People v. Anthony CA1/5

Filed 9/29/14 P. v. Anthony CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A140217 v. JAMES PERRY ANTHONY, (Contra Costa County Super. Ct. No. 05-131788-2) Defendant and Appellant.

After denial of his motion to suppress evidence (Pen. Code, § 1538.5),1 appellant James Perry Anthony entered a plea of no contest to being a felon in possession of a firearm (§ 29800, subd. (a)(1)). He appeals only the denial of his preplea motion to suppress the evidence against him. (§ 1538.5, subd. (m).) Assigned counsel has submitted a Wende2 brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that Anthony has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) We find no arguable issues and affirm.

1 Undesignated statutory references are to the Penal Code. 2 People v. Wende (1979) 25 Cal.3d 436.

1

BACKGROUND On August 6, 2013, at approximately 3:07 p.m., Richmond Police Officer Lane Matsui initiated a traffic stop of a silver Nissan Maxima that he observed lacked front or rear license plates (Veh. Code, § 5200). The car instead had a “red paper license plate” on the rear of the vehicle. Matsui checked the rear window and did not see any temporary operating permit sticker affixed there. The driver explained that she had recently purchased the vehicle and gave Matsui paperwork documenting the purchase. Anthony was in the passenger seat of the vehicle. Matsui noticed that Anthony was “breathing really heavily” and “appeared very nervous.” Matsui believed that Anthony was avoiding eye contact with him. After verifying the vehicle paperwork, Matsui asked the driver for permission to search her car. She agreed.3 A loaded firearm was found underneath the seat where Anthony had been sitting. The gun was lying on its right side, with the grip to the front and muzzle pointing toward the left rear of the vehicle, as if “a right-handed person stuck it underneath the seat of the car.” The driver denied that it was hers. Matsui arrested Anthony. Anthony was charged by information with one felony count of being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and one felony count of carrying a loaded firearm in public (§ 25850, subds. (a) & (c)(1)). He moved to suppress the evidence against him, challenging his detention and the vehicle search. At an October 18, 2013 hearing on the motion, Matsui testified to the foregoing facts. The defense presented testimony of the driver and dealer who sold her the vehicle that “DMV paperwork” had been affixed by the dealer in the lower right portion of the windshield and was there at the time of the traffic stop. Both the driver and dealer confirmed that the car did not have DMV-issued license plates. The dealer testified that a DMV “report of sale” is affixed to the windshield so that the purchasers are “legally able to drive for ninety days” until the registration arrives from the DMV. Matsui testified that he had no recollection of having