P. v. Flynn
Filed 3/7/13 P. v. Flynn CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARK FLYNN,
Defendant and Appellant.
A136137
(Solano County
Super. Ct.
No. VCR207959)
Defendant
Mark Flynn appeals from his convictions for
possession of a firearm, based upon his no contest plea entered after the
trial court denied his motion to suppress evidence. His appointed counsel filed
a brief pursuant to
raising no issues. Defendant was notified of his right to file a supplemental
brief and has done so, identifying four potential errors in the trial court
proceedings. Upon independent review of the record, we conclude that no issues
are presented that justify further argument, and shall affirm the judgment.
On
January 25, 2011, defendant
was charged by information with one count of possession of a loaded handgun and
methamphetamine (Health & Saf. Code, § 11370.1, subd. (a)), one count
of transporting methamphetamine (Health & Saf. Code, § 11379, subd.
(a)), one count of possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)), one count of carrying a concealed firearm in a car
(Pen. Code, § 12025, subd. (a)(1)), one count of carrying a loaded,
unregistered firearm (Pen. Code, § 12031, subd. (a)(1)), three counts of
being a felon in possession of a firearm (Pen. Code, § 12021, subd.
(a)(1)), and one count of being a felon in possession of ammunition (Pen. Code,
§ 12316, subd. (b)(1)).
On
January 6, 2012, defendant
moved to suppress evidence pursuant to Penal Code section 1538.5. The following
testimony was offered at the hearing on the motion to suppress: Solano County
Deputy Sheriff Jaime Garcia was on patrol on June 29, 2010, with his partner, Deputy Cliff Hirl. At 10:15 p.m., he noticed a black truck traveling
in the opposite direction. When the cars passed, Garcia observed in his
rearview mirror that the rear running lights on the truck were not on.
Believing this was a violation of Vehicle Code section 24600, he turned the
patrol car around and followed the truck. As he approached the truck from
behind, Garcia also noticed that a tow ball was blocking one number on the rear
license plate. Garcia believed that this was a violation of section 5201 of the
Vehicle Code and initiated a traffic stop for the two violations.
Garcia
approached the driver’s side of the vehicle and his partner, Deputy Hirl,
approached the passenger side. Defendant was the only occupant of the truck. As
Garcia was explaining the reason for the stop, Hirl told him to have defendant
get out of the truck. Hirl then told Garcia that he had spotted the barrel of a
rifle in the passenger compartment approximately one foot from defendant. Hirl
explained to the court that because defendant was seated next to the rifle and
it was unknown whether it was loaded, he requested that his partner have
defendant get out of the truck.
After
defendant exited the vehicle, Hirl asked defendant if he had anything in his
pockets that should be of concern. Defendant told the officer that he had a
knife in his pocket. As Hirl pulled the knife from the pocket indicated by
defendant, a small plastic ziploc bag containing what he believed to be methamphetamine
residue and some nine-millimeter handgun rounds came out as well. Hirl then
conducted a full search of defendant to locate any weapon that would use the
ammunition and to look for more methamphetamine. In defendant’s right front
pocket, Hirl found another plastic baggie with suspected marijuana and an
Altoids container that contained methamphetamine.
Garcia
testified that as he approached the truck he saw the barrel of a rifle
protruding near the center console of the truck. Prior to entering the truck he
also saw a box of ammunition. Based on the drugs and live ammunition found on
defendant, he believed that there were more drugs and possibly weapons inside
the vehicle. After entering the truck he found a nine-millimeter loaded handgun
underneath a blue towel on the bench seat near the driver. Behind the seat he
also found one complete operative rifle and parts for an additional three
rifles. At that time he was unaware that defendant was a felon, but Hirl
obtained a criminal history from dispatch indicating that defendant had a
felony conviction.
At
the conclusion of the hearing on January 6, 2012, the court denied the motion
to suppress. The court explained, “I’m going to find that the stop was
supported by probable cause regarding Vehicle Code violations, and the officers
had the absolute right to pull him over, move on up there and eyeball him and
in plain view, Hirl saw what he believed to be a rifle. And for purposes of
officer safety, I think it was completely reasonable for him to tell his
partner to get that guy out of here and get him away from the firearm that’s
right next to him. [¶] Under all the circumstances, I think the officers’
conduct was reasonable . . . . And I think the search of
defendant himself [was] for officer safety . . . . [¶] So I
think the officer can go in there for that pocket knife, and I’ll take the
officer’s word for it that while he was in there he pulled out a little bit of
dope, a couple of bullets. . . . [B]ased on the officer’s experience,
the bullets that were removed from the pocket of the defendant would not be
bullets that would go into that riffle. So I think any reasonable person under
the same circumstances would be concerned that there may be another firearm, a
handgun, [loaded]. [¶] And in fact, according to Garcia, . . .
after he turned the defendant over and items were found, he, in a place where
he had a lawful right to be, illuminated the interior of that . . .
truck, . . . saw some more ammunition and so forth. And I think their
conduct was reasonable.â€
Pursuant
to a plea agreement, defendant entered a plea of no contest to one count of
possession of methamphetamine and one count of being a felon in possession of a
firearm. The remaining counts were dismissed and it was agreed that defendant
would not serve immediate time in state prison. On July 12, 2012, defendant was
sentenced to three years of formal probation, conditioned on one year in county
jail.~ (CT 120.)~ Defendant filed a timely notice of appeal from the denial of
his motion to suppress.
Discussion
Defendant’s
supplemental brief identifies four potential errors in the trial court
proceedings. First, he argues that the initiation and scope of the traffic stop
that led to his arrest was unconstitutional. We have examined the record and find
nothing to suggest error in the denial of defendant’s motion to suppress
evidence. The suspected Vehicle Code violations provided probable cause for the
traffic stop. (People v. Brown (1998)
62 Cal.App.4th 493, 496.) Defendant was reasonably removed from the truck to
ensure the officers’ safety after the rifle was observed in the front seat. (
274, 279-280; Michigan v. Long (1983)
463 U.S. 1032.) Hirl reasonably searched defendant’s pocket after defendant
informed him that he was carrying a knife and Hirl was justified in continuing
his search after recovering drug residue and ammunition. (People v. Avila (1997) 58 Cal.App.4th 1069, 1075.) Finally, the
search of defendant’s car may be justified as incident to defendant’s arrest
based on the drugs and ammunition recovered on defendant and the weapon and
additional ammunition located in plain view. (Arizona v. Gant (2009) 556 U.S. 332, 343 [“circumstances unique to
the vehicle context justify a search incident to a lawful arrest when it is
‘reasonable to believe evidence relevant to the crime of arrest might be found
in the vehicle’ â€].)
Defendant’s
arguments to the contrary are based almost entirely on facts that are not
contained in the record. Attached to defendant’s supplemental brief are, among
other things, photographs and an automobile repair shop invoice that he asserts
proves the invalidity of the search. Defendant requests that this court receive
this evidence for the first time on appeal under California Rules of Court,
rule 8.252(c). However, defendant was provided an opportunity to present this
evidence at the suppression hearing, but failed to do so. His request is
denied. An appellate court will receive evidence only in “exceptional
circumstances†and not as a substitute for the presentation of evidence that
could have been presented in the trial court. (Tyrone v. Kelley (1973) 9 Cal.3d 1, 13.)
Defendant
also argues that the officers lied at the suppression hearing. He relies on
alleged inconsistencies between Garcia’s testimony at the preliminary hearing
and at the suppression hearing and offers additional evidence on appeal to
prove what he asserts to be lies. For the reason discussed above, we will not
consider the new evidence proffered on appeal. Any challenge to Garcia’s
credibility based on alleged inconsistencies between his testimony at the
preliminary hearing and at the suppression hearing should have been raised on
cross-examination at the suppression hearing. In any event, a fair reading of
the transcripts does not reveal significant inconsistencies in Garcia’s
testimony.
Defendant
also contends his trial counsel improperly withdrew his previously filed
motion without his consent. Although defendant states that he did not know the
motion was dismissed until he reviewed the clerk’s transcript on appeal and
that he “would never have agreed or consented had [he] been informed and given
the opportunity,†he has not attempted to withdraw his plea or suggested that
he wishes to do so. Any error with respect to his counsel’s representation
prior to entry of the plea is not cognizable absent a certificate of probable
cause and defendant did not request nor obtain such a certificate. (
Cal.App.4th 574, 595–596.)
Next,
defendant requests that we review the legal basis for the People’s motion in
limine to allow the prosecution to impeach him with his prior conviction if he
testified at trial. It does not appear from the record that the trial court
ruled on this motion and defendant entered the no contest plea before the
matter proceeded to trial. In any event, any pretrial rulings would not be
cognizable on appeal absent a certificate of probable cause.
Finally,
defendant contends that the pre-sentence report prepared by the probation
department contained numerous factual inaccuracies. Each of the alleged
mistakes, however, was identified and disputed by defendant’s attorney at the
sentencing hearing and the issues were discussed at length by the court. We
find no error in the court’s exercise of discretion in sentencing defendant in
conformity with the terms of his negotiated plea. (People v. Tang (1997) 54 Cal.App.4th 669, 680.)
The
judgment is affirmed.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
A136137
name="_ftn1" title="">[1]
Cal.3d 531.
