P. v. Tucker

Filed 8/27/08 P. v. Tucker CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Brandlin, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Robert Tucker appeals from the judgment entered following his plea of no contest to carrying a dirk or dagger (Pen. Code, 12020, subd. (a)(4))^[1]and his admissions that he previously had suffered a felony conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term ( 667.5, subd. (b)). The trial court sentenced Tucker to three years, eight months in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.^[2]

At approximately 7:50 a.m. on April 11, 2007, Los Angeles County Deputy Sheriff Israel Gonzalez and his partner, Deputy Palm, were on patrol near the intersection of Century Boulevard and Normandie Avenue in Los Angeles. When they observed an older model Nissan with no license plates being driven down the street, the deputies decided to conduct a traffic stop. As Gonzalez approached the driver of the vehicle, his partner, Palm, approached the passenger, Tucker. Palm asked Tucker if he was carrying anything illegal and Tucker said he had a little knife. A subsequent search of Tucker revealed an open, switchblade knife in his right front pocket.

2. Procedural history.

a. The information.

In an information filed May 11, 2007, Tucker was charged with one count of carrying a dirk or dagger, a felony, in violation of section 12020, subdivision (a)(4). It was further alleged he had previously suffered 10 convictions for burglary ( 459) within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds, (a)-(d)) and had served six prison terms ( 667.5, subd. (b)).

b. The motion to suppress evidence.

On August 27, 2007, Tuckers counsel made a section 1538.5 motion to suppress the knife found in Tuckers pocket. Tucker testified that on the day of his arrest, he was the passenger in a white Nissan being driven by Angelina Thomas. The car had no license plates. It just had dealership plates showing where the car came from. Although Thomas had not been driving in excess of the speed limit, the sheriffs deputies followed the car for several blocks, until Thomas pulled into a gas station. There, the officers stopped the car, detained Thomas and Tucker, determined Tucker was carrying a knife and placed him under arrest.

Before the parties presented their argument, the trial court indicated it wished to hear from counsel whether a detention is warranted when a car does not have permanent plates, but does have a small [approximately three-inch by four-inch] dealer issued D.M.V. document . . . in a window.

Defense counsel argued that an officers inability to read the small dealers tag positioned in the rear window provides insufficient grounds for the officer to stop that vehicle. Counsel asserted the deputies were simply on a fishing expedition and had no probable cause to stop the car.

The prosecutor indicated that, although there was a dealers sticker in the rear window, the car was an older model Nissan which, under usual circumstances, would have had permanent license plates. Based on that fact, the deputies acted reasonably when they stopped the car to investigate.

The trial court concluded that, even if there was a temporary sticker in the rear window of the car, there [were] no license plates on the vehicle [and] there [was] no way that the officer [could] determine whether or not that vehicle, which, for all intents and purposes, should have had a California-issued license plate . . . , was properly registered and being driven by an individual lawfully entitled to do so. The trial court found that the officers acted reasonably and denied Tuckers motion to suppress evidence.

c. The Marsden^[3]motion.

On November 13, 2007, after the prosecutor and audience members had left the courtroom, Tucker indicated that he wished to bring a Pitchess^[4]motion to show that the senior officer plant[ed] the knife on him. Tucker stated that, although a former attorney had indicated he would bring such a motion, his present counsel had refused.

Counsel for Tucker indicated he had interviewed the driver of the car, who stated that the officer searched Tucker and found the knife in his coat pocket. Since the driver did not state that the officer had planted the knife on Tucker, counsel indicated a Pitchess motion was unnecessary. Counsel stated he would not submit a misleading or false declaration on a Pitchess motion.

The trial court denied the Marsden motion stating, Mr. Tucker, its not below the standard of a reasonably competent lawyer not to file a Pitchess motion where the attorney has information to believe that the motion lacks merit.

d. The plea agreement.

After the trial court denied Tuckers Marsden motion, the People offered Tucker a plea agreement. If Tucker pleaded guilty to the alleged offense, carrying a dirk or dagger, and admitted having suffered a prior Three Strikes conviction and having served a prior prison term, he would be sentenced to 44 months in prison. Further, the agreement would not require Tucker to give up his right to appeal.

After Tucker initially rejected the offer, the trial court informed him that it had determined that an offer of six years in state prison was appropriate. The Peoples offer was well below that and, in addition, would be run concurrently to a probation violation Tucker had pending. Tucker, however, still refused the Peoples offer.

Three days later, on November 16, 2007, Tucker returned to court and indicated he wished to accept the Peoples offer. Tucker agreed to plead no contest to possession of a dirk or dagger and to admit having been convicted of one Three Strikes felony and having served one prison term. In exchange, Tucker would be sentenced to 44 months in prison and he would not be required to give up his right to appeal the denial of his motion to suppress evidence or the sentence imposed.

After waiving his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to put on an affirmative defense, and his privilege against self-incrimination, Tucker pleaded no contest to possession of a dirk or dagger, admitted the strike prior allegation, and admitted the one-year [prison] prior.

The trial court sentenced Tucker to 16 months in prison for his conviction of section 12020, subdivision (a)(4), possession of a dirk or dagger, then doubled the term to 32 months pursuant to the Three Strikes law. Consecutive to the 32-month term, the trial court imposed a sentence of one year for the section 667.5, subdivision (b) prison prior. In total, Tucker was sentenced to three years, eight months in state prison. Tucker was given presentence custody credit for 220 days actually served and 110 days of good time/work time, or a total of 330 days. On the Peoples motion, all remaining charges and allegations were dismissed.

Tucker timely filed a notice of appeal on November 21, 2007.

This court appointed counsel to represent Tucker on appeal on February 26, 2008.

CONTENTIONS

After examination of the record, Tuckers appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated June 24, 2008, the clerk of this court advised Tucker to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. In a supplemental brief filed July 3, 2008, Tucker indicated the deputies stop of the vehicle in which he was riding was unlawful. The fact that the vehicle had no license plates could not have given the deputies a reasonable suspicion unlawful behavior was afoot. Accordingly, any evidence gathered as a result of the unlawful traffic stop, including Tuckers knife, should have been suppressed.

DISCUSSION

In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the courts resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.)

[P]ersons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. (People v. Saunders, supra, 38 Cal.4th at p. 1135; see Delaware v. Prouse (1979) 440 U.S. 648, 663.) However, when there is articulable and reasonable suspicion that a motorist is unlicensed, that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, the vehicle may be stopped and the driver detained in order to check his or her drivers license and the vehicles registration. [Citations.] (People v. Saunders, supra, at p. 1135.)

In the present case, the deputies properly stopped the Nissan after noting that the car had no license plates in violation of Vehicle Code section 5200. (See People v. Saunders, supra, 38 Cal.4th at p. 1132 [The officer noted that the pickup had expired registration tabs and no front license plate].)

Tucker asserts that the approximately three-inch by four-inch dealer issued D.M.V. document displayed in the cars rear window was sufficient to overcome the fact that the vehicle had no plates. However, it has been noted that [a]n officer would not be able to determine whether the sticker [was] for the current year, or whether it [was] associated with the particular vehicle, without stopping the vehicle and verifying the information on the sticker. (People v. Saunders, supra, 38 Cal.4th at p. 1133; cf. People v. Nabong (2004) 115 Cal.App.4th Supp. 1, 4 [where car had license plates and discernable temporary registration for the month in the rear window, traffic stop, without first checking with dispatcher to confirm that registration was invalid, constituted an unlawful detention].)

We conclude, on the record before us, substantial evidence supports the trial courts finding the traffic stop was proper. The trial court properly denied Tuckers motion to suppress evidence.

APPELLATE REVIEW

We have examined the entire record and are satisfied Tuckers counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The facts have been taken from the transcript of the preliminary hearing.

^[3]People v. Marsden (1970) 2 Cal.3d 118.

^[4]Pitchess v. Superior Court (1974) 11 Cal.3d 531.