Filed 10/30/13 P. v. Simpson CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
          Plaintiff and Respondent,
                                                                         A138178
v.
STEVEN LYNN SIMPSON,                                                     (Mendocino County
                                                                          Super. Ct. No. CR1270386)
          Defendant and Appellant.


          Steven Lynn Simpson (appellant) appeals from a judgment entered after the trial
court denied his motion to suppress evidence and he pleaded no contest to possession of
methamphetamine for sale (Health & Saf. Code, § 113781). He contends the trial court
erred in denying his motion to suppress. We reject the contention and affirm the
judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
          An information was filed on December 6, 2012, charging appellant with
possession of methamphetamine for sale (§ 11378, count one) and possession of
marijuana for sale (§ 11359, count two). Appellant pleaded not guilty and thereafter
moved to suppress evidence (Pen. Code, § 1538.5).
          At the hearing on appellant’s motion to suppress, Ukiah Police Officer Kevin
Murray testified that on November 18, 2012, he received a telephone call from Sabrina
Laster, who was the reported victim of a cell phone theft that had occurred the week
1
          All further statutory references are to the Health and Safety Code unless otherwise
stated.


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before. Laster told Murray she had learned that a woman named Renee Aigamau “was
probably” using her stolen cell phone. Laster further told Murray she had received an
anonymous call that Aigamau was at the Discovery Inn, “possibly” in Room 142.
       Murray went to the Discovery Inn to investigate Laster’s report but found no one
in Room 142. He then went to the front desk and was told it had been two days since
someone had been in Room 142, but that a woman identifying herself with a California
identification card as Julie Caulkins had recently checked into the room above it,
Room 242. Murray went to Room 242 and knocked on the door. Appellant answered
and said his name was Steven Simpson.
       Murray asked appellant if Aigamau was in the room. Appellant responded she
was not. Murray then asked appellant if he “could check in the room,” and appellant
moved to the side and allowed Murray to enter. Once in the room, Murray came into
contact with a woman who was laying on the bed. The woman, who Murray recognized
from prior contacts, identified herself as Priscilla Knight and said she was on probation,
subject to search and seizure. Murray learned from dispatch that appellant was also on
probation, “with search terms,” although it was later determined that appellant was no
longer on probation on the day of the incident.
       Appellant also testified at the suppression hearing. He testified that on
November 18, 2012, he was staying in Room 242 of the Discovery Inn when he heard
“several knocks” at the door. The person at the door did not identify himself, and
appellant answered the door. A uniformed officer was there and asked “if Renee was
there”; appellant responded that he did not know anyone by that name. While “kind of
peering in the door,” the officer then asked if he could look for “Renee.” Appellant
testified, “I couldn’t slam the door in his face, so I kind of opened it so the door wouldn’t
hit him. I would go down if a door hits a cop. And he came in the room.” When asked
at the hearing on his motion to suppress, “Did you step aside willingly to allow him to
enter the room and search?” appellant responded, “I had to, yeah.”
       The parties stipulated that for purposes of the motion to suppress hearing, the
evidence presented would be limited to facts relating to Murray’s entry into the hotel


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room. After hearing argument, the trial court denied the motion to suppress. The court
noted it was clear that Murray went to Room 242 to conduct an investigation. The court
further stated, “He knocked on the door, the person came to the door. He asked
permission to go in to look for a particular person. He stated the reason he wanted to go
in. And the person who opened the door stepped aside clearing the door for the officer to
go in. [¶] It appears to me that . . . a normal person would think that the person in the
room is giving his consent to the person to enter the room. [¶] I find the entry into the
room by the officer was made with the complied (sic) consent of the defendant.”
       After the trial court denied appellant’s motion to suppress, the parties entered into
a negotiated plea under which appellant pleaded no contest to count one, and the trial
court dismissed count two and sentenced appellant to the low term of 16 months in state
prison. Appellant filed a timely notice of appeal.
                                          DISCUSSION
                                            Standard
       The Fourth and Fourteenth Amendments to the United States Constitution and
Article 1, Section 13 of the California Constitution protect appellant from unreasonable
searches and seizures. (U.S. Const., 4th Amend.; Cal. Const., art. 1, § 13; People v.
Camacho (2000) 23 Cal.4th 824, 830.) The “ultimate standard set forth in the Fourth
Amendment is reasonableness.” (Cady v. Dombrowski (1973) 413 U.S. 433, 439.) Thus,
a defendant “may move . . . to suppress as evidence any tangible or intangible thing
obtained as a result of a search or seizure . . . [¶] . . . [¶] [on the ground that] [t]he search
or seizure without a warrant was unreasonable . . . .” (Pen. Code, § 1538.5,
subd. (a)(1)(A).)
       “ ‘An appellate court’s review of a trial court’s ruling on a motion to suppress is
governed by well-settled principles. [¶] In ruling on such a motion, the trial court
(1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the
latter to the former to determine whether the rule of law as applied to the established facts
is or is not violated. . . . [¶] The [trial] court’s resolution of the first inquiry, which
involves questions of fact, is reviewed under the deferential substantial-evidence


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standard. Its decision on the second, which is a pure question of law, is scrutinized under
the standard of independent review. Finally, its ruling on the third, which is a mixed fact-
law question that is however predominantly one of law, . . . is also subject to independent
review.’ ” (People v. Alvarez (1996) 14 Cal.4th 155, 182, citations omitted.)
                                        Detention
       Appellant contends the trial court erred in denying his motion to suppress because
“the seizure stemmed from an unlawful detention.” His argument is not entirely clear,
but it appears his position is that Murray unlawfully detained him when he knocked on
the door to Room 242 and contacted him without having any reliable information from
which to reasonably suspect that Aigamau was in the room. Appellant points out, for
example, that there was nothing other than “hearsay from the ‘anonymous source’ ” to
support Murray’s belief that Aigamau might be at the Discovery Inn. He also asserts that
once Murray did not find anyone in Room 142 and the front desk clerk told him that a
woman named Julie Caulkins—and not Aigamau—had checked into Room 242, he
should have known that Aigamau was not likely to be in Room 242.
       The Fourth Amendment, however, “does not require police to corroborate an
anonymous tip before seeking consent to enter and search a residence. Even if acting on
an anonymous, uncorroborated tip, police may knock on the door of a residence, speak
with the occupant, and request permission to enter and search.” (People v. Rivera (2007)
41 Cal.4th 304, 308.) This is because “there is nothing in our constitutional
jurisprudence that makes it illegal for police officers to knock on a person’s door [without
having reasonable suspicion that] the person has committed a crime.” (People v. Jenkins
(2004) 119 Cal.App.4th 368, 374.)
       In People v. Jenkins, supra, 119 Cal.App.4th at p. 372, the Court of Appeal
considered the constitutionality of a “knock and talk” procedure in which officers
knocked on the door of the defendant’s motel room, asked for identification, and asked
the defendant whether she was on parole. The defendant said she was not a parolee and
consented to a search of the room, and the officers found methamphetamine in the room.
(Id. at pp. 370-371.) The trial court ruled that the “knock and talk” procedure violated


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the Fourth Amendment, equating it to an investigative detention. (Id. at p. 374.) The
Court of Appeal reversed, concluding that the procedure did not rise to the level of an
investigative detention requiring an articulable suspicion of criminal activity. (Id. at
p. 372.) The Court of Appeal further concluded that for purposes of entry into the room,
the reliability of any tip that precipitated the encounter was irrelevant if the defendant
consented to the entry, and that “the proper inquiry” was therefore “whether the
encounter was consensual under the totality of the circumstances.” (Id. at p. 374.)
       Similarly, here, Murray’s act of knocking on the door to Room 242 and asking
appellant some questions did not rise to the level of an investigative detention. Thus,
Murray was not required to have reliable information from which to reasonably suspect
that Aigamau was in the room, or that criminal activity was going on. The proper
inquiry—which we discuss below—was whether Murray’s entry into the room was
justified by consent.
                                      Implied consent
       Appellant contends there was insufficient evidence supporting the trial court’s
finding that he impliedly consented to Murray entering the room. We disagree.
       “[T]he question whether a consent to search was in fact ‘voluntary’ or was the
product of duress or coercion, express or implied, is a question of fact to be determined
from the totality of all the circumstances.” (Schneckloth v. Bustamonte (1973) 412 U.S.
218, 227.) The People bear the burden of showing by a preponderance of the evidence
that the defendant’s manifestation of consent was the product of his free will and not a
mere submission to an express or implied assertion of authority. (United States v.
Matlock (1974) 415 U.S. 164, 177-178 fn. 14; People v. James (1977) 19 Cal.3d 99, 106
fn. 4.) Even if actual consent is lacking, however, evidence will not be suppressed if an
officer reasonably believed that the defendant had agreed to a search of his person or
property. (Illinois v. Rodriguez (1990) 497 U.S. 177, 183-189.) Unless clearly erroneous,
the trial court’s ruling must be upheld on appeal. (People v. Crenshaw (1992) 9
Cal.App.4th 1403, 1408.)



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       Here, there was substantial evidence supporting the trial court’s finding that
appellant gave his implied consent to the entry. As noted, Murray testified that when he
asked appellant if he could come inside, appellant “moved to the side,” allowing him to
walk into the room. Appellant admitted he “kind of opened” the door for Murray and
acknowledged he “step[ped] aside” to allow Murray to enter. Under the circumstances,
the trial court reasonably found that appellant consented to the entry.
       Appellant asserts he was not given sufficient “time to voice an opposition”
because Murray “immediately entered” the room. However, Murray’s testimony—which
the trial court presumably credited—does not show that he stormed into the room; rather,
it shows that he asked for permission to enter, then waited to enter until appellant stepped
aside, clearing the path for him to walk in. To the extent appellant is complaining that
Murray did not wait for a verbal response, we note that it is settled that “consent to enter
may be expressed by actions as well as words.” (People v. Harrington (1970) 2 Cal.3d
991, 995.)
       Appellant also challenges the trial court’s ruling on the ground that he did not
consent to the entry, but merely acquiesced to Murray’s “assertion of authority” because
he felt he “had to” do so. He relies primarily on People v. Superior Court of San
Bernardino County (Peck) (1974) 10 Cal.3d 645, 648, but the case does not support his
position. There, a uniformed officer responded to the defendant’s apartment to
investigate a possible burglary after a witness said he saw someone entering the
apartment through a window. (Id. at p. 648.) With his gun drawn, the officer knocked on
the defendant’s apartment door, and the defendant opened the door and said he lived
there; the apartment manager confirmed it was the defendant’s apartment. (Ibid.) The
officer asked if there was a burglar inside, and the defendant assured him there was not,
explaining he entered through a rear window after his wife left with the key following an
argument. (Ibid.) Nevertheless, the officer stepped past defendant into the living room.
(Ibid.) In finding the defendant did not impliedly consent to the entry, the trial court
apparently discredited the officer’s testimony that the defendant stepped back and opened
the door wider after the officer asked, “Can I take a look?” (Ibid.) The Supreme Court


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affirmed the trial court’s ruling, and in doing so, noted, “Had the People—rather than the
defendant—prevailed below, the officer’s testimony [that he asked to enter and that the
defendant stepped back and opened the door wider] would [have] provide[d] substantial
evidence to support a finding of implied consent to enter.” (Id. at pp. 648-649.)
       Here, in contrast to People v. Superior Court of San Bernardino County (Peck),
supra, 10 Cal.3d 645, the People did prevail, based on Murray’s testimony that he asked
for permission to enter the room and that appellant stepped aside, clearing the path for
him to enter. That testimony was sufficient to support the trial court’s finding of implied
consent. (Id. at pp. 648-649.)
                                     Scope of consent
       Appellant contends that even if the trial court properly found he impliedly
consented to the entry, the court improperly found that the scope of his consent extended
to “a search of his personal effects, containers, or any other locations beyond that where a
person could be located.”2 Appellant forfeited this claim because he did not raise it
below. (People v. Williams (1999) 20 Cal.4th 119, 130 [the failure by a defendant to
present a theory to support a challenge to the admissibility of evidence forfeits
consideration of that ground on appeal].)
       Appellant asserts he did not waive his claim because his written motion to
suppress was broad and sought to exclude “all observations of the investigating officers,
statements of the defendant, all contents of the hotel room and any containers found
therein, forensic and testimonial results and conclusions about all such things.” As noted,
however, counsel expressly agreed at the suppression hearing that “the nature of the

2
       Murray testified at the preliminary hearing that after learning that Knight was a
parolee subject to search and seizure, and under the mistaken belief that appellant was as
well, he proceeded to search the room for illegal activity and found approximately
75 brand new small ziploc style baggies in a backpack that appellant identified as being
his, and a black grocery bag that contained methamphetamine pipes and 11 bags of
methamphetamine. He also found approximately five bags of marijuana. After waiving
his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), appellant admitted that the
methamphetamine was for sale, and that he either gave away or sold the marijuana along
with the methamphetamine.


                                             7
proceedings was going to be limited to the entry of the hotel room.” Thus, the
prosecution did not present any evidence at the hearing relating to the scope of the search
or the circumstances of the seizure of the evidence that was ultimately found in the room.
The issue of the scope of consent was not litigated, and the trial court made no findings
relating to that issue. Having agreed to limit the issues to be decided by the trial court,
appellant is bound by that agreement on appeal.
       Appellant alternatively contends that trial counsel rendered ineffective assistance
by agreeing to limit the issue raised at the suppression hearing to the legality of Murray’s
entry. This contention is also without merit. A defendant making an ineffective
assistance of counsel claim must show both that counsel was incompetent and that he was
prejudiced as a result of counsel’s conduct. (Strickland v. Washington (1984) 466 U.S.
668, 687; People v. Carter (2003) 30 Cal.4th 1166, 1211.) As to competence, the
defendant must show that counsel’s performance was deficient, i.e., “counsel’s
representation fell below an objective standard of reasonableness.” (Strickland v.
Washington, supra, 466 U.S. at p. 688.) Inferences of incompetence are insufficient; the
defendant must “point[] to specific error made by trial counsel.” (United States v. Cronic
(1984) 466 U.S. 648, 649, 659 fn. 26; see also Strickland v. Washington, supra, 466 U.S.
at p. 690 [“strategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable”].) In order to show prejudice, the
defendant must prove “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” (Id. at
pp. 693-694; People v. Carter, supra, 30 Cal.4th at p. 1211.)
       Appellant has not shown that defense counsel was incompetent in agreeing to limit
the issue presented at the suppression hearing. He appears to believe that because
Murray’s reason for entering the room was to look for Aigamau, and because appellant
allowed Murray to enter for that purpose, the scope of the search should have been
limited to seeing if Aigamau was hiding inside. However, as noted, another occupant of
the room, Knight, was on probation, with search and seizure terms. (See People v.
Robles (2000) 23 Cal.4th 789, 795 [a person may validly consent in advance to


                                              8
warrantless searches and seizures in exchange for the opportunity to avoid serving a state
prison term].) Once lawfully in the room, Murray therefore had the authority to search
those portions of the room to which he reasonably believed Knight had access, or over
which she and appellant shared control. (People v. Smith (2002) 95 Cal.App.4th 912,
916.)3 During that lawful search, he found a black grocery bag containing 11 bags of
methamphetamine sitting right underneath a sink, where “[y]ou c[ould] see directly under
the sink.” He advised appellant of his rights, and appellant waived his rights and said he
possessed the methamphetamine for sale. Based on the lawful entry, Knight’s probation
status, the area in which the most incriminating evidence was found, and appellant’s
admission, counsel could have reasonably determined that raising the issue of the scope
of consent would have been futile. (People v. Anderson (2001) 25 Cal.4th 543, 587
[failure to make a futile act is not ineffective assistance of counsel].)
                                        DISPOSITION
       The judgment is affirmed.



                                                   _________________________
                                                   Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.

People v. Steven Lynn Simpson, A138178


3
       Appellant does not argue that Knight did not have joint authority over the room, or
specifically, over the location in which the 11 bags of methamphetamine and
methamphetamine pipes were found.


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