Filed 5/21/15 P. v. Raspberry CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B253399

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA085941)
         v.

JIMMY RASPBERRY,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of the County of Los Angeles,
Michael D. Carter, Judge. Affirmed.
         Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for
Plaintiff and Respondent.
                                    INTRODUCTION


       A jury found defendant and appellant Jimmy Raspberry (defendant) guilty of
armed robbery. On appeal, defendant contends that he received ineffective assistance of
counsel because his trial attorney failed to make a pretrial motion to suppress his
statements to the police during a custodial interrogation. According to defendant, the
record of his interrogation shows that he did not understand his right to appointed counsel
and, therefore, he could not and did not expressly or impliedly waive his right against
self-incrimination under Miranda.1 Defendant also requests that we independently
review the transcripts of the in camera hearings on his two Pitchess2 motions to ensure
that the trial court ordered that all discoverable materials were produced.
       We hold that because the record shows that defendant understood his right to
appointed counsel and, thereafter, impliedly waived by his conduct his right against self-
incrimination, his trial counsel’s failure to move to suppress his statements to the police
did not constitute ineffective assistance of counsel. We also conclude, based on our
independent review of the transcripts of the hearings on the two Pitchess motions, that
the trial court ordered all discoverable materials to be produced.


                              FACTUAL BACKGROUND3


       On December 5, 2010, Gloria Goldbaum was working as an assistant manager at a
Burger King restaurant on Victory Boulevard in Burbank. She was in charge of the drive

1
       Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2
       Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
3
       Because defendant’s contentions on appeal—which are based on certain pretrial
matters—do not require an analysis of the evidence introduced at trial, we briefly
summarize here relevant portions of the trial evidence to provide context for the
discussion below.


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through window and there were four other employees working with her that night. At
approximately 9:30 p.m., defendant, wearing a grey, hooded sweatshirt zipped up to
cover his mouth, entered the Burger King and asked for the manager. Goldbaum, who
could see part of defendant’s face, asked defendant if she could help him. Defendant
pointed a handgun at Goldbaum, told her it was a robbery, and demanded money.
Goldbaum went to the office to retrieve money while defendant remained on the
customer side of the counter. In the office, Goldbaum hid her purse and some money
from the desk in a trash can and then heard defendant call her.
       When Goldbaum returned to defendant’s location, he demanded that she “Let
[him] in.” Defendant followed Goldbaum back to the office, demanded that she give him
money from a register and a safe, and Goldbaum complied by placing money from the
register and safe in a blue backpack the defendant had brought into the office. Goldbaum
remained behind in the office as defendant left with the money in his backpack.
       Goldbaum described defendant’s appearance, including his clothing, to a
responding police officer. An officer then drove her to a location where defendant had
been detained by another officer. At defendant’s location, Goldbaum told the officers
that defendant was wearing the same clothing as the man who robbed her and that he
appeared to be the man who robbed her. In the area where defendant was first seen by
other officers, those officers found the blue backpack defendant had used in the robbery.
The officers found a handgun on top of the backpack and inside they found the money
Goldbaum had placed in it during the robbery.


                           PROCEDURAL BACKGROUND


       In an information, the Los Angeles County District Attorney charged defendant
with robbery in violation of Penal Code section 211.4 The District Attorney alleged that
defendant personally used a firearm during the commission of the robbery within the


4
       All further statutory references are to the Penal Code, unless otherwise indicated.

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meaning of section 12022.53, subdivision (b). Defendant pleaded not guilty and denied
the personal use of a firearm allegation.
       Defendant filed an initial Pitchess motion and, following an in camera hearing, the
trial court ordered that discoverable evidence be provided to defendant. Defendant then
filed a subsequent Pitchess motion and, following another in camera hearing, the trial
court ordered that additional discoverable evidence be provided to defendant.
       Following trial, the jury found defendant guilty as charged on the robbery count
and found the personal use of a firearm allegation true. The trial court sentenced
defendant to an aggregate sentence of 13 years, comprised of a three-year middle term on
the robbery count, plus a consecutive 10-year term pursuant to section 12022.53,
subdivision (b). Defendant filed a timely notice of appeal.


                                      DISCUSSION


       A.     Ineffective Assistance of Counsel
       Defendant contends that he received ineffective assistance of counsel because his
trial counsel failed to move to suppress statements he made to the police during a
custodial interrogation. According to defendant, the record of his interrogation
demonstrates that he did not understand his right to appointed counsel and that he could
not and did not expressly or impliedly waive his right against self-incrimination.


              1.     Background
       At the police station, defendant participated in an interview with two investigating
officers which was videotaped and played for the jury. At the beginning of the interview,
defendant had the following exchange with one of the officers about his right against self-
incrimination. “[Defendant]: She told me I was getting shipped to county, though, bro.
[Officer]: Maybe. I don’t know about that. Your first name’s Jimmy, right?
[Defendant]: Yes sir. [Officer]: Okay, I’m gonna read you something real quick,
alright? You have the right to remain silent. Do you understand? [Defendant]: ---

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[Officer]: You have to say yes. [Defendant]: Yes. [Officer]: Anything you say may be,
may be used against you in court. Do you understand? [Defendant]: Yes. *** [Officer]:
*** You have the right to have an attorney before and during questioning. Do you
understand? [Defendant]: Yes. [Officer]: If you cannot afford an attorney one will be
appointed for you before questioning if you wish. Do you understand? [Defendant]: ***
[Officer]: Yeah? Or yes? [Defendant]: Wasn’t I supposed to get this read, like, before I
got arrested, or? [Officer]: [shakes head] Un-uh. [Defendant]: No? [Officer]: Un-uh.
[Defendant]: So this whole time I thought I was being detained, ***. [Officer]: What’s
that? [Defendant]: This whole time I just thought I was being detained, and now this
lady’s telling me I’m getting shipped to county tonight. [Officer]: Well, first of all, let
me ask you a couple of questions here, and I’ll explain to you what’s going on. I
mean . . . How long have you lived in Burbank? You said all your life? [Defendant]:
Pretty much. [Officer]: And where do you work at? [Defendant]: 3-D Packaging. . . .”


              2.      Legal Principles


                      (a)    Ineffective Assistance of Counsel
       The legal principles governing claims of ineffective assistance of counsel are well
established. “A criminal defendant’s federal and state constitutional rights to counsel
(U.S. Const., 6th amend.; Cal. Const., art. I, § 15) include the right to effective legal
assistance. When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant
must first show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the defendant
must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an

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appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding. (E.g., People v. Vines (2011) 51 Cal.4th 830, 875-876 [124
Cal.Rptr.3d 830, 251 P.3d 943] (Vines); People v. Mendoza Tello (1997) 15 Cal.4th 264,
266-267 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)” (People v. Mai (2013) 57 Cal.4th 986,
1009.)


                      (b)    Miranda Waiver
         To prevail on his claim of ineffective assistance of counsel, defendant must
demonstrate his trial counsel’s inadequacy by showing that his statements during the
custodial interrogation were inadmissible because he did not expressly or impliedly
waive his right against self-incrimination under Miranda, supra, 384 U.S. 346. “Even
absent the accused’s invocation of the right to remain silent, the accused’s statement
during a custodial interrogation is inadmissible at trial unless the prosecution can
establish that the accused ‘in fact knowingly and voluntarily waived [Miranda] rights’
when making the statement. [North Carolina v. [Butler (1979)] 441 U.S. [369,] 373 [99
S.Ct. 1755, 60 L.Ed.2d 286] (Butler). The waiver inquiry ‘has two distinct dimensions’:
waiver must be ‘voluntary in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception,’ and ‘made with a full awareness
of both the nature of the right being abandoned and the consequences of the decision to
abandon it.’ [Moran v.] Burbine [(1986) 475 U.S. 412,] 421 [106 S.Ct. 1135, 89 L.Ed.2d
410 (Burbine)].” (Berghuis v. Thomkins (2010) 560 U.S. 370, 382-383 (Berghuis).)
         “The prosecution . . . does not need to show that a waiver of Miranda rights was
express. An ‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit a
suspect’s statement into evidence. Butler, supra, 441 U.S., at 376. Butler made clear that
a waiver of Miranda rights may be implied through ‘the defendant’s silence, coupled

                                              6
with an understanding of his rights and a course of conduct indicating waiver.’ [Butler,
supra,] 441 U.S., at 373. [¶] If the State establishes that a Miranda warning was given
and the accused made an uncoerced statement, this showing, standing alone, is
insufficient to demonstrate ‘a valid waiver’ of Miranda rights. Miranda, supra, [384
U.S.] at 475 [86 S.Ct. 1602, 16 L.Ed.2d 694]. The prosecution must make the additional
showing that the accused understood these rights. See Colorado v. Spring (1987) 479
U.S. 564, 573-575 [107 S.Ct. 851, 93 L.Ed.2d 954]; [Connecticut v.] Barrett [(1987) 479
U.S. 523,] 530 [107 S.Ct. 828, 93 L.Ed.2d 920]; Burbine, [supra,] 475 U.S., at 421-422.
Cf. Tague v. Louisiana (1980) 444 U.S. 469, 471 [100 S.Ct. 652, 62 L.Ed.2d 622] (per
curiam) (no evidence that accused understood his Miranda rights); Carnley v. Cochran
(1962) 369 U.S. 506, 516 [82 S.Ct. 884, 8 L.Ed.2d 70] (government could not show that
accused ‘understandingly’ waived his right to counsel in light of ‘silent record’). Where
the prosecution shows that a Miranda warning was given and that it was understood by
the accused, an accused’s uncoerced statement establishes an implied waiver of the right
to remain silent.” (Berghuis, supra, 560 U.S. at p. 384.)
       “As a general proposition, the law can presume that an individual who, with a full
understanding of his or her rights, acts in a manner inconsistent with their exercise has
made a deliberate choice to relinquish the protection those rights afford. See, e.g., Butler,
supra, at 372-376; [Colorado v.] Connelly [(1986) 479 U.S. 157,] 169-170 [107 S.Ct.
515, 93 L.Ed.2d 473] (‘There is obviously no reason to require more in the way of a
“voluntariness” inquiry in the Miranda waiver context than in the [due process]
confession context’). The Court’s cases have recognized that a waiver of Miranda rights
need only meet the standard of Johnson v. Zerbst (1938) 304 U.S. 458, 464 [58 S.Ct.
1019, 82 L.Ed. 1461]. See Butler, supra, [441 U.S.] at 374-375; Miranda, supra, [384
U.S.] at 475-476 (applying Zerbst standard of intentional relinquishment of a known
right). As Butler recognized, 441 U.S., at 375-376, Miranda rights can therefore be
waived through means less formal than a typical waiver on the record in a courtroom, cf.
Fed. Rule Crim. Proc. 11, given the practical constraints and necessities of interrogation
and the fact that Miranda’s main protection lies in advising defendants of their rights, see

                                             7
Davis [v. United States (1994)] 512 U.S. [452,] 460 [114 S.Ct. 2350, 129 L.Ed.2d 362];
Burbine, [supra,] 475 U.S., at 427.” (Berghuis, supra, 560 U.S. at p. 385.)


              3.     Analysis
       Defendant contends that “the record does not support that [defendant] heard, let
alone comprehended, that he had a right to appointed counsel.” Therefore, defendant
argues, he could not have impliedly waived a right he did not understand.
       Contrary to defendant’s assertion, the record shows that the interrogating officer
gave defendant each of the advisements required under Miranda, supra, 384 U.S. 436.
The officer advised defendant that he had the right to remain silent; that anything
defendant said to the officer could be used against defendant in court; that he had a right
to have an attorney present both before and during questioning; and that if defendant
could not afford an attorney, one would be appointed for defendant before questioning.
As to the first three advisements, defendant unequivocally stated that he understood them.
As to the fourth advisement, which was clear and straightforward, defendant initially
gave an unintelligible response to which the officer replied, “Yeah. Or yes? Although
defendant did not then expressly state that he understood the fourth advisement, his
subsequent response—asking whether the advisement concerning appointed counsel
should have been given earlier—suggested that he also understood his right to appointed
counsel, but objected to the timing of the advisement about it; and nothing defendant said
thereafter suggested otherwise. Given that it is undisputed defendant understood his right
to an attorney, there is nothing in the record to indicate that he did not understand the
plainly worded advisement about his additional right to have counsel appointed for him.
       Following the exchange between the interrogating officer and defendant
concerning the fourth advisement, defendant immediately began to respond voluntarily to
questions from the officer without objection or hesitation. His conduct in doing so, after
having been clearly advised of his Miranda rights, demonstrated that he understood those
rights, including the right to appointed counsel, and voluntarily waived them. That



                                              8
uncoerced conduct was sufficient under the foregoing authorities to establish an implied
waiver of his right against self-incrimination.
       Because the record of defendant’s interrogation supported a reasonable inference
that he had knowingly and voluntarily waived his Miranda rights, his trial counsel’s
decision not to move to suppress the statements he made to the police during that
interrogation, on the record before us, did not fall below an objective standard of
reasonableness. Thus, defendant has failed to satisfy on appeal the initial requirement of
his claim of ineffective assistance of counsel, i.e., the burden of establishing his trial
counsel’s inadequacy. We therefore reject that claim on appeal.


       B.     Transcripts of In Camera Hearings
       Defendant requests that we independently review the transcripts of the in camera
hearings on his two Pitchess motions, and the Attorney General does not object to that
request. When an appellant requests such an independent review, we are empowered to
review the transcripts to ensure that all discoverable materials were produced. (People v.
Mooc (2001) 26 Cal.4th 1216, 1229-1232.) We review a trial court’s ruling on a Pitchess
motion for abuse of discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)
       We have reviewed the two sealed transcripts of the in camera hearings in question
and conclude that the trial court ordered the production of all discoverable materials. We
therefore affirm the trial court’s orders made following the in camera hearings on the two
Pitchess motions.




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                                    DISPOSITION


      The judgment of conviction and the trial court’s orders on the two Pitchess
motions are affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                               MOSK, Acting P. J.


We concur:



             KRIEGLER, J.



             GOODMAN, J.




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

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