
7
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the
8
Strickland prejudice standard is applied and courts do not engage in a separate analysis
9
applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n. 7 (2002). Musalin
10
v. Lamarque, 555 F.3d at 834.
11
IV.
REVIEW OF PETITION
12
A.
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Petitioner contends the trial court denied his rights to due process, confrontation,
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and counsel by permitting the arresting officer to avoid disclosing information provided
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him by a confidential informant, on which information the officer relied in arresting
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Petitioner. (Am. Pet. at 5.)
17
Claim One – Failure to Exclude Evidence
1.
State Court Decision
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Petitioner presented his claim in his direct appeal to the California Court of
19
Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the
20
Court of Appeal and summarily denied in subsequent petition for review by the California
21
Supreme Court. (See Lodged Docs. 3, 5.) Since the California Supreme Court denied
22
the petition in a summary manner, this Court “looks through” the decisions and
23
presumes the Supreme Court adopted the reasoning of the Court of Appeal, the last
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state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797,
25
804-05 & n.3 (1991) (establishing, on habeas review, “look through” presumption that
26
higher court agrees with lower court’s reasoning where former affirms latter without
27
discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000)
28
(holding federal courts look to last reasoned state court opinion in determining whether
23
1
state court’s rejection of petitioner’s claims was contrary to or an unreasonable
2
application of federal law under 28 U.S.C. § 2254(d)(1)).
3
In denying Petitioner’s claim, the Court of Appeal explained that:
4
I. The court properly denied defendant's motion to suppress
5
Defendant contends the court erroneously denied his motion to
suppress because he was illegally detained during the traffic stop.
Defendant argues there is no evidence that he violated the Vehicle Code
because Officer Kroeker's testimony was not credible and he gave
inconsistent statements about his observations of defendant's car
immediately prior to the traffic stop.
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A. Standard of Review
"The standard of appellate review of a trial court's ruling on a
motion to suppress is well established. We defer to the trial court's factual
findings, express or implied, where supported by substantial evidence. In
determining whether, on the facts so found, the search or seizure was
reasonable under the Fourth Amendment, we exercise our independent
judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
"The trial court, not the reviewing 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.] 'The
uncorroborated testimony of a single witness is sufficient to sustain a
conviction, unless the testimony is physically impossible or inherently
improbable.' [Citation.] To reject the statements given by a witness whom
the trial court has found credible, either they must be physically impossible
or their falsity must be apparent without resorting to inferences or
deductions. [Citation.]" (People v. Duncan (2008) 160 Cal.App.4th 1014,
1018.)
The phrase "inherently improbable" means that "the challenged
evidence is 'unbelievable per se,' such that 'the things testified to would
not seem possible.' [Citation.] The determination of inherent improbability
must be made without resort to inference or deduction, and thus cannot be
established by comparing the challenged testimony to other evidence in
the case." (People v. Ennis (2010) 190 Cal.App.4th 721, 725.)
B. Traffic stops
"The Fourth Amendment's protection against unreasonable
searches and seizures dictates that traffic stops must be supported by
articulable facts giving rise to a reasonable suspicion that the driver or a
passenger has violated the Vehicle Code or some other law. [Citation.]"
(People v. Durazo (2004) 124 Cal.App.4th 728, 731.) "A traffic stop is
lawful at its inception if it is based on a reasonable suspicion that any
traffic violation has occurred, even if it is ultimately determined that no
violation did occur. [Citations.]" (Brierton v. Department of Motor Vehicles
(2005) 130 Cal.App.4th 499, 510, italics omitted.) Reasonable suspicion
requires only that "the detaining officer can point to specific articulable
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facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in
criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.)
C. Analysis
Defendant contends he was illegally detained because Officer
Kroeker's testimony at the suppression hearing was not credible.
Defendant asserts that he was already parked at Sleep Inn when Kroeker
initially saw his vehicle, he did not violate any provision of the Vehicle
Code, Kroeker lacked reasonable suspicion to conduct any type of traffic
stop on his parked vehicle, and his version of the incident was established
by the defense witnesses.
As acknowledged by the superior court, the lawfulness of the traffic
stop and detention was dependent on a credibility conflict between Officer
Kroeker and the defense witnesses. While the evidence could have
resulted in different factual findings, we cannot say that no rational trier of
fact could have concluded that defendant was not driving on the wrong
side of the road or Kroeker's testimony was not credible. As we have
explained, the superior court is the exclusive judge of the credibility of
witnesses. The court found Kroeker's testimony was credible, there is
nothing in the record to suggest his testimony was inherently improbable,
and the court's credibility determination may not be disturbed on appeal.
(See. e.g., People v. Ennis, supra, 190 Cal.App.4th at p. 725; People v.
Duncan, supra, 160 Cal.App.4th at p. 1018.) While Officer Kroeker may
not have observed a particularly serious traffic violation, it was still a
violation sufficient to warrant a traffic stop and detention. (See, e.g.,
People v. McGaughran (1979) 25 Cal.3d 577, 582, 583 [defendant
traveling in wrong direction on a one-way street lawfully stopped]; People
v. Jardine (1981) 116 Cal.App.3d 907, 912-913 [officer observed two
traffic violations and could stop the van and issue citations: driving left of
center after making a turn and throwing an object from the van],
disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 1158,
1167.)
Defendant contends that Officer Kroeker's testimony at the
suppression hearing failed to state a violation of Vehicle Code section
21650, and that defendant's alleged driving may have been within one of
the statutory exceptions. Vehicle Code section 21650 states that "[u]pon
all highways, a vehicle shall be driven upon the right half of the roadway"
except for specific exceptions. One of the statutory exceptions is "[w]hen
placing a vehicle in a lawful position for, and when the vehicle is lawfully
making, a left turn." (Veh. Code, § 21650, subd. (b).)
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Defendant argues that while Kroeker claimed to have seen his car
driving on the wrong side of the road, defendant may have been preparing
to execute a left-hand turn and Kroeker "never testified how far over he
believed [defendant's] vehicle crossed into the other side of the roadway
or for how long." Defendant thus argues that Kroeker's testimony failed to
"negate the possibility that there was a left-hand turn exception," would
have entitled defendant to drive on the other side of the road to turn into
the parking lot, and Kroeker "failed to provide objective facts upon which
to justify a detention for violating Vehicle Code section 21650."
28
We note that in the civil context, where there is evidence that a
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party was driving his vehicle on the wrong side of the road in violation of
Vehicle Code section 21650, that party has the burden of justifying his
position on the highway pursuant to one of the enumerated statutory
exceptions. (See, e.g., Parker v. Auschwitz (1935) 7 Cal.App.2d 693, 696;
Musgrove v. Zobrist (1947) 83 Cal.App.2d 101, 103-104.) In any event,
Officer Kroeker repeatedly testified at the suppression hearing that he
conducted the traffic stop because he saw defendant's car driving on the
wrong side of the road. Defendant's witnesses claimed defendant's car
was already parked at Sleep Inn when the patrol car arrived. While
Oxford, defendant's passenger, testified that defendant turned into Sleep
Inn's parking lot, she disavowed her previous statement about seeing the
patrol car's flashing lights, and she claimed the officers suddenly arrived at
defendant's car and there was never a traffic stop. Based on the testimony
at the suppression hearing, there was no evidence to raise the possibility
that defendant was preparing to make a left turn at the time that Kroeker
saw him driving on the wrong side of the road.
Defendant asserts that Officer Kroeker detained him as part of an
illegal pretextual stop and an "impermissible ruse" to conduct a general
criminal investigation, and not to issue a citation for a Vehicle Code
violation. Defendant points to Kroeker's testimony at the suppression
hearing, that he had a description of defendant's car and he was looking
for him, and argues that defendant was the focus of Santana's
investigation and defendant never violated the Vehicle Code.
A traffic stop "is considered 'pretextual' when a law enforcement
officer observes or suspects a minor traffic infraction, and uses it to stop
the vehicle and search it for evidence even though the officer has no legal
basis to suspect the vehicle contains any illegal contraband or the
occupants are engaged in any criminal activity. [Citations.]" (People v.
Roberts (2010) 184 Cal.App.4th 1149, 1190.) However, an officer's
subjective intent or ulterior motive for the vehicle stop is not determinative
of its legality. (Whren v. United States (1996) 517 U.S. 806, 812-813;
People v. Roberts, supra, 184 Cal.App.4th 1149, 1189.)
As defendant acknowledges, however, the legality of an allegedly
pretextual stop was addressed by the United States Supreme Court in
Whren v. United States, supra, 517 U.S. 806, where the court held that "a
traffic-violation arrest ... [will] not be rendered invalid by the fact that it was
'a mere pretext for a narcotics search,'" and an officer's "[s]ubjective
intentions play no role in ordinary, probable-cause Fourth Amendment
analysis." (Id. at pp. 812-813; Arkansas v. Sullivan (2001) 532 U.S. 769,
772; see also People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558, fn. 1.)
Thus, "[s]topping defendant's vehicle for a seatbelt violation, even if done
as a pretext for the narcotics investigation, [is] entirely legal. [Citations.]"
(People v. Gomez (2004) 117 Cal.App.4th 531, 537; People v. Roberts,
supra, 184 Cal.App.4th 1149, 1191.)
At the suppression hearing, Kroeker admitted he had a description
of defendant's car, and he was looking for him. However, there is
substantial evidence to support the superior court's finding that Kroeker
also saw defendant's car traveling on the wrong side of the road in
violation of Vehicle Code section 21650, which provided reasonable cause
to conduct the traffic stop in this case. We find that defendant's
suppression motion was properly denied.
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II. The court's ruling on Officer Kroeker's claim of privilege
As explained in the factual summary, ante, Officer Kroeker refused
to answer certain questions at the suppression hearing when defense
counsel asked if he was familiar with defendant prior to arresting him that
night. Kroeker claimed a privilege pursuant to Evidence Code section
1041, the superior court conducted an in camera hearing, and it upheld
Kroeker's claim of privilege.
On appeal, defendant contends the court's ruling on Kroeker's
claim of privilege violated his due process right to confront and crossexamine witnesses. Defendant argues the privilege was inapplicable
because defense counsel never asked for the identity of any informant,
and counsel only asked Kroeker if he was already familiar with defendant
and why he was looking for him.
A. Evidence Code sections 1040-1041
Evidence Code section 1040 states that a public entity has a
privilege to refuse to disclose official information, and to prevent another
from disclosing official information, if the privilege is claimed by a person
authorized by the public entity to do so, and "[d]isclosure of the information
is against the public interest because there is a necessity for preserving
the confidentiality of the information that outweighs the necessity for
disclosure in the interest of justice ...." (Evid. Code, § 1040, subd. (b)(2).)
"Official information" means "information acquired in confidence by a
public employee in the course of his or her duty and not open, or officially
disclosed, to the public prior to the time the claim of privilege is made."
(Evid. Code, § 1040, subd. (a).)
Evidence Code section 1041 states:"(a) Except as provided in this
section, a public entity has a privilege to refuse to disclose the identity of a
person who has furnished information as provided in subdivision (b)
purporting to disclose a violation of a law of the United States or of this
state or of a public entity in this state, and to prevent another from
disclosing such identity, if the privilege is claimed by a person authorized
by the public entity to do so ...."
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In order to claim the privilege, the court must find that "[d]isclosure
of the identity of the informer is against the public interest because there is
a necessity for preserving the confidentiality of his identity that outweighs
the necessity for disclosure in the interest of justice; but no privilege may
be claimed under this paragraph if any person authorized to do so has
consented that the identity of the informer be disclosed in the proceeding.
In determining whether disclosure of the identity of the informer is against
the public interest, the interest of the public entity as a party in the
outcome of the proceeding may not be considered." (Evid. Code, § 1041,
subd. (a)(2).) This privilege applies if the information is furnished in
confidence by the informer to a law enforcement officer. (Evid. Code, §
1041, subd. (b)(1).)
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B. Analysis
27
Defendant contends the court's ruling on Kroeker's claim of
privilege violated his due process rights during the suppression hearing.
However, "'"there is a fundamental difference between a trial to adjudicate
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guilt or innocence and a pretrial hearing to suppress evidence. The due
process requirements for a hearing may be less elaborate and demanding
than those at the trial proper."' [Citation.] Thus, '"[a] defendant's interest in
availing himself of the exclusionary rule may, in exceptional
circumstances, be subordinated to safety precautions necessary to
encourage citizens to participate in law enforcement."' [Citation.] The
'strong and legitimate interest in protecting the informant's identity'
[citation] derives from the need to protect the safety of the informant and
the informant's family, the need to preserve the informant's usefulness in
current and future investigations, and the need to assure others who are
contemplating cooperation with law enforcement of their safety as well.
[Citation.]" (People v. Galland (2008) 45 Cal.4th 354, 364-365; see also
People v. Martinez (2005) 132 Cal.App.4th 233, 242.)
Our independent review of the entirety of the record reflects the
superior court properly conducted an in camera hearing to determine the
nature and validity of Kroeker's claim of privilege, and that the court
properly upheld Kroeker's claim of privilege under the circumstances. For
the same reasons, we also reject defendant's claim that appellate counsel
should have been allowed to review the transcript of the in camera portion
of the suppression hearing. (See, e.g., People v. Martinez, supra, 132
Cal.App.4th at pp. 241-242.)
We further note that after the superior court upheld Kroeker's claim
of privilege, defense counsel continued her cross-examination of Kroeker.
He admitted that before he already had defendant's booking photograph
that night, he was driving around the parking lot of Econo Lodge and the
vicinity of Sleep Inn because he was looking for defendant, and he had a
description of defendant's vehicle. When defense counsel asked Kroeker
why he was looking for defendant, Kroeker again claimed the privilege and
the court upheld Kroeker's claim.
Defendant concedes that defense counsel elicited this information
from Kroeker, and further "concedes that any error in permitting Kroeker to
exercise a privilege" was harmless. However, defendant argues that his
inability to learn why Kroeker was looking for him was prejudicial because
the answer was relevant to Kroeker's state of mind and potential bias.
Defendant posits that Kroeker could have been following guidelines from
the Bakersfield Police Department when he was looking for defendant, if
the Bakersfield Police Department had "a departmental policy to pursue
and investigate Hispanic drivers who commit minor Vehicle Code
violations" near the motels "but ignore minor violations committed by nonHispanic drivers."
We note that a superior court may uphold an officer's claim of
privilege if that claim satisfies the provisions of Evidence Code sections
1040 and 1041. Defendant's theories as to what might have been said
during the in camera hearing would not have satisfied the officer's
evidentiary burden. Having conducted our independent examination of the
confidential portion of the suppression hearing transcript, we are satisfied
that the superior court properly upheld Kroeker's claim of privilege
pursuant to the provisions of Evidence Code sections 1040 and 1041.
Santana, 2012 Cal. App. Unpub. LEXIS 4073 at 36-53.
28
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1
2.
Analysis
2
To the extent that Petitioner argues that the evidence leading to his arrest was
3
illegally obtained, his claim must fail. A federal district court cannot grant habeas corpus
4
relief on the ground that evidence was obtained by an unconstitutional search and
5
seizure if the state court has provided the petitioner with an "opportunity for full and fair
6
litigation of a Fourth Amendment claim." Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct.
7
3037, 49 L. Ed. 2d 1067 (1976); Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir.
8
2005). The only inquiry this Court can make is whether Petitioner had a fair opportunity
9
to litigate his claim, not whether petitioner did litigate nor even whether the court
10
correctly decided the claim. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996);
11
see also, Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (holding that because Cal.
12
Penal Code § 1538.5 provides opportunity to challenge evidence, dismissal under Stone
13
was necessary even when the petitioner never moved to suppress). Petitioner has not
14
asserted that he lacked an opportunity to present the claim in state court. As the state
15
courts explained on appeal, the trial court held an exhaustive suppression hearing,
16
including hearing testimony from the arresting officer and several defense witnesses.
17
Based on the evidence presented, the court found the arresting officer's testimony more
18
credible. It also found based on evidence presented that there was a traffic violation that
19
served as probable cause for the search. To the extent that the state court denied
20
Petitioner's claim based on admissibility grounds, Petitioner has not shown that he is
21
entitled to federal habeas relief.
22
Petitioner also claims that the prosecution improperly withheld the evidence
23
presented to the arresting officer from a confidential informant based on the California
24
official information privilege. See Cal. Evid. Code §§ 1040-41. To the extent that
25
Petitioner claims that his due process rights were violated by the improper withholding of
26
evidence, his claim fails.
27
"There is no general constitutional right to discovery in a criminal case."
28
Weatherford v. Bursey 429 U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977); see
29
1
also Wardius v. Oregon, 412 U.S. 470, 474, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1977) ("the
2
Due Process Clause has little to say regarding the amount of discovery which the parties
3
must be afforded"). The prosecution is constitutionally required to disclose only evidence
4
favorable to the accused and material to guilt or punishment. Brady v. Maryland, 373
5
U.S. 83, 87-88, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); see Strickler v. Greene, 527
6
U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) ("There are three
7
components of a true Brady violation: The evidence at issue must be favorable to the
8
accused, either because it is exculpatory, or because it is impeaching; that evidence
9
must have been suppressed by the State, either willfully or inadvertently; and prejudice
10
must have ensued.")
11
Nevertheless, the government has a limited privilege to withhold from disclosure
12
the identity of a confidential informant. Roviaro v. United States, 353 U.S. 53, 59-61, 77
13
S. Ct. 623, 1 L. Ed. 2d 639 (1957). "What is usually referred to as the informer's privilege
14
is in reality the Government's privilege to withhold from disclosure the identity of persons
15
who furnish information of violations of law to officers charged with enforcement of that
16
law." Id. at 59. However, "[w]here the disclosure of an informer's identity is relevant and
17
helpful to the defense of an accused, or is essential to a fair determination of a cause,
18
the privilege must give way." Id. at 60-61. There is no "fixed rule" regarding when
19
disclosure of an informant's identity is required; rather, the public interest in protecting
20
the flow of information must be balanced against the individual's right to prepare his
21
defense. Id. at 62. Whether disclosure is required "depend[s] on the particular
22
circumstances of each case, taking into consideration the crime charged, the possible
23
defenses, the possible significance of the informer's testimony, and other relevant
24
factors." Id. Before the court applies such a balancing test, however, the defendant must
25
show that he has more than a "mere suspicion" that the informant has information which
26
will prove "relevant and helpful," or will be essential to a fair trial. United States v.
27
Amador-Galvan, 9 F.3d 1414, 1417 (9th Cir. 1993).
28
Although Roviaro was not decided "on the basis of constitutional claims," the
30
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Supreme Court has stated that its subsequent affirmation in McCray v Illinois, 386 U.S.
2
300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967), which included constitutional claims,
3
suggests that "Roviaro would not have been decided differently" if constitutional claims
4
had been presented to the Supreme Court. United States v. Valenzuela-Bernal, 458 U.S.
5
858, 870 (1982).
6
The trial court found that Petitioner was not entitled to disclosure of the
7
confidential informant's identity or information provided by the informant because he had
8
not made a sufficient showing that the information was helpful to his defense. Petitioner
9
contends that his showing was sufficient because the information from the informant was
10
relevant to the arresting officer's state of mind and potential bias. However, the Court
11
determined that the officer's testimony regarding the traffic violation committed by
12
Petitioner to be credible. As such, the officer was able to conduct a traffic stop based on
13
"probable cause … that a traffic violation has occurred." Whren v. United States, 517
14
U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). "The fact that the alleged traffic
15
violation is a pretext for the stop is irrelevant, so long as the objective circumstances
16
justify the stop." United States v. Wallace, 213 F.3d 1216, 1219 (9th Cir. 2000). As the
17
officer's subjective reasons for initiating the stop are not relevant, the trial court's
18
decision to uphold the privilege was appropriate. The information withheld would not
19
have assisted Petitioner in his motion to suppress, which hinged on the court's
20
determination that there was probable cause to initiate an arrest, even if pretextual.
21
Furthermore, any alleged error was harmless. Despite the trial court upholding the
22
privilege, trial counsel elicited testimony from the officer that he was looking for
23
Petitioner, and had viewed Petitioner's photo on file, had a description of Petitioner's
24
vehicle and was driving in the area searching for Petitioner. Accordingly, Petitioner's
25
counsel was effective in presenting to the court evidence of the officer's potential lack of
26
credibility during the suppression hearing.
27
Thus, Petitioner has not shown more than a "mere suspicion" that the informant
28
had "relevant and helpful" information, or had information essential to a fair trial.
31
1
Amador-Galvan, 9 F.3d at 1417; see Roviaro, 353 U.S. at 62. In Roviaro, the Supreme
2
Court found that the defendant was entitled to disclosure of the informant's identity
3
because the informant was a participant in the narcotics transaction giving rise to the
4
criminal charges. The informant was the only witness to the transaction other than the
5
defendant, and thus the only person who could contradict the testimony of government
6
witnesses. In addition, there was testimony that at one time the informant denied
7
knowing the defendant or having seen him before. Id., 353 U.S. at 63-65. Here,
8
Petitioner presented no evidence that the informant, or the information provided by the
9
informant, related in any way to the motor violation that provided probable cause for the
10
stop.
11
The prosecution's failure to identify the confidential informant did not violate
12
Brady. As discussed above, the trial court ruled that the prosecution could withhold the
13
information, and the trial court's ruling comported with the Supreme Court's analysis in
14
Roviaro. Moreover, Petitioner has not shown that the informant would have provided
15
favorable evidence, or that he was prejudiced by the nondisclosure. See Strickler, 527
16
U.S. at 281-82. There was no Brady or Roviaro violation.
17
In his traverse, Petitioner also argues that the trial court's refusal to order
18
disclosure of the informant's identity violated his Sixth Amendment rights under
19
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
20
because it prevented trial counsel from carrying out an adequate investigation. (Traverse
21
at 21-22.) The claim is without merit. Petitioner did not make a sufficient showing to be
22
entitled to disclosure of the informant's identity under Roviaro. Further counsel elicited
23
testimony from the officer that he was in possession of critical information regarding
24
Petitioner, inferring that the officer had consulted with an informant prior to the arrest. To
25
the extent such information was relevant to the court's determination of the officer's
26
credibility at the suppression hearing, counsel adequately presented the testimony to the
27
court. Petitioner has not made a showing that counsel's performance was deficient.
28
For the reasons stated, Petitioner has not shown that the trial court's refusal to
32
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order the prosecution to disclose the identity of the confidential informant violated his
2
constitutional rights, that his right to disclosure under Brady was violated, or that counsel
3
was ineffective.
4
The California Court of Appeal decision denying this claim was not contrary to
5
clearly established Supreme Court precedent. Accordingly, Petitioner is not entitled to
6
habeas relief.
7
B.
Claims Two and Three – Denial of Motion to Withdraw Plea
8
Petitioner, in his second and third claims, contends that the state court's denial of
9
his motion to withdraw his plea violated his due process rights, and that counsel was
10
ineffective for failing to argue adequate grounds at the hearing on the motion to withdraw
11
the plea. (Am. Pet. at 7.)
12
1.
State Court Decision
13
Petitioner presented his claims in his direct appeal to the California Court of
14
Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the
15
Court of Appeal and summarily denied in subsequent petition for review by the California
16
Supreme Court. (See Lodged Docs. 3, 5.) Since the California Supreme Court denied
17
the petition in a summary manner, this Court “looks through” the decisions and
18
presumes the Supreme Court adopted the reasoning of the Court of Appeal, the last
19
state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797,
20
804-05 & n.3 (1991).
21
In denying Petitioner’s claims, the Court of Appeal explained that:
22
IV. Defendant's request to withdraw his plea
23
Defendant next contends the sentencing court improperly refused
to consider his statement that he wanted to withdraw his plea. Defendant
complains the court should not have demanded defense counsel to
articulate a legal basis for a motion to withdraw, and the court failed to
allow counsel the appropriate time to investigate several matters which
should have been raised in a motion to withdraw.
24
25
26
27
28
A. Motions to withdraw
A defendant may move to withdraw his plea, at any time before
judgment, on a showing of good cause. (§ 1018.) "To establish good
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3
4
5
6
cause, it must be shown that defendant was operating under mistake,
ignorance, or any other factor overcoming the exercise of his free
judgment. [Citations.] Other factors overcoming defendant's free judgment
include inadvertence, fraud or duress. [Citations.] However, '[a] plea may
not be withdrawn simply because the defendant has changed his mind.'
[Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
"Postplea apprehension (buyer's remorse) regarding the anticipated
sentence, even if it occurs well before sentencing, is not sufficient to
compel the exercise of judicial discretion to permit withdrawal of the plea
of guilty. [Citation.]" (People v. Knight (1987) 194 Cal.App.3d 337, 344.)
8
"Although criminal defendants are entitled to competent
representation in the presentation of a motion to withdraw a plea,
appointed counsel may properly decline to bring a meritless motion.
[Citations.]" (People v. Brown (2009) 175 Cal.App.4th 1469, 1473, citing
People v. Smith (1993) 6 Cal.4th 684, 695-696.)
9
B. Analysis
7
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendant argues the sentencing court improperly imposed a
"limitation" on Mr. Revelo, when it asked him to articulate the basis for a
new trial motion. Defendant asserts his right to counsel was violated
because the court prevented Mr. Revelo from having time "to thoroughly
investigate the possible grounds upon which a motion might be brought."
Defendant concedes that Mr. Revelo never asked the court for
more time to investigate a motion to withdraw his plea, but argues that it
would have been futile for him to do so, based on the court's comments.
Defendant argues the court's demand for an articulated ground prevented
Mr. Revelo from conducting a thorough investigation into the possible
reasons to support a motion to withdraw his plea.
Contrary to defendant's characterization of the exchange, the
sentencing court did not improperly ask Mr. Revelo to state the basis for a
motion to withdraw the plea. The court did not make any comments that
would have led Mr. Revelo to believe that it would have been futile for him
to ask for a continuance to further investigate a possible motion to
withdraw defendant's plea. After defendant retained Mr. Revelo, the court
continued the sentencing hearing for one month. It was reasonable for the
court to presume that Mr. Revelo would have considered any appropriate
post-verdict motions during that time. When the court finally convened the
sentencing hearing, Mr. Revelo advised the court that he just learned that
defendant wanted to withdraw his plea because of "the number of years
he's getting as a sentence," but he did not know the specific reason. While
the court reminded Mr. Revelo of the plea agreement, it immediately
ordered a recess so Mr. Revelo could talk with defendant. After the
recess, Mr. Revelo advised the court that there was no legal basis for a
motion to withdraw.
The sentencing court did not make any comments which would
have limited defendant's right to effective assistance of counsel, or led Mr.
Revelo to believe that he could not have requested a continuance to
further investigate a possible meritorious motion to withdraw the pleas.
Instead, the record suggests that Mr. Revelo discussed the matter with
defendant and decided there was no valid basis to pursue such a motion.
It is well settled that trial counsel is not required to make tactical decisions,
34
1
2
3
4
5
6
7
8
9
undertake futile acts, or file meritless motions simply to withstand later
claims of ineffective assistance. (People v. Anderson (2001) 25 Cal.4th
543, 587; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5.)
V. The court's alleged duties at the sentencing hearing
Defendant raises a further issue regarding the sentencing court's
exchange with Mr. Revelo prior to the imposition of sentence. When Mr.
Revelo advised the court that there was no legal basis to file a motion to
withdraw, defendant asserts the sentencing court had certain
constitutional and statutory duties to review Mr. Revelo's decision not to
file a motion to withdraw defendant's pleas and admissions. Defendant
further argues the court was required to exercise its independent judgment
to determine whether defendant received effective assistance of counsel
as to all matters that occurred prior to the sentencing hearing, and conduct
a Marsden-type inquiry to determine if there was a valid reason for a
motion to withdraw the plea based on the ineffective assistance of any of
defendant's prior attorneys.
10
A. Eastman and Mendez
11
Defendant's arguments are based on a series of cases from this
court, which held that when a defendant seeks a new trial based on his or
her trial attorney's alleged incompetence, a trial court's duty to conduct a
Marsden inquiry is triggered. (People v. Mendez (2008) 161 Cal.App.4th
1362, 1366-1367 (Mendez); People v. Eastman (2007) 146 Cal.App.4th
688 (Eastman), cf. People v. Richardson (2009) 171 Cal.App.4th 479,
484-485.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Marsden imposes four requirements on a trial court under certain
circumstances. (Mendez, supra, 161 Cal.App.4th at pp. 1367-1368.) "First,
if 'defendant complains about the adequacy of appointed counsel,' the trial
court has the duty to 'permit [him or her] to articulate his [or her] causes of
dissatisfaction and, if any of them suggest ineffective assistance, to
conduct an inquiry sufficient to ascertain whether counsel is in fact
rendering effective assistance.' [Citations.]" (Id. at p. 1367, italics in
original.) "Second, if a 'defendant states facts sufficient to raise a question
about counsel's effectiveness,' the trial court has a duty to 'question
counsel as necessary to ascertain their veracity.' [Citation.]" (Id. at p.
1368, italics in original.) "Third, the trial court has the duty to 'make a
record sufficient to show the nature of [a defendant]'s grievances and the
court's response to them.' [Citation.]" (Ibid., italics in original.) "Fourth, the
trial court must '"allow the defendant to express any specific complaints
about the attorney and the attorney to respond accordingly."' [Citation.]"
(Ibid., italics in original.)
In People v. Brown (1986) 179 Cal.App.3d 207 (Brown), the
defendant's attorney informed the court at sentencing that the defendant
wanted to withdraw his plea, but that in her opinion, there was no "legal
basis" for such a motion, and she was not making the motion for him. (Id.
at p. 211.) The defendant told the court that at the time he entered his
plea, he "'wasn't in the right frame of mind'" because "'a death ... had [him]
shook up.'" (Id. at pp. 211and 213.) The defendant asked the trial court if
he could withdraw his plea and obtain another attorney, but the trial court
refused to grant either request. (Id. at pp. 211-213.)
35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Brown held the defendant was deprived of his right to make an
effective motion to withdraw his plea. (Brown, supra, 179 Cal.App.3d at
pp. 213-214.) Brown remanded the case to allow the defendant,
represented by counsel, to move to withdraw his plea, with instructions for
a Marsden hearing should counsel continue to refuse to bring the motion.
In doing so, Brown clarified that it was not suggesting that counsel was
required to make a frivolous motion or "compromise accepted ethical
standards." (Id. at p. 216.)
In People v. Osorio (1987) 194 Cal.App.3d 183 (disapproved on
other grounds in People v. Johnson (2009) 47 Cal.4th 668), the defendant
stated at sentencing that he wanted to withdraw his plea because "'he
didn't understand what he was pleading to.'" (Id. at p. 186.) Trial counsel
represented to the court that there appeared to be good grounds for a
motion to withdraw the plea but refused, "'in good conscience,'" to bring
the motion because withdrawal of the plea would result in reinstatement of
additional counts. (Id. at p. 188.)
Osorio relied on Brown and held that "counsel's representation to
the court that there was a colorable basis for the motion to withdraw the
guilty plea requires a similar disposition of the present appeal." (Osorio,
supra, 194 Cal.App.3d at p. 189.) Osorio remanded the case to allow
defendant to bring a motion to withdraw the plea. (Ibid.)
In People v. Eastman, supra, 146 Cal.App.4th 688, the defendant
entered a negotiated plea of no contest to two counts of lewd acts on a
child. At sentencing, defense counsel informed the trial court that the
defendant wanted to withdraw his plea and asked the trial court to appoint
substitute counsel to investigate whether a factual or legal basis existed
for the defendant to do so. (Id. at p. 690.) The trial court also received a
letter written by the defendant's mother, that defense counsel lied to the
defendant so he would agree to the plea. (Id. at p. 691.) The court
appointed a new attorney, and he subsequently stated he would not file a
motion to withdraw the plea because his investigation did not disclose any
grounds to do so. Defendant's first attorney then resumed his
representation of the defendant. (Id. at pp. 692-693.)
Eastman held the court should have held a Marsden hearing to
address defendant's complaints about his appointed counsel. (Eastman,
supra, 146 Cal.App.4th at p. 691.) Eastman held that by failing to hold a
Marsden hearing, the trial court denied the defendant the opportunity to
state his complaints about defense counsel on the record and failed to
discharge its duty of inquiry under Marsden. (Id. at pp. 696-697.) Eastman
further held the failure to hold a Marsden hearing required a conditional
reversal. (Id. at pp. 691, 697-698.)
"Marsden and its progeny require that when a defendant
complains about the adequacy of appointed counsel, the trial
court permit the defendant to articulate his causes of
dissatisfaction and, if any of them suggest ineffective
assistance, to conduct an inquiry sufficient to ascertain
whether counsel is in fact rendering effective assistance.
[Citations.] If the defendant states facts sufficient to raise a
question about counsel's effectiveness, the court must
question counsel as necessary to ascertain their veracity.
[Citations.]" (Eastman, supra, 146 Cal.App.4th at p. 695.)
36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
In People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez), however, the
California Supreme Court recently limited this court's interpretation of
Eastman and Mendez, and clarified that the "'the trial court's duty to
conduct a Marsden hearing [is] triggered by defense counsel's request for
appointment of substitute counsel to investigate the filing of a motion to
withdraw [the] plea on [defendant's] behalf.'" (Id. at p. 90, fn. 3.)
"We conclude that a trial court is obligated to conduct a
Marsden hearing on whether to discharge counsel for all
purposes and appoint new counsel when a criminal
defendant indicates after conviction a desire to withdraw his
plea on the ground that his current counsel provided
ineffective assistance only when there is 'at least some clear
indication by defendant,' either personally or through his
current counsel, that defendant 'wants a substitute attorney.'
[Citation.] We additionally hold that, at any time during
criminal proceedings, if a defendant requests substitute
counsel, the trial court is obligated, pursuant to our holding in
Marsden, to give the defendant an opportunity to state any
grounds for dissatisfaction with the current appointed
attorney. [Citation.] In turn, if the defendant makes a showing
during a Marsden hearing that his right to counsel has been
'substantially impaired' [citation], substitute counsel must be
appointed as attorney of record for all purposes. [Citation.] In
so holding, we specifically disapprove of the procedure
adopted by the trial court in this case, namely, the
appointment of a substitute or 'conflict' attorney solely to
evaluate whether a criminal defendant has a legal ground on
which to move to withdraw the plea on the basis of the
current counsel's incompetence." (Sanchez, supra, 53
Cal.4th at pp. 89-90, fn. omitted.)
19
In reaching this holding, Sanchez criticized Eastman and Mendez
because they "incorrectly implied that a Marsden motion can be triggered
with something less than a clear indication by a defendant, either
personally or through current counsel, that the defendant 'wants a
substitute attorney.' [Citation.]" (Sanchez, supra, 53 Cal.4th at p.90, fn. 3.)
20
B. Analysis
21
Defendant contends the sentencing court had the duty to conduct
the inquiries explained in Eastman and the other cases, based on
defendant's statement that he wanted to withdraw his plea, and Mr.
Revelo's subsequent statement that there was no legal basis to make the
motion. There are several problems with defendant's argument.
18
22
23
24
25
26
27
28
First, Eastman, Mendez, Brown, and Osorio are based on the
court's responsibilities under Marsden when a defendant expresses
dissatisfaction with his appointed defense attorney. The requirements of a
Marsden hearing, however, do not apply to cases where defense counsel
has been privately retained by the defendant. (People v. Ortiz (1990) 51
Cal.3d 975, 986; People v. Lara (2001) 86 Cal.App.4th 139, 152.)
At the time of the sentencing hearing, defendant was represented
by Mr. Revelo, his retained attorney. If defendant wanted to discharge Mr.
37
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Revelo, he was not required to make a Marsden motion, and the trial court
had discretion to grant a motion to discharge retained counsel under
certain circumstances. (People v. Lara, supra, 86 Cal.App.4th at p. 155.)
However, defendant gave no indication, either expressed or implied, that
he was dissatisfied with Mr. Revelo, he wanted to discharge or replace
him, or he wanted another attorney appointed to represent him.
Second, even if Eastman and the other cases applied to a situation
where defendant was represented by retained counsel, defendant never
advised the sentencing court that he had specific complaints against Mr.
Revelo or his prior defense attorneys, or that Mr. Revelo refused to file a
non-frivolous motion to withdraw his pleas and admissions. In Brown,
defendant told the court that he was not in the "'right frame of mind'" when
he entered his plea. (Brown, supra, 179 Cal.App.3d at p. 211.) In Osorio,
defendant stated that he "'didn't understand what he was pleading do.'"
(Osorio, supra, 194 Cal.App.3d at p. 186.) In Eastman, defense counsel
asked the court to investigate possible grounds for a motion to withdraw,
and the defendant's mother presented the court with a letter about
counsel's alleged lies and inducements to get the defendant to accept the
plea agreement. (Eastman, supra, 146 Cal.App.4th at pp. 960-961.)
In contrast, the defendant in this case never addressed the court,
he never expressed any dissatisfaction with Mr. Revelo or any of his prior
attorneys, he never asked for another attorney to represent him or
investigate a possible motion to withdraw, and his attorney never asked
the court to investigate the situation. Defendant's alleged dissatisfaction
with his sentence was more consistent with "[p]ostplea apprehension
(buyer's remorse) regarding the anticipated sentence" which is "not
sufficient to compel the exercise of judicial discretion to permit withdrawal
of the plea of guilty. [Citation.]" (People v. Knight, supra, 194 Cal.App.3d
at p. 344.)
We thus conclude that even if Eastman and the other cases apply
to a case where a defendant is represented by retained counsel, the
sentencing court was not presented with any type of situation to trigger a
Marsden-type of inquiry anticipated by Eastman and Mendez.
Santana, 2012 Cal. App. Unpub. LEXIS 4073 at 58-71.
2.
Applicable Legal Authority and Analysis
21
Based on the sequence of events described by the state court Petitioner presents
22
two alternate claims. First, Petitioner contends that the state court violated his due
23
process by not providing defense counsel adequate time to investigate and prepare
24
arguments in support of Petitioner's motion to withdraw his plea. Second, Petitioner
25
argues that counsel was ineffective in not presenting a sufficient argument to support the
26
motion to withdraw.
27
28
a.
Trial Court's Limitation on Time to Present Motion
In his state appeals, Petitioner argues that state law dictates that when a
38
1
defendant seeks a new trial based on his attorney's alleged incompetence, the trial court
2
is compelled to conduct a Marsden hearing regarding the competency of counsel's
3
representation. See People v. Sanchez, 53 Cal. 4th 80, 90 n.3 (2011). Even if such a
4
right exists under state law, Petitioner's claim fails.
5
First, the relief sought in the present petition is not cognizable under federal
6
habeas corpus. Federal habeas relief is available only to state prisoners who are "in
7
custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.
8
§§ 2241(c)(3), 2254(a). "In conducting habeas review, a federal court is limited to
9
deciding whether a conviction violated the Constitution, laws, or treaties of the United
10
States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991);
11
see also Swarthout v. Cooke, 562 U.S. 216, 131 S. Ct. 859, 861, 178 L. Ed. 2d 732
12
(2011) (per curiam) ("We have stated many times that federal habeas corpus relief does
13
not lie for errors of state law."). Accordingly, to the extent this claim challenges only the
14
trial court's application of state law, or alleges that the trial court abused its discretion,
15
such a claim does not set forth a cognizable ground for habeas corpus relief. See
16
Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998) (Federal habeas relief is available
17
"only for constitutional violation, not for abuse of discretion.").
18
Assuming that the trial court had a duty to determine if Petitioner's counsel was
19
acting competently but failed to do so, Petitioner does not explain how the court's failure
20
violated his due process rights. Under California law, a trial court only has a duty to
21
conduct a Marsden hearing after a plea if the defendant clearly indicates that he wants
22
substitute counsel. People v. Sanchez, 53 Cal. 4th 80 at 89. While Petitioner indicated
23
to the trial court that he wanted to withdraw his plea, he never indicated that the basis
24
was incompetence of counsel or that he wanted substitute counsel. Moreover, at the
25
time that he moved to withdraw his plea, he was represented by retained counsel, and
26
never attempted to fire counsel and seek the appointment of counsel by the court.
27
The Sixth Amendment entitles a criminal defendant to an attorney who
28
"'function[s] in the active role of an advocate.'" Plumlee v. Masto, 512 F.3d 1204, 1211
39
1
(9th Cir. 2008) (en banc) (quoting Entsminger v. Iowa, 386 U.S. 748, 751, 87 S. Ct.
2
1402, 18 L. Ed. 2d 501 (1967)). The right to counsel does not guarantee a "meaningful
3
attorney-client relationship," Morris v. Slappy, 461 U.S. 1, 13-14, 103 S. Ct. 1610, 75 L.
4
Ed. 2d 610 (1983), and an indigent defendant is not entitled to appointed counsel of his
5
or her choice. See United States v. Gonzalez-Lopez, 548 U.S. 140, 151, 126 S. Ct.
6
2557, 165 L. Ed. 2d 409 (2006); Schell v. Witek, 218 F.3d 1017, 1025-26 (9th Cir. 2000)
7
("The qualified right of choice of counsel applies only to persons who can afford to retain
8
counsel."). Nonetheless, a trial court faced with a motion to substitute appointed counsel
9
must make an appropriate inquiry on the record and resolve the motion on the merits
10
before moving forward. Schell, 218 F.3d at 1025. If the defendant and his counsel have
11
become "embroiled in irreconcilable conflict" such that continued representation falls
12
short of what is guaranteed by the Sixth Amendment, substitute counsel should be
13
appointed. Id. (quoting Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970)); see also
14
Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) ("[Forcing a defendant to go to
15
trial with an attorney with whom he has an irreconcilable conflict amounts to constructive
16
denial of the [] right to counsel.").
17
As Petitioner was represented by privately represented counsel, and never
18
expressed to the trial court dissatisfaction with counsel, the court had no reason to
19
inquire into whether Petitioner was adequately represented. Nor did the trial court deny
20
Petitioner appropriate due process in providing little time to present argument on the
21
motion to withdraw the plea. Counsel never requested additional time to investigate the
22
matter, and instead withdrew the request. Regardless, Petitioner has not shown that the
23
procedural errors of the trial court "violated the Constitution, laws, or treaties of the
24
United States." Estelle v. McGuire, 502 U.S. at 67-68. The trial court provided Petitioner
25
opportunities to present his motion to withdraw, and to the extent that the actions of the
26
court were inadequate, Petitioner has not provided any federal authority to support the
27
finding that his federal rights were violated.
28
Petitioner has not shown that the state court was unreasonable in denying his
40
1
claims that the trial court violated his rights in failing to investigate the competency of
2
counsel or provide Petitioner additional time to present his motion to withdraw his plea.
3
The state court's rejection of the claim was not contrary to, or an unreasonable
4
application of, clearly established Supreme Court precedent, or involved an
5
unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner is not
6
entitled to federal habeas relief on this claim.
7
Likewise, Petitioner has not shown that the conduct of counsel was ineffective.
8
Providing the state court decisions with appropriate deference for Petitioner's
9
contentions, there is at least a possibility that fair-minded jurists could agree with the
10
state court decision that Petitioner was not prejudiced by counsel's conduct.
11
The law governing ineffective assistance of counsel claims is clearly established
12
for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d).
13
Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998). In a petition for writ of habeas
14
corpus alleging ineffective assistance of counsel, the Court must consider two factors.
15
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lowry
16
v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's
17
performance was deficient, requiring a showing that counsel made errors so serious that
18
he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment.
19
Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell
20
below an objective standard of reasonableness, and must identify counsel's alleged acts
21
or omissions that were not the result of reasonable professional judgment considering
22
the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348
23
(9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential. A court
24
indulges a strong presumption that counsel's conduct falls within the wide range of
25
reasonable professional assistance. Strickland, 466 U.S. at 687; see also, Harrington v.
26
Richter, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).
27
Second, the petitioner must demonstrate that "there is a reasonable probability
28
that, but for counsel's unprofessional errors, the result ... would have been different,"
41
1
Strickland, 466 U.S. at 694. Petitioner must show that counsel's errors were so
2
egregious as to deprive defendant of a fair trial, one whose result is reliable. Id. at 687.
3
The Court must evaluate whether the entire trial was fundamentally unfair or unreliable
4
because of counsel's ineffectiveness. Id.; Quintero-Barraza, 78 F.3d at 1348; United
5
States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994).
6
To demonstrate ineffective assistance of counsel in the context of a challenge to a
7
guilty plea, a habeas petitioner must show both that counsel's advice fell below an
8
objective standard of reasonableness as well as a "reasonable probability" that, but for
9
counsel's errors, the petitioner would not have pleaded guilty and would have insisted on
10
going to trial. Hill v. Lockhart, 474 U.S. at 58-59 (holding that the two-part test of
11
Strickland v. Washington applies to challenges to guilty pleas based on the ineffective
12
assistance of counsel); Missouri v. Frye,
13
379 (2012) (reaffirming that Hill is properly applied to claims of ineffective assistance of
14
counsel in the context of acceptance of a plea bargain); Padilla v. Kentucky, 559 U.S.
15
356, 130 S.Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010) (stating that to obtain relief on this
16
type of claim, a petitioner must convince the court that a decision to reject the plea
17
bargain would have been rational under the circumstances).
U.S.
, 132 S.Ct. 1399, 1405, 182 L. Ed. 2d
18
As the state court reasonably found, Petitioner never expressed dissatisfaction
19
with the representation of his attorney at the time of his motion to withdraw or with the
20
prior attorneys who had represented him during the plea bargain process. In his federal
21
petition Petitioner argues that he told counsel at the time of the motion to withdraw the
22
plea that there were new witnesses and that Petitioner could retrieve new evidence.
23
(Am. Pet. at 7.) Even if Petitioner discussed such matters with counsel, the state court's
24
determination that counsel's decision not to present a meritless motion with the court is
25
not an unreasonable determination of federal law.
26
In light of the doubly deferential standard on federal habeas review, it is not
27
possible to find that the state court decision was unreasonable. While Petitioner asserts
28
that he provided counsel potential new information to support a motion to withdraw the
42
1
plea, the state court found that even with that information, counsel did not fall below the
2
norms of professional conduct in determining that petitioner did not have a valid basis to
3
move to withdraw the plea.
4
Petitioner has not met his burden of showing that there was a "reasonable
5
probability that... the result ... would have been different." Strickland, 466 U.S. at 694.
6
Fairminded jurists could therefore disagree with the correctness of the state court
7
decision that counsel's failure to present arguments in support of Petitioner's motion to
8
withdraw his plea was reasonable. Petitioner's claim of ineffective assistance of counsel
9
claim is without merit.
10
Accordingly, the state court adjudication of the claim did not result in a decision
11
that was contrary to, or involved an unreasonable application of, clearly established
12
Federal law, or result in a decision that was based on an unreasonable determination of
13
the facts in light of the evidence. 28 U.S.C. § 2254(d). Petitioner is not entitled to relief.
14
V.
15
CONCLUSION
Petitioner is not entitled to relief with regard to the claims presented in the instant
16
petition. The Court therefore orders that the petition be DENIED.
17
VI.
CERTIFICATE OF APPEALABILITY
18
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to
19
appeal a district court’s denial of his petition, and an appeal is only allowed in certain
20
circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute
21
in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which
22
provides as follows:
23
24
25
(a) In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal,
by the court of appeals for the circuit in which the proceeding is held.
27
(b) There shall be no right of appeal from a final order in a proceeding to
test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the
United States, or to test the validity of such person’s detention pending
removal proceedings.
28
(c)
26
(1) Unless a circuit justice or judge issues a certificate of
43
appealability, an appeal may not be taken to the court of appeals from–
1
(A) the final order in a habeas corpus
proceeding in which the detention complained
of arises out of process issued by a State
court; or
2
3
4
(B) the final order in a proceeding under
section 2255.
5
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of
the denial of a constitutional right.
6
7
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).
8
9
10
If a court denies a petitioner’s petition, the court may only issue a certificate of
appealability “if jurists of reason could disagree with the district court’s resolution of his
11
constitutional claims or that jurists could conclude the issues presented are adequate to
12
deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v.
13
McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the
14
15
merits of his case, he must demonstrate “something more than the absence of frivolity or
the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338.
16
In the present case, the Court finds that no reasonable jurist would find the
17
Court’s determination that Petitioner is not entitled to federal habeas corpus relief wrong
18
or debatable, nor would a reasonable jurist find Petitioner deserving of encouragement
19
to proceed further. Petitioner has not made the required substantial showing of the
20
denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a
21
certificate of appealability.
22
///
23
///
24
///
25
///
26
///
27
///
28
44
1
VII.
ORDER
2
Accordingly, IT IS HEREBY ORDERED:
3
1) The petition for writ of habeas corpus is DENIED;
4
2) The Clerk of Court is DIRECTED to enter judgment and close the case; and
5
3) The Court DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.
Dated:
August 4, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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