P. v. Hernandez

Filed 11/29/05 P. v. Hernandez CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE, Plaintiff and Respondent, v. TONY JACKIE HERNANDEZ, Defendant and Appellant.

C045977 (Super. Ct. No. 02F08518)

Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), a jury convicted defendant Tony Jackie Hernandez of possession of heroin (Health & Saf. Code, § 11350, subd. (a) -- count one) and possession of ammunition by a convicted felon (Pen. Code, § 12316, subd. (b)(1) -- count two). In a bifurcated proceeding, the trial court thereafter found that defendant had suffered three prior convictions (which were also strikes) resulting in prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.) After denying defendant’s motion to strike the priors, the court sentenced him to two concurrent terms of 25 years to life in state prison.

Defendant contends:

(1) The trial court should have granted his motion to suppress evidence because the police illegally stopped his vehicle; in the alternative, trial counsel provided ineffective assistance by failing to find the applicable Vehicle Code provision.

(2) The trial court erred by failing to grant defendant’s motion for sanctions relating to the “destruction” of key evidence; in the alternative, trial counsel provided ineffective assistance by failing to request sanctions.

(3) The trial court abused its discretion by failing to strike defendant’s prior convictions.

(4) Trial counsel provided ineffective assistance by failing to move to reduce defendant’s conviction on count two to a misdemeanor. (Pen. Code, § 17, subd. (b).)

Rejecting each of his contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Motion to Suppress

The trial court heard the following evidence and argument on the motion to suppress:

Sacramento Police Detectives Jeff Wright and Joe Helfrick testified that while patrolling on Stockton Boulevard in an unmarked vehicle about 11:00 a.m. on October 8, 2002, they saw defendant’s Ford pickup truck ahead of them come to an abrupt stop in the number two lane for no apparent reason. Helfrick observed that defendant’s “left rear tail lamp began flickering intermittently as if a bulb was loose or something.” As defendant braked again and turned right onto 37th Avenue, the left stoplamp flickered again. Wright characterized it as looking the way a bulb “might flicker real quick before it’s going out sometimes. Maybe as if it had a short.” It struck him as “clearly defective.” The right stoplamp light was steady.

The officers decided to pull over defendant to advise him of the apparently defective light, and to inquire whether he had arrest warrants or was on parole. (Defendant admitted that Detective Wright advised him of a defective taillamp.)

Answering Detective Wright’s questions, defendant said he did not have a driver’s license and he was on parole. The officers asked for and received permission to search defendant. They found four .40-caliber rounds of ammunition in defendant’s pants pocket and arrested him; they then found a substance later determined to be heroin in a leather jacket in the truck’s passenger compartment.

Defendant testified he had checked the rear lamps a day or two before and had found no defects. Defendant’s employer, Steven Ellerman, picked up the truck from the location of the traffic stop after defendant’s arrest and drove it back to Ellerman’s place of business, followed for several miles by a coworker. The coworker testified that he did not see any flickering in the rear lights.

Defense counsel argued that the officers’ claim of a flickering taillight was not credible and the light was in good working order. In any event, according to counsel, a flickering taillight would not violate Vehicle Code section 24603, which merely requires vehicles to possess rear stoplamps that emit a red light “plainly visible and understandable from a distance of 300 feet to the rear both during normal sunlight and at nighttime . . . .” (Veh. Code, § 24603, subd. (e).) Counsel noted that the Vehicle Code does not define the terms “defect,” “working order,” and “good working order.” Thus, according to counsel, the officers did not have a reasonable suspicion that defendant was violating any provision of the Vehicle Code.

The trial court disagreed, ruling that the flickering taillight was an apparent defect that authorized the officers to stop defendant’s vehicle.

Trial Evidence

Prosecution Case

The officers testified about the traffic stop and the subsequent search of defendant’s person and vehicle as they had done on the motion to suppress, but with additional detail. Detective Wright testified that they pulled defendant over in a parking lot outside an auto supply store; Detective Wright approached the driver’s side, and Detective Helfrick approached the passenger’s side. Defendant was the driver; he had a passenger, one Shirley Van Dunk.

After defendant said he did not have a driver’s license and was on parole, Detective Wright had him step out of the truck and performed a pat-down search, during which the detective discovered four live bullets in defendant’s right front pants pocket. Wright placed him under arrest for being a convicted felon in possession of ammunition, handcuffed him, and put him in the back seat of the officers’ sport utility vehicle (SUV).

Wright spotted a man’s leather jacket draped over the truck’s bench seat. Inside the jacket, he found a small piece of a black tarry substance wrapped in clear plastic; he suspected (correctly) the substance was tar heroin.^[1] Defendant said the jacket was his but the substance was not; he accused Van Dunk of putting it in the jacket. After taking defendant to his residence, the officers transported him to jail.

Van Dunk, who was questioned and released at the scene after the traffic stop, testified that defendant had offered her a ride and then offered her heroin, which she declined. She did not use heroin; she was en route to buy some crack cocaine. When she and defendant spotted the officers’ SUV behind them, they agreed defendant would tell them he was taking her to the library. Defendant said there would be no problem because the heroin was at his home, not in the truck. After the officers stopped them, Van Dunk saw one take the jacket out of the truck. It was not hers; it had been draped over the back of the seat when she got in. When they asked her about the substance they found in the jacket, she denied it was hers.

Van Dunk also testified that she was currently in custody for unrelated offenses. She had seen defendant on the morning she testified, during their transport from the jail, and he had asked her to “take the rap.”

Defense Case

Defendant testified in his own behalf. According to him, his girlfriend, Crystal Salazar, had brought the bullets found on him into his residence; he had discovered them in a pocket of her clothing in a closet on the evening before his arrest. He was angry with her because she knew he was on parole and could not have ammunition. Defendant did not call his parole officer because he feared he would land in jail for a parole violation. Instead, he decided to turn the bullets over to his employer, Steven Ellerman, who had a friend on the Sacramento police force. Defendant could not leave the house then because it was nighttime and he had a curfew, so he called Ellerman and asked him to come pick up the bullets. However, Ellerman said it was too late to come over; he suggested defendant bring the bullets in to work the next morning. Defendant did so, transporting them in his pocket, but Ellerman was not in and defendant had to go out on a job.

After finishing the job, defendant intended to meet Ellerman. But as he was on his way, a wheelbarrow overturned in the back of his truck. When he stopped in a parking lot to right it, Van Dunk appeared, got into his truck, and would not leave.

According to defendant, there had been no leather jacket in the truck before Van Dunk got in. The heroin found in the jacket was not his. He had not asked Van Dunk to “take the rap.”

Vanessa Apodaca, the daughter of a woman who was spending the night at defendant’s apartment, was at his residence the night before his arrest. Apodaca corroborated defendant’s story about finding the bullets. Steven Ellerman corroborated defendant’s account of their discussion about and arrangements for disposing of the bullets.

Defendant’s parole officer testified that defendant had tested negative in all required drug tests.^[2]

DISCUSSION

I

Defendant contends the trial court erred by denying his motion to suppress because a Vehicle Code provision that trial counsel failed to cite showed defendant’s “flickering” taillight was lawful. Alternatively, defendant contends trial counsel provided ineffective assistance by failing to discover and cite this provision. We reject both contentions.

In reviewing a trial court’s ruling denying a motion to suppress, all presumptions are in favor of the trial court’s factual findings, whether express or implied, if supported by substantial evidence. However, we decide independently whether the officer’s conduct in performing the traffic stop and conducting the search was constitutionally reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

To justify an investigative stop or detention, an officer must have specific and articulable facts causing him to entertain a reasonably objective suspicion that some activity relating to crime has occurred or is about to occur and the person to be detained is involved in that activity. (People v. Aldridge (1984) 35 Cal.3d 473, 478.) The reasonable suspicion standard applies to vehicle stops. (People v. White (2003) 107 Cal.App.4th 636, 641; U.S. v. Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, 1104.) Thus, a reasonable suspicion that a driver is violating the Vehicle Code justifies an investigative traffic stop. (Veh. Code, § 2806; In re Justin K. (2002) 98 Cal.App.4th 695, 700 (Justin K.).)

It is immaterial that the officers relied on the wrong Vehicle Code section, so long as their suspicions of a Vehicle Code violation were objectively reasonable. (Justin K., supra, 98 Cal.App.4th at p. 700.) However, if an officer makes a stop based on objective facts that could not constitute a violation, the officer’s suspicions cannot be considered reasonable. (Ibid.)

Defendant asserts that in light of Vehicle Code section 25251.5, subdivision (c) (hereafter Veh. Code, § 25251.5(c)), the officers’ account proves they observed nothing illegal. Section 25251.5(c) provides: “Any stoplamp or supplemental stoplamp required or permitted by Section 24603 may be equipped so as to flash not more than four times within the first four seconds after actuation by application of the brakes.” According to defendant, the flickering of his taillight as observed by the officers constituted “flash[ing]” within the meaning of section 25251.5(c), because they did not testify that they saw his taillight “flickering” or “flashing” more than four times in four seconds. Furthermore, the officers must have been unaware of this provision, as they did not mention it in their testimony. Thus, in defendant’s view, the officers stopped him under a mistake of law after having observed only legal activity. Because they lacked objectively reasonable suspicion of a Vehicle Code violation, the traffic stop was unlawful.

We may not consider defendant’s argument directly because he did not raise it in the trial court. On a motion to suppress evidence, the defendant must state the grounds for suppression with appropriate specificity. (Pen. Code, § 1538.5, subd. (a)(2); People v. Williams (1999) 20 Cal.4th 119, 130-131 (Williams).) He may not raise a new ground for suppression on appeal. (Williams, at p. 131.) And because defendant had the burden to show why the evidence was illegally obtained, we may not find the trial court erred by failing to consider an argument that was not made.

Anticipating our conclusion, defendant argues in the alternative that by failing to cite Vehicle Code section 25251.5(c), trial counsel provided ineffective assistance.

“‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694, 104 S.Ct. 2052]; Ledesma, supra, 43 Cal.3d at pp. 215-216.) Second, he must also show prejudice flowing from counsel’s performance or lack thereof. (Strickland, supra, at pp. 691-692 [80 L.Ed.2d at pp. 695-696]; Ledesma, supra, at pp. 217-218.) Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257 [259 Cal.Rptr. 491, 774 P.2d 164]; Strickland, supra, at p. 694 [80 L.Ed.2d at pp. 697-698].)’ (People v. Jennings (1991) 53 Cal.3d 334, 357 [279 Cal.Rptr. 780, 807 P.2d 1009].)” (In re Avena (1996) 12 Cal.4th 694, 721 (Avena), followed in People v. Weaver (2001) 26 Cal.4th 876, 925 (Weaver).) If the record discloses that counsel was asked to explain the tactical purpose of his conduct and failed, or that there simply could be no reasonable tactical purpose for counsel’s conduct, a claim of ineffective assistance is cognizable on direct appeal. (See People v. Jones (2003) 29 Cal.4th 1229, 1254; Avena, supra, 12 Cal.4th at p. 722.)

We are not persuaded that counsel’s performance was deficient. Moreover, even assuming for argument’s sake that a competent attorney would have raised Vehicle Code section 25251.5(c) as controlling authority, it is not reasonably probable that defendant would have obtained a more favorable outcome. (See People v. Williams (1988) 44 Cal.3d 883, 937.)

Defense counsel was only obliged to cite Vehicle Code section 25251.5(c) if the statute applied. Section 25251.5 concerns the design and operation of vehicle stoplamps. Stoplamps must ordinarily emit a steady glow.^[3] However, section 25251.5 provides an exception for stoplamps that are “equipped” to flash if the flash duration falls within prescribed parameters; such lamps may flash “not more than four times within the first four seconds after actuation by application of the brakes.” (§ 25251.5(c).) As described in the record, the stoplamp here at issue does not fall within the terms of the section. While section 25251.5(c) refers to a light that flashes within a prescribed interval, the officers described a light that flickered, i.e., “burn[ed] unsteadily or fitfully.” (American Heritage Dict. (2d college ed. 1985) p. 513.) Moreover, it flickered not because it was “equipped” to do so, but because it was defective, unlike the right stoplamp, which operated properly. The officers testified that while the right stoplamp was steady, it appeared that the left stoplamp was about to go out. “It was clearly defective.” It flickered “on and off real quickly. Like a light bulb, an indoor bulb might flicker real quick before it’s going out . . . as if it had a short.”

Vehicle Code section 24252, subdivision (a) provides that “[a]ll lighting equipment of a required type installed on a vehicle shall at all times be maintained in good working order.” Vehicle Code section 25251.5(c) cannot plausibly be read to legalize defective, flickering stoplamps that are about ready to go out, and the trailing officers were not compelled to time the flickering before making a stop to further investigate. The flickering and apparently defective condition of the stoplamp constituted reasonable suspicion. Counsel was not ineffective for failing to raise as a defense an inapplicable statute that would not have affected the outcome of the motion to suppress.

II

Defendant contends the trial court erred by failing to grant his motion to sanction the People for the destruction of critical exculpatory evidence; he also contends in the alternative that trial counsel was ineffective in failing to request such sanctions.^[4] We disagree with both contentions.

Background

During the hearing on the motion to suppress, Detective Helfrick testified that the jacket in which the officers found the heroin was not booked into evidence. Asked why not, he replied: “Didn’t foresee the relevance of it because [defendant] had told us that it was his jacket, and it was obviously a man’s jacket.” As far as he recalled, they simply left it in the truck.

After the hearing, defendant prepared a pro se pleading titled “Motion to enter new evidence. 1538.5 Motion to Supress [sic].” This pleading included an allegation that the officers violated his due process rights under Arizona v. Youngblood (1988) 488 U.S. 51 [102 L.Ed.2d 281] (Youngblood) and California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413] (Trombetta) by failing to preserve the jacket. Trial counsel handed the pleading to the court without endorsing it.

The trial court scanned the pleading and declined to reopen the hearing on the motion, expressly finding defendant’s Trombetta claim lacked merit.

During trial, Detective Helfrick testified on this subject to the same effect. He now did not recall whether the officers had left the jacket in the truck or taken it to defendant’s residence, although he still believed the former. It was not booked into evidence because it did not seem pertinent once defendant’s ownership of the truck had been established and he had said the jacket was his.

Analysis

The People have a duty to preserve evidence only if it “might be expected to play a significant role in the suspect’s defense”; i.e., it “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Trombetta, supra, 81 L.Ed.2d at p. 422, fn. omitted.)

“The state’s responsibility is further limited when . . . the defendant’s challenge is to ‘. . . the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ (Arizona v. Youngblood[, supra,] 102 L.Ed.2d [at p.] 289 . . . .)” (People v. Beeler (1995) 9 Cal.4th 953, 976 (Beeler).) Under such circumstances, only a showing of bad faith establishes a denial of due process. (Ibid.) The presence or absence of bad faith turns on whether the police knew the evidence had exculpatory value when it was lost or destroyed. (Ibid.)

The jacket here had no apparent exculpatory value when the police discovered it or when they failed to book it into evidence. (Though defendant speaks of “destruction of critical evidence,” he does not show that the jacket was destroyed, only that its whereabouts were unknown at the time of trial.) When the jacket was found, defendant admitted owning it but claimed Van Dunk must have put the heroin into it. Defendant does not explain how this claim could have been corroborated by any feature of the jacket that either was or reasonably should have been apparent to the officers; he merely speculates about the evidentiary use he might have made of the jacket had it been available.^[5] To show that evidence was apparently exculpatory, it is not enough to show that the defense might have been able to use it or explain it away. (See Beeler, supra, 9 Cal.4th at p. 976.)

Citing the trial court’s statement that it “ha[d not] read exactly what [defendant] has said in each instance,” defendant asserts the court’s “failure to properly consider” his motion “was, itself, a denial of due process.” However, defendant does not show why due process required the court to consider pro se filings by a defendant who was represented by counsel, especially after counsel made it clear he did not endorse defendant’s arguments. In any event, the court ordered a sealed copy of defendant’s filings placed in the record for appellate scrutiny. We think that sufficed to satisfy due process under the circumstances.

Finally, defendant’s motion did not argue this issue, but only asserted baldly that the jacket had exculpatory value. Thus, the motion gave the trial court nothing to “consider.” Summary denial was the appropriate response.

Because defendant has not shown the police violated Youngblood or Trombetta, he cannot show that trial counsel could have moved successfully for evidentiary sanctions. Therefore, we reject his claim of ineffective assistance of counsel on this issue.

III

Defendant contends the trial court abused its discretion by refusing to strike his prior strikes. (Pen. Code, § 1385.) We disagree.

Background

The amended information alleged three prior strikes: shooting at an inhabited dwelling (Pen. Code, § 246) in 1984, robbery of an inhabited dwelling (Pen. Code, §§ 211, 213.5) in 1986, and forcible oral copulation with an enhancement for use of a deadly weapon (Pen. Code, §§ 288a, subd. (d), 12022.3) in 1986. The two latter convictions arose out of the same occasion. After defendant waived jury trial on the priors, the trial court found all the allegations true.

The probation report showed in addition: defendant had several juvenile court adjudications, leading to a commitment to the California Youth Authority (Youth Authority) in 1974. After being released on parole from the Youth Authority in 1976, he sustained a misdemeanor assault conviction and 60 days in jail. In 1977, while on probation, defendant committed misdemeanor burglary and was sentenced to three months in jail. In 1978, while still on probation, defendant sustained another misdemeanor assault conviction and served eight days in jail. In March 1982 defendant served three days in jail for disturbing the peace. In November 1982 defendant was convicted of second degree burglary and spent 270 days in jail. Also in November 1982, defendant sustained another burglary conviction and was sentenced to a year in jail; following a conviction for escape in January 1983, another 30 days was added to the sentence. After defendant was released, he committed the offenses in 1984 and 1985 that were charged as strikes in this case. He was sentenced in 1986 to a prison term of 25 years eight months but was released on parole in May 2002. He was arrested for the present offenses in October 2002.

In response to defendant’s motion to strike the priors under Penal Code section 1385, the trial court explained at length why it would not do so. We quote the main points:

“I must find that . . . this case . . . is not in the spirit of the three strikes law. Well, the three strikes law has a fairly mean spirit. . . .

“[Y]ou need some valid reason to not follow the principle of the three strikes law, and I cannot find those in this case.

“The defendant has had a history of drug abuse, and he has drugs in his possession when he’s arrested five months after he’s released. That’s not encouraging. He claimed it’s not his, but the jury found it was, and common sense supports that it was his. He had four bullets in his pocket.

“Now, this is a man who has used firearms on two major incidences, both life threatening. And while four bullets seemed somewhat trivial, . . . in his case it is disturbing that he would have bullets. It really is mind boggling. His version is mind boggling.

“Now, I don’t know what the jurors used as a bases [sic] for their decision. On the face of it, he was obviously guilty because the exception the law provides for the inadvertent or accidental possession of an object[,] specifically bullets . . . . If it comes into your [possession] unintentionally by surprise, then you’re supposed to get rid of it promptly. And specifically you’re supposed to take it to a police officer or parole officer official.

“Now, I just find it incredible if these bullets were found in the fashion they were, . . . [i]t’s just unbelievable he would still have it in his pocket at eleven o’clock the next day.

“I know it’s improper to throw it in the garbage. However, worse things have occurred in history. It’s technically improper to throw it in the river, but it’s a pretty safe way to get rid of it. He wanted to give it to his boss who knew a police captain who then would be able to process this ammunition. [H]e phoned his boss in the evening. He said we will do it tomorrow, next morning.

“Yet, the next morning he drives over to his workplace, his boss hasn’t arrived yet. The office is open. He doesn’t go put them in the drawer with a note . . . to advise the boss later these are the bullets I told you about. He does not get rid of them. It’s just mind boggling.

“He knows the state prison system. He knows the law. He knows this is against the law. And, Lord, if I were he, I’d throw them in the garbage. I’d throw them in the gutter. I’d just do about anything in the darn world to get them out of my possession. At least, I would go down to the nearest lev[ee] and toss them in the river, or I would drive to my boss’s house and drop them in his mailbox and say, sorry, because this is what I got to do. But I would not keep them in my pocket [and] not drop them at my boss’s office the next morning when I have a purpose in being there, and have access to his office, and the boss is very supportive of the defendant. . . . And I think he would have tolerated those bullets being left in his desk rather easily. . . .

“Well, his explanation is mind boggling, and while I can’t prove it beyond a reasonable doubt, but for sentencing purposes, I don’t have to have that degree of conviction, but I strongly suspect he wanted to do something with those bullets. Why in the world would he keep a round as long as he did and avoid simple ways of getting rid of them?

“So I’m concerned that this person who has enjoyed being armed with firearms and, of course, in other crimes he used a knife or a razer [sic], requiring 300 stitches on the opponent in a dispute when he was 15 . . . , including the guy’s neck and his chest.

“Mr. Hernandez has a lot of problems in his life, and I wish he had a better youth, and I wish we had better tools to correct people. But the [Y]outh [A]uthority is not a waste. I think they make efforts to rehabilitate youths. Even before he went to the [Y]outh [A]uthority, he was placed on juvenile probation and ordered to be in an alcohol program.

“[The prosecutor] says these programs are readily available or fairly available in the prison. I recognize there is a serious question as to how many programs are available in the prison system, but out of 17 years [in prison], . . . I think he would have gotten into a program if he had really sought it.

“And in his five months out of custody, you would think if he recognized drug abuse is the source of all of his problems or most of them . . . , I’m sure his parole officer would have given him a place to go where they would make available to him some kind of a program. So I think he has demonstrated not much motivation in that regard. So I just do not find -- First of all, I find that his prior history is frightening. [The present] crimes are rather minimal in the big scheme of things compared to real violence, but they aren’t that minimal. Him having revert[ed] to his heroin addiction, having it in his possession is probably more frightening than him stealing, getting a petty [theft] with a prior, which we know can lead to a 25 to life.

“So these are . . . indications that he still is not in control. And, of course, that’s been part of his problem whether you call it drugs, whatever you call it. He has been impulsive when something angers him. He cut up the young person that le[d] to his YA commitment rather viciously. He opened fire on his wife and her boyfriend in anger. And you can explain it in various ways, but the pattern is too strong that he is not in control. He cannot control anger. He cannot control impulses. And while he did a moderate job for five months, apparently, at least he went to work and he had some clean test[s]. I don’t know how frequently he tested, but there he was with heroin in his possession.

“So there are just too many signs that he is still a dangerous person. While I could fashion a sentence to strike everything by strike, and where he would serve down to about five years in prison actual time, I don’t think that’s consistent with the basic princip[le] of the three strikes law. Somebody who is this dangerous and who continues to violate the law is telling us something. . . .

“So I don’t want to run the risk . . . because I have no confidence at all that he will [not] be doing something seriously criminal or more likely than not something more violently criminal. So I think the principle of the three strikes law in the spirit of the three strikes law requires of me that I implore [sic] the three strikes sentencing pattern. So that’s what I’m going to do.”

Analysis

Defendant asserts that the court should either have struck all of his strikes or at least treated the matter as a two strikes case. We disagree.

The trial court, in its discretion, may strike prior strikes, either in full or count by count. (Pen. Code, § 1385, subd. (a); People v. Garcia (1999) 20 Cal.4th 490, 496, 499; People v. Williams (1998) 17 Cal.4th 148, 151 (Williams).) The court’s ruling either to strike or not to strike priors will be set aside for abuse of discretion only if it is “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) Only in the “extraordinary” three strikes case, where a defendant falls outside the spirit of the three strikes law despite a career in crime, would a trial court be justified in exercising its discretion to strike prior strikes. (Id. at p. 378; see Williams, supra, 17 Cal.4th at p. 161.)

To determine whether a defendant “may be deemed outside the scheme’s spirit, in whole or in part,” the trial court should consider “factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (Williams, supra, 17 Cal.4th at p. 161.) In doing so here, the trial court found that defendant is a career criminal who has been in custody most of his adult life. His record includes heinous crimes of violence. He has not made the slightest attempt to shake off his longstanding drug addiction, which led to one of his present convictions, even though he ascribes much of his past criminality to that addiction. He committed the present offenses only a few months after being released on parole. His attempts to blame those offenses on others show his continuing failure to take responsibility for his own acts. The court would have abused its discretion by making any other ruling than it did.

Defendant asserts his present crimes were “non-violent, victimless, de minimus felonies,” and he had taken steps to become a responsible member of society since his last release on parole, including finding steady work and testing clean for drugs. However, as the trial court found, a violent felon’s failure to surrender ammunition suggests a continuing penchant for violence, and the possession of heroin outweighs clean drug tests (especially if the tests occurred farther apart than the time it would take evidence of heroin use to disappear from defendant’s system).

Defendant also argues he did not have much of a window of time during the period in which he possessed the bullets for carrying out his plan to turn them over to his employer for relay to the police. But as we have noted, the trial court inferred from the number of unseized opportunities defendant had during that time to get rid of the bullets one way or another that he did not really mean to surrender them; in other words, the court did not believe defendant’s story. (Unlike defendant, we do not take the trial court’s hyperbole about throwing the bullets in the garbage or the river as serious findings that defendant should have done any such thing.) Defendant admits it might have been a “poor judgment call” not to leave the bullets in his employer’s desk, but he does not show why the trial court could not have concluded from that point alone -- especially defendant’s inability to explain his conduct in that respect -- that his entire story was incredible.^[6]

In short, defendant has not shown that the trial court abused its discretion by refusing to strike his prior strikes.

IV

Defendant contends his trial counsel was ineffective for failing to argue that his felony conviction on count two (possession of ammunition by a convicted felon) should be reduced to a misdemeanor. We disagree.

As defendant says, the offense of possession of ammunition by a convicted felon is a “wobbler.” (Pen. Code, §§ 17, subd. (b), 12316, subd. (b)(3).) But because the trial court found defendant fell within the spirit of the three strikes law, it is not reasonably probable the court would have granted a request to reduce his conviction on count two to a misdemeanor. Thus, defendant cannot show prejudice from trial counsel’s failure to make that request. (See Weaver, supra, 26 Cal.4th at p. 925.)

DISPOSITION

The judgment is affirmed.

RAYE , J.

I concur:

BUTZ , J.

Concurring and Dissenting opinion of Sims, J.

I concur in parts II through IV, inclusive, of the majority opinion.

I also concur with the conclusion, in part I, that defendant has forfeited his claim, asserted for the first time on appeal, that his brake lights were lawful under Vehicle Code section 25251.5, subdivision (c), because defendant never advanced that argument in the trial court.

I respectfully dissent from the majority’s conclusion that the defendant did not receive ineffective assistance of counsel in the trial court.

Defendant Tony Jackie Hernandez was sentenced to 25 years to life in state prison after his court-appointed attorney failed to cite to the trial court, or to base an argument on, the one statute that could have kept defendant out of prison: Vehicle Code section 25251.5, subdivision (c) (section 25251.5(c)).

Section 25251.5(c) provides: “Any stoplamp or supplemental stoplamp required or permitted by Section 24603 may be equipped so as to flash not more than four times within the first four seconds after actuation by application of the brakes.”

To justify an investigative stop or detention, an officer must have specific and articulable facts causing him to entertain a reasonably objective suspicion that some activity relating to crime has occurred or is about to occur and the person to be detained is involved in that activity. (People v. Aldridge (1984) 35 Cal.3d 473, 478.) The reasonable-suspicion standard applies to vehicle stops. (People v. White (2003) 107 Cal.App.4th 636, 641; U.S. v. Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, 1104.) Thus, a reasonable suspicion that a driver is violating the Vehicle Code justifies an investigative traffic stop. (Veh. Code, § 2806; In re Justin K. (2002) 98 Cal.App.4th 695, 700.)

It is immaterial whether the officers relied on the wrong Vehicle Code section, so long as their suspicions of a Vehicle Code violation were objectively reasonable. (In re Justin K., supra, 98 Cal.App.4th at p. 700.) However, if the objective facts did not constitute a violation, the officers’ suspicions could not have been reasonable. (Ibid.)

“‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674]; Ledesma, supra, 43 Cal.3d at pp. 215-216 [233 Cal.Rptr. 404, 729 P.2d 839].) Second, he must also show prejudice flowing from counsel’s performance or lack thereof. (Strickland, supra, at pp. 691-692 [104 S.Ct. at pp. 2066-2067]; Ledesma, supra, at pp. 217-218 [233 Cal.Rptr. 404, 729 P.2d 839].) Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257 [259 Cal.Rptr. 491, 774 P.2d 164]; Strickland, supra, at p. 694 [104 S.Ct. at 2068].)’ (People v. Jennings (1991) 53 Cal.3d 334, 357, 279 Cal.Rptr. 780, 807 P.2d 1009.)” (In re Avena (1996) 12 Cal.4th 694, 721, followed in People v. Weaver (2001) 26 Cal.4th 876, 925.) If the record discloses that counsel was asked to explain the tactical purpose of his conduct and failed, or that there simply could be no reasonable tactical purpose for counsel’s conduct, a claim of ineffective assistance is cognizable on direct appeal. (See People v. Jones (2003) 29 Cal.4th 1229, 1254; In re Avena, supra, 12 Cal.4th at p. 722.)

Trial counsel here was not asked to explain his conduct, but I can see no tactical purpose for failing to cite and argue the application of section 25251.5(c). By his own account, counsel searched the Vehicle Code looking for applicable provisions; yet he apparently overlooked this one. If the flickering brake light came within the authorization of section 25251.5(c), it would compel the granting of his motion to suppress, because the “flickering” brake light was the sole reason for the traffic stop of defendant’s truck. Trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.

It is immaterial that defendant testified the bulb was not flickering. What is crucial is whether the officers had an objective belief that, when they saw the bulb, it did not conform to the authority of section 25251.5(c). We simply do not know the answer to that question, because the officers were not asked about section 25251.5(c), nor about whether the flickering light flashed more than four times within four seconds.^[7]

The majority conclude that trial counsel was not ineffective because section 25251.5(c) does not apply. They make this argument because Officer Wright testified that the light was “flickering” and because he testified that the light looked “defective.” But this testimony was given without any cross-examination as to the possible difference between “flickering” and “flashing,” and I must say that the difference between a “flicker” and a “flash” -- both of which involve intermittent beams of light -- is far too subtle for me to send a man to prison for 25 years to life on an unexamined record. We are talking about the blink of an eye. The same goes for whether the brake light was “defective.” We do not know, for example, whether the officer believed the brake light was “defective” simply because it was blinking, whereas most brake lights, when they go on, do not blink at all.

In short, I think that a reasonably competent attorney would have located section 25251.5(c) and would have cross-examined the officers about its possible application.

There remains the question whether defendant has been prejudiced by counsel’s deficient performance. On that point, the recent opinion of our Supreme Court in In re Avena, supra, 12 Cal.4th 694, 721-722, is instructive:

“In a recent case, the United States Supreme Court addressed the unusual situation of trial counsel failing to make a valid objection at trial, where the precedent for the objection was later overruled. (Lockhart v. Fretwell (1993) 506 U.S. 364 [113 S.Ct. 838, 122 L.Ed.2d 180] (hereafter Fretwell).) In that case, the high court, when applying the second prong of the Strickland test, noted that the test for ‘prejudice’ is not solely one of outcome determination. Instead, the pertinent inquiry is ‘whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’ (Id. at p. 372 [113 S.Ct. at p. 844, 122 L.Ed.2d at p. 191].) ‘Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the

proceeding was fundamentally unfair or unreliable, is defective.’ (Id. at p. 369 [113 S.Ct. at p. 842, 122 L.Ed.2d at p. 189], fn. omitted.)” (In re Avena, supra, 12 Cal.4th 694, 721-722; fn. omitted.)

Here, defendant was sentenced to life in prison in a case where application of the most crucial rule of law (that set forth in section 25251.5(c)) was not adjudicated. In my view, this omission rendered defendant’s conviction unreliable and fundamentally unfair. Defendant should receive a new hearing on his motion to suppress evidence at which application of section 25251.5(c) can be adjudicated.

If, on reconsideration, the trial court were to find that defendant’s brake light came within section 25251.5(c), the court would grant defendant’s motion to suppress. If the court found otherwise, the court would deny the motion to suppress and reinstate the judgment.

I also have in mind the benefits and burdens of providing defendant with a new suppression hearing at which possible application of section 25251.5(c) would be adjudicated. On the one hand, it would take about an hour of the trial court’s time to make this adjudication (I see no reason to rehash other issues that were adjudicated in the original motion to suppress). On the other hand, the current posture of this case is such that I think it likely that defendant will tell those on his cell block, and his family and friends, that he was screwed by his court-appointed counsel. I think he will probably tell people that if he had had O.J.’s lawyers, he would be a free man. In my view, such sentiments are like a cancer that eats away at our system of justice. We should eliminate defendant’s complaints by providing him with a new motion to suppress at which application of the statute most crucial to his defense could be adjudicated.

For these reasons, I respectfully dissent.

SIMS , Acting P.J.

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^[1] Forensic testing showed that the substance was .09 gram of heroin, a usable amount.

^[2] A criminalist testified that heroin and its metabolites are detectable in the body for only two to four days after use.

^[3] Under federal motor vehicle safety standards, made applicable to the Vehicle Code by section 26103, subdivision (b), vehicle lamps, except for signal lamps and other specified exceptions, must be “wired to be steady-burning.” (49 C.F.R. § 571.108.)

^[4] As will appear, these points are not contradictory: defendant filed his motion pro se.

^[5] Thus, for instance, defendant stresses the fact that during the hearing on the motion to suppress, Detective Helfrick, who stands 6 feet 2 inches and weighs 210 pounds, testified the jacket looked as though it would fit “somebody such as [him]self,” but defendant is 5 feet 5 inches and weighs around 150 pounds. He ignores Helfrick’s explanation in his trial testimony that it appeared that way when he looked at the jacket briefly from 10 feet away. In any event, defendant does not explain how this testimony, even ignoring Helfrick’s clarification, shows that the jacket had apparent exculpatory value in light of defendant’s admission to the officers that he owned it.

^[6] As the court noted, the jury did not have to decide whether defendant’s story was credible because it was sufficient to convict him on its face. Penal Code section 12316, subdivision (b) makes it a crime for a person such as defendant to possess ammunition unless (as relevant here) he did so “no longer than was necessary to deliver or transport the ammunition . . . to a law enforcement agency[.]” (§ 12316, subd. (d)(1)(B).) According to defendant, he possessed the bullets from the evening of one day to 11:00 a.m. the next.

^[7] The Vehicle Code makes clear that the “stoplamp” referred to in section 25251.5(c) is, in fact, a brake light. Thus, Vehicle Code section 24603, subdivision (f), provides: “Stoplamps shall be activated upon application of the service (foot) brake and the hand control head for air, vacuum, or electric brakes.” In his testimony, Detective Wright made clear that it was a brake light that was “flickering.” He said, “The left taillamp was flickering when the driver had applied his brakes.” And, “I noticed the left rear taillamp brake light was flickering on and off.”