Filed 3/21/14 P. v. Lupercio CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
PABLO JESSE L UPERCIO , Defendant and Appellant. F0 64903
(Super. Ct. No. 10CM3892 )



### OPINION

THE COURT * APPEAL from a jud gment of the Superior Court of Kings County. Donna L.
Tarter , Judge.
Ron ald Richard Boyer , under appointment by the Court of Appeal, for Defen dant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorney s General, for Plaintiff and Respon dent.

- ooOoo

-

* Before Hill , P. J., Levy , J. and Cornell , J.2

Defendant Pablo Jesse Lupercio was convicted by jury of possession of methamphetamine (Health & Saf. Code, § 1137 7, subd. (a); count 1) , and being a felon in possession of ammunition (Pen. Code, 1 § 12316, subd. (b)(1); count 2). He admitted a prior strike conviction (§§ 667, subds. (b)

- (i), 1170.12 , subds. (a)

- (d) ) , and a prior prison

term (§ 667.5, subd. (b))

. The trial c ourt sentenced him to six years four months in prison. On appeal, defendant contends his trial counsel was ineffect ive in failing to bring a motion to suppress evidence (§ 1538.5 ) , and failing to bring a motion to unseal and traverse or quash the sealed warrant ( People v. Hobbs (1994) 7 Cal.4th 948 ( hereafter

“ Hobbs motion ” ) )

. Because defe ndant cannot demonstra te counsel ʼ s alleged omissions

were caused by ineffective assistance , we reject defendant ʼ s contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND On November 5, 2010, Hanford Police Detective Richard Pontecorvo went to
conduct a search of defendant ʼ s residence pursuant to a search warrant. The search uncovered a baggie containing .11 grams of methamphetamine

. A gun

- cleaning kit and soft handgun case (but no firearms) were also found during the search

. Later that night

w hen defendant was being booked into jail, a live nine

- millimeter round was discovered
in one of hi s pants pocke ts. On July 22, 2011 , the jury found defendant guilty of possession of methamphetamine and being a felon in possession of ammunition. On September 30, 2011 , defendant fi led a motion for new trial, arguing inter alia
that his trial counsel was ineffective for failing to obtain a copy of the search warrant and supporting affidavit without which “ no determination could be made to tactically attack
the warrant. ”

1 Further statutory references are to the Penal C ode unless otherwise specified.3

T he hearing on defendant ʼ s motion for new trial took place on March 16, 2012. During the hearing, the parties stipulated that the prosecutor “ did not turn over any search warrant, the front page of the search warrant, face cover sheet of the search warrant, or any part of the af

fidavit to trial counsel or present counsel ” and “ the evidence in this case
was obtained based on and were the fruit of that search warrant. ” At the hearing, d efendant ʼ s trial c ounsel testified that t o the best of his recollection
the November 5, 2010 , e ntry into defendant ʼ s house was based on a search warrant

. Counsel a cknowledged he never reviewed the warrant or supporting affidavit

. 2 When questioned regar ding his failure to do so, counsel t estified that “at the time I didnʼt feel
there was a need to for some reason or I would have sought it. ” Counsel elaborated:

“ [ I ] t ʼ s been a while since I ʼ ve looked at this, but I believe based on the police report I would have discussed that with my client and questioned whether it was a need to, and
that ʼ s the be st I can tell you. I just didn ʼ t at the time feel there was a need to look at it. ” After listening to argument, t he trial court denied defendant ʼ s motion for new trial. In rejecting defendant ʼ s claim that his trial counsel provided in effective assistanc e, the
court observed that it “ did not see anything deficient in his representation of [defendant]. ”
DISCUSSION A defendant claiming ineffective assistance of counsel in violation of his Sixth Amendment right to counsel must show that his or her counsel ʼ s performance fell below

2 Defendantʼs trial c ounsel also testified that, on the morning of the hearing on defendantʼs new trial motion, he learned from the prosecutor that the documents had been sealed . On July 18, 2012, this court granted defend ant ʼ s motion to augment the record on appeal to include the search warrant and supporting affidavit . These documents were transmitted to this court under seal on August 21, 2012. Defendant subsequently applied for leave to examine sealed material. By or der dated January 3, 2013, this court deferred ruling on defendantʼs application pending consideration of the appeal on its merits. As we shall explain, because review of the sealed search warrant and supporting affidavit is unnecessary to resolve defenda ntʼs ineffective assistance of counsel claim, we deny his application to examine sealed material.4

an objective standard of reasonableness under prevailing professional norms and also that
it is reaso nably probable, but for counselʼ s failings, the result would have been more favorable to the defendant. ( Strickland v. Washington (1984) 466 U.S. 668, 687, 694 ( Strickland ); In re Jones (1996) 13 Cal.4th 552, 561.) “‘ The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof ... must be a demonstrable reality and not a speculative matter. ʼ” ( People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action “‘ might be considered sound trial strategy ʼ” under the circumstances. ( Strickland , at p. 689; accord, People v.
Dennis (1998) 17 Cal.4th 468, 541.)
On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel ʼ s challenged act or omission. ( People v. Lucas (1995) 12 Cal.4th 415, 442 [ “ [r]evie wing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no
ration al tactical purpose for counselʼ s omissions ” ]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [ “‘ [i]f the record 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 ” [citation], the contention [that counsel provided ineffective assistance] must be rejected ʼ” ].)
While d efendant contends his trial counsel provided ineffective assistance by
faili ng to bring a motion to suppre ss and a Hobbs motion, we discern from his supporting arguments that his real contention is that cou nsel was ineffective for failing to p erform

w hat defendant describes as the “ basic task ” of “ reviewing the face of the warrant for issues that would invalidate the search and result in the suppression of evidence. ”
D efendant essentially concedes he is unable to demonstrate he was prejudice d by counsel’s failure to review the search warrant and supporting affidavit and thus asks thi s5

court to grant his previously filed application to exa mine the sealed materials and thereafter permit him to file a supplemental brief “ to establish prejudice ” un der
Strickland , supra , 466 U.S. 668

. Alternatively, he asks this court to review the sealed
materials to determine whether he was prejudiced by trial counsel’s failure to review the
search warrant

. We need not reach the prejudice issue, however, because defendant cannot
demonstrate his trial counsel ʼ s failure to review the search warrant was the result of
ineffective assistance. At the March 2012 hearing on defendantʼ s new trial motion,
defen dantʼ s trial counsel said he did no t seek to review the search warrant and supporting affidavit underlying the November 2010 search of defend antʼ s residence because he did not think it was necessary to do so at the time. Although it is apparent counsel could not
recall t he s pecific reason he thought it was unnecessa ry, the record nevertheless suggests
sufficient tactical reasons for not seeking to review t he sealed search warrant

. For example, th e record reflects that defendant was on probation at the time of the
search , and Detective Pontecorvo testified at the pr eliminary hearing that , while the
search of defendant ʼ s home was conducted pursuant to a warrant based on information defendant had stolen items and a gun in his possession , defendant was “ subject to search
and seizure on parole in any case. ” Based on thi s and other information defendant might have provided during off

- the

- record discussions , defendant ʼ s trial counsel might reasonably have concluded that the trial court would likely find a n independent basis f or upholding t he search and therefore seeking to review the search warrant would not be an effective use of counselʼs time and resources in preparing the defense. In other words,
d efense counsel is not inef fective for deciding not to review a search warrant to determine if there are grounds for bringin g a motion to challenge the validity of the warrant when the search conducted thereto is likely to be upheld in any event

. ( See6

People v. Memro (1995) 11 Cal.4th 786, 834 [counsel not ineffective for failing to bring a motion lacking merit].) In short, w e must reject defendant ʼ s claim that he received ineffective assistance
of counsel because the record on appeal does not affirmatively disclose “ the lack of a rational tactical purpose for the challenged act or omission. ” ( People v. Ray (1996) 13
Cal.4th 313, 349; People v. Lopez (2008) 42 Cal.4th 960, 972.)
DISPOSITION The judgment is affirmed. Defendantʼs application to examine sealed materials is
denied.