People v. Lupercio CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064903

Plaintiff and Respondent, (Super. Ct. No. 10CM3892)

v. OPINION PABLO JESSE LUPERCIO,

Defendant and Appellant.

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.

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.”