P. v. Martin
Filed 2/26/13 P. v. Martin
CA4/3
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFREY STUART MARTIN,
Defendant and
Appellant.
G047278
(Super. Ct.
No. 11NF2564)
O P I N I O
N
Appeal from a judgment
of the Superior Court of Orange County,
Craig E. Robison, Judge. Affirmed.
Michelle C. Zehner,
under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for
Plaintiff and Respondent
After the trial court
denied defendant Jeffrey Stuart Martin’s pretrial
motion to suppress evidence filed pursuant to Penal Code
section 1538.5, he entered guilty pleas to charges of possessing a
controlled substance for sale and transporting a controlled substance, admitted
suffering several prior felony convictions, and was sentenced to four years in
prison. Defendant filed a notice of
appeal and we appointed counsel to represent him. Counsel filed a brief in compliance with
v. California (1967) 386 U.S.
738 [87 S.Ct. 1396, 18 L.Ed.2d 493] and
436. The brief set forth the facts of
the case and, although it suggested two questions related to the pretrial
suppression motion, counsel advised us
that she could not find any issues to argue on defendant’s behalf.
Defendant
was given 30 days to present written argument on his own behalf and he filed a
supplemental brief. In it, he complains
about his trial attorney’s representation of him and challenges the validity of
the vehicle stop that lead to his arrest and prosecution. The first issue is not cognizable in this
appeal due to the lack of an adequate record and defendant’s failure to obtain
a certificate of probable cause. (Pen.
Code, § 1237.5; Cal. Rules of Court, rule 8.304(b);
Cal.App.4th 574, 596 [without a certificate of probable cause, an
ineffective assistance of counsel claim “is beyond the limited issues that are
reviewable on appeal from a conviction
following a guilty pleaâ€].)
Defendant’s
attack on the validity of the vehicle stop and the questions suggested in
appellate counsel’s brief are cognizable in this appeal. (Pen. Code, § 1538.5, subd. (m).) In compliance with People v. Kelly (2006) 40
Cal.4th 106 and People v. Wende,
supra, 25 Cal.3d 436, we have conducted a full examination of the record
and set forth below our reasons for concluding this appeal fails to present any
arguable issues.
FACTS
The
car driven by defendant was stopped by police on August 22, 2011, because the sticker on his license
plate showed his registration expired in August. While the computer system indicated the
registration had already been renewed for the following year, the law requires
tags reflecting that fact be displayed.
(Veh. Code § 5204, subd. (a) [“Current month and year tabs
plate assigned to the vehicle†(italics added)].) Two weeks having passed since defendant
should have received his tags, CHP Officer Carlo Marzocca stopped the car to
find out why it was not in compliance with the statute.
When
he did so, Marzocca noted that three of the four occupants of the car seemed
nervous. The one who was most nervous
did not have any identification.
Marzocca had him get out of the car and then asked the remaining
occupants what his name was. They
purported not to know his name, explaining they had only met him a few weeks
earlier.
While
dealing with the unidentified male, Marzocca saw defendant making “furtive†and
“frantic[]†movements. Concerned about
his safety, the officer ordered defendant to stay still, but he continued to
move around. Despite repeated
admonitions from Marzocca to sit still, defendant kept trying to accomplish
something between the driver’s side door and seat. When he refused to show the Marzocca his
hands, the officer ordered him out of the car.
Defendant did not comply.
Now
especially concerned for his safety, with one person outside the car and three
inside, one of whom refused to get out, Marzocca moved to the passenger side of
the car. From that vantage point, he was
able to see that defendant had plastic baggies containing white powder in his
hand. Based on his training and
experience, Marzocca believed the baggies contained contraband.
Defendant
finally got out of the car and began to flee, but Marzocca “tased†him. It had been two and one-half minutes since
the car was stopped. Examination of what
Marzocca thought was contraband confirmed his conclusion. A consequent search of the car turned up
crystal methamphetamine, over 100 small plastic baggies, a large amount of
cash, a cell phone, and a digital scale disguised to look like a music CD. One of the occupants of the car had
outstanding arrest warrants and two were on active parole. Any of these factors would have explained the
acute nervousness Marzocca observed.
DISCUSSION
The stop of defendant’s
car was constitutionally unobjectionable.
It is true Marzocca could not have been certain at the time he stopped
the car that a violation had taken place.
He needed to find out whether defendant had an explanation for the
failure to attach the tags as required by law.
But as the United States Supreme Court made clear in
266, 274 [1225 S.Ct.744, 151 L.Ed.2d 740], the existence of a possible innocent
explanation for what would otherwise be a crime does not divest the police of
their right to investigate. As long as
there is a particularized and objective basis for the stop, it is legal. As our own Supreme Court has expressed it,
“the possibility of innocent explanations for the factors relied upon by a
police officer does not necessarily preclude the possibility of a reasonable
suspicion of criminal activity.†(
146. Here, there was such a basis: defendant’s car was not displaying the
required license tags.
Nor was there a
reasonable chance of successfully contending the stop was unduly
prolonged. The testimony at the
suppression hearing was that it lasted no more than three minutes from the stop
to the arrest of defendant. “In stopping
cars, [the police] may, within limits, require the driver or passengers to
disembark and even search them for weapons, depending on time, place and
circumstances. That this prophylactic
authority is essential is attested by the number of police officers wounded or
killed in the process of making inquiry into borderline, seemingly minor
violation situations . . . .†(
298 [98 S. Ct. 1067, 55 L.Ed.2d 287].) A
three-minute detention where a lone officer is confronted by four exceedingly
nervous detainees, one of whom has no identification (and whose name his
companions claim not to know), to obtain identification seems eminently reasonable
– especially when part of that three minutes was taken up with defendant’s own
refusal to comply with reasonable requests designed to insure the officer’s
safety.
Defendant contends he
had obtained a mailer sent to him by the Department of Motor Vehicles that he
interprets to give him a 60 day grace period for the payment of his
registration. He contends that grace
period invalidates a stop in the month his previous registration expired.
But that argument
misapprehends the reason for the stop.
Defendant wasn’t stopped because his registration had expired and not
been renewed. He was stopped because he
was not displaying the tags reflecting that registration. There is no grace period for putting the tags
on the car; they are required as soon as they are received, and the court took
judicial notice of the fact they are received immediately upon payment. Defendant’s argument is unavailing.
Appellate counsel
correctly determined no appellate issues had even an outside chance of
success. The judgment is affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.
