People v. JONES, A126005.

Citation111 Cal.Rptr.3d 745,186 Cal.App.4th 216
Decision Date30 June 2010
Docket NumberNo. A126005.,A126005.
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Charles Thomas JONES, Defendant and Appellant.

OPINION TEXT STARTS HERE

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Terrence McQuigg, Los Angeles, Under First District Appellate Project's Assisted Case System, for Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Asst. Atty. Gen., Gerald A. Engler, Sr. Asst. Atty. Gen., Rene A. Chacon, Supervising Dep. Atty. Gen., Bruce Ortega, Deputy Attorney General, for Respondent.

KLINE, P.J.

I. INTRODUCTION

This is our second review of two 2006 Lake County Superior Court drug cases against Charles Thomas Jones. In the first case (No. CR908439), Jones was found guilty upon his “slow plea” 1 of transporting methamphetamine ( Health & Saf.Code, § 11379, subd. (a)), one of three charges, with strike and prison-term enhancements found true. In the second case (No. CR908705), Jones entered a negotiated guilty plea to possessing methamphetamine ( id., § 11377, subd. (a)) and misdemeanor possession of tear gas ( Pen.Code, § 12420), two among 10 counts, plus admitted enhancements. At consolidated sentencing, Jones received a total prison term of 10 years four months.

Jones previously appealed in both cases (Sept. 30, 2008, A119995 [nonpub. opn.] ). We vacated the judgments in part, holding that the court erred in refusing to hear a motion alleging ineffective assistance of counsel affecting the result of the first motion to suppress. Our remand directions were that the court take evidence on the renewed claim. If it found ineffective assistance, it would rehear the suppression motion and, if suppression were warranted, set a retrial of the first case and a resentencing in the second. If ineffective assistance was not found, the judgments would stand in each case.

At an evidentiary hearing on remand, the trial court found no ineffective assistance. We disagree and shall vacate the judgment in the first case and remand the matter to the trial court for further proceedings.

II. FACTUAL AND PROCEDURAL BACKGROUND

The facts of the offenses are unimportant to the appeal except that the evidence against Jones in the first case derived from a nighttime stop of his vehicle on February 26, 2006, for running a stop sign at an intersection.

On Jones's suppression motion, the critical issue was the truth of Police Officer Greg Piccinini's statement that he saw Jones run the stop sign. (Veh.Code, § 22450.) Apparently conceding that this relatively minor traffic offense was enough to justify the stop and even a custodial arrest ( People v. McKay (2002) 27 Cal.4th 601, 605, 607, 618, 117 Cal.Rptr.2d 236, 41 P.3d 59), Jones claimed he came to a complete stop at the sign, Piccinini could not from his position have seen whether he stopped, and the stop was pretextual. These claims were unsuccessfully advanced in a 2006 suppression motion filed and litigated by Jones's original counsel, Thomas Quinn.

A. Evidence at the 2006 Suppression Hearing

The hearing on Jones's motion to suppress was heard on July 31, 2006. Presenting no witnesses in support of the motion, Quinn relied on his cross-examinations of Officer Piccinini and Officer Timothy Hobbs, one of two other officers who quickly appeared at the scene after Piccinini made the stop.

Piccinini testified that at about 9:30 p.m. on February 26, 2006, while he was travelling north on Park Street toward its intersection with Arrowhead Road in the City of Clearlake, he saw a green sport utility vehicle (SUV) travelling east on Arrowhead after running the stop sign at the intersection of Park and Arrowhead while moving at about five miles per hour. Piccinini turned right from Park onto Arrowhead to follow the vehicle after it crossed Park, and conducted a traffic stop near the intersection of Arrowhead and Mint Street, about 150 yards east of Park Street. About a minute later, Clearlake Police Sergeant Celli arrived at the scene, asked the driver, Jones, if he could search his vehicle, and was told he could. Piccinini noticed repetitive speech and body movements suggesting Jones was under the influence of a controlled substance and for that reason called Officer Hobbs to the scene. Hobbs arrived in four or five minutes. Officer Celli found $160 in $20 bills in Jones's SUV. Jones was arrested for being under the influence of a controlled substance.

On cross-examination that could not have lasted more than 10 minutes, Quinn showed Piccinini photographs taken of the intersection of Park and Arrowhead by Quinn and Amber Westphal, Jones's “partner” and the mother of their children, who was Jones's codefendant in the second case. Because Quinn and Westphal did not testify and no defense witnesses were presented, the probative value of the photographs, if any, was never explained by the defense. In any case, Quinn asked Officer Piccinini whether he recognized three of the photographs (marked for identification as exhibits A, B, and C) as being of the intersection of Arrowhead and Park. Piccinini said he did, and the three exhibits were received into evidence without objection.

Moving to another issue, Quinn asked Piccinini whether he had received information that evening about Jones from the Lake County Narcotics Task Force. Piccinini said he had, and that at the time he made the stop “I was actually going out that direction to see where [Jones's] vehicle was going.” Piccinini was unable to explain why Officer Celli arrived at the scene so quickly, apparently without being asked. Quinn never asked Piccinini why he needed the assistance of Officer Hobbs, nor did he pursue Hobbs's later testimony that he was called to the scene by Officer Celli, not Officer Piccinini.

At the beginning of his testimony, Piccinini stated he was travelling north on Park about 30 yards south of the intersection with Arrowhead when he saw Jones slowly run through the stop sign. Later, when Quinn referred to that earlier statement, Piccinini asked to see the photographs Quinn had offered in evidence and, pointing to an area of a particular photo unidentified by the court or counsel, said: “I was somewhere in the area past this driveway ... around this area right here where I was visible to see his headlights coming to this stop sign where he did not complete the stop and continued to go through and down on to Arrowhead here.” At that point, Piccinini pointed to a telephone pole depicted in the unidentified photograph. Reminding Piccinini of his previous testimony that he was 30 yards from the intersection when he saw Jones's vehicle, Quinn pointed out that the pole was closer than 30 yards. After Piccinini answered that “I would estimate it [as] approximately 30 yards.” Quinn stated that he had no further questions. Thus, the only testimonial use made of the photographs taken by Quinn and Westphal was by Piccinini, who asked and was allowed to use an unidentified photo to show where he was located when he saw Jones run the stop sign.

Officer Hobbs testified that he was called to the scene by Officer Celli, not Officer Piccinini, as the latter had testified. After examining Jones, Hobbs concluded he was under the influence of a controlled substance, “probably methamphetamine,” and arrested him. After Jones was given and waived his Miranda 2 rights, he admitted he had used methamphetamine an hour and a half earlier.

At the close of the one-day hearing, the motion to suppress was denied. About three months later, on March 14, 2007, new counsel for Jones filed a second motion to suppress, alleging that it was authorized under Penal Code section 1538.5, subdivision (h), because the grounds for this second motion were not raised the first time due to ineffective assistance of counsel. On April 2, 2007, the court declined to hear the motion, because it would entail relitigating issues already decided, and also denied new counsel's request to call witnesses to establish the basis for his offer of proof regarding the ineffective assistance of counsel Jones allegedly received on his first motion to suppress. As earlier noted, we remanded this case to the trial court in 2008 with instructions to inquire into Jones's 2007 claim of ineffective assistance of counsel.

B. Evidence at the 2009 Hearing on Ineffective Assistance of Counsel

The hearing on whether Jones received ineffective assistance of counsel was conducted on three days over a period of three and a half months in 2009: April 13th, July 27th, and August 13th. 3 Jones and Quinn testified on the first day of the hearing. Professional-standards expert Keith Faulder also testified on the first day of the hearing in April, and investigator Richard Biggs, claimed eyewitness Samantha Sutch, and Jones's “partner,” Amber Westphal, all testified at the second day of the hearing in July. The court delivered its decision from the bench on the last day of hearing in August.

Jones's Testimony

Jones testified that on the night of February 26, 2006, he was arrested for running a stop sign on Arrowhead Road in the City of Clearlake at the intersection of Arrowhead and Park Street. Jones explained why the configuration of the intersection is “unusual.” As one approaches it from Park “you can't even see Arrowhead Street at all ... until you come up around that sharp corner. You've got to be right on the stop sign coming around that corner to see that stop sign.” Jones stated that, because the stop sign on Arrowhead is set back from the intersection with Park, a driver on Park must roll forward and peer around dense trees and bushes “to make sure it's clear” before entering the intersection. Jones recalled coming to a full stop at the sign. He felt that the traffic stop was a pretext, not only because he did not run the stop sign, but also because he had seen task force officers drive by his house before he left that...

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