P. v. Shack CA2/3

Filed 5/29/13 P. v. Shack CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B245129
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA392604)
v.
WILLIAM EDWARD SHACK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A.
Swain, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
William Edward Shack appeals from the judgment entered following his pleas of
guilty to having a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1))1 and
carrying an unregistered, loaded handgun (§ 25850, subd. (a)). The trial court suspended
imposition of sentence and placed Shack on three years formal probation, one condition
of which was that he serve 180 days in county jail. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.2
At approximately 10:45 a.m. on January 7, 2012, Los Angeles Police Officer Paris
Archundia and her partner, Officer Juan Guerrero, were on patrol in a marked patrol car
on Main Street in the City of Los Angeles. Guerrero was driving the car and Archundia
was riding as the passenger. As the officers approached 69th Street, they noticed a brown
Chevrolet Impala being driven with no front license plate in violation of Vehicle Code
section 5200, subdivision (a). Archundia and Guerrero decided to conduct a traffic stop
and Guerrero activated the patrol car’s lights and siren.
While Archundia and Guerrero were still in their patrol car, Shack, who was
driving, stopped the Impala in front of a Winchell’s donut shop and “immediately” got
out. As Guerrero got out of the patrol car, Shack began to walk toward him. Although
he seemed “[a] bit flustered” and a “little nervous,” Shack asked “ ‘What did I do,
officer?’ ” Guerrero ordered Shack to “stop walking” and to “put his hands on top of his
head.” Shack was cooperative and complied with the officer’s order. Guerrero asked
Shack if “he [had] anything he should not have on him” and Shack indicated that he had
two bags of marijuana in his front pants pocket.3 Guerrero retrieved the marijuana,
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
The facts have been taken from the transcripts of the preliminary hearing and the
motion to suppress evidence.
3
It was later determined that the two baggies contained a total of 1.55 “gross
grams” of a substance containing marijuana.
2
conducted a pat-down search for weapons, handcuffed Shack, placed him under arrest
and sat him in the back seat of the patrol car.
In the meantime, Archundia approached the passenger who was seated in the front
passenger seat of Shack’s car. The passenger identified himself as Reed, but could not
produce any identification. Because he had no identification, Archundia asked Reed to
get out of the car. Reed did so and Archundia then asked him if he was on probation or
parole. Reed indicated he was on parole and, after one of the officers confirmed that
Reed was on parole and had “search[] conditions,” Archundia searched Reed, handcuffed
him and placed him in the back of the patrol car with Shack.
While Archundia watched the two suspects, Officer Guerrero searched Shack’s
vehicle for “more narcotics.” Instead, the officer found a loaded “black semi-automatic
handgun” in “the passenger pocket” behind the passenger seat. The “pocket” was
approximately two feet from the right edge of the driver’s seat. The gun appeared to be
in working order.
After placing the handgun in the trunk of the patrol car, Guerrero read to Shack his
Miranda4 rights, which Shack agreed to waive. Shack then told Guerrero that the gun
“belonged to him.”
The officers transported Shack and Reed to the police station, where Guerrero had
Shack fill out an “L.A.P.D. Investigative Action/Statement Form.” In the statement,
Shack indicated that he had picked up Reed and the two men had been going to get
something to eat when they were stopped by the officers. Shack also wrote that “the gun
belonged to him.”
2. Procedural history.
A preliminary hearing was held on February 3, 2012. On February 17, 2012, an
information was filed in which Shack was charged in count 1 with “having a concealed
firearm in a vehicle, in violation of . . . section 25400[, subdivision] (a)(1), a Felony” and
4
Miranda v. Arizona (1966) 384 U.S. 436.
3
in count 2 with “carrying [a] loaded handgun, [which was] not registered, in violation of
. . . section 25850[, subdivision] (a), a Felony[.]” Shack entered pleas of not guilty to
both counts.
On June 28, 2012, Shack’s counsel made a motion to suppress evidence pursuant
to section 1538.5. The matter was continued and the motion was set to be heard on
August 2, 2012.
Evidence with regard to Shack’s motion to suppress evidence was heard at
proceedings held on August 2, 2012 and October 4, 2012. At the October 4th hearing,
Shack’s counsel argued that, although Reed had waived his Fourth Amendment rights by
being on parole, Reed’s consent to being searched had not transferred to Shack. Relying
on a California appellate court case which had been reversed by the California Supreme
Court and in which a petition for certiorari is currently pending before the United States
Supreme Court,5 Shack’s counsel argued that Shack’s “parolee passenger never gained or
exercised any apparent authority over the vehicle that might have given police officers
the reasonable impression he had the right to permit its inspection. The officer could not
search the interior of the vehicle based upon the passenger’s parole status and there was
no other justification for the warrantless search.” After the prosecutor indicated that
defense counsel was not relying on “citable authority,” he argued that the gun in this case
was found in the pocket on the back of the front passenger’s seat and that it was not
“impossible for [the] parolee to actually have access to it.” In addition, the prosecutor
indicated that he did not agree with defense counsel’s assertion that the officers had not
found on Shack a sufficient amount of marijuana to justify their search of the car.
After considering the parties’ arguments, the trial court stated that it appeared to
the court that the appellate court case limiting a police officer’s ability to search a parolee
and his or her surroundings was “contrary to the general body of law [regarding] the
5
See People v. Schmitz, review granted and ordered depublished December 1, 2010,
S186707, reversed by People v. Schmitz (2012) 55 Cal.4th 909, petition for certiorari
filed at No. 12-1176, March 25, 2013.
4
scope of parole searches.” The court continued: “If [one] can go into a home where a
parolee is visiting and search the common area[s] of the home, . . . it does not follow . . .
that the police did not have the right to search within reasonable parameters the area of
the vehicle which was available to the parolee,” including “the pocket behind the
passenger seat. . . . I think this is different than if [the gun] were in the trunk of the
vehicle” or “some briefcase belonging to the driver of the car.” The trial court concluded
that, pursuant to the prevailing law pertaining to parole searches, the officers “had the
right to search the compartment behind the passenger seat.” Accordingly, the trial court
denied Shack’s counsel’s motion to suppress the evidence of the gun and Shack’s
statements admitting that the gun belonged to him.
At the same proceedings, the prosecutor indicated that, although he had no prior
felony convictions, it had been documented that Shack was a member of the Raymond
Avenue Crip gang. Under those circumstances, the prosecutor’s “office policy [was to
seek a sentence of the] low term [in] state prison.” The prosecutor indicated that it had
been documented that Shack had “self-admitted” gang membership to officers on three
separate occasions. Defense counsel responded that, when one lives in a particular area,
he or she may “get labeled . . . as being a gang member even when [they are] not.”
Counsel indicated that Shack had “absolutely never been involved in a gang” and
requested that the trial court consider the charges misdemeanors. Although the parties
then agreed that there would be “no gang allegation” and no evidence of gang affiliation
at trial, the trial court nevertheless indicated that it was “not going to reduce carrying a
concealed unregistered firearm to a misdemeanor.” The trial court stated that it felt “very
strongly about that.”
On October 12, 2012, the trial court indicated the parties had come to an
agreement and that Shack would be entering a plea. After the prosecutor asked Shack if
he understood the charges against him and that the maximum sentence he could receive
in this matter was three years in county jail, Shack stated he understood that he was
accepting the trial court’s offer of an “open plea” and that, under the terms of such a plea,
5
he would be placed on three years formal probation and ordered to serve 180 days in
county jail. In addition, the trial court would consider reducing the charges to
misdemeanors after one year of probation if Shack had “no new violations––no violations
of the terms of [his] probation.”
Shack waived his right to a trial by court or jury, his right to present a defense and
to subpoena, at no cost to him, witnesses to testify on his behalf, his right to confront and
cross-examine the witnesses against him and his privilege against self-incrimination. He
then entered a plea of “guilty” to the “charge in count 1, that on or about January 7th,
2012, [he] committed the crime of having a concealed firearm in a vehicle, in violation of
. . . section 25400[, subdivision] (a)(1), a felony[.]” Shack then admitted “that the
firearm and unexpended ammunition were in [his] immediate possession and were
readily accessible to [him], and the firearm was not registered to [him].” With regard to
count 2, “the charge that on or about January 7th, 2012, [he] committed the crime of
carrying a loaded handgun[,] not registered, in violation of . . . section 25850[,
subdivision] (a),” Shack again entered a plea of “guilty.” Shack’s counsel “join[ed] in
the plea[s], waivers and admissions[] and stipulate[d] to a factual basis [for the pleas]
based upon the police reports and the preliminary hearing transcript.”
The trial court found that Shack had “knowingly, intelligently [and]
understandingly waived his constitutional rights[] and that his plea [had been] freely
[and] voluntarily made with an understanding of the nature and the consequences
thereof.” In addition, the court found that there was a “factual basis for the plea.” The
trial court accepted Shack’s plea, suspended imposition of sentence, then placed Shack on
formal probation for a period of three years. As one condition of probation, Shack was to
serve 180 days in county jail. The trial court ordered Shack to surrender on November 8,
2012 and informed him that if he did not do so, the court could impose a prison term of
up to the maximum time allowed.
The trial court awarded Shack presentence custody credit for six days actually
served and six days of good time/work time, or 12 days. It then ordered Shack to pay a
6
$240 restitution fine (§ 1202.4, subd. (b)), a suspended $240 probation revocation
restitution fine (§ 1202.44), a $30 criminal conviction fee (Gov. Code, § 70373) and a
$40 court security fee (§ 1465.8, subd. (a)(1)).
As ordered, Shack surrendered to the court on November 8, 2012. He filed a
timely notice of appeal that same day. In his notice of appeal, Shack indicated that the
appeal was “based upon the denial of a motion to suppress evidence made pursuant to . . .
section 1538.5.”
CONTENTIONS
After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record.
By notice filed March 4, 2013, the clerk of this court advised Shack to submit
within 30 days any contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J. CROSKEY, J.
7