Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC065347
Margulies, J.
Defendant George Nagatoshi Boyd appeals his conviction of one count of possession of methamphetamine. The court found him not guilty of a misdemeanor count of being under the influence of an illegal stimulant.
Defendant’s sole contention on appeal is that counsel provided ineffective assistance by failing to renew a motion to suppress evidence at trial based upon a urinalysis report that had been unavailable when his first motion to suppress was heard. We hold that defendant fails to demonstrate he received ineffective assistance of counsel, and affirm the judgment.
The statement of facts is based upon the evidence presented at the preliminary hearing, because defendant submitted the matter to the court on the preliminary hearing transcript.
On December 16, 2007, San Mateo Police Officer Colin Stewart observed a vehicle without a front license plate and stopped it. Officer Stewart observed that defendant was “moving about in his vehicle.” He was “licking his lips,” blinking his eyes rapidly, and avoided eye contact. Stewart asked defendant to get out of the vehicle, and administered a field sobriety test. Defendant’s radial pulse was elevated above the normal rate of 60 to 90 beats per minute to 130 beats per minute. His wrist muscles were “very tight and rigid.” Defendant’s pupils were constricted from the normal range of 4.5 to 6.0 millimeters to 2.0 to 2.5 millimeters and did not react to light. Defendant’s eyes also “bounced” as they tracked the officer’s index finger from left to right. Based upon these tests, and his training and experience, Officer Stewart concluded that defendant was under the influence of a controlled substance. When he asked defendant, “when was the last time he used a stimulant such as cocaine or methamphetamine,” defendant responded that he had used methamphetamine two days earlier.
Officer Stewart arrested defendant, and in a search incident to arrest he found a plastic baggie containing methamphetamine in defendant’s left jacket pocket. Officer Stewart also took a urine sample from defendant at the police station.
After the preliminary hearing, defendant moved to suppress the evidence. The court found the stop of the vehicle was justified by Officer Stewart’s observation that the front license plate was missing. It further found Officer Stewart’s observation that defendant was “nervous, licking his lips, blinking his eyes rapidly and fidgeting” provided reasonable suspicion to support further detention and administration of field sobriety tests, the result of which provided probable cause to arrest and conduct a search incident to arrest.
Defense counsel obtained the results of the analysis of defendant’s urine sample after the hearing on the motion to suppress. The results were negative for the presence of methamphetamine, but “positive for THC.” Defendant filed a second motion to suppress, arguing the lab results impeached Officer Stewart’s testimony that defendant’s behavior and response to the field sobriety test displayed symptoms of being under the influence of a stimulant such as methamphetamine. The court ruled that it lacked jurisdiction to hear a second pretrial motion to suppress, but told defendant he could renew the motion at trial.
Before trial defendant filed a motion to dismiss, arguing the prosecution had failed promptly to disclose the urinalysis report and the delayed disclosure violated his due process rights. The court ruled that although the lab results would weaken the case with respect to the charge of being under the influence of a stimulant, it did not find the results to be material to impeachment of Officer Stewart on the issue of reasonable suspicion for a detention or probable cause for the arrest. It further found defendant’s due process rights had not been violated because the results were disclosed prior to trial, and defendant had nearly six months following disclosure of the lab results to prepare for trial.
Defendant did not renew his motion to suppress at trial. He waived his right to a jury trial, and submitted the issue of guilt to the court based upon the preliminary hearing transcript and the lab results. The court acquitted defendant on the charge of being under the influence of a stimulant based upon the lab results, but found him guilty of possession of methamphetamine.
II. ANALYSIS
Defendant contends counsel rendered ineffective assistance by failing to renew the motion to suppress at trial. He asserts, had counsel renewed the motion, it is reasonably probable the court would have granted it because the negative test results for methamphetamine impeached Officer Stewart’s testimony regarding his observations of defendant’s behavior during the initial traffic stop. Defendant reasons that since Officer Stewart’s testimony was the primary evidence supporting the magistrate’s finding that Officer Stewart had a reasonable suspicion to detain defendant beyond the initial traffic stop and conduct the filed sobriety tests that led to the arrest and search, impeachment of Officer Stewart through introduction of the lab results would likely have resulted in a grant of a renewed motion to suppress.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (People v. Williams (1997) 16 Cal.4th 153, 214–215.)
The threshold problem with defendant’s ineffective assistance of counsel claim is that the record is silent as to the reasons why counsel did not renew the motion to suppress at trial. If the “record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel’s performance.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
In People v. Hinds (2003) 108 Cal.App.4th 897, the court applied this standard to conclude it could not find ineffective assistance of counsel based upon counsel’s failure to renew a motion to suppress before the superior court judge following arraignment when the record was silent as to counsel’s reasons. The court stated defense counsel had not had an opportunity to explain why the motion was not renewed, and “the availability of the plea bargain accepted by the defendant may have been dependent upon not further pursuing the suppression motion.” (Id. at p. 902.) The court, on the record before it, could not rule out the possibility of a satisfactory explanation for counsel’s failure to renew the motion to suppress, and therefore rejected the claim of ineffective assistance of counsel.
Similarly, we must reject defendant’s ineffective assistance of counsel claim because the record is silent as to defense counsel’s reasons for failing to renew the motion to suppress, and we cannot say, based upon the record before us, that there could be no satisfactory explanation for counsel’s omission. At least two possible explanations cannot be ruled out:
The first possibility is that, based upon the court’s denial of the motion to dismiss, defense counsel concluded renewal of the motion to suppress would be futile. (People v. Memro (1995) 11 Cal.4th 786, 834 [defense counsel need not “ ‘ “waste the court’s time with futile... motions” ’ ”]; People v. Harpool (1984) 155 Cal.App.3d 877, 886–887.) Defense counsel specifically asked whether, in denying the motion to dismiss, the court was finding “the fact that there is no stimulant in his system is not relevant to impeach” Officer Stewart. The court responded, “Yes.” It then clarified its reasoning, stating the absence of stimulant in defendant’s system meant “there isn’t a strong case” for the charge of being under the influence of a stimulant, but that it “still finds from the evidence there was a reasonable suspicion for a detention and probable cause for the arrest.” No doubt the ruling on the motion to dismiss did not technically preclude defense counsel from renewing the motion to suppress. Nonetheless, it would have been entirely reasonable for counsel to conclude the court’s ruling presaged the outcome, and that it would be wiser to allocate his time to other trial preparation. (See Lowry v. Lewis (9th Cir. 1994) 21 F.3d 344, 346 [counsel need not always make a motion to suppress on the false premise that a defendant has nothing to lose, because “defendant stands to lose... a significant quantity of his lawyer’s scarce time, and some of his lawyer’s credibility with the judge”.)
If counsel failed to renew the motion to suppress at trial because he deemed it to be a futile act, defendant’s ineffective assistance claim would also fail because counsel’s performance was within the standard of care. It is well established that counsel does not have a duty to make every possible motion, and it is not incompetent to refuse to make a motion that is futile. (People v. Memro, supra, 11 Cal.4th at p. 834; People v. Harpool, supra, 155 Cal.App.3d at p. 886.)
We also find defendant’s ineffective assistance of counsel claim fails because it is not reasonably probable that defendant’s motion to suppress would have been granted if renewed at trial. Defendant does not dispute that, if truthful, Officer Stewart’s observations of defendant’s behavior during the traffic stop provided reasonable suspicion to detain defendant and conduct sobriety tests and probable cause to arrest him for being under the influence of a stimulant. The fact that the urinalysis results did not confirm Officer Stewart’s suspicions does not lead inexorably, or even probably, to the conclusion that Officer Stewart did not observe the behavior he described. Officer Stewart himself acknowledged defendant’s demeanor could have been caused by factors other than stimulants, including adrenaline as the result of stress which can “mirror[] the effect of being under the influence of an illegal stimulant.” He explained he nonetheless concluded defendant was under the influence of an illegal stimulant based upon all of the circumstances including defendant’s avoidance of eye contact. It was highly likely that defendant in fact was experiencing tremendous stress as he talked with a police officer while concealing methamphetamine in his clothing, and that he therefore did display the nervousness and other symptoms Officer Stewart described. The lab results certainly established that Officer Stewart was mistaken about the cause of defendant’s behavior, but not that the behavior did not occur. We conclude, even if the court had considered the urinalysis results on a renewed motion to suppress, it is not reasonably probable that the court would have granted the motion. Therefore defendant’s ineffective assistance of counsel claim also fails because counsel’s omission did not result in any prejudice.
The second possible explanation is that counsel may have obtained some benefit for defendant by not renewing the motion to suppress and offering a slow plea based upon the preliminary hearing transcript and the urinalysis results that is not reflected in the record on appeal. (See People v. Hinds, supra, 108 Cal.App.4th at pp. 900–902.) Defendant himself acknowledges the record of the sentencing hearing “contains one cryptic reference to another case” at “line 35,” that the prosecutor asked the court to dismiss. Defendant nonetheless argues that, since the record does not affirmatively disclose the reasons for the dismissal of “line 35,” we should not presume counsel’s decision not to renew the motion to suppress was based upon some benefit or bargain with respect to another case. We agree that, on this record, such a presumption would not be appropriate, but it would be equally inappropriate to exclude this as a possible explanation. At a minimum, this record satisfies us that this is not a case in which there could be no reasonable explanation for defense counsel’s decisions not to renew the motion to suppress, and we therefore must reject the claim on appeal. (People v. Castillo, supra, 16 Cal.4th at p. 1015.)
The record contains no clear reference to new charges or another pending case against defendant, but a few months prior to the court trial a probation officer recommended the court revoke “Supervised O.R.” because defendant had tested positive for methamphetamine, and refused to complete testing for alcohol.
III. CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.