People v. Rodriguez CA2/1 ( 2014 )


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  • Filed 11/25/14 P. v. Rodriguez CA2/1
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION ONE
    THE PEOPLE,                                                          B254064
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. KA103584)
    v.
    GUILLERMO RODRIGUEZ,
    Defendant and Appellant.
    B257120
    In re
    (Los Angeles County
    GUILLERMO RODRIGUEZ                                         Super. Ct. No. KA103584)
    on Habeas Corpus.
    APPEAL from a judgment of the Superior Court of Los Angeles County, Wade
    Olson, Commissioner. Affirmed.
    ORIGINAL PROCEEDING; petition for writ of habeas corpus, Wade Olson,
    Commissioner. Petition denied.
    Guillermo Rodriguez, in pro. per.; Sylvia Ronnau, under appointment by the Court
    of Appeal, for Defendant, Appellant and Petitioner.
    Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
    General, Victoria B. Wilson, Supervising Deputy Attorney General, and Mark E. Weber,
    Deputy Attorney General, for Respondent.
    ——————————
    SUMMARY
    An information filed November 27, 2013 alleged that on October 29, 2013,
    defendant and petitioner Guillermo Rodriguez committed second degree burglary of an
    automobile in violation of Penal Code section 459, a felony.1 The information further
    alleged that defendant had been convicted of two strike offenses, carjacking and robbery,
    and that defendant had served three separate prison terms for carjacking, robbery, and
    possession and sale of a controlled substance. (§§ 211, 215; Health & Saf. Code,
    §§ 11378, 11377, subd. (a).)
    FACTUAL BACKGROUND
    On October 29, 2013, two Baldwin Park police officers were in their patrol car
    driving southbound on Vineland Avenue when they observed defendant riding his
    bicycle on the sidewalk traveling northbound. Defendant had no bicycle lights.2 The
    officers observed defendant had a flashlight in one of his hands. The officers conducted
    a stop and asked defendant to sit on the sidewalk. A warrant check on defendant did not
    reveal any outstanding warrants. With defendant’s consent, the officers searched his
    backpack. Inside, they found a car stereo, a chisel, a surveillance camera, and a check
    made out to a third party. There were shards of glass inside the backpack. Defendant
    said he had bought the stereo from his cousin.
    A man and a woman walked up to the officers while they were searching the
    backpack and stated that their vehicle had just been burglarized. The man identified the
    1   All statutory references are to the Penal Code unless otherwise indicated.
    2  Defendant was in violation of Vehicle Code section 21650.1, which requires a
    bicycle to be operated “in the same direction as vehicles are required to be driven upon
    the roadway” as well as Vehicle Code section 21201, requiring bicycle lights at night.
    2
    car stereo found in defendant’s backpack as the one missing from his car. One of the
    officers drove to the location of the man’s vehicle (approximately one block south). The
    passenger side window of the car was smashed and the car stereo was missing. The
    stereo recovered from defendant’s backpack fit perfectly into the space for a stereo in the
    victim’s car.
    A witness living on Vineland Avenue near the theft looked out his window when
    he heard a car window break. He saw a man reach inside the car, pull out a radio, and
    leave on a bicycle. The witness called the police, and as he did so, saw one of the
    officers pull up. The witness identified defendant from a photograph police showed him,
    but was given no admonishments before viewing the photograph.
    The total time of the stop was 10 to 20 minutes.
    PROCEDURAL HISTORY
    During the preliminary hearing, defendant moved to suppress evidence,
    challenging the length of the detention and arguing the evidence was insufficient.
    (§ 1538.5) The court denied the motion, finding reasonable suspicion to stop defendant
    based upon his conduct in riding his bicycle against traffic without a light and sufficient
    evidence to hold defendant to answer.
    Defendant waived his constitutional rights and pleaded guilty to the burglary
    charge. The court sentenced him to two years eight months, with 98 days custody credits
    (49 actual days and 49 conduct credits). The court ordered defendant to pay $280 in
    restitution and a $280 parole revocation fine.
    We appointed counsel to represent defendant on appeal. After examination of the
    record, defendant’s counsel filed an opening brief raising no issues, and asking this court
    independently to review the record pursuant to the holding of People v. Wende (1979) 
    25 Cal. 3d 436
    , 441. On July 14, 2014, we advised defendant he had 30 days within which
    to personally submit any contentions or issues he wished us to consider. On July 30,
    2014, defendant filed a supplemental brief in which he argued that counsel was deficient
    in failing raise any issues on appeal based on his detention. Defendant has moved that
    3
    appellate counsel be dismissed, and attaches counsel’s May 1, 2014 letter to defendant in
    which she explains to him her reasons for finding no issues to be raised on appeal.
    Under People v. Kelly (2006) 
    40 Cal. 4th 106
    , we find that defendant’s
    supplemental brief raises no arguable issues. We find no merit to the claim that
    defendant’s appellate counsel should have raised a Fourth Amendment issue or argued
    that the warrantless search and arrest of defendant was unlawful. For an ineffective
    assistance of counsel claim to be sustained, the defendant must show that counsel’s
    performance fell below an objective level of reasonableness and defendant was
    prejudiced by counsel’s failings. (People v. Williams (1997) 
    16 Cal. 4th 153
    , 214–215.)
    Defendant must also demonstrate from the record “‘the lack of a rational tactical purpose
    for the challenged act or omission.’” (Id. at p. 215.) Our Wende review of the record as
    well as appellate counsel’s letter to defendant reveals nothing to suggest any failure by
    counsel to raise colorable issues, nor can defendant show how he was prejudiced by
    counsel’s filing of the Wende brief. Defendant’s motion to dismiss counsel is denied.
    HABEAS PETITION
    In his habeas petition, defendant contends that (1) although he concedes his
    operation of a bicycle with no light was grounds for police to stop him, he contends the
    subsequent search of his backpack was unlawful because it lacked probable cause
    (defendant had no outstanding warrants) and hence the evidence obtained therefrom was
    illegal; (2) the two police officers gave inconsistent testimony regarding the time at
    which defendant was stopped, the witness who saw defendant remove the stereo could
    not have actually seen defendant, who was being detained at the time, and the officers
    failed to follow proper procedure for a photo identification; and (3) trial counsel was
    ineffective for failing to raise the officers’ inconsistent testimony, and appellate counsel
    was ineffective for failing to raise the illegality of defendant’s search.
    A petition for a writ of habeas corpus is a collateral attack on a presumptively
    correct final judgment; thus, the petitioner “bears a heavy burden” to plead sufficient
    grounds for relief. (People v. Duvall (1995) 
    9 Cal. 4th 464
    , 474.) “‘Conclusory
    4
    allegations made without any explanation of the basis for the allegations do not warrant
    relief, let alone an evidentiary hearing.’” (Ibid.) A petition will be summarily denied if it
    does not state a prima facie case for relief; an order to show cause will issue only if the
    allegations, if true, would entitle the petitioner to relief. (Id. at p. 475.)
    Here, the allegations in the habeas corpus petition do not state a prima facie case
    for relief. First, defendant consented to the search and thus he had no Fourth Amendment
    argument. (People v. Valencia (2011) 
    201 Cal. App. 4th 922
    , 928.) Second, the minor
    inconsistencies in the officers’ testimony or any perceived inconsistency in the witness’s
    testimony about the time he informed police of the break-in do not undermine the factual
    bases supporting defendant’s guilty plea and counsel was thus not ineffective for failing
    to raise such claims. (See People v. Palmer (2013) 
    58 Cal. 4th 110
    , 119 [sufficient factual
    basis for guilty plea].) Finally, as discussed above, appellate counsel was not deficient
    for failing to raise meritless arguments.
    The allegations in defendant’s habeas petition do not state a prima facie claim for
    relief, and we summarily deny the petition.
    5
    DISPOSITION
    Defendant’s request for dismissal of appointed appellate counsel is denied. The
    judgment is affirmed. The petition for writ of habeas corpus is denied.
    NOT TO BE PUBLISHED.
    JOHNSON, J.
    We concur:
    CHANEY, Acting P. J.
    MILLER, J.*
    *   Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
    to article VI, section 6 of the California Constitution.
    6
    

Document Info

Docket Number: B254064

Filed Date: 11/25/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021