Opinion
C079014
04-07-2017
THE PEOPLE, Plaintiff and Respondent, v. DEANDRE LERON STEWART, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF130056A)
After the preliminary hearing magistrate denied his motion to suppress evidence, defendant Deandre Leron Stewart entered a plea of no contest to one count of possession of a controlled substance for sale (Health & Saf. Code, § 11378) and admitted having one prior strike conviction within the meaning of the three strikes law. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Pursuant to negotiated disposition, the trial court sentenced defendant to serve two years eight months in state prison and imposed other orders.
Undesignated statutory references are to the Penal Code. --------
On appeal, defendant contends he has been deprived of his federal constitutional right to meaningful appellate review because the trial court did not retain the exhibits introduced during the combined preliminary hearing and hearing on his motion to suppress evidence, but instead returned the exhibits to the parties. Thereafter, one of the exhibits was apparently lost. Acknowledging any challenge to the magistrate's ruling on the suppression motion has been forfeited by his trial counsel's failure to renew that motion before the trial judge (see People v. Hinds (2003) 108 Cal.App.4th 897, 900 (Hinds)), defendant argues, "it is impossible to determine, without the missing exhibit, whether trial counsel provided ineffective assistance of counsel in failing to preserve" the issue for appellate review.
We disagree and affirm. As we explain, while the trial court should have retained the exhibits, defendant has not carried his appellate burden of demonstrating prejudice flowing from the failure to do so.
BACKGROUND
In January 2015, after a combined preliminary hearing and hearing on defendant's motion to suppress evidence of methamphetamine found in his possession the previous November, the magistrate denied the suppression motion and held defendant to answer on a criminal complaint charging him with possession of a controlled substance for sale. Thereafter, the prosecutor filed an information charging defendant with the same crime and alleging he had both a prior strike conviction and a prior narcotics conviction. At no time after the filing of the information did defendant renew his suppression motion. Instead, in exchange for dismissal of the prior narcotics conviction allegation and an agreed sentence of two years eight months, defendant entered a plea of no contest to possession of a controlled substance for sale and admitted the prior strike allegation.
The facts surrounding the seizure of methamphetamine defendant was convicted of possessing for sale are taken from the transcript of the combined preliminary hearing and hearing on the suppression motion. Officers Andrew Donovan and Sal Gomez were patrolling an area of Stockton at about 3:00 p.m. As they drove southbound on Manthey Road, at a speed of about 30 miles per hour, a silver Maserati driven by defendant approached their patrol car, at about the same speed, from the opposite direction. The Maserati did not have a front license plate, which prompted Officer Donovan to make a U-turn after defendant passed. Noticing the Maserati also did not have a rear license plate, but instead had a paper dealer plate in the license plate holder, the officer pulled defendant over for a suspected violation of the vehicle license requirements.
As Officer Donovan initiated the traffic stop, defendant pulled into the parking lot of the I-5 Inn on Manthey Road, where he was also staying. Officer Donovan asked for defendant's driver's license, which he provided, and also asked whether defendant was on probation or parole. When defendant answered he was on searchable probation, he was removed from the vehicle, searched for contraband, and handcuffed. According to Officer Donovan's testimony at the hearing, he did not notice the Maserati had a dealer's temporary permit taped to the front windshield before defendant was pulled over and admitted he was on searchable probation. Another officer, who arrived on the scene after defendant pulled into the motel parking lot, asked the desk clerk whether defendant was staying in one of the rooms. She confirmed he was. A subsequent search of this room uncovered the methamphetamine defendant was convicted of possessing for sale. Defendant admitted to one of the officers that the drugs were his, but claimed they were for personal use. However, Officer Jimmy Fritts, who was accepted by the magistrate as an expert in the possession and sale of methamphetamine, testified to his opinion the substance found in the motel room was possessed for purposes of sale.
With respect to the suppression motion, defendant's attorney argued there was "no reason for the stop" because the dealer's temporary permit was "displayed in the front window" and the rear license plate holder had a paper dealer plate in the license plate holder. Defendant's Exhibits 102-106, photographs of the Maserati, confirmed the presence of both the temporary identification and the paper dealer plate. Relying on In re Raymond C. (2008) 45 Cal.4th 303, the magistrate denied the suppression motion, finding Officer Donovan's testimony that he did not see the temporary permit to be credible and concluding the officer had reasonable suspicion the Maserati was being driven in violation of vehicle license requirements. (Id. at p. 307 [the officer "saw neither license plates nor a temporary permit before he made the stop"].)
Defendant appeals "based on the denial of [his] motion to suppress evidence." Defendant's Exhibit 106, a close-up picture of the dealer's temporary permit, was not made a part of the appellate record. The trial court did not retain the exhibits, but instead returned them to the parties, after which this particular exhibit was somehow lost.
DISCUSSION
While this appeal is based on the denial of the suppression motion, defendant acknowledges any challenge to the magistrate's ruling on that motion has been forfeited by his trial counsel's failure to renew the motion before the trial judge. (See Hinds, supra, 108 Cal.App.4th at p. 900.) Thus, instead, defendant contends the trial court's failure to retain the exhibits introduced during the hearing on the suppression motion, and the subsequent loss of Defendant's Exhibit 106, has deprived defendant of his federal constitutional right to meaningful appellate review of a claim of ineffective assistance of counsel because "it is impossible to determine, without the missing exhibit, whether trial counsel provided ineffective assistance of counsel in failing to preserve" the suppression issue for appellate review. We disagree.
Section 1417 requires the trial court clerk to retain all exhibits "introduced or filed in any criminal action or proceeding . . . until final determination of the action or proceedings . . . ." When a notice of appeal is filed, as in this case, the criminal action or proceeding becomes final "30 days after the date the clerk of the court receives the remittitur affirming the judgment." (§ 1417.1, subd. (b).) Under section 1417.2, the trial court "may, on application of the party entitled thereto or an agent designated in writing by the owner, order an exhibit delivered to that party at any time prior to the final determination of the action or proceeding, upon stipulation of the parties or upon notice and motion" only if "[n]o prejudice will be suffered by either party" and "[a] full and complete photographic record is made of the exhibits so released."
The Attorney General does not contend these provisions were adhered to, but instead argues reversal is not required because defendant has not demonstrated prejudice flowing from the trial court's failure to retain the exhibits. We agree. "While the defendant is entitled to a record adequate to afford a meaningful appeal, he [or she] bears the burden to show the deficiencies in the record are prejudicial." (People v. Coley (1997) 52 Cal.App.4th 964, 970; People v. Gibson (2015) 239 Cal.App.4th 1151, 1157 [affirming where violation of section 1417 was harmless].) As our Supreme Court has explained, " '[i]nconsequential inaccuracies or omissions in a record cannot prejudice a party; if in truth there does not exist some consequential inaccuracy or omission, the appellant must show what it is and why it is consequential.' " (People v. Howard (1992) 1 Cal.4th 1132, 1165, quoting People v. Chessman (1950) 35 Cal.2d 455, 462.)
Here, defendant has not demonstrated the omission of Defendant's Exhibit 106 from the appellate record is consequential to our resolution of this appeal. This is so for two reasons. First, because defense counsel "was not given an opportunity to explain why the [suppression] motion was not renewed, and a satisfactory explanation could exist," e.g., "the availability of the plea bargain accepted by the defendant may have been dependent upon not further pursuing the suppression motion," defendant's claim counsel was ineffective for failing to renew the motion "is more appropriately made in a habeas corpus proceeding." (Hinds, supra, 108 Cal.App.4th at p. 902.)
Second, while the lack of an explanation for defense counsel's failure to renew the suppression motion precludes our review of defendant's claim of ineffective assistance of counsel on direct appeal, the absence of Defendant's Exhibit 106 would neither preclude such review nor render it less than meaningful. This exhibit is described in the transcript of the suppression hearing as a close-up photograph of the temporary permit that was displayed in the front windshield. The same permit is also depicted in Defendant's Exhibits 104 and 105, which we have in the record. Exhibit 105 is a close-up photograph of the temporary permit on the front windshield. Exhibit 104 is a photograph of the permit taken at a greater distance. Officer Donovan testified he did not see the permit before pulling defendant over and "[n]ever looked at it close up." Thus, Defendant's Exhibit 104, taken from a greater distance, is more relevant to the question of whether the officer saw the permit before pulling defendant over and discovering he was subject to searchable probation. In other words, contrary to defendant's argument on appeal, the absence of Defendant's Exhibit 106 does not make it impossible to determine "whether the officer's testimony that he did not see the [permit] was inherently incredible."
For the foregoing reasons, we reject defendant's claim the trial court's failure to retain the exhibits introduced during the hearing on his suppression motion prejudiced his ability to pursue a claim of ineffective assistance of counsel in this appeal in violation of his federal constitutional rights.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
BLEASE, J.