Filed 1/24/18 P. v. Martin CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
BLAINE RICHARD MARTIN,
Defendant and Appellant.

A150425

(Humboldt County
Super. Ct. No. CR1601904)


Defendant Blaine Richard Martin was convicted after a jury trial of unlawful possession of a firearm by a convicted felon (Pen. Code, § 29800, subd. (a)(1) ) and unlawful possession of ammunition by a convicted felon (§ 30305, subd. (a)), both felonies, and sentenced to state prison. His court-appointed attorney has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Martin was informed of his right to file an independent brief and has not done so. Upon our independent review of the record, we conclude there are no arguable issues for appellate review and affirm.
STATEMENT OF THE CASE
In July 2016, the Humboldt County District Attorney filed a first amended complaint charging Martin with, inter alia, these two felony counts. After pleading not guilty, Martin moved to suppress evidence pursuant to section 1538.5 on the ground that the traffic stop that resulted in the discovery of a firearm and ammunition in his truck was not supported by reasonable suspicion. Thereafter, a contested hearing on the suppression motion took place, in conjunction with the preliminary hearing. The trial court denied his suppression motion and he was held to answer.
The case proceeded to a jury trial. Various motions in limine were ruled upon, and a jury was impaneled and sworn. In addition, an Evidence Code section 402 hearing was held regarding the admissibility of an alleged statement Martin had made at the time of his arrest; at the conclusion of that hearing, the superior court ruled Martin had validly waived his Miranda rights (Miranda v. State of Arizona (1966) 384 U.S. 436) and declined to exclude evidence of his statement to the arresting officer. Two witnesses testified at trial: for the prosecution, the arresting officer who discovered the illegal weapon and ammunition in Martin’s truck, and for the defense, Martin’s mother. At trial, Martin stipulated to a previous felony conviction. His sole defense was that he did not know the firearm and ammunition were in his truck. Defense counsel confirmed on the record he was satisfied with the jury instructions and had no modifications, deletions or additions. At the conclusion of trial, the jury deliberated for forty minutes and returned verdicts finding Martin guilty of both offenses, the only counts tried.
At the subsequent sentencing hearing, the trial court announced a tentative sentencing decision and heard arguments of counsel, and then took Martin’s request to be placed on probation under submission and continued the sentencing hearing for one week so that it could consider the arguments of counsel and review defendant’s written sentencing memorandum more thoroughly. At the continued hearing, the trial court indicated that it had re-read defendant’s papers and considered all of the arguments of counsel. The court adopted its previously announced tentative decision, denied probation and sentenced Martin to prison for three years. It imposed the upper term of three years for the firearms count (count 1), to run concurrently with the mid-term of two years for the ammunition count (count 2). The court also ordered Hughes to pay various fines and fees, and awarded 190 days for time served and 190 days for conduct credit, for a total of 380 days of custody credit. Timely notice of appeal was filed on January 19, 2017.
FACTS
A. The Pre-Trial Suppression Hearing
We take the facts pertaining to the contested traffic stop from the testimony of the prosecution’s sole witness at the suppression hearing, Humboldt County Sherriff’s Deputy Dennis Gagnon. Appellant’s brief contains a thorough, accurate summary of his testimony and we quote from it below (omitting only record citations).
“Regarding his background and experience, the deputy explained that he has been with the Humboldt County Sheriff’s Department for nearly 10 years, and has received training in identifying potential violations of the California Vehicle Code, including those portions of the Vehicle Code concerning window tint or obstruction of windows in vehicles. Based on that training, Deputy Gagnon understands that window tinting is allowed under limited circumstances in California.
“Deputy Gagnon estimated that in his 10 years on the job, he has conducted 40 to 50 traffic stops to investigate potential window tint issues. He has also issued traffic citations for window tint violations. The primary thing that Deputy Gagnon looks for when determining whether to stop a vehicle for a potential window tint violation is whether he can see the interior of the vehicle through the side-door windows. Specifically, he asks himself whether he can clearly see the rearview mirror, whether he can identify the number of people inside the car, and whether he can see the physical features of the driver or other features of the interior of the car.
“On March 24, 2016, at around 6:42 p.m., Deputy Gagnon was on patrol near the intersection of Holly Drive and Central Avenue in McKinleyville, California. At that time of day, ‘[t]here was still some sunlight, ambient light’ and ‘[t]here may have been some light clouds,’ but it was not particularly overcast that day. Deputy Gagnon was stopped at a stop sign on Holly Drive, observing traffic on Central Avenue when a large pickup truck caught his attention. The truck was slightly lifted and had darkened tint on the windows. The deputy estimated that the truck was somewhere between seven and 16 feet away from him and that he had about three to four seconds to observe the truck as it passed.
“When Deputy Gagnon tried to look into the cab of the truck, he could not determine the number of occupants of the vehicle, their gender, or where they were seated inside the cab. He did not recall whether he specifically saw the rearview mirror, but he stated that he could not see through the vehicle in ‘any great detail.’ Deputy Gagnon turned onto Central Avenue and followed the truck for about half a mile until he reached Railroad Drive, where he initiated a traffic stop to investigate a possible violation of Vehicle Code section 26708 (the code section governing window tinting).
“Deputy Gagnon approached the vehicle on the driver’s side and made contact with the driver, whom the deputy recognized as appellant from prior contacts. There was also somebody seated in the passenger seat that Deputy Gagnon recognized from prior contacts as well. Deputy Gagnon ultimately searched the truck ‘pursuant to the terms of probation,’ and found a case containing a handgun and a box of bullets.”
B. The Jury Trial
We take the facts pertaining to Martin’s convictions from the two witnesses who testified at trial: the prosecution’s sole witness, Deputy Gagnon, and Martin’s sole witness, his mother Wendy Lamberson. Here, again, we quote from Appellant’s brief which accurately summarizes their testimony.
“I. The Prosecution’s Case
“On March 24, 2016, at approximately 6:40 p.m., Deputy Dennis Gagnon of the Humboldt County Sheriff’s Office was on duty in a marked patrol vehicle near the intersection of Holly Drive and Central Avenue in McKinleyville, California. He was stopped on Holly Drive, facing Central Avenue and observing traffic when a red Ford pickup truck with tinted windows caught his attention. Deputy Gagnon turned onto Central Avenue, followed the truck and initiated a traffic stop. Deputy Gagnon approached the truck and made contact with appellant, who was sitting in the driver’s seat. A woman named Caroline Snow was seated in the passenger’s seat.
“Deputy Gagnon directed appellant and Snow to exit the truck, and then conducted a search of the vehicle. The deputy found a DMV registration card, which indicated that the truck was registered to appellant. Underneath the armrest that separates the driver’s seat from the front passenger’s seat, Deputy Gagnon also found a black plastic case labeled ‘Gun Guard,’ which contained a Kimber 0.45 caliber semi-automatic handgun and a box of Hornady brand 0.45 caliber ammunition. The gun was loaded with eight bullets and, based on Deputy Gagnon’s training and experience, appeared to be capable of firing. Deputy Gagnon did not attempt to lift any fingerprints from either the case or its contents.
“After being advised of his Miranda rights, appellant told the deputy that he was holding the gun for someone else and that Snow had no knowledge that the gun was in the truck. [Footnote omitted.] Deputy Gagnon’s conversation with appellant was not recorded. The parties stipulated that appellant had previously been convicted of a felony.
“II. The Defense
“Appellant’s mother, Wendy Lamberson, testified that prior to her son’s arrest on March 24, 2016, she borrowed his truck to go check on her brother’s house, which had been vacant for about one year and according to neighbors, had recently been vandalized. In particular, neighbors reported that someone had stolen the stovepipe, leaving a hole in the roof that might allow rain to enter the house. Lamberson drove to her brother’s house with her other son and her nephew, and when they arrived, they started looking for something to stand on, like a block of wood, so they could climb onto the roof and cover the hole with plastic.
“While they were looking around the property for something to stand on, Lamberson found a black case underneath the stairway leading up to the back deck of the house. Lamberson thought that the case resembled a toolbox. She did not notice that the case said ‘Gun Guard’ on the front. She put the case on the floor of appellant’s truck, behind the driver’s seat. Lamberson never opened the case and she never moved it, though she hypothesized that the case could have ‘slid around’ inside cab of the truck because the ‘roads are pretty weavy.’
“When they were done covering the hole in her brother’s roof, Lamberson drove them all home in appellant’s truck. Shortly after they arrived home, appellant got into his truck and left. Lamberson did not mention the black case to appellant. ”
DISCUSSION
We have reviewed the entire record and have found no arguable issue. Martin appears to have been competent to stand trial and was at all times represented by able counsel who protected his rights and interests. No prejudicial evidence was admitted at trial that should have been excluded, and no relevant evidence was excluded that should have been received. The jury was properly instructed. The suppression motion was properly denied, because Deputy Gagnon’s traffic stop was supported by reasonable suspicion. There was no Miranda violation, because the uncontradicted testimony adduced at the section 402 hearing showed that Martin was properly advised of his Miranda rights, and that his waiver of those rights was knowing and intelligent under the totality of the circumstances. The evidence is sufficient to support the jury’s verdicts of guilt. And the sentence imposed by the court is lawful, including its decision to deny probation and sentence Martin to an upper term for the firearm count. There also is no error in its award of custody credits.
DISPOSITION
The judgment is affirmed.
 




STEWART, J.



We concur.




RICHMAN, Acting P.J.




MILLER, J.






















People v. Martin (A150425)