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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PABLO JESSE LUPERCIO,

Defendant and Appellant.

F064903

(Super. Ct. No. 10CM3892)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Donna L.

Tarter, Judge.

Ronald Richard Boyer, under appointment by the Court of Appeal, for Defendant 

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 Attorneys General, for Plaintiff and Respondent.

-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, § 11377, 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 court sentenced him to six years four months in 

prison. On appeal, defendant contends his trial counsel was ineffective 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 defendant cannot demonstrate counselʼs alleged omissions 

were caused by ineffective assistance, we reject defendantʼs contention and affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On November 5, 2010, Hanford Police Detective Richard Pontecorvo went to

conduct a search of defendantʼs 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

when defendant was being booked into jail, a live nine-millimeter round was discovered 

in one of his pants pockets. 

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 filed 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 Code unless otherwise specified.
3

The hearing on defendantʼs 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 affidavit 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, defendantʼs trial counsel testified that to the best of his recollection 

the November 5, 2010, entry into defendantʼs house was based on a search warrant. 

Counsel acknowledged he never reviewed the warrant or supporting affidavit.

2

 When 

questioned regarding his failure to do so, counsel testified that “at the time I didnʼt feel 

there was a need to for some reason or I would have sought it.” Counsel elaborated: 

“[I]tʼs been a while since Iʼve 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 

thatʼs the best I can tell you. I just didnʼt at the time feel there was a need to look at it.”

After listening to argument, the trial court denied defendantʼs motion for new trial. 

In rejecting defendantʼs claim that his trial counsel provided ineffective assistance, 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 counselʼs performance fell below 

 

2 Defendantʼs trial counsel 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 defendantʼs 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 order 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 defendantʼs 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 reasonably probable, but for counselʼs 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 strategyʼ” 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 counselʼs challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 

415, 442 [“[r]eviewing courts reverse convictions on direct appeal on the ground of 

incompetence of counsel only if the record on appeal demonstrates there could be no 

rational tactical purpose for counselʼs 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 rejectedʼ”].)

While defendant contends his trial counsel provided ineffective assistance by 

failing to bring a motion to suppress and a Hobbs motion, we discern from his supporting 

arguments that his real contention is that counsel was ineffective for failing to perform 

what 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.” 

Defendant essentially concedes he is unable to demonstrate he was prejudiced by 

counsel’s failure to review the search warrant and supporting affidavit and thus asks this 
5

court to grant his previously filed application to examine the sealed materials and 

thereafter permit him to file a supplemental brief “to establish prejudice” under 

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 counselʼs failure to review the search warrant was the result of 

ineffective assistance. At the March 2012 hearing on defendantʼs new trial motion, 

defendantʼs trial counsel said he did not seek to review the search warrant and supporting 

affidavit underlying the November 2010 search of defendantʼs residence because he did 

not think it was necessary to do so at the time. Although it is apparent counsel could not 

recall the specific reason he thought it was unnecessary, the record nevertheless suggests 

sufficient tactical reasons for not seeking to review the sealed search warrant. 

For example, the record reflects that defendant was on probation at the time of the 

search, and Detective Pontecorvo testified at the preliminary hearing that, while the 

search of defendantʼs 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 this and other information defendant might 

have provided during off-the-record discussions, defendantʼs trial counsel might 

reasonably have concluded that the trial court would likely find an independent basis for 

upholding the 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, 

defense counsel is not ineffective for deciding not to review a search warrant to 

determine if there are grounds for bringing a motion to challenge the validity of the 

warrant when the search conducted thereto is likely to be upheld in any event. (See 
6

People v. Memro (1995) 11 Cal.4th 786, 834 [counsel not ineffective for failing to bring a 

motion lacking merit].) 

In short, we must reject defendantʼs 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.