Opinion
A133512
01-05-2012
THE PEOPLE, Plaintiff and Respondent, v. SAUL SANCHEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC074183)
Appellant Saul Sanchez was charged by information with possession of a firearm by an ex-felon (former Pen. Code, § 12021, subd. (a)(1)), one count of carrying a concealable stolen firearm (former § 12025, subd. (b)(2)), and one count of possession of stolen property (§ 496, subd. (a)). It was further alleged that Sanchez had been convicted of two prior felonies within the meaning of section 1203, subdivision (e)(4) (rendering him ineligible for probation), and that he had served a prior prison term within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated. Effective January 1, 2012, former section 12021, subdivision (a)(1), was repealed and reenacted without substantive change as section 29800, subdivision (a)(1). (Stats. 2010, ch. 711, § 4 [repealing § 12021]; Stats. 2010, ch. 711, § 6 [enacting § 29800].)
Effective January 1, 2012, former section 12025, subdivision (b)(2), was repealed and reenacted without substantive change as section 25400, subdivision (c)(2). (Stats. 2010, ch. 711, § 4 [repealing § 12025]; Stats. 2010, ch. 711, § 6 [enacting § 25400].)
Following denial of his motion to suppress the evidence against him, Sanchez entered a plea of no contest to the one count of possession of a firearm by an ex-felon, and the remaining counts and allegations were dismissed. He received a stipulated low term sentence of 16 months in state prison.
Assigned counsel has submitted a Wende brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that Sanchez has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court's attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.)
People v. Wende (1979) 25 Cal.3d 436.
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We find no arguable issues and therefore affirm.
BACKGROUND
Sanchez's notice of appeal challenges only the denial of his motion to suppress evidence (§ 1538.5). Sanchez made his initial motion to suppress evidence under section 1538.5 at his preliminary hearing. The testimony presented at the hearing was as follows.
Officers of the San Mateo County gang task force stopped a vehicle in which Sanchez was riding on July 13, 2011, at about 10:00 p.m. The officers observed the vehicle fail to make a full stop at a stop sign. On approaching the vehicle, there was an odor of alcohol emanating from the car. Menlo Park Police Officer Neumann contacted the driver, who was cursing at the officers. Officer Russell Felker and San Mateo County Juvenile Probation Officer Ralph McGill acted as "cover." Sanchez was in the right rear passenger seat of the vehicle and Felker's attention was drawn to Sanchez because he was moving his hands and arms from side to side. Felker's attention was attracted because he believed, based on his training and experience, that the movements indicated that "either something is going to happen or they're hiding something." Felker shone his flashlight into the backseat but could just barely see Sanchez's face because of tinting on the windows. Felker asked Sanchez to get out of the car so that he could identify him, and because Felker was concerned for officer safety. Sanchez' shirt was untucked and covered his waistband. Felker conducted a patsearch and felt a hard object, which he immediately recognized as a gun, in Sanchez's waistband. Felker recovered an unloaded revolver from the right side of Sanchez's waistband. The gun had been reported stolen in Georgia in 1994.
After both sides rested, argument was heard on the motion to suppress. The magistrate, over objection by defense counsel, had Felker return to the witness stand to further explain the basis for conducting a patsearch of Sanchez.
Felker then testified that the reason he was concerned when he saw Sanchez moving his arms from side to side in the car was because "that's when weapons get drawn on unsuspecting officers." Felker said that Sanchez was moving his arms in the area of his waist area or midsection, and that "[m]idsection is where you conceal guns in your waistline." He said that Sanchez's movements "alert[ed] [him] to the fact that [Sanchez] could have been concealing or getting ready to pull something out at that time," and he was therefore concerned for his safety. Felker also testified that he had conducted a patsearch because "[a]ny time I pull somebody out of the car for my safety and the safety of everybody else before I start talking to them casually, I want to make sure everything is safe; I'm safe. My attention will be diverted when I'm writing things down and I want to make sure everyone there is safe."
Sanchez's counsel conceded that, under the authority of Arizona v. Johnson (2009) 555 U.S. 323, Sanchez was lawfully asked to exit the vehicle. The contested issue was the validity of the patsearch. While finding it a "close case," the magistrate found the facts articulated by the officers "sufficient to justify a pat down search given the fact it is not a major intrusion of outside of the clothing, etc., etc. So I think that is sufficient so Court is going to deny the motion to suppress."
After being held to answer on the charges, Sanchez renewed his motion to suppress. (§ 1538.5, subd. (i).) On October 13, 2011, the motion was denied.
On October 17, 2011, Sanchez entered a plea of no contest to one count of possession of a firearm by an ex-felon (former § 12021, subd. (a)(1)), and the remaining counts and allegations were dismissed. Sanchez waived referral to probation, and received a low term of 16 months in state prison, consistent with the terms of the plea bargain. The court imposed $200 restitution fines under sections 1202.4 and 1202.45, and credit was awarded for 96 days actual time served, plus 96 days local conduct credits under section 4019, for a total of 192 days.
On October 19, 2011, Sanchez filed a timely notice of appeal.
DISCUSSION
There are no cognizable issues relating to Sanchez's plea or sentence. (People v. Mendez (1999) 19 Cal.4th 1084, 1097.) The only issue raised by the appeal is the denial of the motion to suppress, and the only objection raised by Sanchez in his motion was the validity of the patsearch which revealed the concealed firearm.
In review of denial of a motion to suppress evidence, we defer to the magistrate's factual findings, express or implied, when supported by substantial evidence. We exercise our independent judgment to determine whether, under the facts so found, the search or seizure was reasonable under the Fourth Amendment. (See People v. Weaver (2001) 26 Cal.4th 876, 924.) On our independent review of the record, we find no arguable issue.
It is " ' " 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security' " [that] is the guiding principle. . . .' [Citation.]" (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.) We need only ask "[W]ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? [Citations.]" (Terry v. Ohio (1968) 392 U.S. 1, 21-22.)
The United States Supreme Court has long recognized that "there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." (Terry v. Ohio, supra, 392 U.S. at p. 27.) A protective search may be made, " 'limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.' [Citations.]" (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.) "The judiciary should not lightly second-guess a police officer's decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations. [Citations.]" (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
As the trial court observed in denying the renewed motion, "the question is whether this transcript sufficiently provides a support for a reasonable belief held by the officer that the defendant was armed and dangerous. And although it's not the best transcript in the world, although it's not the best record in the world, and although Officer Felker could have done a better job in connecting the dots, I do think his overall testimony does indicate that he reasonably believed that the defendant could have been armed and dangerous based on the furtive movements. So I believe there are enough facts in this transcript to support the denial of the motion to suppress." We agree.
DISPOSITION
The judgment is affirmed.
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Bruiniers, J.
We concur:
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Simons, Acting P. J.
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Needham, J.