Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05WF2647, Dan McNerney, Judge. Affirmed as modified.
Buddy Clark for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
Following denial of his motion to suppress, a jury found Noel Thomas Smith guilty of possession of a firearm by a previously convicted felon. He argues the court erroneously denied the suppression motion and committed sentencing error. For the reasons expressed below, we affirm as modified.
I
FACTUAL AND PROCEDURAL BACKGROUND
On August 19, 2005, around 2:00 a.m., Huntington Beach police officers stopped a Toyota 4-Runner driven by defendant. Guy DeLong sat in the front passenger seat. Mary Bruey, defendant’s girlfriend and the vehicle’s registered owner, rode behind DeLong. On the floorboard just under the driver’s seat, an officer found an unloaded firearm wrapped in a bandanna. Defendant acknowledged “‘it was stupid . . .’” and that he should not have had the gun. A jury found defendant guilty of possessing the weapon. Defendant admitted previously serving two separate prison terms within the meaning of Penal Code section 667.5, subdivision (b). The court imposed the two-year midterm sentence for the current conviction after striking punishment on the enhancements.
II
DISCUSSION
A. Suppression Motion
Defendant argues the court erred in failing to suppress the handgun. He asserts “his detention and arrest were unlawful because they were not supported by probable cause . . . .”
The Attorney General argues we should treat the issue as waived because appellate counsel does not articulate how the trial court erred. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) While the Attorney General raises a valid point, we elect to address the merits of the issues litigated below.
1. Facts at the Penal Code Section 1538.5 Suppression Hearing
According to Officers Brian Jones and Daniel Boldt, defendant made several turns without signaling to other nearby cars. Jones made the initial observation from his police vehicle, and radioed for Boldt, who was in a separate unit, to stop defendant. Boldt pursued defendant and noticed the month tab in the upper left hand corner of the vehicle’s license plate was illegible. Before the stop, defendant again failed to use his turn signal. Jones explained to defendant the basis for the stop and asked for identification. Defendant seemed extremely nervous. He avoided eye contact, had great difficulty remaining still, and breathed hard and rapidly. His face was rigid, oily, his pupils dilated, and he perspired though the night was cool. Jones, a drug abuse recognition expert, believed defendant was under the influence of a controlled substance.
Jones asked defendant to exit the vehicle and, as defendant complied, Jones noticed bulky objects protruding from his baggy pants pockets. Defendant refused to allow a search of his person for illegal weapons or other contraband, but agreed to a patdown for weapons. Jones held defendant’s hands and began to search the outer portion of his left pants pocket. Defendant tensed up and tried to pull his hands away. Jones gripped him more tightly and asked if he had weapons in his pocket. Defendant denied having any weapons on his person. Jones continued to feel around the area and felt what he believed was a knotted, plastic bindle with a bulbous end. As he manipulated the object with his fingers, he felt a fragmented rock-like substance. He removed the bag, which contained a clear, crystalline, rock-like substance that Jones believed was methamphetamine. Jones arrested defendant, and found a red canister containing 100 blank rounds of ammunition in defendant’s right front pocket. Jones then asked Bruey, the owner of the vehicle, if he could search the car. She agreed. Jones found an unloaded, black semiautomatic Beretta handgun wrapped in a red bandanna on the floorboard under the driver’s seat.
At the hearing on the suppression motion, Bruey testified defendant used turn signals and the month tab on her license plate was legible. She claimed Jones first told them the vehicle registration had expired, but when Bruey disputed this he responded, ‘“Well, how about you forgot to signal when you turned.’” After defendant was arrested, the officers either told Bruey to get out of the car because they were going to search it, or asked her for permission, which she refused until they told her they “‘could tow it away right now because we found drugs in [defendant’s] pocket.”’
The trial court found the officers exceeded the permissible scope of a patdown search by manipulating the object in defendant’s pocket (Minnesota v. Dickerson (1993) 508 U.S. 366), but found Bruey validly consented to the search that uncovered the firearm.
2. Trial Court Properly Declined to Suppress Firearm
In ruling on a motion to suppress, the trial court must find the historical facts and apply the law to determine whether officers violated defendant’s Fourth Amendment rights. We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling concerning whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. (People v. Ramos (2004) 34 Cal.4th 494, 505.)
Defendant’s written motion asserted that the “stop and detention of defendant’s vehicle and the search of his person were illegal.” The court’s ruling did not expressly address the legality of the stop. But the trial court implicitly found defendant violated the Vehicle Code by failing to use his turn signals and display a legible month tab on his license plate. “[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” (Whren v. United States (1996) 517 U.S. 806, 810.) Probable cause “means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. [Citations.]” (Michigan v. DeFillippo (1979) 443 U.S. 31, 37.)
Vehicle Code section 22107 provides, “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” (See also § 22108 [any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning].) Section 5204 provides, “Current month and year tabs shall be attached to the rear license plate assigned to the vehicle for the last preceding registration year in which license plates were issued, and, when so attached, the license plate with the tabs shall, for the purposes of this code, be deemed to be the license plate” and that “[v]ehicles that fail to display current month and year tabs or display expired tabs are in violation of this section.” Section 5201 also provides, “License plates shall at all times be . . . maintained in a condition so as to be clearly legible.” The officers’ testimony established defendant did not use turn signals and other vehicles may have been affected by defendant’s movement, and the license plate was not legible. In other words, the officers had reasonable cause to detain defendant.
Defendant also argued in the trial court that Bruey’s “consent was coerced and a submission to authority.” The court noted the testimony was conflicting but found “the testimony of the officer to be more compelling and accepted the officer’s version of the incident as it relates to [the] issue of consent to search the vehicle.”
Defendant’s original moving papers did not challenge the car search and seizure of the gun but the prosecutor mentioned the issue in his opposition. Defendant raised the issue in a request for reconsideration.
Assuming defendant had joint access and control over the car, the owner of a vehicle can consent to a search of it even though the vehicle contains property belonging to others. (People v. Clark (1993) 5 Cal.4th 950, 979.) When an owner consents to a search of his or her vehicle, the owner has consented to a search of all items that would reasonably fall within the scope of his or her consent. (Florida v. Jimeno (1991) 500 U.S. 248, 251.) The trial court evidently rejected defendant’s claim Jones coerced Bruey by threatening to have her car towed if she did not consent to a search. We may not second-guess the trial court’s factual findings. The trial court did not err in denying defendant’s motion to suppress.
Passage of Proposition 8 abrogated California’s vicarious exclusionary rule. (In re Lance W. (1985) 37 Cal.3d 873, 879.)
B. Sentencing
Defendant requests that we review his sentencing in light of Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856], and contends the court erred by sentencing him an additional year on two enhancements that were not proved up by a jury. The record reflects defendant received the two-year midterm sentence for firearm possession, admitted he had suffered the prison priors, and the trial court struck punishment on the enhancements. Defendant did not suffer punishment beyond the statutory maximum based on facts that were not proved to a jury or admitted by him. We perceive no error under Cunningham.
The Attorney General notes the court erred by purporting to impose and strike punishment for the Penal Code section 667.5, subdivision (b), prison priors. At sentencing, the court stated, “As to each of your prior state prison convictions under [Penal Code section] 667.5[, subdivision] (b), one year state prison on each, punishment stricken. Total state prison commitment of two years.” The abstract of judgment reflects the court purported to stay the enhancements. The court was required to either impose or strike these enhancements. (People v. Campbell (1999) 76 Cal.App.4th 305, 311.) Since it appears the trial court clearly intended not to impose punishment for the enhancements, we direct modification of the judgment to reflect the court struck the enhancements.
III
Disposition
The judgment is modified to reflect the court struck the Penal Code section 667.5, subdivision (b), enhancements. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: SILLS, P. J., FYBEL, J.