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Filed 6/12/14 P. v. O ’ Connor CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent,

v. TIMON M. O’ CONNOR, Defendant and Appellant. A 139457
(San Francisco City & County Super. Ct. No. 220235 )

Defendant Timon M. O’Connor appeals from th e trial court’s denial of a pre plea
motion to suppress evidence. After the suppression motion was den ied, defendant pled guilty to unlawful possession of a firearm
, and was placed on probation. D efendant 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 s he 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 supplementa l brief and we subsequently granted his motion, filed on defend ant’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 w ith Wende and considered the
matters raised in defendant ’s supplemental brief. Having done so, w e conclude that no arguable issue exists on appeal and affirm.2 P ROCEDURAL B ACKGROUND On April 22, 2013, a complaint was filed charging defendant with four fel onies: (1) possession of a firearm by a felon
, in violation of Pen al Code
, 1 section 29800 , subd ivision (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 con cealed 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
A pril 23, 2013, the prosecution moved to amend the c omplaint by re plac ing “marijuana”
with “ox ycodone” in c ount 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 th e 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 c omplaint. Subsequently on May 31, 2013, the prosecution filed an i nformation 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 i nformation 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 i nfo rmation 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
di smissed 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.3

years. Defendant was order ed to serve 8 4 days in jail, with credi t for 84 days already
served. T he court informed defen dant 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 de fendant filed a timely notice of appeal indicating that he

was challenging the denial of the motion to suppress.
F ACTUAL B ACKGROUND At the suppression hearing, S an Francisco Police Officer C r a ig Farrell testified
that on the afternoon of April 18, 2013, h e was on duty in his marked patrol car a long with a California Highway P atrol 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 ligh ts 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 O fficer Farrell activated his patrol car’s lights and directed the driver to exit the freeway, he noticed the passenger, defendant, moving around in his se a t “as if he was putt ing 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 fre eway and stopped as directed. Officer Farrell approached the driver’s sid e window and aske d 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 w ent into the space, only his fingertips. A s 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 a4

stack of cards fro m hi s po cket 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 h anded the license to Farrell.
Officer Farrell took the licenses obtai ned 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 firear m 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 “tha t little cushion goes against the cons[ole] .” Officer Far r ell decided to remove both occupants from the vehicle so that he could check the area where defendant had placed h is fingers. Officer Farrell asked defendant to get out of the car.
Defendant hesi tated , 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

approa ched the vehicle on the passenger’s side, went in between the cushion and the
console of the vehicle and pulle d out a .25 automatic handgun.
At the conclusion of the suppression hearing, the magistrate found that under the
circumstances , Officer Farrell h ad sufficient reasonable cause to stop the car and then
search the interior of the Mazda . The magistrate denied the motion to suppress

. D ISCUSSION Substantial evidence supports the magistrate’s finding that Officer Farrell had reasonable cause to stop th e 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 a5

reasonable p recaution 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 possess e s 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 ga in im mediate control of

w eapons”].) 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 ass e rt s 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 blo cked 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 motio n to suppress, however, the trial court i mpliedly 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 judg e 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 po tentially dan gerous situations” ( Tamborino v. Superior
Court (1986) 41 Cal.3d 919, 925 ), such as whether under the circumstances presented
here the search f

or weapons should involve a pat down search of the detainees or a limited
search of the passenger area of the vehi cle.
Defend ant 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 becau se defendant cannot demonstrate prejudice, having failed to produce any evidence of6

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. L ee (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
defend ant ’s supplemental brief, we conclude there are no arguable issues requiring further briefing. (See People v. Kelly , supra, 40 Cal.4th at p. 124 .)
D IS POSITION The judgment is affirmed.7 ______________________ Becton, J.*

We concur:

______________________ Margulies, Acting P. J.

______________________ Dondero
, J.

People v. O’Connor, A139457 (Wende)