Filed 2/26/13 P. v. Martin CA4/3




                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047278

                v.                                                     (Super. Ct. No. 11NF2564)

JEFFREY STUART MARTIN,                                                 OPINION

     Defendant and Appellant.



                     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 Anders v. California (1967) 386 U.S. 738
[87 S.Ct. 1396, 18 L.Ed.2d 493] and People v. Wende (1979) 25 Cal.3d 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); People v. Richardson (2007) 156
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 plea”].)
              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.




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                                         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 shall be attached to the rear license 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


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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 United States v. Arvizu (2002) 534 U.S. 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.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 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 . . . .”
(Foley v. Connelie (1978) 435 U.S. 291, 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


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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.




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