Filed 12/11/13 P. v. Boyd CA6
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038058
                                                                     (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS111821)

                  v.

GARY BOYD,

         Defendant and Appellant.



         At approximately 10:30 p.m. on September 15, 2011, defendant Gary Boyd was
detained along with four other individuals by Salinas police officers performing an
enforcement “sweep” in a high crime area of Salinas. The detentions were based upon
the suspicion that defendant and the others had committed a trespass under a city
ordinance prohibiting persons from entering another’s land when the owner has posted a
sign indicating the land is private property. After refusing to be patsearched and then
attempting to flee the officers, defendant was arrested and found to be in possession of a
loaded firearm. He was charged by complaint with one misdemeanor and four felonies,
including being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)).1
The complaint included various special allegations, including a gang enhancement as to


         1
             Further statutory references are to the Penal Code unless otherwise stated.
three of the felony counts. On November 18, 2011, after a hearing on defendant’s motion
to suppress pursuant to section 1538.5 that was combined with the preliminary hearing,
the magistrate denied the suppression motion and held defendant to answer.
       An information was filed shortly thereafter containing the same counts and
enhancements alleged in the complaint. On January 5, 2012, defendant (against his
counsel’s advice) pleaded no contest to being a felon in possession of a firearm and
admitted the gang allegation on the conditions that the remaining counts and allegations
would be dismissed, he would be placed on felony probation, and he would receive a
five-year suspended sentence. The court thereafter imposed a five-year prison term,
suspended execution of the sentence, and placed defendant on probation on condition that
he serve 240 days in county jail. Appellant filed a timely notice of appeal from the order,
challenging the magistrate’s denial of the suppression motion.2
       On appeal, defendant contends he received prejudicially ineffective assistance of
counsel. He asserts that his counsel failed to renew the motion to suppress in superior
court after its denial by a magistrate and after the information was filed, thereby failing to
preserve defendant’s appellate challenge to the legality of his detention by the police that
ultimately resulted in his arrest. He argues the motion to suppress was meritorious, there
was no tactical reason for his counsel’s failure to renew it, and he is therefore entitled to
appellate relief.
       We reject defendant’s ineffective assistance of counsel claim. Accordingly, we
will affirm the order of probation.




       2
        Details concerning defendant’s subsequent filing of an amended notice of appeal
and procedural aspects of the case related thereto are discussed in part IV of the
Procedural and Factual Background, post.



                                              2
                    PROCEDURAL AND FACTUAL BACKGROUND3
       I       Complaint
       Defendant was charged by a complaint filed September 26, 2011, with four
felonies and one misdemeanor, including three felony weapons possession offenses,
arising from an incident on September 15, 2011. The complaint included various special
allegations, including gang allegations as to each of the weapons possession offenses.
       II.     Motion to Suppress
               A.     Contentions
       Defendant filed a motion to suppress evidence pursuant to section 1538.5, arguing
that the property seized by the police (i.e., the handgun) and statements made by
defendant should be suppressed because they were products of an unlawful search and
seizure. He argued, among other things, that (1) his initial detention was unlawful unless
it was based upon facts supporting a reasonable suspicion of illegal activity; and (2) even
were the detention lawful, there was no lawful basis for the officer’s performance of a
patsearch unless he was aware of specific and articulable facts (together with reasonable
inferences drawn therefrom) to support a reasonable suspicion that defendant was armed
and dangerous.
       The motion was opposed by the People. Their brief consisted of a general
narrative of search and seizure jurisprudence without any argument applying the law to
the facts of this case.




       3
         The facts relevant to the challenged search and seizure are taken from the
evidentiary hearing before the magistrate on defendant’s motion to suppress. “Since the
trial court resolved this matter in favor of the prosecution, for purposes of this proceeding
we view the record in the light most favorable to the People’s position.” (Wilson v.
Superior Court (1983) 34 Cal.3d 777, 780.)



                                              3
              B.     Evidence
       An evidentiary hearing was held on November 18, 2011. The evidence presented
at the hearing consisted of the testimony of three witnesses, as presented below.4
       Salinas Police Officer Steven Mattocks was patrolling the area of Soledad Street in
Salinas at 10:22 p.m. on September 15, 2011. The area is a high crime area referred to as
“Chinatown” and is “notorious with drug sales, prostitution, gangs, basic violence, stuff
like that.” He and approximately 10 other officers were sent to the area to perform “a
Chinatown sweep,” which he defined as “enforc[ing] laws down there.” At that time,
there were no businesses open in the area being patrolled. Two businesses, Dorothy’s
Kitchen, a homeless shelter, and Victory Outreach, had closed at approximately 10:00
p.m.
       There were approximately 50 people on the street that Officer Mattocks was
patrolling. The officer observed defendant and four other individuals “standing
underneath a ‘No Trespassing’ sign” posted at 36 Soledad Street. Officer Mattocks
further testified that defendant “was standing on the sidewalk, near the door well, with a
group.” He observed defendant standing on the sidewalk for approximately 40 seconds.
He contacted the five people because they were violating a local trespassing law, Salinas
Municipal Code 21-35 (SMC 21-35).
       Officer Mattocks instructed defendant and the others to sit on the curb, telling
them they had violated a local ordinance concerning loitering. He did so with the
intention of determining the identities of the individuals and possibly issuing citations to
them for violating SMC 21-35. The officer began to obtain identifications from the five
individuals and to run records checks on each person. Defendant was farthest away from
       4
         A fourth witness, Officer Michael Cupak, testified at the combined preliminary
hearing and hearing on the suppression motion. His testimony concerned the allegations
that the charged crimes were committed for the benefit of a criminal street gang. That
testimony is not relevant to the motion to suppress.



                                              4
Officer Mattocks. While the officer was running records checks, he noticed that
defendant “was continually scooting farther away from the rest of the individuals”;
Officer Mattocks instructed defendant to stop moving. Officer Mattocks testified that
defendant stood out from the rest of the group because he was “cleanly dressed,” wearing
a Pendleton, blue jeans and a black hooded sweater, while the people who seek the
services of Dorothy’s Kitchen were “poorly dressed, with tattered clothes.” The officer
viewed defendant as being “out of the norm, obviously not homeless, and dressed
basically like our normal drug dealers do down in Chinatown.”
       Sergeant Nuuy Livingston of the Salinas Police Department came to the scene and
assisted Officer Mattocks with interviewing the five detained individuals. Sergeant
Livingston contacted defendant, who was the person farthest away from Officer
Mattocks. He asked defendant to identify himself, and he responded that he was Gary
Boyd. Sergeant Livingston told defendant that he wanted to perform a patsearch for
weapons and asked him to stand.5 Defendant responded that Sergeant Livingston did not
have the right to patsearch him and refused to stand up. Sergeant Livingston repeated
that he was going to conduct a patsearch, and defendant reiterated that he felt that the
sergeant had no right to do so. Officer Mattocks came over to assist, and as Sergeant
Livingston helped defendant get up from the curb, defendant “tried to run away from
[his] grasp.” Sergeant Livingston “had ahold of [defendant’s] right arm and assisted him
to the ground.”
       Defendant was handcuffed by another officer and was escorted to a patrol car. An
officer assisting Sergeant Livingston and Officer Mattocks searched defendant and found
a loaded nine-millimeter handgun in a satchel concealed under his sweater.


       5
        Sergeant Livingston testified that he decided to patsearch defendant for weapons
because there were five detained individuals, they were in a high crime area, and
defendant was wearing an oversized sweatshirt in which a person could conceal weapons.



                                             5
       None of the five people detained by Officer Mattocks was cited for trespassing.
Sergeant Livingston testified that it was “at [the] discretion” of the officer whether or not
to issue a citation for trespassing.
       Nelson Rodriguez, an investigator with the Monterey County Public Defender’s
Office, testified that three days before the hearing, he visited and photographed the
Soledad Street area where defendant had been detained and arrested. At that time (two
months after defendant’s detention and arrest), there was no sign indicating “No
Trespassing” at 36 Soledad Street. Officer Mattocks testified the sign was there on
September 15, 2011. He testified further it was noted on the sign, “ ‘No Trespassing’ ”
and there was a reference to SMC 21-35. Officer Mattocks did not recall any other
particulars that may have been indicated on the sign.
              C.      Order
       On November 18, 2011, after the presentation of evidence at the hearing on the
motion to suppress combined with the preliminary hearing, the magistrate denied the
suppression motion. He gave two separate reasons for denial: (1) the detention was
lawful based upon the reasonable suspicion that defendant had committed a trespass in
violation of SMC 21-35; and (2) there was “probable cause to detain [defendant]”
because it was after 10:00 p.m., it was a high crime area, no businesses were open, and
defendant stood out “in a way that [was] consistent with, in the officer’s experience, only
one other type of person [who] goes there, [a] drug dealer[], and [defendant] looks like
one.” The court ordered defendant to be held to answer to the four felonies and
enhancements in the superior court, and certified the misdemeanor to the superior court.
       III.   The Information, Plea, and Sentencing
       On November 21, 2011, an information was filed alleging the four felonies and
one misdemeanor previously alleged in the complaint, namely, being a felon in
possession of a firearm (§ 12021, subd. (a)(1); count 1); carrying a concealed firearm
(§ 12025, subd. (a)(2); count 2); carrying a loaded firearm (§ 12031, subd. (a)(2); count

                                              6
3); street terrorism (§ 186.22, subd. (a); count 4); and misdemeanor resisting arrest
(§ 148, subd. (a)(1); count 5). The information contained a number of special allegations.
It was alleged as to counts 1 through 3 that defendant had been previously convicted of
transportation of a controlled substance for sale (Health & Saf. Code, § 11352, subd. (a));
as to counts 2 and 3, that defendant was not the registered owner of the firearm (§ 12025,
subd. (b)(6)); as to counts 1 through 3, that such crimes were committed for the benefit
of, at the direction of, and in association with a criminal street gang (§ 186.22, subd.
(b)(1)); and as to the four felony counts, that defendant had suffered a prior felony
conviction for which he had served a prison term (§ 667.5, subd. (b)).
       At a pretrial conference on January 4, 2012, defendant withdrew his not guilty
plea, entered a conditional plea of no contest to count 1, and admitted the gang allegation
as to that count. Defendant’s plea was conditioned upon the dismissal of the remaining
counts and allegations and his receiving felony probation and a suspended five-year
sentence. Defendant entered this plea over the objection of his counsel. The court
thereafter entered a five-year prison sentence, suspended execution of that sentence, and
granted defendant probation for three years on various terms and conditions, including
the condition that he serve 240 days in county jail with the court awarding him a total of
174 days of presentence credits.
       IV.    Appeal
       Defendant filed a timely notice of appeal in which his counsel indicated that the
appeal was based upon the denial of the motion to suppress evidence under section
1538.5.6



       6
        Defendant also indicated in the notice of appeal that he would seek review of an
order increasing the amount of his bail. That issue is not addressed in defendant’s
appellate briefs and is therefore not a subject of this appeal.



                                              7
       Defendant thereafter filed with this court a motion for relief from default for
failing to timely file an amended notice of appeal to raise an ineffective assistance of
counsel claim. We granted the motion, specifying that the amended notice of appeal be
filed with the superior court within 10 days of our order and that it include a request to
the trial court for a certificate of probable cause.
       In compliance with our order, on July 6, 2012, defendant filed an amended notice
of appeal, which included a request for the superior court to issue a certificate of probable
cause for him to assert an ineffective assistance of counsel claim based upon the failure to
renew the motion to suppress in the superior court. After the superior court’s denial of
this request, defendant filed a petition for writ of mandate seeking an order directing the
superior court to issue a probable cause certificate. (Boyd v. Superior Court, H038937.)7
We denied the petition.
       The Supreme Court granted defendant’s petition for review and transferred the
matter to this court with directions that we vacate our order denying mandate and issue an
alternative writ. (Boyd v. Superior Court, S206766, Jan. 16, 2013.) On January 28,
2013, we vacated our prior order denying mandate; we issued an alternative writ of
mandate commanding the superior court to vacate its prior order denying the request for a
certificate of probable cause and issuing a new order granting such request, or, instead,
show cause why a peremptory writ of mandate should not issue. On January 30, 2013,
the superior court vacated its prior order and entered a new order granting defendant’s
request for issuance of a certificate of probable cause. We thereafter ordered the



       7
        We take judicial notice of our file in the related writ of mandamus proceeding,
pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a),
because it “help[s] complete the context of this case.” (Flatley v. Mauro (2006) 39
Cal.4th 299, 306, fn. 2)




                                               8
alternative writ of mandate discharged and denied the petition for writ of mandate as
moot.
                                       DISCUSSION
        I.     Defendant’s Ineffective Assistance of Counsel Claim
               A.     Ineffective Assistance of Counsel Claims
        A criminal defendant has the right to the assistance of counsel. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 15.) This constitutional right to counsel entitles a defendant
not simply to “bare assistance” but rather to effective assistance. (People v. Jones (1991)
53 Cal.3d 1115, 1134.) There are two elements to an ineffective assistance claim:
(1) deficient performance, and (2) prejudice resulting from such deficient performance.
(People v. Weaver (2001) 26 Cal.4th 876, 961.) The deficient performance element
consists of “a showing that ‘counsel’s representation fell below an objective standard of
reasonableness.’ [Citations.]” (In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting
Strickland v. Washington (1984) 466 U.S. 668, 688.) “ ‘In determining whether
counsel’s performance was deficient, a court must in general exercise deferential scrutiny
. . .’ and must ‘view and assess the reasonableness of counsel’s acts or omissions . . .
under the circumstances as they stood at the time that counsel acted or failed to act.’
[Citation.]” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Moreover, “[i]f the record
does not shed light on why counsel acted or failed to act in the challenged manner, we
must reject the claim on appeal unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply can be no satisfactory explanation.” (Ibid.) To
satisfy the second element of “prejudice,” the defendant must show “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result would have
been more favorable to defendant, i.e., a probability sufficient to undermine confidence in
the outcome.” (In re Ross (1995) 10 Cal.4th 184, 201.)
        The burden of establishing ineffective assistance is upon the party claiming it.
(People v. Pope (1979) 23 Cal.3d 412, 425 (Pope), overruled on another ground, People

                                              9
v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) This means that defendant here “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 [the] 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.’ [Citations.] ” (People v. Kipp (1998) 18 Cal.4th 349, 366,
quoting Strickland, supra, 466 U.S. at p. 686.)
       Furthermore, in deciding an ineffective assistance claim, the reviewing court need
not inquire into the two components (deficient performance and prejudice) in any
particular order; in the event the defendant’s showing on one component is insufficient,
the court need not address the remaining component. (In re Cox (2003) 30 Cal.4th 974,
1019-1020.) “The object of an ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.”
(Strickland, supra, 466 U.S. at p. 697.)
              B.     Contentions of the Parties
       Defendant contends that he was deprived of effective assistance of counsel
because his attorney failed to preserve his Fourth Amendment challenge by filing in the
superior court a renewed motion to suppress under section 1538.5. He contends that the
suppression motion, had it been renewed—based upon the record established before the
magistrate—was a meritorious one that should have been granted. In this respect, he
argues that Officer Mattocks had no reasonable suspicion to justify detaining him.
Defendant asserts that the officer had no reasonable basis to conclude that he had
committed a trespass in violation of SMC 21-35, because (1) he was standing on a public
sidewalk and thus not trespassing on private land; (2) even assuming he was on private
property, it had not been established that the posted sign to which the officer testified
contained the language required under the ordinance; and (3) it was not established that

                                             10
the sign existed at the time defendant was detained. Defendant asserts further that the
second ground upon which the magistrate found the detention to have been lawful—that
defendant was in a high crime area, at approximately 10:30 p.m. and was dressed
different from those who were typically found in the area—did not satisfy the
constitutional standard for a lawful detention. In other words, these circumstances were
insufficient to support a reasonable belief by the officer that “(1) some activity relating to
crime has taken place or is occurring or about to occur, and (2) the person he intends to
stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893,
superseded on other grounds by Cal. Const., art. I, § 28.)
       Defendant acknowledges that it was essential for him to have renewed his
suppression motion in superior court after its denial by the magistrate in order to preserve
the issue of the legality of the search on appeal. He asserts, however, that such omission
was deficient performance by his attorney that constituted “per se” ineffective assistance
of counsel, entitling him to appellate relief because his motion to suppress was
meritorious.
       The Attorney General responds that defendant’s ineffective assistance claim fails
because the record demonstrates that his motion to suppress was not meritorious. She
asserts that there were sufficient facts for Officer Mattocks to have had a reasonable
suspicion that defendant had committed a trespass in violation of SMC 21-35.8
Therefore, the Attorney General contends, defense counsel’s failure to renew in the
superior court a suppression motion that was without merit did not constitute ineffective
assistance of counsel.



       8
         The Attorney General specifically declined to argue that the magistrate’s second,
alternative basis for denying the suppression motion was a constitutionally sufficient
basis for Officer Mattocks’s detention of defendant.



                                             11
              C.     Defendant’s Claim of Error Fails
       In order for a criminal defendant to obtain appellate review of a search and seizure
question, he or she must have “moved for the return of the property or the suppression of
the evidence” “at some stage of the proceedings prior to the conviction.” (§ 1538.5,
subd. (m).) In People v. Lilienthal (1978) 22 Cal.3d 891 (Lilienthal), our high court
“concluded this condition was not satisfied simply because the defendant moved to
suppress evidence at the preliminary examination, even though the preliminary
examination might otherwise appear to be ‘some stage of the proceedings prior to
conviction.’ [Citation.]” (People v. Richardson (2007) 156 Cal.App.4th 574, 582-583
(Richardson), citing Lilienthal, at pp. 895-897.) Rather, the search and seizure issue must
“be raised in the superior court to preserve the point for review on appeal.” (Lilienthal, at
p. 896.)
       “Because preliminary examinations were traditionally conducted by municipal
court judges sitting as magistrates, the elimination of the municipal court raised the idea
that the basis for the Lilienthal rule had disappeared along with the municipal court.”
(Richardson, supra, 156 Cal.App.4th at p. 586.) This argument was rejected in several
cases. (See People v. Garrido (2005) 127 Cal.App.4th 359, 364; People v. Hinds (2003)
108 Cal.App.4th 897, 900 (Hinds); People v. Hoffman (2001) 88 Cal.App.4th 1, 3;
People v. Hart (1999) 74 Cal.App.4th 479, 485-486 (Hart).) It is therefore clear that a
search and seizure challenge is not preserved for appeal if the defendant fails to renew in
the superior court a suppression motion after it has been denied by the magistrate.
(Richardson, at pp. 586-587; see also People v. Witcraft (2011) 201 Cal.App.4th 659,
665-666.)
       Here, after the magistrate denied the motion and bound defendant over to the
superior court, defense counsel did not renew the motion to suppress. He therefore may
not directly assert that his suppression motion should have been granted, since the claim
was forfeited. (Richardson, supra, 156 Cal.App.4th at pp. 586-587.) But his trial

                                             12
attorney’s failure to renew the motion under the circumstances—contrary to defendant’s
claim—does not establish “per se” ineffective assistance of counsel entitling him to
appellate relief.
       In support of his position, defendant relies on Hart, supra, 74 Cal.App.4th 479.
There, after the magistrate denied the defendant’s motion to suppress, the case went to
trial and a jury convicted the defendant of possession of a controlled substance. (Id. at
pp. 483-484.) The defendant failed to renew the motion to suppress in the superior court
(id. at p. 484), and a majority panel of the Third District Court of Appeal concluded that
this omission constituted a failure to preserve the Fourth Amendment challenge (id. at
pp. 485-486). But because the defendant asserted that the failure to renew the
suppression motion was ineffective assistance of counsel, the appellate court reviewed
the merits of the defendant’s challenge of the search: “[W]e conclude it is necessary to
determine the legality of the search in order to determine whether counsel was
constitutionally ineffective. If the search was invalid, failing to preserve the issue
constituted deficient performance when measured against the standard of a reasonably
competent attorney. [Citation.] Furthermore, the failure to preserve the issue of the
legality of the search is prejudicial to the defendant if there would not have been
sufficient evidence, otherwise, to convict. [Citation.] Hence, to determine whether
counsel was constitutionally ineffective for failing to preserve the issue, we must
consider the merits of the Fourth Amendment argument. Lilienthal therefore is
neutered.” (Id. at pp. 486-487.) The Hart court ultimately rejected the defendant’s
ineffective assistance claim, finding that the challenged search to have been lawful. (Id.
at pp. 487-493.)
       Hart is distinguishable. In this case, shortly after the magistrate denied the
suppression motion and bound defendant over to superior court, defendant—without
renewing the motion to suppress—pleaded no contest in exchange for receiving a five-
year prison sentence for which the court would stay execution of his prison sentence. At

                                             13
the time of the plea, defendant acknowledged that the maximum sentence he could have
received had he been convicted after trial was seven years in prison. Thus, in contrast to
Hart, defendant here entered a negotiated plea rather than having sustained a conviction
after trial. This procedural distinction is of significance.
       As noted above, where the record does not demonstrate the reason counsel took
certain action or failed to take certain action, an appellate court must reject the
defendant’s ineffective assistance of counsel claim “unless counsel was asked for and
failed to provide a satisfactory explanation, or there simply can be no satisfactory
explanation.” (People v. Scott, supra, 15 Cal.4th at p. 1212.) Our high court has
explained: “[B]ecause, in general, it is inappropriate for an appellate court to speculate as
to the existence or nonexistence of a tactical basis for a defense attorney’s course of
conduct when the record on appeal does not illuminate the basis for the attorney’s
challenged acts or omissions, a claim of ineffective assistance is more appropriately made
in a habeas corpus proceeding, in which the attorney has the opportunity to explain the
reasons for his or her conduct.” (People v. Wilson (1992) 3 Cal.4th 926, 936.)
       Here, the record is devoid of any reason or reasons defense counsel may have
elected not to renew a suppression motion in superior court. She may have intended to
file the motion, but her client’s decision to enter into a negotiated plea may have
preempted such action. Or the negotiated plea itself—although silent on the subject of
defendant’s challenge to the search and seizure—may have been based upon defendant’s
forgoing such challenge. These two scenarios, while matters of speculation on the part of
this court, are only two examples of explanations for not renewing the suppression
motion that would undercut defendant’s ineffective assistance of counsel claim. The
point is that this is not a case in which either counsel was asked for and failed to provide
a satisfactory explanation for the omission, or “there simply can be no satisfactory
explanation.” (People v. Scott, supra, 15 Cal.4th at p. 1212.)



                                              14
       Hinds, supra, 108 Cal.App.4th 897, another decision of the Third District Court of
Appeal, supports our conclusion. There, after the magistrate’s denial of his motion to
suppress, the defendant pleaded guilty to marijuana possession pursuant to a negotiated
plea without renewing the suppression motion in the superior court. (Id. at p. 899.) The
defendant acknowledged that under Lilienthal, supra, 22 Cal.3d at pages 896 to 897, the
challenge was not preserved for appeal as a result of the failure to renew the motion in
superior court; but he argued that, under Hart, supra, 74 Cal.App.4th 479, the search
issue was cognizable based upon his ineffective assistance of counsel claim and that he
was necessarily entitled to appellate relief because the suppression motion had merit.
(Hinds, at pp. 900-901.)
       The court in Hinds, distinguishing its prior decision in Hart, rejected the
defendant’s position: “[The d]efendant argues we must necessarily consider the merits of
his suppression motion on appeal in order to determine whether he received effective
assistance of trial counsel. Relying on Hart, defendant presumes there can be no tactical
reason not to renew the suppression motion and that, if counsel fails to preserve a
potentially meritorious motion for review on appeal, trial counsel has failed to provide
effective assistance of counsel. [¶] . . . [¶] . . . The defendant in Hart did not enter into a
negotiated or stipulated plea, but rather, proceeded through a jury trial after the denial of
her suppression motion. [Citation.] Hence, when deciding whether there could be a
satisfactory reason for the failure of counsel to renew the suppression motion in the trial
court, we considered what reasons, if any, counsel could have had under those
circumstances. Our determination in Hart that raising the issue of ineffective assistance
of counsel neutralizes the waiver applies only where the defendant proceeds through a
jury trial after the denial of his suppression motion. Under such circumstances, we saw
no sound tactical reason for failing to pursue a meritorious motion which, had it been
properly granted, would have suppressed most of the evidence against defendant and
perhaps resulted in a dismissal of the charges. [Citation. ¶] Here, however, counsel was

                                               15
not given an opportunity to explain why the motion was not renewed, and a satisfactory
explanation could exist. For instance, the availability of the plea bargain accepted by the
defendant may have been dependent upon not further pursuing the suppression motion.
[¶] We are wary of adjudicating claims casting aspersions on counsel when counsel is not
in a position to defend his conduct. A claim of ineffective assistance of counsel instead is
more appropriately made in a habeas corpus proceeding. [Citation.] Accordingly, we
reject defendant’s claim on appeal and leave him to that remedy.” (Hinds, supra, 108
Cal.App.4th at pp. 901-902.) The court’s reasoning in Hinds applies with equal force to
the case before us.
       As the United States Supreme Court has observed: “Surmounting Strickland’s
high bar is never an easy task. [Citations.]” (Padilla v. Kentucky (2010) 559 U.S. 356,
371.) Defendant here has failed to meet his burden of establishing his ineffective
assistance of counsel claim. (Pope, supra, 23 Cal.3d at p. 425.)9




       9
         We have concluded that defendant’s ineffective assistance of counsel claim fails
because this is not the unusual case in which the claim can be disposed of favorably
because either trial counsel has been asked to explain his or her challenged action or
inaction and has failed to provide a satisfactory explanation, or that there can simply be
no satisfactory explanation. (People v. Scott, supra, 15 Cal.4th at p. 1212.) In so
concluding, we do not reach the question of whether defendant’s challenge to his
detention, patsearch, and ultimate arrest was indeed a meritorious one. Such an issue
would necessarily be explored were defendant to assert an ineffective assistance of
counsel claim in the context of a petition for writ of habeas corpus. (See People v.
Wilson, supra, 3 Cal.4th at p. 936.)


                                            16
                                  DISPOSITION
    The order of probation is affirmed.




                                                Márquez, J.




WE CONCUR:




    Elia, Acting P.J.




    Bamattre-Manoukian, J.




                                          17
