Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 5-080157-1
Haerle, Acting P.J.
I. INTRODUCTION
After appellant’s Penal Code section 1538.5 motion was twice denied, he entered into a plea agreement under which he pled no contest to a misdemeanor violation of section 12031, subdivision (a)(1) (carrying a loaded firearm). Pursuant to People v. Wende (1979) 25 Cal.3d 436, appellant now asks that we examine the record and determine if there are any issues deserving of briefing and argument. We have done so, find none, and hence affirm appellant’s conviction.
All statutory references are to the Penal Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
A little before 7:00 p.m. on August 9, 2007, Richmond Police Officer Thomas Hauschild was driving his marked patrol car on 20th Street in Richmond. It was, of course, still light outside. At around the intersection of 20th and Barrett Streets, Hauschild passed a black Camaro going in the opposite direction. Hauschild turned around and followed the Camaro, noting while doing so that (1) one of the vehicle’s tail lamps was broken, so that a white light shown when the car braked and (2) neither of the two passengers in the vehicle (one in a back seat, the other in the front) were apparently wearing their seat belts. Hauschild initiated a traffic stop on these bases.
The driver of the Camaro, one Denisha Quilter, complied with the officer’s signal to stop, and Hauschild parked his car behind hers and initiated contact with both her and her two passengers. As he did so, he noted appellant Jefferson, the passenger in the left rear seat, lean forward as if he were putting something under the seat ahead of him or “doing something in front of him.”
Hauschild asked all three occupants of the Camaro for identification. Quilter handed him a driver’s license, but it had expired. Appellant and the front seat passenger indicated they had no documentary identification with them, but provided the officer with their names and birthdates. As appellant did so, Hauschild noted that he made a “stuffing motion” with his right hand toward his waistband.
Using his mobile computer, Hauschild checked on the three occupants of the vehicle. At the time of his testimony, he did not recall what information he received about the driver, but did testify that the front seat passenger, one Marquita Boyce, was on probation out of Kings County. Hauschild did not get a clear driver’s license or DMV “hit” for appellant, but noted that this might have been because of his fairly common name.
On the basis of this information, Hauschild asked the two women to exit the vehicle and sit on the curb. Both did and neither was handcuffed. Finally, Hauschild asked appellant to exit the vehicle, intending to search him pursuant to Vehicle Code section 40302, subdivision (a). He determined to do so for two reasons: (1) the fact that he had been unable to identify him via the computer check and (2) “officer safety” considerations. Regarding the latter, Hauschild testified that Richmond was a “violent city” and he was specifically concerned about the two motions he had seen appellant make, i.e., “doing something in front of him” as the car was pulled over and then the “stuffing motion” toward his waistband after he was asked for identification.
As appellant exited the Camaro, Hauschild ordered him to place his arms behind his back; as he did so, Hauschild lifted appellant’s hands; this action lifted appellant’s white T-shirt, which in turn revealed a semiautomatic pistol stuck in appellant’s left waistband.
Another officer, who had then arrived, took the gun from appellant’s waistband; appellant was handcuffed and placed in a newly-arrived police car. On his way to that car, appellant told Hauschild that he had thrown the pistol’s magazine under the car’s front seat. The police later retrieved the magazine from that location, and later identified the pistol as a loaded “Smith & Wesson 40-caliber pistol.” They also determined that there were 10 unspent rounds of ammunition in the magazine found under the front seat.
On August 16, 2007, a complaint was filed alleging that appellant had committed two felonies on August 9, 2007, i.e., (1) carrying a concealed weapon on his person, with a prior conviction (§ 12025, subd. (b)(1)), and (2) carrying a loaded firearm, again with a prior felony conviction (§ 12031, subd. (a)(2)(A)).
On December 3, 2007, appellant filed a motion to suppress under section 1538.5. That motion was heard before a magistrate on February 1, 2008, and, at the conclusion of that hearing, denied. The magistrate ordered appellant held to answer on the charges alleged in the complaint.
Those charges were then formalized via an information filed on February 15, 2008; the same charges were alleged.
On April 14, 2008, appellant filed motions to suppress the evidence, again under section 1538.5, and also to dismiss the information under section 995. The prosecution filed opposition to these motions and, after a hearing on May 5, 2008, both motions were denied.
On May 7, 2008, the parties reached a plea agreement. The prosecution amended the information to allege a misdemeanor violation of section 12031, subdivision (a)(1), and dismissed the two felony counts. It was further agreed that appellant would plead no contest to this offense, be placed on probation although ordered to serve 90 days in county jail, albeit allowed to apply for electronic home detection. Appellant then entered the plea agreed upon.
On the same day, appellant waived time for sentencing and imposition of sentence was suspended. Appellant was placed on three years of court probation, ordered to serve 90 days in county jail, with credit for one day served, but permitted to serve the balance of that time in electronic home detention. He was also ordered to pay a $100 restitution fine and a $20 security fee.
Appellant filed a notice of appeal the following day, specifically noting that he wished to challenge the denial his motions to suppress.
III. DISCUSSION
In the course of the two arguments on the motion to suppress, the first before the magistrate, the second before the superior court, the prosecution advanced two separate and distinct theories justifying Officer Hauschild’s detention and search of appellant as he exited the Camaro. The first was that, under Vehicle Code section 40302, subdivision (a), such a search was permitted incident to arrest, and that an arrest of appellant was and could be justified because Hauschild had observed him not wearing a seat belt as he was following the Camaro. The second was a pure “officer safety” argument based on the two separate and distinct motions Hauschild testified he saw appellant make, first, the “putting something under the seat or doing something in front of him” motion after the traffic stop had been initiated, and, second, the “stuffing motion” the officer observed as he was asking the three car occupants for identification.
The magistrate did not accept the Vehicle Code argument, although as we read the transcript of the superior court hearing, apparently that court did. But, as its initial rationale, that court relied upon the same “officer safety” premise that the magistrate did. Thus, we think it appropriate to quote the magistrate’s ruling, with which we agree:
“THE COURT: . . . Well I am not convinced on the 4302(a) [sic] argument that the people have preponderated. But I do find that they have met their burden of proof on the armed and dangerous because the officer was asked if he thought your client was armed and dangerous and why and he said well it is Richmond; well that is pretty overbroad, and the nature of the neighborhood is not enough by itself. So that is not enough. [¶] And then he said he saw your client do something as if to be pushing something under the front seat, classic furtive gesture. I don’t find that is enough. [¶] But then he adds your client made a stuffing motion in his waist, and I don’t think he has to stop what he is doing to investigate that right away, but to have a reasonable belief to think your client might be armed and dangerous. But that motion I find is quite a concern and a reasonable one on the part of the officer because that is where weapons are likely to be found. [¶] And so given all of those factors, and that motion in particular, I find that the people have survived the challenge under 1538. So the Motion to Suppress is denied on this ground.”
This ruling is amply supported by the record, particularly inasmuch as Officer Hauschild was the only witness at the initial hearing on the motion to suppress. And it is also supported by the law. (See, e.g., Pennsylvania v. Mimms (1977) 434 U.S. 106, 110-111 [an officer may ask a person to step out of a car during the course of a valid vehicle stop]; Terry v. Ohio (1968) 392 U.S. 1, 30 [officer safety justifies reasonable searches of persons in the course of such stops]; People v. Souza (1994) 9 Cal.4th 229, 240-242 [apparent “evasive actions” can justify a detention]; In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 [patdown in a high-crime area justified by defendant’s actions in putting his hands back into his coat pockets after police orders to the contrary]; People v. Wilson (1997) 59 Cal.App.4th 1053, 1060-1063 [courts should not “second-guess on-the-spot decisions of officers in the field under these circumstances.”].)
Under these circumstances, we find that no further briefing is required.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.