Filed
5/29/13 P. v. Shack
CA2/3
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
William EDWARD Shack,
Defendant and Appellant.
B245129
(Los Angeles
County
Super. Ct.
No. BA392604)
APPEAL from
a judgment of the Superior Court
of
County, Leslie A. Swain, Judge. Affirmed.
Richard L.
Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
William
Edward Shack appeals from the judgment entered following his pleas of guilty to
having a concealed firearm in a vehicle
(Pen. Code, § 25400, subd. (a)(1))
and carrying an unregistered, loaded handgun (§ 25850, subd. (a)). The trial court suspended imposition of
sentence and placed Shack on three years formal probation, one condition of
which was that he serve 180 days in county jail. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
At
approximately 10:45 a.m. on January 7, 2012, Los Angeles Police Officer
Paris Archundia and her partner, Officer Juan Guerrero, were on patrol in a
marked patrol car on Main Street
in the City of Los Angeles. Guerrero was driving the car and Archundia
was riding as the passenger. As the
officers approached 69th Street,
they noticed a brown Chevrolet Impala being driven with no front license plate
in violation of Vehicle Code section 5200, subdivision (a). Archundia and Guerrero decided to conduct a
traffic stop and Guerrero activated the patrol car’s lights and siren.
While Archundia and Guerrero were
still in their patrol car, Shack, who was driving, stopped the Impala in front
of a Winchell’s donut shop and “immediately†got out. As Guerrero got out of the patrol car, Shack
began to walk toward him. Although he seemed
“[a] bit flustered†and a “little nervous,†Shack asked “ ‘What did I do,
officer?’ †Guerrero ordered Shack
to “stop walking†and to “put his hands on top of his head.†Shack was cooperative and complied with the
officer’s order. Guerrero asked Shack if
“he [had] anything he should not have on him†and Shack indicated that he had
two bags of marijuana in his front pants pocket.
pat-down search for weapons, handcuffed Shack, placed him under arrest and sat
him in the back seat of the patrol car.
In the
meantime, Archundia approached the passenger who was seated in the front
passenger seat of Shack’s car. The
passenger identified himself as Reed, but could not produce any identification. Because he had no identification, Archundia
asked Reed to get out of the car. Reed
did so and Archundia then asked him if he was on probation or parole. Reed indicated he was on parole and, after
one of the officers confirmed that Reed was on parole and had “search[]
conditions,†Archundia searched Reed, handcuffed him and placed him in the back
of the patrol car with Shack.
While Archundia watched the two
suspects, Officer Guerrero searched Shack’s vehicle for “more narcotics.†Instead, the officer found a loaded “black
semi-automatic handgun†in “the passenger pocket†behind the passenger
seat. The “pocket†was approximately two
feet from the right edge of the driver’s seat.
The gun appeared to be in working order.
After
placing the handgun in the trunk of the patrol car, Guerrero read to Shack his
rights, which Shack agreed to waive.
Shack then told Guerrero that the gun “belonged to him.â€
The
officers transported Shack and Reed to the police station, where Guerrero had
Shack fill out an “L.A.P.D. Investigative Action/Statement Form.†In the statement, Shack indicated that he had
picked up Reed and the two men had been going to get something to eat when they
were stopped by the officers. Shack also
wrote that “the gun belonged to him.â€
2. Procedural
history.
A
preliminary hearing was held on February
3, 2012. On February 17, 2012, an information was
filed in which Shack was charged in count 1 with “having a concealed
firearm in a vehicle, in violation of . . . section 25400[, subdivision]
(a)(1), a Felony†and in count 2 with “carrying [a] loaded handgun, [which was]
not registered, in violation of . . . section 25850[, subdivision]
(a), a Felony[.]†Shack entered pleas of
not guilty to both counts.
On June 28,
2012, Shack’s counsel made a motion to
suppress evidence pursuant to section 1538.5. The matter was continued and the motion was
set to be heard on August 2, 2012.
Evidence
with regard to Shack’s motion to suppress evidence was heard at proceedings
held on August 2, 2012 and October 4, 2012.
At the October 4th hearing, Shack’s counsel argued that, although Reed
had waived his Fourth Amendment rights
by being on parole, Reed’s consent to being searched had not transferred to
Shack. Relying on a California appellate
court case which had been reversed by the California Supreme Court and in which
a petition for certiorari is currently pending before the United States Supreme
Court,
Shack’s counsel argued that Shack’s “parolee passenger never gained or
exercised any apparent authority over the vehicle that might have given police
officers the reasonable impression he had the right to permit its
inspection. The officer could not search
the interior of the vehicle based upon the passenger’s parole status and there
was no other justification for the warrantless search.†After the prosecutor indicated that defense
counsel was not relying on “citable authority,†he argued that the gun in this
case was found in the pocket on the back of the front passenger’s seat and that
it was not “impossible for [the] parolee to actually have access to it.†In addition, the prosecutor indicated that he
did not agree with defense counsel’s assertion that the officers had not found
on Shack a sufficient amount of marijuana to justify their search of the car.
After
considering the parties’ arguments, the trial court stated that it appeared to
the court that the appellate court case limiting a police officer’s ability to
search a parolee and his or her surroundings was “contrary to the general body
of law [regarding] the scope of parole searches.†The court continued: “If [one] can go into a home where a parolee
is visiting and search the common area[s] of the home, . . . it
does not follow . . . that the police did not have the right to search within
reasonable parameters the area of the vehicle which was available to the
parolee,†including “the pocket behind the passenger seat. . . . I think this is different than if [the gun]
were in the trunk of the vehicle†or “some briefcase belonging to the driver of
the car.†The trial court concluded
that, pursuant to the prevailing law pertaining to parole searches, the
officers “had the right to search the compartment behind the passenger
seat.†Accordingly, the trial court
denied Shack’s counsel’s motion to suppress the evidence of the gun and Shack’s
statements admitting that the gun belonged to him.
At the same
proceedings, the prosecutor indicated that, although he had no prior felony
convictions, it had been documented that Shack was a member of the Raymond
Avenue Crip gang. Under those
circumstances, the prosecutor’s “office policy [was to seek a sentence of the]
low term [in] state prison.†The
prosecutor indicated that it had been documented that Shack had “self-admittedâ€
gang membership to officers on three separate occasions. Defense counsel responded that, when one
lives in a particular area, he or she may “get labeled . . . as being a gang
member even when [they are] not.â€
Counsel indicated that Shack had “absolutely never been involved in a
gang†and requested that the trial court consider the charges
misdemeanors. Although the parties then
agreed that there would be “no gang allegation†and no evidence of gang affiliation
at trial, the trial court nevertheless indicated that it was “not going to
reduce carrying a concealed unregistered firearm to a misdemeanor.†The trial court stated that it felt “very
strongly about that.â€
On October
12, 2012, the trial court indicated the parties had come to an agreement and
that Shack would be entering a plea.
After the prosecutor asked Shack if he understood the charges against
him and that the maximum sentence he could receive in this matter was three
years in county jail, Shack stated he understood that he was accepting the
trial court’s offer of an “open plea†and that, under the terms of such a plea,
he would be placed on three years formal probation and ordered to serve 180
days in county jail. In addition, the
trial court would consider reducing the charges to misdemeanors after one year
of probation if Shack had “no new violations––no violations of the terms of
[his] probation.â€
Shack
waived his right to a trial by court or jury, his right to present a defense
and to subpoena, at no cost to him, witnesses to testify on his behalf, his
right to confront and cross-examine the witnesses against him and his privilege
against self-incrimination. He then
entered a plea of “guilty†to the “charge in count 1, that on or about January
7th, 2012, [he] committed the crime of having a concealed firearm in a vehicle,
in violation of . . . section 25400[, subdivision] (a)(1), a
felony[.]†Shack then admitted “that the
firearm and unexpended ammunition were in [his] immediate possession and were
readily accessible to [him], and the firearm was not registered to [him].†With regard to count 2, “the charge that on
or about January 7th, 2012, [he] committed the crime of carrying a loaded
handgun[,] not registered, in violation of . . . section 25850[,
subdivision] (a),†Shack again entered a plea of “guilty.†Shack’s counsel “join[ed] in the plea[s],
waivers and admissions[] and stipulate[d] to a factual basis [for the pleas]
based upon the police reports and the preliminary hearing transcript.â€
The trial
court found that Shack had “knowingly, intelligently [and] understandingly
waived his constitutional rights[] and that his plea [had been] freely [and]
voluntarily made with an understanding of the nature and the consequences
thereof.†In addition, the court found
that there was a “factual basis for the plea.â€
The trial court accepted Shack’s plea, suspended imposition of sentence,
then placed Shack on formal probation for a period of three years. As one condition of probation, Shack was to
serve 180 days in county jail. The trial
court ordered Shack to surrender on November 8, 2012 and informed him that if
he did not do so, the court could impose a prison term of up to the maximum
time allowed.
The trial
court awarded Shack presentence custody credit for six days actually served and
six days of good time/work time, or 12 days.
It then ordered Shack to pay a $240 restitution fine (§ 1202.4, subd.
(b)), a suspended $240 probation revocation restitution fine (§ 1202.44), a $30
criminal conviction fee (Gov. Code, § 70373) and a $40 court security fee
(§ 1465.8, subd. (a)(1)).
As ordered,
Shack surrendered to the court on November 8, 2012. He filed a timely notice of appeal that same
day. In his notice of appeal, Shack
indicated that the appeal was “based upon the denial of a
pursuant to . . . section 1538.5.â€
CONTENTIONS
After
examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent
review of the record.
By notice
filed March 4, 2013, the clerk of this court advised Shack to submit within 30
days any contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received
to date.
REVIEW ON APPEAL
We
have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)
The
judgment is affirmed.
J.
We concur:
KLEIN, P. J. CROSKEY,
J.
further statutory references are to the Penal Code unless otherwise indicated.
facts have been taken from the transcripts of the preliminary hearing and the
motion to suppress evidence.
