Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR188897
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In this action defendant and appellant Jose Antonio Plata, following an unsuccessful motion pursuant to Penal Code section 1538.5 to suppress evidence obtained following a traffic stop, entered a plea of no contest to a single count of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)). He was placed upon probation for three years with a county jail term of 120 days imposed. In making the plea, defendant’s right to appeal the ruling upon the motion to suppress evidence was reserved. Defendant filed a timely notice of appeal. Counsel for defendant has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents that defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. We have conducted the review requested by counsel and, finding no arguable issues, affirm the judgment.
Background
On March 27, 2007, defendant was the passenger in a vehicle which was stopped by a Vallejo police officer for investigation of a possible Vehicle Code violation. The officer testified that he observed the vehicle driving with a crack which was “right in the middle of the windshield.” He described the crack as starting on the driver’s side and continuing almost the entire length of the windshield. It appeared to the officer that it obscured the view of the driver, which would be a violation of Vehicle Code section 26710.
When the officer inquired of the driver he learned that the driver was neither the owner of the car nor able to identify the owner. Concerned that the vehicle might have been stolen, the driver and defendant were detained to allow for an attempt to determine the owner of the vehicle and whether either the driver or defendant had permission to possess it. During this detention defendant was ordered to exit the vehicle. There was conflicting evidence as to whether defendant consented to a search of his person. The officer testified that he asked defendant for consent to search and that defendant replied, “Go ahead,” or “something to that effect.” Defendant testified and denied that he gave consent of any type or manner.
In doing a search by patting and feeling the outside of the defendant’s clothing, a bulge was noted in defendant’s socks which turned out to be baggies of suspected methamphetamine. Defendant was, as a result, arrested and the substances determined to be 34.08 grams of methamphetamine.
A motion to suppress the evidence of the narcotic was filed on May 25, 2007, and was heard on September 25, 2007, in conjunction with a preliminary examination. The motion was denied and defendant was held to answer on two counts, the transportation count as to which he later entered his no contest plea and a possession for sale count (Health & Saf. Code, § 11378), which was dismissed as a part of his plea bargain. An information was filed shortly thereafter and following various continuances a motion was filed on March 11, 2008, pursuant to Penal Code section 995 challenging the charges, primarily by again raising the claim of improper search and seizure. The motion was heard and denied on March 18, 2008, and on April 1, 2008, a stipulated disposition was agreed upon and defendant executed a plea advisement and agreement form. His plea was accepted, conditional upon reserving his right to appeal the determination of the suppression motion. Sentence was stayed and an order of probation entered.
Discussion
The issues raised upon both the Penal Code sections 1538.5 and 995 motions were the lawfulness of defendant’s detention and of the search and seizure of the methamphetamine. We are asked to review those decisions.
On appellate review of a motion to suppress evidence, we must accept the trial court’s resolution of disputed facts and its assessment of credibility (see People v. Lawler (1973) 9 Cal.3d 156, 160), but the issue whether, under the facts found, a seizure or search was unreasonable is a question of law, as to which the appellate court is bound to exercise its independent judgment. (See People v. Loewen (1983) 35 Cal.3d 117, 123; People v. Leyba (1981) 29 Cal.3d 591, 597.) The credibility of witnesses was a question of fact within the province of the committing magistrate to determine and the appellate court may not substitute its judgment as to such question for that of the magistrate. (Jones v. Superior Court (1971) 4 Cal.3d 660, 667.)
The Traffic Stop
It is well established that an officer may stop a vehicle to investigate what appears to be a Vehicle Code violation relating to the equipment being operated. (See People v. Hoyos (2007) 41 Cal.4th 872, 892; People v. Vibanco (2007) 151 Cal.App.4th 1, 8 [also a cracked windshield]; People v. Maxwell (1988) 206 Cal.App.3d 1004; Byrd v. Superior Court (1968) 268 Cal.App.2d 495, 496.) Vehicle Code section 26710 provides that it is “unlawful to operate any motor vehicle . . . when the windshield . . . is in such a defective condition as to impair the driver’s vision.” The officer testified that he was of the opinion that the crack would “obscure the view of the driver,” and based upon the description of the crack, the magistrate was justified in concluding that it was objectively reasonable to stop the vehicle to inspect.
The vehicle stop was a detention of both the driver and the passenger. (Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 2400, 168 L.Ed.2d 132].) Neither the magistrate nor the judge hearing the Penal Code section 995 motion erred in concluding that detaining the two men in order to make a reasonable attempt to determine whether they had permission to have the vehicle was allowable. Under the circumstances of their not being able to identify the owner, such a procedure was only a minimal incursion upon the two men.
Nor was it improper for the officer to ask defendant to step outside of the car. Many reasons, including officer safety, make such a command acceptable. (Maryland v. Wilson (1997) 519 U.S. 408, 410; People v. Hoyos, supra, 41 Cal.4th at p. 892.)
The Search
The sole issue raised in the trial court as to the search of the person of the defendant was whether or not he gave consent to the search. Accordingly, in light of the determination that consent was given, it is unnecessary for us to consider whether or not a search without consent would have been justified.
The testimony of the two officers was sufficient to provide substantial evidence to support a conclusion that defendant consented when asked to submit to a search. The existence of contrary testimony by the defendant has no bearing upon our obligation, as an appellate court, to limit our review to whether or not any substantial evidence supports the finding of consent. We do so and find that neither the magistrate hearing the Penal Code section 1538.5 motion nor the judge hearing the Penal Code section 995 motion erred in that conclusion.
Conclusion
In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing. The judgment is affirmed.
We concur: MARCHIANO, P. J., MARGULIES, J.