Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA057650, Richard H. Kirschner, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Steven D. Matthews, Deputy Attorney General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
David Eric Jones appeals from the judgment rendered following his no contest plea to a five-count information that alleged possession for sale of cocaine, possession for sale of cocaine base, transportation of cocaine, possession of a firearm by a felon, and possession of a short-barreled shotgun (Pen. Code, § 12020, subd. (a)(1)). The information also alleged that appellant had previously been convicted of possession of narcotics (Health & Saf. Code, § 11370) and had suffered three prior strike convictions (Pen. Code § 667, subds. (b)-(i)). After the court struck two of the strikes, appellant admitted the remaining allegations. He was sentenced to a term of nine years, four months.
Appellant contends that the court 1) erroneously denied his motion to suppress evidence under Penal Code section 1538.5 and 2) erred in imposing concurrent sentences for transportation of cocaine and possession for sale of cocaine, instead of staying the possession sentence under section 654. We find the first contention unmeritorious but concur with the second claim, with which respondent agrees. We modify the judgment accordingly, and affirm the judgment as modified.
FACTS
The sole witness at the section 1538.5 hearing was Los Angeles Police Officer Peter Doomanis. He testified that at about 9:45 p.m. on December 19, 2007, he and his partner Officer David Herskowitz were driving a marked patrol car in the area of Woodman Avenue and Sherman Way. From approximately 100 to 150 feet, Officer Doomanis heard music emanating from a 2007 four-door Dodge, in apparent violation of Vehicle Code section 27007 (undesignated section references are to the Vehicle Code). As the car approached and passed him, Doomanis noticed that the driver, appellant, was wearing a sweatshirt with a hood (hoodie), which blocked his peripheral vision, and that the car’s rear license plate was covered with tinted plastic film. Officer Doomanis considered that to be a violation of section 5201, subdivision (f) and he believed the obstructed vision rendered the car’s speed unsafe in violation of section 22350.
Doomanis drove behind appellant’s vehicle and put his lights on, intending to cite appellant. Alone in the car, appellant pulled over. Doomanis got out and approached. As he did so, he noticed an empty, uncapped Smirnoff Ice bottle on the floor of appellant’s car in back of the driver’s seat (see § 23226), and a werewolf mask on the back seat. Both the mask and the hoodie made Doomanis believe that the car might be stolen, or that appellant could be a burglar or robbery suspect. Doomanis testified that such suspects generally drive wearing hoodies and that burglars and robbers use masks to conceal their faces.
Doomanis testified that observation was not difficult, because of the ambient light and his flashlight. The lights of his car also illuminated appellant’s vehicle. Moreover, Doomanis’s general practice was to require that individuals he stopped roll down all their windows, especially where, as in appellant’s case, they were tinted.
Officer Doomanis approached appellant and asked for his driver’s license. Appellant did not have it,
Doomanis noticed an odor of alcohol emanating either from the car or from appellant’s person. He ordered appellant out, intending to perform a field sobriety test. Appellant’s agitated state, and his declaration that he had been arrested and in prison for manslaughter, as well as the mask, caused Doomanis to believe appellant could be armed and dangerous. Appellant was still agitated and boisterous, and Doomanis had to repeat some directions for a pat-down until appellant complied. The pat-down was in anticipation of appellant having his hands free during the sobriety test.
Either before or after the pat-down, Doomanis handcuffed appellant. When he patted appellant down, Doomanis found, in a pocket under a long t-shirt appellant was wearing, a folding fighting knife with a blade about three-inches long. Appellant said he was a plumber and used the knife in his work; Doomanis testified that it was not a plumber’s knife. Doomanis had appellant give him identifying information, which Officer Herskowitz ran on the computer, yielding a clean result. Officer Doomanis spoke with appellant, explained all the reasons for the stop, and calmed him down. In view of appellant’s prior agitation and job threats, Doomanis called for a supervisor, Sergeant Pixler, who arrived and also spoke to appellant.
Doomanis also testified that it was unlawful for appellant to carry the knife concealed underneath his t-shirt.
At this point, Doomanis testified, he was preparing to cite and release appellant. Appellant had not shown physical signs of intoxication and no field sobriety test had taken place. Doomanis intended to cite appellant for lack of a license, the covered license plate, the open container, and the auto sound. “In preparation for that, I did a wingspan search of the vehicle,” to ensure that no other weapons would be accessible to appellant. Doomanis did so based on the understanding, and his experience, “that where there’s one weapon, there might be additional,” as well as appellant’s status as a convicted and presumably violent felon. Inside the glove compartment, Doomanis found and recovered a starter pistol and a stainless steel Smith and Wesson semiautomatic pistol, loaded with a clip, with another magazine next to it. The gun was in an inside-waistband holster, meant to conceal a firearm.
The term “wingspan” appears to refer to the area within a person’s reach.
Doomanis arrested appellant for having a loaded firearm in the car and in his possession as a convicted felon. Doomanis next asked whether there were other things in the car he should be concerned with, and appellant said that there were another gun and some drugs in the trunk. There Doomanis found a backpack containing a sawed-off 12-gauge shotgun and ammunition for it. The pack also contained some gloves and a black woolen cap that could be pulled over the face, with an eyelet cut out. Appellant had told Doomanis he would not be able to find the drugs, and initially he could not. The car was impounded; Doomanis continued to search the trunk. A police dog was brought to the car and it indicated the possibility of narcotics in the trunk. Eventually the drugs were found in a WD-40 can that was heavy and did not appear to have liquid inside.
In argument below, appellant expressly did not dispute that there had been grounds to detain him and to investigate the possibility of his having driven while intoxicated. The court also found that there were specific facts reasonably justifying Officer Doomanis’s pat-down of appellant. Turning to the ultimate question of the officer’s entitlement to search the car for weapons during the detention, the court held that Officer Doomanis reasonably suspected the presence of weapons in the car, based on his discovery of the concealed knife in appellant’s possession, together with his knowledge of appellant’s manslaughter conviction and appellant’s previous agitated behavior. The court therefore denied the motion to suppress.
DISCUSSION
1. The Weapons Search.
Here as below, appellant contests the propriety of Officer Doomanis’s “wingspan search” for weapons, which yielded the loaded pistol that engendered appellant’s arrest and the discovery of more contraband in the car. Appellant chiefly contends that the facts the officer knew when he undertook the search did not merit a reasonable suspicion that there were weapons in the car, from which the officer required protection. We do not agree.
The governing Fourth Amendment authority is Michigan v. Long (1983) 463 U.S. 1032 (Long). Long extended to vehicular stops or detentions the principles of Terry v. Ohio (1968) 392 U.S. 1 (Terry) regarding a police officer’s right to perform a protective search for weapons under circumstances short of probable cause to arrest. The court concluded that “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (Long, at p. 1049 (fn. omitted).)
Long, supra, 463 U.S. 1032, upheld a car search conducted when officers, in a rural area late at night, approached a driver who was outside his car and had driven erratically. After twice failing to respond to a request for his registration, the driver proceeded toward the vehicle’s open door. Following him, the officers “observed a large hunting knife on the floorboard of the driver’s side of the car.” (Id. at p. 1036.) They stopped the driver and patted him down for weapons under Terry, supra, 392 U.S. 1. Finding none, one of the officers looked into the car with a flashlight, in a further search for weapons. He noticed something protruding from the front armrest and knelt in the car to view it. On the front seat, he saw an open pouch, containing marijuana. The officers impounded the vehicle and found the unlocked trunk contained approximately 75 pounds of marijuana. (Long, supra, 463 U.S. at p. 1036.)
Sustaining the validity of the search, the court stated in part, “In this case, the officers did not act unreasonably in taking preventive measures to ensure that there were no other weapons within Long’s immediate grasp before permitting him to reenter his automobile.” (Long, supra, 463 U.S. at p. 1051.) The late hour, the location, Long’s apparent condition of intoxication, his previous speeding, and the discovery of the knife justified the officers’ “reasonable belief that Long posed a danger if he were permitted to reenter his vehicle.” (Id. at p. 1050.) The high court rejected the notion that Long was not dangerous because he was outside the car, because either during or at the end of a detention, the suspect will be permitted to reenter his car and will “have access to any weapons inside.” (Id. at pp. 1051-1052.)
Similarly on point is People v. Lafitte (1989) 211 Cal.App.3d 1429 (Lafitte). Two officers stopped Lafitte for driving with an inoperable headlight. While he explained to one officer that he did not have his license with him, the other officer saw a knife in the car. Lafitte was escorted out and patted down for weapons. He was not carrying any. The first officer then searched the car for the knife and “for possibly more weapons before allowing Mr. Lafitte back in the car to obtain the registration.” (Id.. at p. 1431.) He found a four-inch knife sheathed on the glove box door with the handle pointing toward the driver’s seat, a gun in a bag hanging next to the steering wheel, and ammunition under the driver’s seat. After denial of his motion to suppress, Lafitte pled guilty to being a felon in possession of a firearm.
The court affirmed under Long, supra, 463 U.S. 1032. The court held, “In Long, as here, the discovery of the weapon is the crucial fact which provides a reasonable basis for the officers’ suspicion. Considering the nature of the weapon... and the position in which it was found, we conclude the deputies reasonably suspected Lafitte harbored additional weapons in the car.” (Lafitte, supra, 211 Cal.App.3d at p. 1433.)
In light of these authorities, appellant’s argument that Officer Doomanis could not reasonably have believed appellant might possess weapons in the car in addition to his concealed knife must fail. Doomanis gave as grounds for his belief appellant’s possession of the knife, his initially heated demeanor, and his conviction and imprisonment for manslaughter. Under Lafitte, supra, 211 Cal.App.3d 1429, the mere presence of the concealed knife was sufficient to warrant a search of the car interior for additional weapons. We reject appellant’s claim that this search was unreasonable. Appellant had concealed his knife when he was inside as well as outside his car. Nor does Doomanis’s failure to arrest appellant for possessing the knife diminish its cautionary significance.
Appellant contends that an apprehension of danger was inconsistent with Doomanis’s intention to cite and release him and that if Doomanis perceived danger, he should have arrested appellant for concealing the weapon. The danger, however, could be dispelled by a quick search for weapons, and Doomanis was entitled to choose that measure. (Long, supra, 463 U.S. at p. 1052; Lafitte, supra, 211 Cal.App.3d at p. 1433.)
Conversely, Doomanis’s testimony that appellant posed only a “minimal” threat to him after appellant had calmed down and was handcuffed and disarmed outside the vehicle does not mean that appellant would not be dangerous if allowed back into his car with a weapon inside. (See Long, supra, 463 U.S. at pp. 1051-1052.)
Finally, the validity of Officer Doomanis’s search is not impaired by the Supreme Court’s recent decision in Arizona v. Gant (2009) ___ U.S. ___ [129 S.Ct. 1710] (Gant), which redefined the conditions for a vehicle search incident to a custodial arrest. Before Gant, the prevailing rule was that upon an arrest of an automobile’s occupant, the arresting officer could search the passenger compartment of the vehicle. (New York v. Belton (1981) 453 U.S. 454, 460.) In Gant, the auto search occurred after the arrestee had been handcuffed and locked in a patrol car. The court interpreted Belton as permitting a vehicle search incident to an arrest only “when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. (Gant, supra, 129 S.Ct. at p. 1721; see id. at pp 1723-1724.)”
The decision in Gant, supra, 129 S.Ct. 1710, does not affect the holding of Long, supra, 463 U.S. 1032, concerning weapons searches during a temporary detention. Immediately after the language quoted above, the court stated: “Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, Michigan v. Long [citation] permits an officer to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is ‘dangerous’ and might access the vehicle to ‘gain immediate control of weapons.’ [Citation.]” (Gant, supra, 129 S.Ct. at p. 1721.) And Justice Scalia’s concurring opinion put it even more directly: “It must be borne in mind that we are speaking here only of a rule automatically permitting a search when the driver or an occupant is arrested. Where no arrest is made, we have held that officers may search the car if they reasonably believe “the suspect is dangerous and... may gain immediate control of weapons.” Michigan v. Long [citation]. In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed. The rule of Michigan v. Long is not at issue here.” (Gant, supra, 129 S.Ct. at p. 1724 (conc. opn. of Scalia, J.).)
In the case at bar, appellant’s possession of a concealed folded fighting knife justified a suspicion that other weapons were in the car. Appellant’s contention that it is not reasonable to assume from possession of such a knife that other weapons might have been in the car runs against logic, as well as case authority. Moreover, there were other specific articulated facts to support the search of appellant’s car for weapons: 1) Officer Doomanis saw appellant commit several Vehicle Code violations including sections 27007, 5201, subdivision (f), 22350, and 23226; 2) there was a mask inside appellant’s car and he was wearing a hoodie – an indication he might be a robbery or burglary suspect; 3) appellant was extremely agitated even though he had calmed down by the time of the search; 4) appellant admitted to having a prior conviction for felony manslaughter for which he had served prison time; 5) the officer had to repeat his commands several times because of appellant’s agitation; and 6) appellant had no driver’s license on his person, another Vehicle Code violation (12951, subd. (a)).
We conclude that the trial court correctly approved the protective weapons search at issue and properly denied appellant’s motion under section 1538.5.
2. Sentencing.
Appellant’s second issue may be readily resolved. At sentencing, the trial court imposed a base term for count 2, the possession for sale of cocaine base. It then imposed concurrent terms for appellant’s transportation of cocaine and possession for sale of cocaine (counts 1 and 3). The court initially stayed both of these sentences pursuant to section 654, but upon the prosecutor’s explanation that count 2 involved a different drug so that count 1 could run concurrently, the court imposed the concurrent sentences.
Appellant contends that because counts 1 and 3 involved the same course of conduct and objective with respect to the same drugs, section 654 required a stay of the sentence for the lesser offense. Respondent agrees, and we also conclude that appellant’s position is well taken. (E.g., People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We therefore will modify the sentence on count 1, by staying it.
DISPOSITION
The judgment is modified by staying the sentence on count 1, the stay to become permanent upon appellant’s completion of his remaining term. As so modified, the judgment is affirmed. The trial court shall prepare and transmit to the appropriate authorities an amended abstract of judgment, reflecting the foregoing modification.
We concur: FLIER, Acting P. J., BIGELOW, J.