Filed 9/22/14 P. v. Williams CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B248619

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA057949)
         v.

STANLEY LOVELL WILLIAMS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Bernie C. Laforteza, Judge. Affirmed.
         Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
      Stanley Lovell Williams was convicted by a jury of possession of a firearm by a
felon and was sentenced to an aggregate state prison term of four years.1 On appeal,
Williams contends the evidence is insufficient to support his conviction and his counsel
rendered ineffective assistance. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND
      At trial, Los Angeles County Sheriff Deputy Christopher Dimmitt testified he and
his partner were on patrol in Lancaster on the evening of July 26, 2012. They initiated a
traffic stop of a car they saw leave an apartment complex at 601 East Avenue I. Williams
was a passenger in the car. He had no identification in his possession and said his name
was Lamar Leshay. Later, Williams told the deputies his true name and date of birth.
Using the computer in his patrol car, Dimmitt discovered Williams had an outstanding
misdemeanor arrest warrant showing his last known address was in Littlerock, California.
Dimmitt searched Williams at some point during the stop and seized a cell phone that
Williams said belonged to him. Williams was taken into custody and placed in the
backseat of the patrol car. At the scene, Dimmitt and his partner accessed information on
the cell phone 45 minutes after Williams’s arrest. Among the cell phone’s digital
contents were photographs, a video and a list of names and phone numbers.
      Williams directed the deputies to what he identified as his residence, 601 East
Avenue I, Apartment 109, where they contacted Danielle Kyanna Brazil. She consented
to a search of the apartment. Inside the apartment were Brazil’s and Williams’s toddler
son and Brazil’s elderly father. The apartment had two bedrooms. The deputies elected
not to search the bedroom where Brazil’s father was lying down. They conducted a



1       In a bifurcated proceeding, the trial court found Williams had suffered two prior
serious or violent felony convictions within the meaning of the three strikes law (Pen.
Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). The trial court orally pronounced
the four-year sentence as consisting of the two-year middle term doubled under the three
strikes law. However the minute order and the abstract of judgment mistakenly show the
sentence was calculated as double the lower term. If the judgment is reinstated, the
abstract of judgment must be corrected and a new minute order issued.

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thorough search of the second bedroom and all common areas of the apartment, including
the kitchen, living room and bathroom.
       The second bedroom contained a bed, two nightstands incorporated into a large
headboard, one or two dressers and a closet. Deputy Dimmitt found a .22 caliber long
rifle underneath the mattress of the bed. On the nightstand closest to the rifle were a
wallet containing Williams’s California driver’s license, bearing the same Littlerock
address as the misdemeanor warrant, a notebook marked, “Stan’s book. Do not touch,”
men’s toiletries and men’s clothing. On the other nightstand, which was by the closet,
were some women’s clothing and other belongings. The closet contained only women’s
clothing.
       Deputy Dimmitt examined the rifle and determined it was unloaded, capable of
being discharged and had a working firing pin. Dimmitt also examined the cell phone
and found names and phone numbers matching those on a page in the recovered
notebook. A video from the cell phone showed Williams’s face, followed by Brazil
naked in the bedroom where the rifle was found. Photographs from the cell phone
depicting Williams in this bedroom were admitted into evidence.
       When the deputies completed the search of the apartment, Deputy Dimmitt’s
partner carried the rifle to the trunk of the patrol car. He passed by Williams, who was
still in the backseat and appeared to be watching the deputy. Dimmitt advised Williams
of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed
counsel (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]),
which Williams waived. When questioned about the rifle, Williams started to give a
statement several times, but then leaned back and said, “You know what, man. It doesn’t
even matter. You got me.”
       During the booking process, Deputy Dimmitt completed a booking and property
form by recording Williams’s responses to various questions. When Dimmitt asked for
Williams’s address, Williams said it was 601 East Avenue I, Apartment 109 in Lancaster.
Dimmit then had Williams review and sign the completed form. The parties stipulated
that Williams had a prior felony conviction.

                                               3
       Following the People’s presentation of evidence, the trial court denied the defense
motion to dismiss (Pen. Code, § 1118.1). Williams did not testify or offer other evidence
in his defense with the exception of a recent California Department of Motor Vehicles
printout listing a Los Angeles address as of July12, 2012 and a Littlerock address prior to
that date.

                                       DISCUSSION
I. Substantial Evidence Supports the Conviction of Possession of a Firearm by a Felon.
       A. Standard of review
       To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the verdict—i.e., evidence that
is reasonable, credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

       B. There was sufficient evidence Williams constructively possessed the rifle
       Williams was convicted of possession of a firearm by a felon in violation of Penal
Code, section 29800, subdivision (a)(1). As the jury was instructed, to support a guilty
verdict, the People had to prove Williams possessed a firearm, knew that he possessed the

                                               4
firearm and had previously been convicted of a felony. (Pen. Code, § 29800, subd.
(a)(1); Cal.Crim No. 2511.) “Possession may be actual or constructive. Actual
possession means the object is in the defendant’s immediate possession or control. A
defendant has actual possession when he himself has the weapon. Constructive
possession means the object is not in the defendant’s physical possession, but the
defendant knowingly exercises control or the right to control the object.” (In re Daniel
G. (2004) 120 Cal.App.4th 824, 831; see also People v. Pena (1999) 74 Cal.App.4th
1078, 1083-1084 [An individual has constructive possession “when the weapon, while
not in his actual possession, is nonetheless under his dominion and control, either directly
or through others.”].) Possession can be shown by circumstantial evidence and may be
inferred from the defendant’s conduct. (People v. Rushing (1989) 209 Cal.App.3d 618,
622-623.)
       Williams contends the evidence was insufficient to support the finding he
constructively possessed the recovered rifle. In particular, Williams asserts, as he did
during argument to the jury, the People failed to prove he resided at Brazil’s apartment,
had any control of the bedroom or any knowledge or control of the rifle. In support of his
claims, Williams relies on People v. Johnson (1984) 158 Cal.App.3d 850, 852-853
where, in executing a search warrant, police officers encountered the defendant in the
kitchen and found phencyclidine (PCP) secreted in the kitchen ceiling while searching the
house. This court concluded there was no substantial evidence from which to reasonably
infer the defendant exercised exclusive or joint dominion and control over the PCP,
noting the defendant was one of nine persons found in the house and the hidden PCP was
not visible from the defendant’s vantage point in the kitchen. (Id. at p. 854.)
Additionally, we determined there was no evidence the defendant “owned, rented or in
any way occupied the premises.” (Ibid.) The police admitted they had not investigated
who owned the house or the owner’s relationship, if any, to the defendant. (Id. at
pp. 854-855.) Nothing in the record suggested the defendant had a key to the house or
any of the clothing found inside belonged to him. (Id. at p. 855.)



                                             5
         Williams also cites People v. Sifuentes (2011) 195 Cal.App.4th 1410, a case
involving a “gang gun,” which was found under a mattress in a motel room occupied by
two defendants and two females. (Id. at pp. 1413-1414.) The court reversed one
defendant’s conviction for possession of a firearm by a felon (and the attendant gang
enhancement), concluding there was no substantial evidence the defendant had control of
the gun in light of the fact the expert did not testify that any gun possessed by a gang
member was a gang gun, that the subject gun was a gang gun or that all gang members
always had the right to control a gang gun. (Id. at pp. 1417-1420.) Instead, the expert
only testified that a gang gun was accessible to gang members at most times. (Id. at
p. 1417.)
         The facts of this case stand in contrast to those in Johnson and Sifuentes.
According to Deputy Dimmitt’s uncontroverted testimony, Williams informed the
deputies he currently resided at the East Avenue I apartment, which he subsequently
confirmed was his address during the booking process. Dimmitt found the rifle in the
bedroom Williams shared with Brazil, who was his girlfriend and the mother of their
toddler son. 2 The rifle was hidden under the portion of the mattress nearest the
nightstand holding Williams’s personal items, which implied Williams slept on that side
of the bed and the weapon belonged to him. The deputy’s testimony as to what he saw,
retrieved and heard, and from which the jury reasonably inferred Williams constructively
possessed the rifle, was neither physically impossible nor inherently improbable. (See
People v. Mayberry (1975) 15 Cal.3d 143, 150 [The testimony of one witness is
sufficient to constitute substantial evidence, unless it is physically impossible or
inherently improbable].)
II. Appellant Has Not Demonstrated Prejudice With Respect to Fourth Amendment
Issues
         At trial, defense counsel successfully argued one photograph and part of the video
retrieved from Williams’s cell phone were inadmissible under Evidence Code section

2      Williams acknowledged in his opening brief Brazil was his girlfriend and the
toddler in the apartment was their son.

                                               6
352. Counsel did not argue the rest of the video and remaining photographs should be
excluded, nor did she move to suppress all the evidence seized, including the digital
contents of Williams’s cell phone, as the fruit of an unreasonable search in violation of
the Fourth Amendment. (Pen. Code, §1538.5). Williams now contends defense
counsel’s failure to bring a motion to suppress the cell phone evidence deprived him of
effective assistance of counsel.
       To establish ineffective assistance of counsel under either the federal or state
constitutional guarantee, a defendant must show ““‘that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms, and
that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability
exists that, but for counsel’s failings, the result would have been more favorable to the
defendant.””’ (In re Crew (2011) 52 Cal.4th 126, 150; see Strickland v. Washington
(1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “‘The burden of sustaining
a charge of inadequate or ineffective representation is upon the defendant. The proof . . .
must be a demonstrable reality and not a speculative matter.”’ (People v. Karis (1988) 46
Cal.3d 612, 656.)
       In his opening brief, Williams acknowledges if his counsel had filed a suppression
motion, it would have been denied pursuant to People v. Diaz (2011) 51 Cal.4th 84, 88,
98-99, in which the California Supreme Court concluded a warrantless search of the
digital contents of a suspect’s cell phone incident to a valid arrest does not violate the
Fourth Amendment. Although Diaz was the state of the law in California at the time of
his offense, Williams nonetheless faults defense counsel for not contesting the search of
his cell phone, pointing to the unsettled state of federal law in the absence of a United
States Supreme Court decision directly addressing the issue of warrantless cell phone
searches. Williams maintained that if the United States Supreme Court were to abrogate
Diaz, he would be foreclosed from benefitting from that ruling, having forfeited a Fourth
Amendment challenge to the cell phone search in this case due to his counsel’s
ineffective assistance.



                                              7
        During the pendency of this appeal, the United States Supreme Court decided
Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430],3 in which
police officers initiated a traffic stop of the defendant and impounded his car after
learning he was driving on a suspended license. (Riley, supra, 134 S.Ct. at p. 2480)
During an inventory search of the car, the officers discovered loaded handguns under the
hood and arrested the defendant for unlawfully possessing firearms. (Ibid.) At the
station, the officers searched the digital contents of a cell phone found in the defendant’s
pocket, which led to information implicating him in an earlier shooting. (Id. at pp. 2480-
2481) The defendant was ultimately charged with attempted murder and related felonies.
(Id. at p. 2481) His pretrial motion to suppress the evidence obtained from his cell phone
was denied. (Ibid.) On appeal, the Court of Appeal concluded the police search of the
digital contents of the cell phone was lawful under Diaz and affirmed the judgment.
(Ibid.) In reversing, the United States Supreme Court unanimously held police officers
generally may not, without a warrant, search the digital contents of a cell phone seized
from an individual who has been lawfully arrested. (Riley, supra, 134 S.Ct. at pp. 2485,
2493)
        In response to our request to provide supplemental briefing on the retroactive
application of Riley, the parties agree the decision applies retroactively to this case.
When the United States Supreme Court establishes a new rule for the conduct of criminal
prosecutions it generally applies retroactively to those cases that are pending on direct
review or not yet final. (Griffith v. Kentucky (1987) 479 U.S. 314, 328 [107 S.Ct. 707; 93
L.Ed.2d 649] [“a new rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct review or not yet final, with
no exception for cases in which the new rule constitutes a ‘clear break’ with the past”];
accord, Davis v. United States (2011) 564 U.S. __, __ [131 S.Ct. 2419, 2431,180 L.Ed.2d
285].) As Williams’s appeal was pending when Riley was announced, that decision
applies retroactively here.

3     The Court also decided its companion case, United States v. Wurie (2014) __ U.S.
__ [134 S.Ct. 2473; 189 L.Ed.2d 430].

                                               8
       We also requested the parties to address what remedies, if any, Williams may
obtain if Riley were applied retroactively to this case. “Retroactive application does not,
however, determine what ‘appropriate remedy’ (if any) the defendant should obtain.”
(Davis, supra, 131 S.Ct. at p. 2431.) In other words, the retroactive application of a new
rule does not necessarily mean a defendant will gain relief, which is an entirely separate
issue. (Ibid.) “As a result, the retroactive application of a new rule of substantive Fourth
Amendment law raises the question whether a suppression remedy applies; it does not
answer that question.” (Ibid.)
       In their supplemental brief, the People argue the so-called good faith exception
applies in this case to preclude the suppression of the cell phone evidence because the
deputies reasonably relied on Diaz in searching Williams’s cell phone. (Davis, supra,
131 S.Ct. at p. 2431 “[W]hen the police conduct a search in objectively reasonable
reliance on binding appellate precedent, the exclusionary rule does not apply”].)
Williams argues the good faith exception does not apply here. According to Williams,
the deputies did not reasonably rely on Diaz as binding precedent, both because changes
in cell phone technology since that decision allows nearly unlimited storage of personal
information, and because the state of the law at the time of the search was unsettled.
Williams asserts the “exceedingly broad search” of the digital contents of his cell phone
violated his Fourth Amendment rights even under Diaz and the evidence should be
suppressed.4
       We need not reach that issue here, as we can find no prejudice to defendant. To
prevail on a claim of ineffective assistance of counsel, “a defendant must show both that
his counsel’s performance was deficient when measured against the standard of a
reasonably competent attorney and that counsel’s deficient performance resulted in
prejudice to defendant in the sense that it ‘so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.’

4       The People’s position finds support in People v. Macabeo (Sept. 3, 2014,
B248316) 2014 D.A.R. 12245 [because People v. Diaz (2011) 51 Cal.4th 84 was binding
at the time of the search, good faith exception to exclusionary rule applied.])

                                              9
[Citations.]” (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660.) 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. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” (Strickland v.
Washington, supra, 466 U.S. at p. 694.) It is not necessary for the court to examine the
performance prong of the test before examining whether the defendant suffered prejudice
as a result of counsel’s alleged deficiencies. (Id. at p. 697.) “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course
should be followed.” (Ibid.)
       As discussed above, there was substantial evidence to support the conviction.
Defendant directed the officers to the residence, and later confirmed that as his address.
He did not dispute at trial, and conceded on appeal, that Brazil was his girlfriend and the
child was his son. Thus, the videos found on the cell phone, and admitted into evidence,
did not establish new fact, but were cumulative. Similarly, the fact that the contacts
found in the search of the phone could be linked to some found in the notebook marked
as “Stan’s book” was also cumulative. As such, there is not a reasonable probability that
the outcome of the proceeding would have been different.




                                              10
                                    DISPOSITION
      The judgment is affirmed.




                                                ZELON, J.




We concur:




      WOODS, Acting P. J.




      SEGAL, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                           11
