Filed 6/12/14 P. v. O’Connor CA1/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139457
v.
TIMON M. O’CONNOR,                                                   (San Francisco City & County
                                                                     Super. Ct. No. 220235)
         Defendant and Appellant.


         Defendant Timon M. O’Connor appeals from the trial court’s denial of a preplea
motion to suppress evidence. After the suppression motion was denied, defendant pled
guilty to unlawful possession of a firearm, and was placed on probation. Defendant filed
a timely notice of appeal, and appellate counsel was appointed to represent him.
Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende), in which she raises no issue for appeal and asks this court for an independent
review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (Kelly).)
Counsel advised defendant of his right to file a supplemental brief and we subsequently
granted his motion, filed on defendant’s behalf, for an extension of time for defendant to
file a supplemental brief. Defendant filed his supplemental brief on April 16, 2014.
         We have examined the entire record in accordance with Wende and considered the
matters raised in defendant’s supplemental brief. Having done so, we conclude that no
arguable issue exists on appeal and affirm.




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                                PROCEDURAL BACKGROUND
       On April 22, 2013, a complaint was filed charging defendant with four felonies:
(1) possession of a firearm by a felon, in violation of Penal Code,1 section 29800,
subdivision (a)(1); (2) unlawful possession of a concealed firearm in a vehicle, in
violation of section 25400, subdivision (a)(1); (3) unlawful possession of a concealed
firearm in a vehicle, in violation of section 25400, subdivision (a)(1); and (4) possession
of controlled substances where prisoners are kept, in violation of section 4573.6. On
April 23, 2013, the prosecution moved to amend the complaint by replacing “marijuana”
with “oxycodone” in count four due to a scrivener’s error.
       On April 23, 2013, defendant filed a motion to suppress evidence pursuant to
section 1538.5. The prosecution filed an opposition to that motion on May 1, 2013.
       At the start of the preliminary examination held on May 21, 2013, the magistrate
granted the prosecution’s motion to amend the complaint. The motion to suppress was
litigated and denied by the magistrate. The magistrate held defendant to answer for all
four counts in the complaint.
       Subsequently on May 31, 2013, the prosecution filed an information charging
defendant with the same four counts as previously charged in the complaint. On June 25,
2013, defendant filed a motion to set aside the information pursuant to section 995,
alleging that the evidence introduced at the preliminary hearing in support of the charges
had been seized in violation of the Fourth Amendment of the United States Constitution.
       At a hearing on July 10, 2013, the prosecution moved to amend the information to
add a fifth count, unlawful possession of a firearm by one restricted from doing so by a
condition of probation, a felony violation of section 29815, subdivision (a). Defendant
waived his constitutional rights, and pled guilty to this offense, and the prosecution
dismissed the other four counts.
       Sentencing was held on August 7, 2013. In accordance with a plea bargain, the
court suspended imposition of sentence and placed defendant on probation for three


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

                                               2
years. Defendant was ordered to serve 84 days in jail, with credit for 84 days already
served. The court informed defendant that if he remained arrest free for one year, he
could petition the court to reduce the offense to a misdemeanor and the court would grant
that petition. The same day defendant filed a timely notice of appeal indicating that he
was challenging the denial of the motion to suppress.
                                     FACTUAL BACKGROUND
       At the suppression hearing, San Francisco Police Officer Craig Farrell testified
that on the afternoon of April 18, 2013, he was on duty in his marked patrol car along
with a California Highway Patrol Officer. They were in the area of Cesar Chavez Street
on the 101 northbound on-ramp.
       Officer Farrell observed a green four-door Mazda traveling on the freeway. The
driver was speeding, coming to quick stops behind other vehicles, passing abruptly
without signaling, and weaving in and out of traffic. Farrell followed the Mazda. The
driver continued these driving maneuvers, so Farrell activated his patrol car’s emergency
lights to initiate a vehicle stop.
       Before activating the emergency lights, Farrell saw at least two people in the
Mazda; the driver, later identified as Mr. Segal; and the passenger, later identified as
defendant. Mr. Segal appeared to be “bouncing all over,” as though he were listening to
music, while defendant was sitting still. After Officer Farrell activated his patrol car’s
lights and directed the driver to exit the freeway, he noticed the passenger, defendant,
moving around in his seat “as if he was putting things in certain places or different places
in the passenger’s compartment of the front seat.” Farrell could only see defendant’s
head and shoulders. The driver exited the freeway and stopped as directed.
       Officer Farrell approached the driver’s side window and asked the driver for his
license. While doing so, he observed that defendant, the only passenger in the car had
placed his fingers of his left hand in the gap between the center console and the passenger
seat. Defendant’s entire hand never went into the space, only his fingertips. As Officer
Farrell talked to the driver, he observed defendant place his fingers into the space at least
three times. Officer Farrell then asked defendant for identification. Defendant pulled a


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stack of cards from his pocket and began flipping through them, unable to find his
driver’s license. Officer Farrell observed a card that he believed was defendant’s license
and told him so. Defendant handed the license to Farrell.
       Officer Farrell took the licenses obtained from defendant and the driver back to his
patrol car to check their possible prior criminal histories on the patrol car’s mobile
computer. The computer reported that defendant had a criminal history, including a
“prior” for carrying a concealed firearm and a prior arrest for attempted murder, both
since 2006. After observing the movement of defendant’s fingers and learning of his
prior for possession of a firearm, Officer Farrell returned to the stopped car with the
intention of removing the occupants and searching the area where defendant had placed
his fingers.
       Upon returning to the Mazda, Officer Farrell saw that defendant’s hand continued
to go back and forth into the seat area, in the console area, between the seat and the
console area where “that little cushion goes against the cons[ole].” Officer Farrell
decided to remove both occupants from the vehicle so that he could check the area where
defendant had placed his fingers. Officer Farrell asked defendant to get out of the car.
Defendant hesitated, and Officer Farrell “unsnapped” his weapon and asked defendant to
step out of the vehicle again. Defendant complied. Officer Farrell had defendant and the
driver step to the rear of the vehicle and get “down on the ground.” Officer Farrell
approached the vehicle on the passenger’s side, went in between the cushion and the
console of the vehicle and pulled out a .25 automatic handgun.
       At the conclusion of the suppression hearing, the magistrate found that under the
circumstances, Officer Farrell had sufficient reasonable cause to stop the car and then
search the interior of the Mazda. The magistrate denied the motion to suppress.
                                        DISCUSSION
       Substantial evidence supports the magistrate’s finding that Officer Farrell had
reasonable cause to stop the vehicle for erratic driving (cf. People v. Logsdon (2008) 164
Cal.App.4th 741, 744 [lane change made without signaling provides legal basis for traffic
stop]), and that the subsequent limited search of the passenger area of the vehicle was a


                                              4
reasonable precaution under the circumstances. (See Michigan v. Long (1983) 463 U.S.
1032, 1049–1050 [“search of the passenger compartment of an automobile, limited to
those areas in which a weapon may be placed or hidden, is permissible if the police
officer possesses a reasonable belief based on ‘specific and articulable facts which, taken
together with the rational inferences from those facts, reasonably warrant’ the officers in
believing that the suspect is dangerous and the suspect may gain immediate control of
weapons”].)
       In his supplemental brief, defendant contends Officer Farrell’s credibility is fatally
undermined by his questionable powers of recollection, abilities of perception, and
method of conducting the stop and search. In this regard, defendant asserts that at the
preliminary hearing Officer Farrell stated the car was green (after refreshing his
recollection from the police report) when it was actually silver, and that from Farrell’s
viewpoint looking into the vehicle the center consul would have blocked his view of any
furtive hand movements; defendant also questions why Officer Farrell did not
immediately conduct a patdown search rather than shepherding him and the driver to the
rear of the vehicle before searching the vehicle. By denying the motion to suppress,
however, the trial court impliedly found that the officer’s testimony was true, and as an
appellate court we have no authority to interfere with that credibility determination. (See
People v. James (1977) 19 Cal.3d 99, 107 [“[p]ower to judge credibility of witnesses . . .
is vested in the trial court”].) Furthermore, in assessing the reasonableness of an officer’s
conduct for Fourth Amendment purposes, we decline to “second guess split-second
decisions of officers faced with potentially dangerous situations” (Tamborino v. Superior
Court (1986) 41 Cal.3d 919, 925), such as whether under the circumstances presented
here the search for weapons should involve a patdown search of the detainees or a limited
search of the passenger area of the vehicle.
       Defendant also claims he asked trial counsel to “switch courtrooms due to the
bias[es] and prejudice” of the trial court judge. To the extent defendant is asserting
ineffectiveness of counsel on this ground, the claim is entirely without merit because
defendant cannot demonstrate prejudice, having failed to produce any evidence of


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prejudicial treatment at the hands of the trial judge or to show how any loss of a Code of
Civil Procedure section 170.6 motion deprived him of a defense. (Cf. People v. Lee
(2002) 95 Cal.App.4th 772, 780 [rejecting ineffective assistance of counsel claim based
on counsel’s failure to file a Code of Civil Procedure section 170.6 motion].)
       In sum, having reviewed the entire record and considered the matters raised in
defendant’s supplemental brief, we conclude there are no arguable issues requiring
further briefing. (See People v. Kelly, supra, 40 Cal.4th at p. 124.)
                                       DISPOSITION
       The judgment is affirmed.




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                                          ______________________
                                           Becton, J.*


We concur:


______________________
 Margulies, Acting P.J.

______________________
 Dondero, J.




People v. O’Connor, A139457 (Wende)


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