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People v. Mendoza Tello (1997) 15 Cal.4th 264 , 62 Cal.Rptr.2d 437; 933 P.2d 1134

[No. S055184. Apr 17, 1997.]

THE PEOPLE, Plaintiff and Respondent, v. RAUL MENDOZA TELLO, Defendant and Appellant.

(Superior Court of Orange County, No. 94CF2941, Daniel J. Didier, Judge.)

(Opinion by Chin, J., expressing the unanimous view of the court.)

COUNSEL

Michaelyn Jones, under appointment by the Supreme Court, for Defendant and Appellant. [15 Cal.4th 266]

John T. Philipsborn as Amicus Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jean Hume, Esteban Hernandez and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

Kent S. Scheidegger and Eric L. Christoffersen as Amici Curiae on behalf of Plaintiff and Respondent.

OPINION

CHIN, J.

A jury convicted defendant of possessing cocaine. Orange County Deputy Sheriff Gomez testified at trial that on October 26, 1994, while on patrol in an unmarked car, he saw the passenger of another car light a marijuana cigarette. He stopped the car and asked defendant, the driver, for his driver's license and registration. Defendant consented to a search of the car. Deputy Gomez testified, "I had him exit the car. At this point I wanted to conduct a physical search of him for more marijuana and/or weapons for officer safety." He told defendant to turn around and put his hands behind his back. When defendant did so, a vial of cocaine fell from his right pant leg.

Defense counsel did not move under Penal Code section 1538.5 to suppress evidence. On appeal, defendant argued counsel was ineffective for not making the motion. A divided Court of Appeal agreed and reversed the judgment. Based solely on the trial record, it concluded that Deputy Gomez violated the law when he commanded defendant to submit to a patdown search, and that the cocaine evidence should have been suppressed.

[1a] We disagree. "Because the legality of the search was never challenged or litigated, facts necessary to a determination of that issue are lacking." (People v. Cudjo (1993) 6 Cal.4th 585, 627 [25 Cal.Rptr.2d 390, 863 P.2d 635].) The issue at trial was whether defendant possessed cocaine, not whether the deputy acted unlawfully. [2] We have repeatedly stressed "that '[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected." (People v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212], quoting People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) A claim of ineffective assistance in such a case is [15 Cal.4th 267] more appropriately decided in a habeas corpus proceeding. (People v. Wilson, supra, at p. 936; People v. Pope, supra, at p. 426.) "We recommended in Pope that, '[t]o promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus.' " (People v. Wilson, supra, at p. 936, quoting People v. Pope, supra, at pp. 426-427, fn. 17.) Because claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding, the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal (see In re Harris (1993) 5 Cal.4th 813, 824-841 [21 Cal.Rptr.2d 373, 855 P.2d 391]; In re Waltreus (1965) 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001]; In re Dixon (1953) 41 Cal.2d 756, 759 [264 P.2d 513]) would not bar an ineffective assistance claim on habeas corpus.

[1b] Here, we do not know why counsel failed to move to suppress evidence. As Justice Rylaarsdam noted in dissent below, "Additional facts, irrelevant to the issues at the trial and possibly prejudicial to appellant, may very well have justified the officer's conduct and counsel's decision not to attack the validity of the search." The majority below found that defendant's "claim is cognizable on appeal because there is a detailed factual record upon which to review his claim." It also stated, however, that Deputy "Gomez simply assumed Tello might be armed without pointing to any specific and articulable facts justifying his belief." This statement was itself merely an assumption. No one asked the question-irrelevant at a trial of guilt-why Deputy Gomez wanted to conduct a patdown search. No one gave him the opportunity to point to any specific and articulable facts justifying his actions. Nor did the prosecution have the opportunity to offer some other possible reason not to suppress the evidence. (See, e.g., Maryland v. Wilson (1997) ___ U.S. ___ [117 S.Ct. 882, 137 L.Ed.2d 41].)

Penal Code section 1538.5 provides an orderly procedure to move to suppress evidence at trial, which motion is a prerequisite to appellate review. (Pen. Code, § 1538.5, subd. (m).) On this record, we do not know what Deputy Gomez would have said had he been asked at a suppression hearing why he did what he did. Perhaps, as the majority below assumed, he would have had no good reason. But perhaps he did have a reason, of which defense counsel was aware, and which justified counsel's actions. Perhaps there was some other reason not to suppress the evidence. An appellate court should not declare that a police officer acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence. An example of when such a determination can be [15 Cal.4th 268] made on appeal is found in People v. Camilleri (1990) 220 Cal.App.3d 1199 [269 Cal.Rptr. 862]. In that case, a full hearing on a Penal Code section 1538.5 suppression motion was held at trial. The Court of Appeal found that, under the precise circumstances, the superior court lacked jurisdiction to hold the hearing. It also found, however, that the record, including the hearing on the motion, was adequate to conclude that defense counsel ineffectively failed to make a proper suppression motion. (People v. Camilleri, supra, at p. 1203.)

The parties here discuss at length whether the evidence should have been suppressed. Rather than attempt to glean inferences from a record where the critical questions were irrelevant and unasked, we do not reach the merits of that issue.

The judgment of the Court of Appeal is reversed and the matter remanded to the Court of Appeal with directions to vacate its judgment and to consider any remaining issues on appeal.

George, C. J., Mosk, J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.

Petition for review after the Court of Appeal reversed a judgment of conviction of a criminal offense. This case is concerned with whether it can be determined on direct appeal that trial counsel's failure to make a motion to suppress evidence amounted to ineffective assistance.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 04/17/1997	15 Cal.4th 264	S055184	Review - Criminal Appeal	closed; remittitur issued

Disposition
Apr 17 1997	Opinion: Reversed

Dockets
Jul 29 1996	Petition for review filed By Resp the People - Record requested
Aug 2 1996	Received: CA Record in G018156 - 1 Yellow file Box
Sep 25 1996	Petition Granted Resp's Petn. Votes: Ken, Bax, Wer, Chi & Brn, JJ Record: R1, C1, 2, 3, 4, 5, 7 & Misc. papers.
Oct 18 1996	Counsel appointment order filed Michaelyn Jones for Appellant Raul Mendoza Tello
Oct 23 1996	Opening brief on the merits filed Opening brief by Respondent, the People, in San Diego.
Nov 7 1996	Note: Letter sent by the Court requesting the AG to file A Supplemental brief by Nov. 18, 1996. the time for filing Appelant's answer brief on the merits Shall be Calculated from the Date the Supplemental brief Is filed
Nov 8 1996	Change of Address filed for: Counsel Michaelyn Jones.
Nov 15 1996	Supplemental Brief filed by: Resp
Dec 2 1996	Received: Aplt Opposition Application for Ext of time to Submit AC brief on behalf Criminal Justice Legal Foundation (denied w/Out Prejudice. Ord Bng Prpd)
Dec 6 1996	Order filed: Aplt's request to extend time to request Permn to file an A/C brief in support of Aplt Is denied w/O Prejudice. Crc 14(C)
Dec 13 1996	Answer brief on the merits filed Appellant Raul Mendoza Tello
Jan 2 1997	Case Fully Briefed
Jan 8 1997	Received application to file Amicus Curiae Brief By California Attorneys for Criminal Justice in support of Applt Tello
Jan 14 1997	Permission to file amicus curiae brief granted By California Attorneys for Criminal Justice in support of Applt Tello
Jan 14 1997	Amicus Curiae Brief filed by: California Attorneys for Criminal Justice. answer Due February 3, 1997
Jan 17 1997	Received letter from: Calif Attys for Criminal Justice - Supplement Of/correction to Cacj brief in support of Applnt Raul Mendoza Tello
Jan 28 1997	Case Ordered on Calendar: 3-5-97, 9am, Sac.
Jan 30 1997	Received application to file Amicus Curiae Brief Of Criminal Justice Legal Foundation in support Of Respondent. Application & brief Under Seperate Cover)
Feb 10 1997	Permission to file amicus curiae brief granted The Criminal Justice Legal Foundation in support of Respondent. answer +20
Feb 10 1997	Amicus Curiae Brief filed by: The Criminal Justice Legal Foundation in support of Respondent. answer +20
Feb 20 1997	Received document entitled: Cal Attys Crim Justice's answer to brief filed by the Criminal Justice Legal Foundation. Tct
Feb 21 1997	Response to Amicus Curiae Brief filed by: Calif Attys for Criminal Justice (Amicus) to the Amicus brief of Criminal Justice Legal Foundation (Perm)
Feb 21 1997	Filed: Appellant's answer/reply to Amicus Curiae in support of Respondent A.G.
Mar 5 1997	Cause Called and Argued (not yet submitted)
Mar 5 1997	Submitted by order
Mar 19 1997	Compensation awarded counsel
Apr 17 1997	Opinion filed: Judgment reversed Majority Opinion by Chin, J. -- joined by George C.J., Mosk, Kennard, Baxter, Werdegar & Brown JJ.
May 2 1997	Rehearing Petition filed by: Appellant Raul Mendoza Tello
May 6 1997	Time extended to consider modification or rehearing Rehearing to & Including 7/16/97, or Date Upon which Rehearing Is Either granted or denied, Whichever Occurs First.
Jun 11 1997	Rehearing denied Opinion Modified. (change in the Judgment)
Jun 11 1997	Opinion Modified (change in judgement)
Jul 14 1997	Remittitur Issued CA 4/3
Jul 17 1997	Returned record To C/A 4/3, Attention Diana.
Jul 21 1997	Received document entitled: Receipt for Remittitur
Aug 13 1997	Compensation awarded counsel
Aug 27 1998	Received: Record S055184/G018156 (one Doghouse)

Briefs
Oct 23 1996	Opening brief on the merits filed Opening brief by Respondent, the People, in San Diego.
Dec 13 1996	Answer brief on the merits filed Appellant Raul Mendoza Tello
Jan 14 1997	Amicus Curiae Brief filed by: California Attorneys for Criminal Justice. answer Due February 3, 1997
Feb 10 1997	Amicus Curiae Brief filed by: The Criminal Justice Legal Foundation in support of Respondent. answer +20
Feb 21 1997	Response to Amicus Curiae Brief filed by: Calif Attys for Criminal Justice (Amicus) to the Amicus brief of Criminal Justice Legal Foundation (Perm)

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