P. v. Gates

Filed 2/28/07 P. v. Gates CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Quisteen S. Shum, Deputy Attorney General, for Plaintiff and Respondent.

Following the denial of his suppression motion (Pen. Code, 1538.5), defendant Leon Steven Gates pled guilty to unlawful possession of methamphetamine for sale (Health & Saf. Code,  11378 (count 1)), unlawful transportation of methamphetamine (Health & Saf. Code,  11379, subd. (a) (count 2)), and misdemeanor unlawful possession of drug paraphernalia (Health & Saf. Code,  11364, subd. (a) (count 3)). Defendant was sentenced to state prison for two years on count 1, a concurrent two-year term on count 2, and a concurrent 180 days in county jail for count 3. He appeals, unsuccessfully challenging the denial of his motion to suppress.

I. FACTS

At approximately 7:00 p.m. on November 29, 2003, police officer Robert Gates^[1]was driving on a dirt road in San Bernardino that was a railroad right-of-way.^[2] He noticed a car unlawfully traveling on the road. The officer stopped the car that was being driven by defendant.

During a search of the car, Officer Gates found a black coin purse or pouch under the drivers seat that contained several small plastic bags containing an off-white crystalline substance and a glass pipe that could be used for smoking methamphetamine. The officer also found three similar small plastic bags containing white crystalline substance under a bandana that defendant was wearing on his head. The crystalline matter tested positive for methamphetamine. Officer Gates opined that defendants possession of methamphetamine was for sale.

II. WAIVER OF RIGHT TO APPEAL

On February 27, 2006, a trial began on defendants case. Before the second day of trial began, defendant pled guilty to all charges in exchange for no deals or promises. Defendant signed a box on his plea for an appeal waiver with the explicitly written reason: [S]ince I am getting the benefit of my plea bargain.

Defendant challenges the validity of the effect of Section 20 of his plea form. Section 20, which includes defendants initials, provides: I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain. Defendant contends that because he had no plea bargain and received no benefit for pleading guilty, he never effectually waived his right to appeal, and thus should be allowed to challenge the trial courts denial of his Penal Code section 1538.5 suppression motion. For purposes of this appeal, we will assume, without deciding, that the waiver was not enforceable and consider the merits of defendants primary issue, the denial of his motion to suppress.

III. MOTION TO SUPPRESS

A. Hearing on Motion to Suppress.

On November 15, 2005, defendant brought a motion to suppress evidence. Officer Gates testified that he stopped defendant for driving on railroad right-of-way property (Pen. Code,  369g.) He asked defendant for a drivers license and defendant provided an expired license (Veh. Code, 12500, subd. (a)). The officer filled out a citation for violation of Penal Code section 369g, and Vehicle Code section 12500, subdivision (a), and informed defendant that the car would be towed unless he could find a licensed driver to pick it up. After defendant signed the citation, the officer noticed an empty shell casing on the dashboard of defendants car. Concerned for his safety, the officer asked whether defendant had any weapons on him or in the vehicle. The officer stated he was not going to let defendant drive away in the vehicle because defendant did not have a valid license. Instead, the officer planned to have the vehicle towed. Upon seeing the bullet casing, the officer had defendant step out of the car for a patdown search. Nothing was discovered. The officer asked defendant if he had any weapons or any illegal narcotics in the vehicle, and he stated no. The officer then asked defendant if he minded if [the officer] looked in his vehicle, and [defendant] said go ahead. Inside of the car, the officer found a black coin purse, which he unzipped. Inside the coin purse, the officer found the baggies. The officer asked defendant if he knew anything about the baggies, and defendant said that he did not. Defendant was arrested and the officer again searched defendants person and found more baggies under his bandana.

Defendant testified that, after writing the ticket for driving on railroad property, and before noticing the shell casing and searching the car, the officer told defendant that someone could pick up the car to prevent it from being towed. While defendant was on his cell phone getting someone to pick up the car, the officer came over and noticed the shell casing. The officer asked if defendant had any weapons in the car or on his person. Defendant said no. Regarding the empty shell casing, defendant said he told the officer that he did not know where the shell casing had come from, and the officer replied, [G]et out of the vehicle. I am searching anyway. According to defendant, he was then handcuffed and moved away from the car. While defendant was handcuffed, the officer asked for consent to search the car. Defendant replied, [W]ell, you already said youre going to. How can I stop you.

During the prosecutions cross-examination of defendant, she attempted to impeach defendants testimony with evidence of a criminal record that contained convictions involving moral turpitude.^[3] Defense counsel objected to the evidence, and the trial court overruled the objection. However, defendant interrupted the court and pointed out that the criminal record was not his. He noted that it was for another man with the same name of Leon Gates. Once the prosecutor confirmed that defendant had not been convicted of any other crimes, she did not pursue further impeachment based on a prior criminal record.

In denying defendants motion, the trial court stated, And the reason I am going to deny the motion is because even balancing credibility without having to go too far, [defendant] has been very honest. The Court -- I am convinced he hasnt wanted to say straight up that I did give permission to search. I sort of didnt. I think even [defendants] action -- that under the circumstances he did give permission, but the point is that there was a violation of law. The stop and the contact were lawful. The presence of the shotgun shell -- or excuse me -- the bullet casing I think gives the officer permission at this point to make the search with or without consent. [] The consent isnt the only basis for a search, but I do believe he got consent as well. I believe that the police officer acted appropriately under the circumstances, and I think that the right to tow the vehicle also gave him a right to take an inventory of the vehicle. And I do believe it would have been discovered, but the main thing is that under the total analysis of the facts, I believe that Mr. Gates did get consent. I believe the police officers statements as to the progress of the events.

B. Issues.

On appeal, defendant contends that the denial of his suppression motion was based on the trial courts erroneous consideration of the prosecutors proffered criminal history reports (rap sheets) containing information about crimes committed by a Leon D. Gates who is a six-foot-tall African American. Defendant describes himself as a five-foot, six-inch-tall Caucasian. Defendant further claims that the trial courts two additional reasons for denying his motion were invalid. He argues that the officers discovery of methamphetamine in the course of searching the car for weapons was improper because a gun could not have been secreted in that small coin purse. He adds that the discovery in the course of inventorying before the car was towed was improper because the officer never refuted defendants testimony that the car would not have been towed if defendant had been able to find a licensed substitute driver. Finally, he claims ineffective assistance of counsel due to defense counsels failure to object to the use of the rap sheets.

C. Standard of Review.

In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the courts resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.] (People v. Ramos (2004) 34 Cal.4th 494, 505.) [W]e view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. (People v. Jenkins ( 2000) 22 Cal.4th 900, 969.)

D. Analysis.

1. Consent.

The primary issue argued in the motion to suppress was whether defendant consented to the search. Defendant claimed that he did not, the prosecution claimed that he did. The trial court listened to the testimonies of Officer Gates and defendant and chose to believe the officers version over defendants version. Defendant insists that the trial courts decision was based on its erroneous consideration of another Leon Gatess criminal record. We disagree. As respondent points out, there is nothing in the record to support a claim that the trial court considered the criminal records referred to by the prosecution. They were not attached to the prosecutions opposition to defendants motion to suppress. They were not admitted into evidence. And, upon defendant pointing out that the records were of another Leon Gates, the prosecutor ceased referring to them or attempting to impeach defendant with them. Thus, the record clearly shows that the trial courts decision was not based on the criminal records of another Leon Gates.

As the finder of fact in a proceeding to suppress evidence (Pen. Code,  1538.5), the trial court was vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences. (People v. Woods (1999) 21 Cal.4th 668, 673.) Because there is nothing inherently improbable about Officer Gatess testimony, we are bound by the trial courts determination that his testimony was credible. Therefore, as the trial court found, Officer Gates saw the shell casing on the dashboard, had defendant step out of the car for a patdown search, inquired as to whether defendant had any weapons or any illegal narcotics in the vehicle, and then asked defendant if he minded if [the officer] looked in his vehicle, and [defendant] said go ahead. Inside of the car, the officer found the coin purse, looked inside and found the baggies. Defendant was arrested and the officer again searched defendants person and found more baggies in his bandana. (In re Andrew I. (1991) 230 Cal.App.3d 572, 578 [If a trier of fact has believed the testimony . . . this court cannot substitute its evaluation of the credibility of the witness unless there is either a physical impossibility that the testimony is true or that the falsity is apparent without resorting to inferences or deductions. [Citations.]].)

Exercising our independent judgment, we conclude -- on the facts found by the trial court -- that Officer Gates acted reasonably under Fourth Amendment standards. (Ornelas v. United States (1996) 517 U.S. 690, 699.) The officer inquired as to whether defendant was in possession of any weapons or illegal narcotics. Defendant said no. The officer asked if he could search the car. Defendant said that he could go ahead.

2. Search for Officer Safety.

The officer lawfully stopped defendants car. Because defendant was unable to provide a valid drivers license, the officer wrote a ticket for defendant and planned to have the car towed. The officer informed defendant that the car would be towed unless he could find someone to come and get it. While defendant was on his cell phone, the officer noticed a spent shell casing on the dashboard. The bullet casing gave the officer concern for his safety. Thus, the officer initiated a patdown search of defendant and a search of the cars passenger compartment.

A police officer who lacks probable cause to arrest may undertake a patdown search where the officer has reason to believe he is dealing with an armed and dangerous individual. The belief must be supported by specific, articulable facts together with reasonable inferences, which the officer may draw from these facts in light of his experience. (Terry v. Ohio (1968) 392 U.S. 1, 27-28.) The sole justification of the search is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. (Id. at p. 29.) The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citation.] (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230.)

Officer Gates had specific and articulable facts to warrant his safety concerns. He pulled over a car whose driver had two violations: driving in a restricted area and driving with an expired drivers license. At the time of the stop, it was dark. During the stop, the officer observed a spent shell casing. It was reasonable for Officer Gates to be concerned about his safety because defendant was not going to receive his citation and drive away. Instead, the officer was going to take defendant with him and have the vehicle towed, because defendant was not a licensed driver. Officer Gatess concern for his safety was justified because it is well-established that officers are assaulted and killed during routine traffic stops. (See In re Arturo D. (2002) 27 Cal.4th 60, 85, fn. 23; People v. Rodriguez (1986) 42 Cal.3d 730, 742-743, limited on other grounds in People v. Proctor (1992) 4 Cal.4th 499, 538, [two California Highway Patrol officers were shot to death while making a routine traffic stop].) Given the officers concerns, his searches of defendant and the passenger compartment of the car were lawful and thus the methamphetamine seized in this case was a product of that lawful search.

Regarding defendants specific claim that the search of his car did not extend to looking inside the coin purse because it was too small to contain a firearm, respondent contends that this issue was not raised at the trial level and is therefore deemed waived. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640.) Notwithstanding the waiver issue, respondent notes there was no evidence presented describing the size of the coin purse and the coin purse was not submitted into evidence at the suppression hearing. Thus, respondent contends that there is no reason to believe that the coin purse was incapable of containing a small weapon or handgun such as a Derringer^[4]or the new SwissMiniGun.^[5] We agree.

For the above reasons, we conclude that Officer Gates concern for his safety under all the circumstances of this case reasonably supports the patdown search and subsequent search of the passenger compartment and coin purse.

3. Inventory Search.

Having found that the methamphetamine was lawfully discovered as a result of defendants consent and a legitimate search for weapons due to the officers concern for safety, we need not consider whether the discovery would have also resulted following a valid inventory search in preparation for defendants car being towed.

4. Ineffective Assistance of Counsel.

Because we have found that the criminal rap sheets were not considered or relied upon by the trial court, defendants claim of ineffective assistance of counsel due to the failure to object to the prosecutions reliance is moot.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

RICHLI

J.

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^[1]Officer Gates was working for the Burlington Northern Sante Fe Railroad Department as a K-9 officer.

^[2]The facts are taken from the evidence presented at the June 23, 2003, preliminary hearing.

^[3]On June 13, 2006, defense counsel requested to augment the record on appeal to include page 30 of the discovery (the criminal record to which the prosecutor was referring), as well as defendants motion to suppress and the prosecutions opposition. Respondent did not oppose defendants request. Thus, on June 22, we granted defendants request. However, on August 3, this court was informed that the clerks office of the Appellate section of the Superior Court for the County of San Bernardino could not locate any of the documents requested. On August 21, defense counsel filed a supplemental augment request or, in the alternative, a request for judicial notice, which sought to have the designated discovery (criminal record for a Leon Gates) available for this court to view and consider. On September 6, respondent opposed the request on the grounds the criminal records were not part of the trial court records, and they were not received nor considered by the trial court. (Former Cal. Rules of Court, rule 12 (a)(1) [now rule 8.155]; Evid. Code,  452, subd. (d).) At the same time, respondent requested that this court augment the appellate record with defendants motion to suppress and the prosecutions opposition. Defense counsel did not oppose this request. On September 14, 2006, this court granted respondents request to augment. However, we reserved ruling on the defense request as to the designated discovery (criminal records for a Leon Gates) for the purposes of considering it with the appeal. Having read the transcript of the hearing on defendants motion to suppress, we find that the designated discovery was neither received nor considered by the trial court. Instead, upon discovering that the criminal record was for another Leon Gates, the prosecutor stopped referring to the documents and ceased attempting to impeach defendant on the grounds of those documents. Moreover, there is nothing in the record that supports any claim that the trial court relied upon those documents. Accordingly, we deny defendants request.

^[4]Respondent provides: The history of the Derringer began in the mid 1800s, the age of the riverboat gambler. As one author noted, [t]he Derringer in the late 19th century was known as the gamblers gun, because it could be hidden up a mans sleeve and flipped into his hand in an instant. (Hertzberg, The Modern Handgun 68 (1965).) It became popular because it was easy to conceal and was effective in emergency situations. One author described it as truly the gun for the ladies hand bag. It is very small, as was the original Remington from which it was redesigned. It is also an excellent undercover gun for the peace officer or soldier for emergency use, or as a close-range defense gun. The small cartridge is not the best for serious work but is far better than no gun at all and is quite effective at close range where such a gun would be used. (Keith, Sixguns by Keith (1955) pp. 83-84.) [] A Derringer was used to assassinate Abraham Lincoln. (See Nonte, Pistol & Revolver Guide 16 (1975).)

^[5]The SwissMiniGun is a 2.16-inch replica of a Colt Python. It is a real gun (about the size of a key fob) that shoots tiny bullets that are just .35 inches long. [as of January 18, 2007.]