Filed 2/26/14 P. v. Waters CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137322
v.
JOSEPH WILLIAM WATERS,                                               (Humboldt County
                                                                     Super. Ct. No. CR1105299)
         Defendant and Appellant.


         After a vehicle stop for an unfastened seat belt, defendant Joseph William Waters
was found in possession of two handguns and a billy club. One handgun was seen in the
glove box as defendant opened it to retrieve the vehicle registration; the second gun and
the billy were found during a subsequent search of the car while defendant was
handcuffed in a patrol car. Defendant entered a negotiated plea to one misdemeanor
count of possession of a concealed firearm in a vehicle (Pen. Code, § 25400,
subd. (a)(1))1 and one misdemeanor count of possession of an illegal weapon (billy or
blackjack) (§ 22210). He now appeals the denial of his suppression motion (§ 1538.5,
subd. (m)) and asks us to review the sealed transcript of his Pitchess motion2 to determine
whether there was an error in procedure and whether the trial court abused its discretion
in determining there was no discoverable material. We conclude there was no error in
ruling on the suppression motion, but we remand for a new Pitchess hearing.


         1
             All undesignated statutory references are to the Penal Code.
         2
             Pitchess v. Superior Court (1974) 11 Cal.3d 531.


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                  FACTUAL AND PROCEDURAL BACKGROUND
       On November 24, 2011, California Highway Patrol (CHP) Officer William Adams
was on patrol on Myrtle Avenue in Eureka, having been instructed to pay particular
attention to seat belt violations over the Thanksgiving holiday weekend. As he
approached and traveled through the intersection at Myrtle Avenue and McFarland Street
he sawdefendant’s teal Mercedes sedan stopped at the intersection, in a position
perpendicular to his own. He drove through the intersection at 25 to 30 miles per hour
and slowed even further as he passed the Mercedes, noticing the driver’s seat belt was in
the “off position”―with the two parallel straps and metal buckle hanging near the
driver’s shoulder. Adams was about 25 to 30 feet away from the Mercedes when he saw
the unbuckled seat belt, and he testified he could see clearly into defendant’s passenger
compartment.
       Adams pulled his car into the middle turn lane after he crossed the intersection,
waiting for the Mercedes to turn onto Myrtle. As the Mercedes passed his patrol car,
Adams got into defendant’s lane and followed him.
       Adams initiated a traffic stop by turning on his emergency lights. Defendant
pulled over to the right in an area where the shoulder of the road was narrow, so Adams
instructed him over the public address system to continue driving to a safer place.
Defendant then pulled his car into the parking lot of a drug store in a strip mall. Adams
had not seen any furtive movements on defendant’s part that would indicate he was
belatedly buckling his seat belt.
       Adams approached defendant’s car from the passenger side. Defendant at that
point had his seat belt fastened. Adams thought defendant had put on his seat belt
sometime after the officer observed it was off. Defendant rolled down the passenger
window just a crack, and Adams could not communicate with him due to the ambient
noise. Adams ordered defendant several times to roll down the window farther, but
defendant refused.
       Adams also asked for defendant’s driver’s license information and told him why
he had been stopped. Defendant insisted he had been driving with his seat belt buckled


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the whole time. Adams responded, “Hey, man. The only reason I stopped you is ’cause
you clearly didn’t have your seat belt on.” Defendant then slumped his shoulders as if to
say, “ ‘yeah.’ ”
       Adams then went to the driver’s door and again defendant refused to roll down his
window more than an inch or two. Adams asked for defendant’s driver’s license and the
vehicle registration. Defendant produced a California identification card but told Adams
the registration was locked in the glove compartment and he did not have a key. He said
he would need to call a friend to bring him a key before he could get into the glove box.
The officer told him to go ahead and make the call. Shortly thereafter defendant said he
remembered he did have the key, and he reached over to open the glove box.
       Adams was on alert because of defendant’s behavior: his unwillingness to
cooperate, his refusal to roll down the window, and the delay before he came up with the
glove box key. When defendant opened the glove box, Adams saw the butt end of a
black semi-automatic handgun inside.
       After seeing that, Adams drew his weapon, made defendant exit the vehicle,
handcuffed him, placed him in the patrol car, and searched his vehicle. During the
search, Adams found two loaded firearms in the glove box (a 9 mm and a .380 caliber)
and a billy club in the trunk. Defendant told the officer he had a concealed weapon
permit for the guns, which had recently expired,3 and that he that he used to work in
security and carried the billy for protection.
       On February 2, 2012, defendant was charged by information with two counts of
being a convicted person in possession of a concealed firearm in a vehicle (§25400,
subd. (a)(1)) and one count of possession of an unlawful weapon (billy or blackjack)
(§ 22210). He filed a Pitchess motion on March 15, 2012, seeking discovery of all
records of false arrests, false statements, or illegal search and seizure by CHP Officer
Adams. The CHP opposed the motion. The court found there was a sufficient showing


       3
        Subsequent investigation showed the permit expired about six weeks prior to the
incident under review.


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of good cause with respect to false statements and ordered the CHP to turn over to the
court “the name, the address and the phone number of any complainant or witness, as
well as the date of the incident. That would be limited to a period of five years
immediately preceding the incident in this case. I would intend to do a―an in camera
review.” Following the court’s in camera hearing, it announced in open court that there
were “no records to be discovered.”
       On June 14, 2012, defendant filed a motion to suppress the three items of evidence
seized from his car―the black 9 mm handgun found in the glove compartment, the
stainless steel .380 caliber handgun found in the glove compartment, and the billy club
found in the trunk―on grounds they were discovered in a warrantless search following
an unlawful traffic stop and were the fruits of the poisonous tree. (§ 1538.5) The
prosecution argued the search and seizure had followed a lawful detention based upon
reasonable suspicion of a traffic violation. The search of the car after the first gun was
spotted in the glove box was also authorized as a weapons search. Defense counsel
agreed that the only issue was the legality of the stop: if the detention was lawful then
defendant would not challenge the subsequent search of the car.
       The motion was heard on September 10, 2012. Defendant testified at the
suppression hearing that he had been wearing his seat belt the whole time he was driving
the car on the date in question. He had been on his way to pick up his two daughters
when he was stopped by Adams. He recalled fastening his seat belt before starting to
drive. It was his custom to always buckle his seat belt so as to be a good role model for
his children.
       Defendant testified he saw Adams’s car drive through the intersection at Myrtle
Avenue and McFarland Street. He noticed Adams looking at him. His seat belt was
buckled at the time.
       Based on the evidence relating to the detention outlined above, the court denied
the suppression motion without comment. It made no express findings of fact.
       After his Pitchess and suppression motions were both denied, defendant entered a
negotiated plea. He pled no contest to counts two and three as misdemeanors, and the


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court ordered count one dismissed on the People’s motion. Defendant was granted
probation for three years on condition he serve one day in jail, with credit for one day
served. This timely appeal followed.
                                       DISCUSSION
Suppression motion
       When considering the denial of a motion to suppress evidence, we view the record
in the light most favorable to the trial court’s ruling and defer to the trial court’s findings
of historical fact, whether express or implied, if they are supported by substantial
evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We then exercise independent
judgment to decide what legal principles are relevant, independently apply them to the
facts, and determine as a matter of law whether there has been an unreasonable search or
seizure. (See People v. Davis (2005) 36 Cal.4th 510, 528-529; People v. Ayala (2000)
23 Cal.4th 225, 255; People v. Glaser, supra, 11 Cal.4th at p. 362.)
       During both the preliminary hearing and the evidentiary hearing on defendant’s
motion to suppress, Adams testified he stopped defendant’s vehicle because defendant
was not wearing a seat belt while driving. A traffic stop constitutes a detention under the
Fourth Amendment. (Whren v. United States (1996) 517 U.S. 806, 809-810.) In order to
pass constitutional muster, a detention must be “based on ‘some objective manifestation’
that criminal activity is afoot and that the person to be stopped is engaged in that
activity.” (People v. Souza (1994) 9 Cal.4th 224, 230.) Thus, for a vehicle stop, the
police officer “can legally stop a motorist only if the facts and circumstances known to
the officer support at least a reasonable suspicion that the driver has violated the Vehicle
Code or some other law.” (People v. Miranda (1993) 17 Cal.App.4th 917, 926; see also,
Whren, supra, 517 U.S. at pp. 810, 819 [a law enforcement officer may, consistent with
the Fourth Amendment, briefly detain a vehicle if the objective facts indicate that the
vehicle has violated a traffic law]; People v. Castellon (1999) 76 Cal.App.4th 1369, 1373
[expired registration]; Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476-477 [no seat
belt]; People v. Bell (1996) 43 Cal.App.4th 754, 760-761.) Indeed, stopping a
defendant’s vehicle for a seat belt violation, even if done as a pretext for a narcotics


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investigation, is entirely legal. (Arkansas v. Sullivan (2001) 532 U.S. 769, 771-772;
Whren v. United States, supra, 517 U.S. at pp. 812-813; People v. Gomez (2004)
117 Cal.App.4th 531, 537; People v. Ramirez (1997) 59 Cal.App.4th 1548, 1557, fn. 1.)
       If an officer sees one weapon in plain view in a car from a position where he has a
right to be, the officer is justified in continuing to search for more weapons in the
passenger compartment based on reasonable belief alone that defendant is dangerous and
could gain control of a weapon. (Michigan v. Long (1983) 463 U.S. 1032, 1049-1052;
People v. King (1989) 216 Cal.App.3d 1237, 1239; People v. Superior Court (Sanders)
(1979) 99 Cal.App.3d 130, 135; see also, Minnesota v. Dickerson (1993) 508 U.S. 366,
375 [plain view doctrine].) Where probable cause justifies the search of a lawfully
stopped vehicle “it justifies the search of every part of the vehicle and its contents that
may conceal the object of the search,” including the trunk. (United States v. Ross (1982)
456 U.S. 798, 825; see also, People v. Hunter (2005) 133 Cal.App.4th 371, 377-381;
People v. Dey (2000) 84 Cal.App.4th 1318, 1322.)
       Applying the foregoing principles to the present facts, we find no error in the trial
court’s ruling. Defendant insists the record below does not contain substantial evidence
from which the trial court could find that Adams had a reasonable suspicion under Fourth
Amendment standards to justify the traffic stop, citing People v. Miranda, supra,
17 Cal.App.4th at p. 926 and Whren v. United States, supra, 517 U.S. at p. 810. The
additional weapons found after a more thorough search, he argues, were the product of
the illegal stop. We disagree.
       “Substantial” evidence is that which is of ponderable legal significance,
reasonable in nature, credible, and of solid value. (People v. Taylor (1990)
222 Cal.App.3d 612, 618.) Officer Adams’s testimony about seeing defendant’s
unbuckled seat belt certainly qualifies as substantial evidence supporting the trial court’s
ruling. The fact that defendant was wearing his seat belt when the officer ultimately
approached his car does not undercut that testimony in any significant way. Common
experience tells us that a motorist who has been signaled to stop his vehicle may well
buckle up his seat belt before the officer actually reaches his car.


                                              6
       Defendant notes that Adams did not see any furtive movements and points out that
Adams admitted on cross-examination that a shadowy image across defendant’s chest on
a video tape of the stop could have been the seat belt. This testimony weakened but did
not dispel the People’s substantial evidence supporting the traffic stop.
       The fact that defendant denied Adams’s assertion and testified in self-serving
fashion that he was wearing his seat belt the entire time was nothing but contrary
evidence that the trial court was free to reject in weighing the conflicting evidence and
judging its credibility. (See People v. Johnson (2006) 38 Cal.4th 717, 720 [determining
credibility of evidence presented at hearing on § 1538.5 is for judicial officer presiding
over the hearing].) The court’s implicit finding that there was reasonable suspicion for
the vehicle stop was supported by substantial evidence.
       Moreover, once the butt of the black 9 mm handgun was spotted in defendant’s
glove box, Adams had the reasonable and articulable suspicion necessary to conduct a
further protective search for weapons within the car. (Michigan v. Long, supra, 463 U.S.
at pp. 1049-1052; People v. King, supra, 216 Cal.App.3d at p. 1239; People v. Greer,
supra, 110 Cal.App.3d at pp. 238-239; Sanders, supra, 99 Cal.App.3d at p. 135.) Having
found two illegally carried weapons in the passenger compartment, Adams also had
probable cause to search the trunk. (United States v. Ross, supra, 456 U.S. at p. 825;
People v. Hunter, supra, 133 Cal.App.4th at pp. 377-381; People v. Dey, supra,
84 Cal.App.4th at p. 1322.) There was no error in denying the suppression motion.
Pitchess motion
       Defendant’s second challenge is to the court’s handling of his Pitchess motion.
Pitchess governs the situations in which a criminal defendant is entitled to discover other
complaints made against the officer who arrested or searched him. The Pitchess
procedure is designed to enforce “the prosecution’s constitutional obligation to disclose
to a defendant material exculpatory evidence so as not to infringe the defendant’s right to
a fair trial.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc).) Defendant asks this
court to review the sealed record under the procedures set forth in Mooc to determine
whether the trial court followed proper procedure or abused its discretion in determining


                                             7
that there were no discoverable complaints. (Id. at pp. 1228-1230; see also, People v.
Hughes (2002) 27 Cal.4th 287, 330.)
       Where, as here, a trial court concludes that the defendant has made a showing of
good cause for discovery of complaints about an officer and orders the custodian of
records to produce to the court “potentially relevant” records, the court must then
examine the records produced in chambers and order disclosed “such information [as] is
relevant to the subject matter involved in the pending litigation.” (Mooc, supra,
26 Cal.4th at p. 1226; see also, People v. White (2011) 191 Cal.App.4th 1333, 1339-1340
[court must swear in custodian of records before accepting his representations about
potentially relevant records]; Mooc, supra, 26 Cal.4th at pp. 1228-1229.) On appeal, the
court should “itself [review] those documents (or augment the record to include those
documents) and [determine] whether the trial court . . . abused its discretion in refusing to
disclose any of [the officer’s] records.” (Mooc, supra, 26 Cal.4th at p. 1228.) But it
reviews the trial court’s Pitchess ruling only for abuse of discretion. (People v. Hughes,
supra, 27 Cal.4th at p. 330.)
       “A law enforcement officer’s personnel record will commonly contain many
documents that would, in the normal case, be irrelevant to a Pitchess motion, including
those describing marital status and identifying family members, employment
applications, letters of recommendation, promotion records, and health records. (See Pen.
Code, § 832.8.) Documents clearly irrelevant to a defendant’s Pitchess request need not
be presented to the trial court for in camera review. But if the custodian has any doubt
whether a particular document is relevant, he or she should present it to the trial court. . . .
The custodian should be prepared to state in chambers and for the record what other
documents (or category of documents) not presented to the court were included in the
complete personnel record, and why those were deemed irrelevant or otherwise
nonresponsive to the defendant’s Pitchess motion.” (Mooc, supra, 26 Cal.4th at p. 1229.)
       In a case such as this, where it appears “the custodian of records does not produce
the entire personnel file for the court’s review, he or she must establish on the record
what documents or category of documents were included in the complete personnel file.


                                               8
In addition, if it is not readily apparent from the nature of the documents that they are
nonresponsive or irrelevant to the discovery request, the custodian must explain his or her
decision to withhold them. Absent this information, the court cannot adequately assess
the completeness of the custodian’s review of the personnel files, nor can it establish the
legitimacy of the custodian’s decision to withhold documents contained therein. Such a
procedure is necessary to satisfy the Supreme Court’s pronouncement that ‘the locus of
decisionmaking’ at a Pitchess hearing ‘is to be the trial court, not the prosecution or the
custodian of records.’ ” (People v. Guevara (2007) 148 Cal.App.4th 62, 69.)
       We have reviewed the sealed transcript of the in camera proceeding on the
Pitchess motion. The CHP custodian of records was placed under oath and told the court
there were no personnel documents responsive to the court’s order. The court then said,
“So with that, that moots the issue of a protective order, and I would just intend to on the
record, when we come back in, advise [defense counsel] that there are no―there’s no
information that’s pertinent to be turned over.” The custodian of records was not asked
to describe the documents that were withheld as nonresponsive, and did not do so on his
own initiative. There is no indication in the transcript of the in camera hearing which
documents, if any, the court reviewed from Officer Adams’s personnel file.
       The participants in the in camera hearing then returned to the courtroom and the
court announced in open court: “I have conducted an under-oath, in camera review of the
pertinent records, and . . . there are no records to be discovered.” Although the court
indicated it had reviewed “the pertinent records,” neither the sealed transcript nor the
court’s statement in open court reveals which records it reviewed. This was error: “The
trial court should . . . make a record of what documents it examined before ruling on the
Pitchess motion. Such a record will permit future appellate review. If the documents
produced by the custodian are not voluminous, the court can photocopy them and place
them in a confidential file. Alternatively, the court can prepare a list of the documents it
considered, or simply state for the record what documents it examined. Without some
record of the documents examined by the trial court, a party’s ability to obtain appellate



                                              9
review of the trial court’s decision, whether to disclose or not to disclose, would be
nonexistent.” (Mooc, supra, 26 Cal.4th at p. 1229.)
       Our case is similar to Mooc: “The trial court’s failure to make a record of the
documents it reviewed in camera set the wheels in motion for the present dispute.
Without some evidence in the record indicating what the trial court reviewed, defendant
was unable to obtain meaningful appellate review of the court’s decision not to disclose
any evidence in response to his Pitchess motion. Had the trial court retained copies of
the documents it examined before ruling on the Pitchess motion, made a log of the
documents it reviewed in camera, or just stated for the record what documents it
examined (such transcript, of course, to be sealed), the Court of Appeal could have itself
reviewed those documents (or augmented the record to include those documents) and
determined whether the trial court had abused its discretion in refusing to disclose any”
documents from the officer’s file. (Mooc, supra, 26 Cal.4th at p. 1228.)
       No documents are contained in the sealed record. Based on the lack of a record of
which documents, if any, the court reviewed, and which documents were withheld by the
custodian of records and why, we find the procedure employed to be wanting. We will
therefore conditionally reverse the judgment and remand for a new Pitchess hearing.
                                      DISPOSITION
       The judgment is conditionally reversed. The cause is remanded to the trial court
with directions to hold a new in camera hearing on defendant’s Pitchess motion in
conformance with the procedures described in this opinion. If the trial court finds there
are discoverable records, they shall be produced and the court shall conduct such further
proceedings as are necessary and appropriate. If the court again finds there are no
discoverable records, or that there is discoverable information but defendant cannot
establish that he was prejudiced by the denial of discovery, the judgment shall be
reinstated as of that date. (People v. Wycoff (2008) 164 Cal.App.4th 410, 415.)




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                                 _________________________
                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




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