P. v. Williams

Filed 6/30/08 P. v. Williams CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Mangay Chung, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Marquise Desauntellee Williams[1]appeals from a judgment of conviction following his no contest plea pursuant to a plea bargain. Defendant was convicted of carrying a loaded unregistered firearm, a felony (Pen. Code,  12031, subd. (a)(1)[2](count 1)); having a concealed firearm on his person, a felony ( 12025, subd. (a)(2) (count 2)); and possession of a firearm in a school zone, a felony ( 626.9, subd. (b) (count 3)). The trial court suspended imposition of sentence and placed defendant on formal probation for three years with the condition that he serve 365 days in county jail, and awarded him 154 days of actual credit plus 76 days of good time/work time credit, for a total presentence credit of 230 days.

The trial court made a finding that, if probation were revoked and defendant sentenced to prison, sentences for counts 1 and 2 would be stayed pursuant to section 654. The trial court imposed a $200 restitution fine ( 1202.4, subd. (b)), a $200 contingent probation revocation fine ( 1202.44), $60 in court security fees ( 1465.8, subd. (a)(1)), and costs of probation and incarceration services ( 1203.1c). The trial court also initially imposed $200 in construction penalties, but subsequently, on defendants request, struck the penalties as they do not attach to restitution and parole revocation fines, pursuant to Government Code section 70372, subdivision (a), and People v. McCoy (2007) 156 Cal.App.4th 1246.

After the preliminary hearing on the charges against him, defendant made Pitchess[3]motions. The trial court granted them and ordered discovery turned over to defense counsel. Defendant also filed a motion to suppress evidence pursuant to section 1538.5.

After a lengthy hearing, the trial court denied the section 1538.5 motion based upon the following findings: (1) defendant was detained when the deputy directed him to walk to the back of the patrol car; (2) the detention was lawful, in that it was in the course of an investigation of possible truancy in furtherance of the governments interest in enforcing compulsory education laws as set forth in Education Code section 48264, defendant looked between the ages of 15 and 18 and he was in the carwash area on a school day during school hours; (3) defendant did not voluntarily consent to a pat-down search; (4) the pat-down search was lawful under Terry v. Ohio (1968) 392 U.S. 1 at pages 27-29, based upon Deputy Jordans legitimate concerns about officer safety arising from his encounter with defendant in an area known for its high crime rate in which he observed defendants marked nervousness and a bulge under defendants clothing that could be a weapon; and (5) race was not a predominant focus in the deputies actions.

After the trial court rendered its decision on the section 1538.5 motion, at defendants request, the trial court informed him of his constitutional rights and he waived them. He entered a no contest plea to all three counts charged in the information.

FACTS

By stipulation, the factual basis for defendants plea is the content of the police reports, the preliminary transcript, and the transcript of the hearing on the section 1538.5 motion to suppress evidence.

A. Prosecution Evidence

On May 9, 2007, around 11:00 a.m., Los Angeles County Sheriffs Deputies Jeffrey Williams and Lance Jordan were riding in a marked patrol car near Lancaster Christian Elementary School. They were assigned to look for truant juveniles, given a recent spate of burglaries by truants. They observed defendant and Derrick Burl (Burl) sitting on vacuum cleaner equipment at a nearby self-serve carwash. Defendant and Burl had a youthful appearance, and the deputies believed them to be between the ages of 15 and 17 years old. They were dressed like gang members and there had been crimes against children, parents coming to pick up their children, and teachers by local gangs near the school in the past.

When the deputies drove into the carwash area, defendant threw his hands up as if he were surrendering. Deputy Williams told defendant to put his hands down and he asked both men their ages. The ages they gave were 18 or older. He asked for identifications, but each man said he did not have any identification. Defendant was acting real nervous, moving his hand around his waistband and near his pocket.

Deputy Jordan noticed a bulge in defendants right front pants pocket and became concerned about his safety. The deputy ordered defendant to keep his hand out of his pocket and come back to the patrol car. At that point, defendant was not free to leave. When defendant stopped near him, Deputy Jordan asked defendant if he had any weapons. Defendant said that he did not have weapons. When the deputy asked for permission to check for weapons, defendant said Go ahead. Deputy Jordan ordered defendant to put his hands behind his back and did a pat-down search. The deputy felt the shape of a small gun, alerted Deputy Williams about it, and retrieved the gun from inside defendants right front pants pocket. The gun was loaded.

Defendant became hostile and tried to break free. The deputies wrestled with and subdued defendant. At booking, defendants identification was located, and it indicated that he was 19.

B. Defense Evidence

Defendant called three impeachment witnesses which he discovered as a result of his Pitchess motions. They each had filed a complaint against either Deputy Jordan or Deputy Williams, and believed that the deputys actions were racially motivated, in that at least one person who was the focus of the deputys actions was Black. Both defendant and Burl are Black.

According to Burl, the deputies confronted him and defendant at the carwash. Deputy Jordan asked defendant if he should be in school, and defendant replied that he was 19 years old. Defendant had his identification with him, but the deputy did not ask him for identification.

Without asking defendants permission, Deputy Jordan grabbed defendants wrists, pulled his arms behind his back and searched him. During the search, the deputy learned defendant had a gun and retrieved it. Both deputies repeatedly told defendant to quit resisting arrest, and defendant repeatedly replied that he was not resisting. The two deputies struggled with defendant, and he ended up on the ground with their knees in his back. After defendant was arrested, the deputies took him to the hospital to check for injuries, and on the way, defendant spit blood on the ground. Deputy Jordan accused him of littering and called him a racially derogatory name. The deputy also said that he was going to write a report that made things look worse for defendant.

C. Rebuttal

Both deputies testified that they were not disciplined for any of the incidents reported by the three witnesses discovered through defendants Pitchess motion. Deputy Jordan denied calling defendant a racially derogatory name or threatening to write a bad report.

DISCUSSION

We appointed counsel to represent defendant on appeal. After examining the record, counsel filed a request for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. This court notified defendant by letter dated April 21, 2008, that he had 30 days within which to submit by brief or letter any grounds of appeal, contentions or arguments that he wanted us to consider. To date, we have received no response from defendant.

We have examined the entire record and are satisfied that defendants counsel has complied fully with his responsibilities. No arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

MALLANO, P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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[1] When defendant testified in the trial court proceedings, he spelled his name as Marquise Desaunte Lee Joseph Williams. The spelling used herein is taken from the trial courts identification of defendant in its minute orders.

[2] All further statutory references are to the Penal Code unless otherwise identified.

[3] The reference to Pitchess motions is to discovery motions made pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-537, subsequently codified in sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019.)