Filed 11/6/14 P. v. Chin CA3
                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                             C072504

                   Plaintiff and Respondent,                                (Super. Ct. No. 10F04927)

         v.

CHUI FEI CHIN,

                   Defendant and Appellant.




         After his motion to suppress evidence was denied, a jury found defendant Chui Fei
Chin guilty of cultivation and possession for sale of marijuana. (Pen. Code, § 1538.5;
Health & Saf. Code, §§ 11358, 11359.) Sentenced to two years in county jail (Pen. Code,
§ 1170, subd. (h)(2)), defendant appeals. He contends his motion to suppress evidence
should have been granted. We conclude defendant did not have a reasonable expectation
of privacy in the area searched and affirm the judgment.



                                                             1
                  FACTUAL AND PROCEDURAL BACKGROUND

       On November 2 and 7, 2011, the trial court, Judge Maryanne Gilliard presiding,
conducted a two-day hearing on defendant’s motion to suppress evidence preceding his
arrest. (Pen. Code, § 1538.5.) The hearing was held just prior to, and in conjunction
with, the preliminary hearing. Defendant’s motion was denied.

       We recite below only those facts from the suppression hearing before Judge
Gilliard that are necessary to our disposition of this appeal.

       On June 2, 2010, an arrest warrant was generated for Jerome Henderson, who was
reported missing from a sex offender group home, called Sonia’s Group Home, which the
warrant indicated was located at 9807 Grant Line Road.1 On July 31, 2010, Elk Grove
Police Officer David Monti was on patrol duty and picked up Henderson’s arrest warrant
from a stack of warrants in the patrol box. The arrest warrant was for a parole hold and
indicated Henderson was a sex offense registrant. Upon obtaining the warrant, Monti
checked with dispatch to confirm the warrant was still valid and active. He also
confirmed Henderson’s last known address in the countywide known person file, which
listed Henderson’s address as 9807 Grant Line Road.

       Officer Monti went to the Grant Line Road location to verify the address and
gather information about the layout of the property. There were three structures on the
property—a single-story main residence with a two-car garage, a large detached
garage/cottage, and a shed. Monti then met with two other officers, Brandon Holly and
Paul Resch, who were going to assist with the service of the warrant.

       Officer Holly had been to the Grant Line Road property six to 12 months earlier
and knew it to be a halfway house for sex offense registrants. Holly also knew that law



1 Sonia’s Group Home had closed the Grant Line Road location as of May 20, 2010, but
that information was not contained in Henderson’s file.


                                              2
enforcement had contacted Henderson, whom he knew to be a sex offense registrant, at
the Grant Line Road address two or three times—most recently in April or May 2010.

       The officers first approached the main residence. When no one answered the front
door, the officers went to the detached garage/cottage. Officer Monti could hear what
sounded like a shower running inside the garage and surmised the garage had been
converted into a living space. When he knocked on the door of the garage, he could hear
a lot of “shuffling” sounds and movement inside the garage. A woman’s voice asked
“Who [is] it? Who [is] there?” After identifying themselves as officers several times to
both a female and male occupant, the male occupant (later identified as defendant) finally
opened the door, blocking the officer’s view of the interior with his body. Monti could
see a female behind defendant. Monti asked who lived there and for how long and the
female said she had lived there for a month and claimed to both own and rent the house.

       The garage/cottage contained multiple rooms, with a hallway and interior doors.
There were no beds in any of the rooms in the building. Officer Monti was still of the
belief that Henderson was on the premises and, while sweeping the building for the
presence of additional individuals, discovered a room with tables containing what was
later determined to be 804 marijuana plants. The female occupant claimed to have a
license for medicinal marijuana. She also provided consent for the officers to search the
main residence. Officers found the female’s purse in the main residence, and there were
several bedrooms with beds, but there was no evidence of additional personal items found
in the residence or garage/cottage.

       The magistrate denied defendant’s motion to suppress evidence, finding the
officer’s conduct was justified and did not violate the Fourth Amendment, and held
defendant to answer on charges of cultivation and possession for sale of marijuana.
Defendant was subsequently found guilty of both offenses by a jury.



                                            3
                                      DISCUSSION

                     I. Failure to Renew the Suppression Motion

       Defendant contends his trial counsel rendered ineffective assistance by not
renewing the otherwise meritorious motion to suppress evidence after defendant was held
to answer.2 The failure to renew the motion in the trial court ordinarily would preclude
review on appeal. (People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Richardson
(2007) 156 Cal.App.4th 574, 582-589.) But because defendant contends counsel’s
performance was prejudicially deficient in failing to preserve the issue for appeal, we will
review the legality of the search and seizure in order to determine whether counsel
rendered ineffective assistance. (People v. Hart (1999) 74 Cal.App.4th 479, 485-487;
cf. People v. Hinds (2003) 108 Cal.App.4th 897, 901-902 [limiting Hart to a defendant
who proceeds through a jury trial after denial of a suppression motion; Hart is
inapplicable where a defendant entered a plea bargain].)

       To establish ineffective assistance of counsel, defendant must demonstrate that
counsel’s performance was deficient and that defendant suffered prejudice as a result.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693,
696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Thus, we turn to the merits of



2 To the extent defendant’s appellate counsel argued during oral argument that trial
counsel should have renewed the motion to suppress after defendant was held to answer
for the purpose of relitigating and presenting evidence of defendant’s standing, we reject
her argument that counsel was ineffective for not doing so. Defendant’s entire theory of
defense at trial was that he was simply helping the homeowner/renter out as a handyman
and, as such, he attempted to distance himself from any connection to the garage/cottage.
Presenting evidence of defendant’s connection to the garage/cottage would have been in
complete conflict with the theory of defense. Thus, not renewing the motion to suppress
to relitigate standing resulted from “ ‘an informed tactical choice’ ” that a reasonably
competent attorney might make and, as such, that decision cannot serve as a ground for
reversing defendant’s conviction on appeal. (People v. Bolin (1998) 18 Cal.4th 297,
317.)


                                             4
the suppression motion to determine whether counsel rendered ineffective assistance in
failing to renew the motion.

                         II. Reasonable Expectation of Privacy

       “The proponent of a motion to suppress has the burden of establishing that his own
Fourth Amendment rights were violated by the challenged search or seizure.” (People v.
Root (1985) 172 Cal.App.3d 774, 778.) To meet this burden, the defendant must
establish he had “a legitimate expectation of privacy in the place searched or the thing
seized.” (People v. Jenkins (2000) 22 Cal.4th 900, 972.) That is, the defendant must
show not only that he had a subjective expectation of privacy but also that the expectation
is objectively reasonable. (People v. Ayala (2000) 23 Cal.4th 225, 255 (Ayala).)3 We
review the matter as a question of law, against the backdrop of facts as found by the trial
court. (People v. Leonard (1987) 197 Cal.App.3d 235, 239.)

       While the evidence established that defendant may have had a reasonable
expectation of privacy as an overnight guest in the main residence, defendant did not
show he had any reasonable expectation of privacy in the detached garage/cottage. (See
Minnesota v. Carter (1998) 525 U.S. 83, 90 [142 L.Ed.2d 373, 380] [“an overnight guest
in a home may claim the protection of the Fourth Amendment, but one who is merely
present with the consent of the householder may not”].)4 “The mere legitimate presence


3 The United States Supreme Court has replaced the term “standing” with an inquiry into
whether the defendant had a reasonable expectation of privacy in the area searched or the
item seized. (See Rakas v. Illinois (1978) 439 U.S. 128, 140, 143 [58 L.Ed.2d 387, 399,
401].) Although the terms have changed, the analysis has not. (See Ayala, supra,
23 Cal.4th at p. 254, fn. 3.)
4 “From the overnight guest’s perspective, he seeks shelter in another’s home precisely
because it provides him with privacy, a place where he and his possessions will not be
disturbed by anyone but his host and those his host allows inside. We are at our most
vulnerable when we are asleep because we cannot monitor our own safety or the security
of our belongings. It is for this reason that, although we may spend all day in public

                                             5
on the searched premises by invitation or otherwise is insufficient in itself to create a
protectable expectation.” (People v. Ooley (1985) 169 Cal.App.3d 197, 202.) Defendant
was required to establish a legitimate expectation of privacy in the garage/cottage in
order to challenge the constitutionality of the search. This he did not do.

       At the suppression hearing, as relevant to defendant’s appeal, defendant and the
People stipulated only that defendant was an overnight guest in the main residence.
Defendant did not testify, nor did he call any witnesses, such as the homeowner, to
establish he had any privacy interest in the garage/cottage. There was no evidence that
any of defendant’s personal belongings were found in either the main residence or, more
significantly, the garage/cottage; or that defendant slept in the garage/cottage.5



places, when we cannot sleep in our own home we seek out another private place to
sleep, whether it be a hotel room, or the home of a friend.” (Minnesota v. Olson (1990)
495 U.S. 91, 99 [109 L.Ed.2d 85, 94-95.)
5 During oral argument, defendant’s appellate counsel repeatedly represented to this
court that the record reflected there were “tools and other items” in the detached
garage/cottage that were clearly attributable to, and conceded by the parties as belonging
to, defendant. Respondent’s counsel responded that evidence of tools being in the
garage/cottage was not presented at the hearing on the motion to suppress and, although
there was some evidence regarding tools presented at trial, he did not recall any evidence
that said items were attributed to defendant. Defendant’s appellate counsel then admitted
that the evidence was not presented during the suppression hearing, but repeatedly
assured this court that the record reflected there was evidence at trial that defendant had
tools in the garage/cottage.
  There was, however, no evidence presented, either at the suppression hearing or trial,
that there were tools, clearly attributable to or concededly belonging to defendant, in the
garage/cottage. The only evidence of any tools in the garage/cottage was evidence
presented during trial that there were some ladders and a chop saw in the corner of one of
the rooms in the building, which had the power light indicator on. There was no
concession that the ladders or chop saw belonged to defendant and, in fact, no other
evidence that they were his. And there was no evidence presented at the suppression
hearing of any item in the garage/cottage attributable to defendant.
  Defendant’s appellate counsel’s misrepresentations during oral argument caused the
court and parties to waste a significant about of valuable time discussing these “phantom

                                              6
       Defendant argues that, as a garage, the outbuilding was a common area of the
main residence. We disagree. We need not decide whether an overnight guest would
generally have access to, and a privacy interest in, the garage of their host’s residence.
The outbuilding here could not reasonably be considered part of the common area of the
main residence in which defendant was an overnight guest, as the main residence had its
own garage. Although defendant was in the garage/cottage at the time of the search, he
failed to prove the search invaded his legitimate expectation of privacy.




tools.” We caution counsel not to overstate or misrepresent the record under the cloak of
effective advocacy. Counsel is reminded that “[a]n attorney has an unqualified duty to
refrain from acts which mislead the court.” (Jackson v. State Bar (1979) 23 Cal.3d 509,
513; Bus. & Prof. Code, §§ 6068, subd. (d), 6128, subd. (a); State Bar Rules Prof.
Conduct, rule 5-200(B) [a member of the State Bar “[s]hall not seek to mislead the judge,
judicial officer, or jury by an artifice or false statement of fact or law”].) “ ‘ “Honesty in
dealing with the courts is of paramount importance, and misleading a judge is, regardless
of motives, a serious offense.” ’ [Citations.] ‘Counsel should not forget that they are
officers of the court, and while it is their duty to protect and defend the interests of their
clients, the obligation is equally imperative to aid the court in avoiding error and in
determining the cause in accordance with justice and the established rules of practice.’ ”
(Williams v. Superior Court (1996) 46 Cal.App.4th 320, 330.)
  “The representation to a court of facts known to be false is presumed intentional and is
a violation of the attorney’s duties as an officer of the court.” (Jackson v. State Bar,
supra, 23 Cal.3d at p. 513.) “Even if [appellate counsel’s] misconduct were not wilful
and dishonest, gross carelessness and negligence constitute a violation of an attorney’s
oath faithfully to discharge his duties . . . .” (Ibid.)


                                              7
                                 DISPOSITION

     The judgment is affirmed.


                                               BUTZ   , J.



We concur:



       HULL             , Acting P. J.



       MURRAY           , J.




                                         8
