Filed 7/26/17 P. v. Dunsmore CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN DUNSMORE,
Defendant and Appellant.

A150199

(San Francisco City & County
Super. Ct. No. 226448)


Defendant Steven Dunsmore appeals from a conviction, following a no contest plea, of being an accessory to a felony (Pen. Code, § 32) and a convicted felon having a concealed firearm in a vehicle (a misdemeanor violation of § 25400, subd. (a)(1)). Imposition of sentence was suspended and defendant was placed on probation. His appellate counsel has raised no issues, but notes the denial of defendant’s motion to suppress, and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgement. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.
Section 1237.5 generally precludes an appeal from a judgment of conviction after a plea of no contest or guilty unless the defendant has applied for, and the trial court has granted, a certificate of probable cause. There are two exceptions: (1) a challenge to a search and seizure ruling, as to which an appeal is proper under section 1538.5, subdivision (m); and (2) post-plea sentencing issues. (See People v. Shelton (2006) 37 Cal.4th 759, 766; see also People v. Buttram (2003) 30 Cal.4th 773, 780.) Although defendant did not apply for a certificate of probable cause, he did make a motion to suppress. Furthermore, in his notice of appeal, defendant identifies only the ruling on his suppression motion as the ruling he challenges on appeal. We therefore review only those portions of the record pertaining to defendant’s motion to suppress.
Defendant sought to suppress evidence seized from his person, a vehicle and a backpack located in the vehicle. Following the preliminary hearing, the magistrate denied his motion. Following the filing of the information, defendant filed a section 995 motion again challenging the search and seizure based, in part, on the transcript of the preliminary hearing. He thereafter filed a “supplemental” motion to suppress data recovered from a cellphone. Prior to the hearing of these two latter motions, defendant agreed to a negotiated disposition on the date of the scheduled hearing. Accordingly, there was no ruling on the motions.
At the preliminary hearing, Police Officers Danny Li and Michael Bushnell testified that on the evening of August 31, 2016, they were patrolling the area around Market and Sutter Street, a high crime area. The officers, in uniform and driving a marked police car, observed a silver BMW at the intersection of Market and Sutter with its center brake light out and the rear license plate missing the month tag. Officer Li activated his lights and siren, and executed a traffic stop. The driver of the BMW pulled over. There were two occupants, Jeffrey Beasley (the driver) and defendant.
Officer Li approached the driver’s side and requested Beasley’s license, registration and insurance, which he handed to the officer. Officer Bushnell went to the passenger’s side to talk to defendant. Defendant told Officer Bushnell “I know my rights. I don’t have to tell you shit.” Officer Li observed “[defendant] was already agitated.”
Officer Li attempted to run a records check on the driver’s license, but had trouble reading the police car’s computer screen. Officer Bushnell then took the license and ran the records check through his radio. Dispatch reported the driver had an active warrant. When asked about his criminal past, the driver stated he had been arrested for a firearm-related offense. Officer Bushnell then ordered the driver to exit the BMW and placed him in handcuffs. A pat down search of the driver revealed “[a] bag of white crystal like substance.” The contents of the bag tested positive for methamphetamine.
While Officer Bushnell was dealing with the driver, Officer Li was speaking with defendant. Defendant was sitting in the passenger seat of the BMW with a backpack between his legs. Officer Li began asking defendant questions. Defendant asked “if he could leave” but Officer Li said he could not. Defendant was dressed in a “[b]aggy, long T-shirt and baggy jeans.” Baggy clothing “allows for weapons to be concealed more easily.” Officer Li observed that defendant repeatedly placed his hands on the outside of the front of his waistband, above his T-shirt. The waistband being a common place to carry weapons, Officer Li ordered defendant out of the vehicle, placed him in handcuffs and proceeded to conduct a cursory search. The search revealed a firearm in defendant’s front waistband. Officer Li seized the firearm, handed it to Office Bushnell and placed defendant under arrest.
After defendant and the driver had been placed under arrest, Officer Li called dispatch and requested a records check for defendant. He learned defendant was on probation for a felony (possession of stolen property). Officer Li then searched the backpack after defendant admitted it was his. The search reveled: 1) A receipt or W-2 form from a casino with defendant’s name on it; 2) A scale; 3) Several plastic baggies; 4) An address book with names; 5) A brown prescription pill bottle with several tablets of different colors inside; 6) A single plastic baggie containing a white crystalline substance; and 7) A black tar substance. The white crystalline substance tested positive for methamphetamine and the black tar substance tested positive for heroin.
The officers began searching the BMW, but due to high foot and vehicle traffic, had the car driven to the police station where the officers conducted a thorough search. In the trunk, they found a printer, a laptop, hard drives, utility boards, a lot of blank papers which appeared to have some type of check material printed on them, and multiple credit cards that bore the names of persons other than the driver and defendant.
At the conclusion of the suppression hearing, the magistrate found that the officers had sufficient cause to initiate a traffic stop based on observing the Vehicle Code violations. The magistrate further ruled Officer Li had reasonable suspicion to patsearch defendant based on his repeated reaching for his waistband, his baggy clothing, and the fact the driver had an active warrant. Once Officer Li seized the firearm from defendant and learned he was on probation for a felony, the officer had probable cause to arrest him and search his person and the vehicle incident to arrest. The magistrate also doubted defendant, a passenger, had the necessary reasonable expectation of privacy in the BMW to challenge the vehicle search.
In reviewing a ruling on a motion to suppress evidence, “ ‘[w]e defer to the trial court’s factual findings, express or implied, where supported by substantial evidence.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924.)
Substantial evidence supports the court’s finding that Officers Li and Bushnell properly made a traffic stop for two Vehicle Code violations, a missing month tag on the vehicles rear license plate and a broken center break light. Substantial evidence also supports the court’s finding that the officers had reasonable suspicion to conduct a patsearch based on defendant’s reaching for his waistband, his baggy clothes, and the driver’s active warrant. And, once finding the firearm on defendant and learning he was on felony probation, the officers had probable cause to arrest him and conduct a search incident to the arrest. The court was also on solid ground in doubting defendant, as a passenger, had any reasonable expectation of privacy in the BMW, necessary to challenge the search of the vehicle. (See People v. Valdez (2004) 32 Cal.4th 73, 121–122 [passenger in vehicle may not challenge the seizure of evidence from the vehicle where they have no ownership or possession].) Because the court, at defendant’s request, excluded his admission the backpack in the car was his, leaving no evidence he had a possessory or privacy interest in it, the court did not err in denying his motion to suppress as to the contents found therein. (See People v. Prance (1991) 226 Cal.App.3d 1525, 1532–1533 [search of passenger’s jacket and purse was legally justified as incident to the lawful arrest of the driver, despite officer knowing those items did not belong to the driver and both vehicle occupants were outside the car at the time of the search].) Further, the BMW was driven to the police station where it was thoroughly searched. When the occupants of a vehicle have been arrested or detained, an inventory search of a vehicle that has been towed is a valid exercise of police discretion. (See People v. Green (1996) 46 Cal.App.4th 367, 372–375 [officers are authorized to impound a vehicle and conduct an inventory search when the driver is removed and there is no passenger in the vehicle who can take control]; see also People v. Needham (2000) 79 Cal.App.4th 260, 267–268 [court found inventory search of motorcycle and attached duffle bag within the bounds of a valid search].)
DISPOSITION
After review of the relevant record, we find no arguable issues and affirm the judgment.
 




_________________________
Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.























A150199, People v. Dunsmore