Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County, No. FBA700079, Miriam I Morton, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant John Lloyd McClinton appeals following his guilty plea to being a felon in possession of a firearm. (Pen. Code, § 12021, subd. (a)(1).) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In a second amended information, defendant was charged with the following eight counts: count 1, felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)); count 2, having a concealed weapon on his person (Pen. Code, § 12025, subd. (a)(2)); count 3, carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1)); count 4, possession of ammunition (Pen. Code, § 12316, subd. (b)(1)); count 5, possession of cocaine, a controlled substance (Health and Saf. Code, § 11350, subd. (a)); count 6, possession of a controlled substance with a firearm (Health and Saf. Code, § 11370.1, subd. (a)); count 7, transportation of a controlled substance (Health and Saf. Code, § 11352, subd. (a)); and count 8, possession of a firearm with the identification numbers removed (Pen. Code, § 12094, subd. (a)). It was further alleged defendant suffered a prior strike within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).
At the preliminary hearing, the arresting officer testified he initiated a traffic stop of the vehicle defendant was driving after defendant failed to stop at a stop sign about 5:30 a.m. The officer approached the vehicle from the right and asked defendant for his license, insurance, and registration. While defendant was looking for these documents, the officer smelled the odor of alcohol “emitting from the vehicle.” The officer asked defendant to step out so he could conduct a sobriety test.
While defendant was exiting the vehicle, the officer began walking around toward the driver’s side, and he noticed defendant turn away and reach toward the front portion of his waist, which caused the officer to be concerned for his safety. The officer conducted a patdown search and found a handgun within defendant’s waistband, which was hidden underneath a long baggy shirt. The officer maintained control of defendant’s hands while another officer who was present took control of the handgun. The gun was loaded with five rounds and the serial numbers had been ground off. The officers placed defendant under arrest and searched the vehicle. They found another weapon inside the vehicle, which was described as a staff with several double-edged blades connected to it, including a double-edged sword attached to the end.
When they arrived at the jail, the officer asked defendant whether he had anything concealed on him that was not located during the prior search. Defendant responded, “I have cocaine in my shoe.” Inside defendant’s shoe, there was a clear plastic baggie containing a white powdery substance, which tested positive for cocaine.
On the first day of trial, September 11, 2007, the court considered defendant’s motion to suppress evidence, which was made pursuant to Penal Code section 1538.5. The arresting officer testified once again, and his testimony was consistent with his prior testimony during the preliminary hearing. The court denied the motion.
On the second day of trial, September 12, 2007, the court summoned a prospective jury panel. On the third day of trial, September 13, 2007, the court considered and denied defendant’s motion to appoint different counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. Defendant then decided to file a petition for a writ of mandate and/or prohibition directing that the motion to suppress be granted. The court released the prospective jury panel and delayed the start of trial because of the writ petition. We denied the writ under case No. E044231, and the case was then rescheduled for trial.
On December 4, 2007, when trial was scheduled to recommence, defendant requested a continuance in order to make a formal request for the court to exercise its discretion to dismiss the prior strike allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defendant filed a formal request, which was opposed by the People. However, the record indicates a plea agreement was reached before there was a ruling.
Pursuant to a plea agreement, defendant pled guilty on April 9, 2008, to count 1, felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and admitted the prior strike. Defendant stipulated to the police report as a factual basis for the plea. The trial court followed the plea agreement when it sentenced defendant to the middle term of two years on count 1, doubled to four years in state prison because of the prior strike. All remaining counts were dismissed.
DISCUSSION
On April 23, 2008, defendant filed a form notice of appeal based on the denial of his motion to suppress evidence under Penal Code section 1538.5. We appointed counsel to represent defendant on appeal. Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record.
On October 30, 2008, defendant filed a personal supplemental brief arguing the trial court wrongfully denied his motion to suppress evidence obtained as a result of the patdown search. Based on statements allegedly made to him by his attorney, he contends the traffic stop and patdown search were videotaped by police. He believes the videotape would show the arresting officer’s testimony was untruthful because his hand did not reach toward his waist when he got out of the vehicle. As a result, he contends the officer did not have cause to conduct a patdown search. He also implies the videotape would show the positions of the “parties present would have made it improbable if not impossible for [the testifying officer] to have witnessed this. There was another officer standing right in front of me watching my every movement very closely who noted nothing worthy of his attention or alarm.”
Defendant does not cite, and we were unable to locate, any references in the record to a videotape. Nor were we able to locate any statements or testimony by any other officer who was present during the incident. In other words, defendant’s personal supplemental brief raises matters outside the appellate record, and there is no evidence in the record that supports defendant’s argument. On direct appeal, we may not consider matters outside of the record. (People v. Smith (2007) 40 Cal.4th 483, 507.)
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
In his personal supplemental brief, defendant also attacks the trial court’s factual findings. He argues the officer’s testimony stating he reached for his waist should be viewed as “pretense” because the officer said it was his practice to conduct a patdown on everyone when he has them get out of a vehicle. Defendant believes this testimony shows the officer’s “intent to search . . . did not originate with any suspicious motion.”
When a driver is stopped for a minor traffic violation, “a frisk for weapons is not justified unless the officer can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous.” (People v. Medina (2003) 110 Cal.App.4th 171, 176.) In other words, a patdown search is justified during a traffic stop when “ ‘the objective circumstances furnish reasonable grounds to believe the driver is armed and/or dangerous and may gain immediate control of a weapon.’ ” (Id. at p. 177.)
Here, the trial court explicitly credited and relied on the officer’s testimony that defendant turned and appeared to be reaching toward his waist. The trial court stated in pertinent part as follows: “If the officer approached the defendant to write him a citation for making an illegal turn and did not smell the alcohol and had no other facts, then I think we would be in an area where there would be some concern if he’s simply pulling the person out to conduct a pat down. He merely has probable cause to write a traffic ticket and you would have a better argument on whether or not it was reasonable to ask him to exit the car to do a pat down for weapons under those circumstances. [¶] However, in this case, we have the officer smells the odor of alcohol. That gives rise to further expansion of the tension to investigate the new crime which is driving under the influence of alcohol, and that would be field sobriety test, exiting the car. . . . [¶] The officer saw him reach for his waistband. So even if the requirement does exist that there has to be specific articulable facts, those are specific articulable facts.” (Italics added.) The court ultimately stated, “I think the evidence is overwhelming there was a justification to search, so the Motion to Suppress is denied.”
Despite the officer’s testimony about his standard practice when he has someone get out of a vehicle, the trial court’s factual findings are supported by substantial evidence. The odor of alcohol “emitting” from the vehicle was enough to establish reasonable suspicion of driving under the influence and the officer was justified in directing defendant to exit the vehicle to conduct a sobriety test. The furtive movement described by the officer when defendant exited the vehicle was enough to justify a precautionary patdown search for weapons. Therefore, exercising our independent judgment, we cannot disagree with the trial court’s decision to deny defendant’s motion to suppress. Our independent examination of the entire record revealed no other arguable issues exist.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.