Filed 9/17/21 P. v. Watkins CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sierra)
----
THE PEOPLE, C090440
Plaintiff and Respondent, (Super. Ct. No. CR03893X)
v.
BRADLEY GARFIELD WATKINS,
Defendant and Appellant.
Appointed counsel for defendant Bradley Garfield Watkins filed an opening brief
that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d
436.) Defendant has filed a supplemental brief that we also address.
After examining the record, we have found several omissions in the abstract of
judgment. We will direct correction of the abstract and affirm the judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
In August 2018, S. called 911 and reported he was pursuing defendant, whom he
believed “had committed crimes against him.”1 S. identified his location, explained he
had previously called the Sierra County Sheriff’s Office with a complaint that defendant
and his girlfriend “had committed crimes against [the caller] on his mining claim,” and
said he was “going to make contact with [defendant].” Law enforcement responded to
the call and stopped defendant’s truck. S. was also present at the stop. Defendant and his
girlfriend were in the truck and informed law enforcement that defendant’s rifle was in
the truck. Defendant had a prior conviction for corporal injury on a dating partner. (Pen.
Code, § 273.5, subd. (a).)2 The prosecution charged defendant with a single count of
unlawful possession of a firearm. (§ 29805, subd. (a).)
After the preliminary examination, defendant moved to suppress all evidence
obtained during the traffic stop, asserting the stop violated the Fourth, Fifth, and
Fourteenth Amendments of the United States Constitution. The parties’ briefing papers
explained the background behind S.’s call on the day of the stop, saying S. had previously
confronted defendant and his girlfriend because they were near S.’s mining claim. S.
called law enforcement and alleged defendant burglarized S.’s property. S. provided a
detailed physical description of defendant and defendant’s girlfriend. He also described
the truck they had been driving and gave the truck’s license plate number. A few days
after S.’s initial report, another person, M., called the Sierra County Sheriff’s Office
complaining he was missing some property and had seen defendant and defendant’s
1Although S. was not anonymous, the record is inconsistent on S.’s first name. As such,
we will identify S. by his last initial, on which the record is clear.
2 Undesignated statutory references are to the Penal Code.
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girlfriend in their truck in the area.3 Later, on the day of the stop, S. again called law
enforcement saying he had located defendant and his girlfriend and referenced the earlier
burglary. He said he wanted to make a “citizen’s arrest.” The dispatcher advised against
that action and sent law enforcement to the location.
Citing Navarette v. California (2014) 572 U.S. 393, the prosecution argued the
reporting parties in the case “were inherently reliable” in that they provided their names
and contact information when they called, and gave “physical descriptions of the suspects
[and] their car.” Thus, the calls justified the stop of defendant’s truck. Moreover,
exigent circumstances justified the stop because S. had told the Sierra County Sheriff’s
Office that he was going to confront defendant, which could have resulted in a dangerous
confrontation between the two.
At the hearing on the suppression motion, the parties stipulated the stop and search
of the truck had been warrantless. The prosecution called the officer who had initiated
the stop of the truck. The officer testified his dispatcher had directed him to “a vehicle
that was traveling away from . . . . a crime scene” and provided him the location of the
vehicle. He did not recall whether the dispatcher provided him a description of the
vehicle, but the dispatcher did tell him there was more than one vehicle and one vehicle
would be following the other. The dispatcher also told him there would be “more than
one party in the suspect vehicle.”
When the officer responded to the location he had been given, he saw an “older
pickup truck” on the road, closely followed by a second vehicle. The vehicles were on a
rural road and there were no other vehicles around. The driver of the second vehicle was
gesturing to the officer and pointing at the lead vehicle. The officer noticed the two
vehicles “matched the description of what I was looking for that had been dispatched
3 As with S., the record is unclear about M.’s first name.
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related to a crime that was occurring or had just occurred.” He also noted “multiple
equipment violations” on the truck. The officer testified he had multiple reasons to stop
the truck, including “lighting violations” and the driver’s lack of a shoulder harness, but
that the primary reason for stopping the truck was the information he had received from
his dispatcher.
When the officer approached the truck, he saw defendant’s girlfriend was driving
and asked her if there were any weapons in the truck; she and defendant responded there
were. The officer retrieved the weapon, a rifle, from the driver’s compartment, checked
the rifle with his dispatcher, and determined the rifle had been stolen. He did not
ultimately issue any citations for the Vehicle Code violations.
After the hearing, the court issued a written decision denying the motion.
Considering the reliability factors articulated in Navarette, the court determined that S.
“was personally observing the defendant” when he called the Sierra County Sheriff’s
Office, S. was reporting a crime contemporaneously and was in pursuit of defendant, S.
was making his call through the emergency dispatch system maintained by the Sheriff’s
Office, and S.’s report accurately predicted two vehicles on the road, with one pursuing
the other. Moreover, the driver in the pursuing car flagged to the officer that defendant’s
truck was the suspect vehicle, and there were no other vehicles in the area at the time.
Thus, the reporting party was sufficiently reliable and “there was sufficient evidence to
support a finding of reasonable suspicion justifying the traffic stop.”
Defendant then pleaded no contest to the possession of a firearm count, provided
he would be permitted to appeal the decision on the suppression motion. The court
sentenced defendant to the lower term of 16 months and determined defendant had the
ability to pay minimal fines and fees. The court imposed a $300 restitution fine
(§ 1202.4), a $30 restitution fine administrative fee (§ 1202.4, subd. (l)), a $40 court
operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code,
§ 70373). The court also imposed a $300 post release community supervision revocation
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fine (§ 1202.45), suspended pending revocation of supervision, and arranged a payment
plan for defendant. The abstract of judgment reflects the imposition of a $300 fine under
section 1202.45, but does not list any other fines or fees.
Defendant filed a notice of appeal without a certificate of probable cause and
indicated he was appealing the decision on the motion to suppress. The case was fully
briefed on July 26, 2021.
DISCUSSION
Counsel filed an opening brief setting forth the facts of the case and requesting
that this court review the record to determine whether there are any arguable issues on
appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to
file a supplemental brief and did so, describing S.’s history with he and his girlfriend.4
His briefing alleges that he and S. had a brief confrontation before S. began pursuing him
and his girlfriend, and that S. was the person who flagged down the officer when the
officer was responding to his call.
Defendant expresses dissatisfaction with his trial counsel’s actions as to the
suppression motion, saying counsel failed to call defendant’s girlfriend as a witness at the
motion hearing and unnecessarily delayed the filing of the motion. He adds he wanted to
remove counsel and that he was “coerced” into signing “paperwork he didn’t
understand.”
To the extent defendant is challenging the validity of his plea based on ineffective
assistance of counsel, he must obtain a certificate of probable cause to raise the issue on
appeal. (In re Chavez (2003) 30 Cal.4th 643, 649-651; People v. Stubbs (1998)
61 Cal.App.4th 243, 244-245.) Defendant did not obtain such a certificate, and his claim
is thus not cognizable.
4 The supplemental brief refers to defendant in the third person and appears to be written
by defendant’s girlfriend, although it is signed by defendant.
5
Further, assuming we may reach defendant’s assertions regarding the adequacy of
his representation as to the motion to suppress, notwithstanding the lack of a certificate of
probable cause, we see no ineffective assistance of counsel. (See People v. Rios (2011)
193 Cal.App.4th 584, 595, fn. 7 [“Because the issue concerns ineffectiveness of counsel
in the course of a motion brought pursuant to section 1538.5, we will address it without
requiring a certificate of probable cause”].)
“ ‘To secure reversal of a conviction upon the ground of ineffective assistance of
counsel under either the state or federal Constitution, a defendant must establish (1) that
defense counsel’s performance fell below an objective standard of reasonableness, i.e.,
that counsel’s performance did not meet the standard to be expected of a reasonably
competent attorney, and (2) that there is a reasonable probability that defendant would
have obtained a more favorable result absent counsel’s shortcomings.’ ” (People v. Rios,
supra, 193 Cal.App.4th at p. 595.)
“When a defendant on appeal makes a claim that his counsel was ineffective, the
appellate court must consider whether the record contains any explanation for the
challenged aspects of the representation provided by counsel. ‘If the record sheds no
light on why counsel acted or failed to act in the manner challenged, “unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” [citation], the contention must be rejected.’ ” (People v.
Mitcham (1992) 1 Cal.4th 1027, 1058.)
Here, defense counsel considered calling defendant’s girlfriend as a witness at the
suppression hearing, but said he wanted to “make that decision after we hear what the
People’s testimony is.” After the prosecution rested, defense counsel asked for a recess
to consult with defendant and defendant’s girlfriend, and ultimately decided not to call
any witnesses. Defense counsel did not offer an explanation, but the facts offered in
defendant’s supplemental brief suggest the girlfriend’s testimony would have been, at
best, unhelpful for defendant.
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As just one example, the brief alleges S.’s statement to the Sierra County Sheriff’s
Office that he was “going to confront” defendant had concerned the responding deputy to
the point he rushed to intercept defendant “because he was afraid the situation would turn
ugly.” This fact supports the prosecution’s theory that exigent circumstances existed for
the traffic stop. (People v. Dolly (2007) 40 Cal.4th 458, 464 [exigent circumstances such
as “reckless driving or similar threats to public safety” may justify a vehicle stop based
on a tip, even without corroboration or a showing of reliability].) Similarly, the brief
explains S. was in the car that was following defendant and waved down law
enforcement, demonstrating S. had contemporaneous personal knowledge of the situation
and was allowing himself to be personally identified and questioned by police, increasing
his reliability. (Navarette v. California, supra, 572 U.S. at p. 399 [eyewitness “basis of
knowledge lends significant support to the tip’s reliability”]; Florida v. J. L. (2000)
529 U.S. 266, 276 (conc. opn. of Kennedy, J.) [“If an informant places his anonymity at
risk, a court can consider this factor in weighing the reliability of the tip”].)
Nor did the timing of the motion’s filing have any discernible impact on its
outcome; the record does not corroborate defendant’s assertion the motion was denied
because it was untimely. Defense counsel’s representation was not objectively
unreasonable.
Finally, we disagree the trial court was required to conduct a hearing pursuant to
People v. Marsden (1970) 2 Cal.3d 118 concerning the replacement of defense counsel.
A Marsden hearing is required “only when there is ‘at least some clear indication by
defendant,’ either personally or through his current counsel, that defendant ‘wants a
substitute attorney.’ ” (People v. Sanchez (2011) 53 Cal.4th 80, 90.) Here, nothing in the
record indicates defendant, either personally or through defense counsel, sought
substitute counsel. Thus, the court was not required to conduct a Marsden hearing.
Finally, we note omissions in the abstract of judgment. The trial court imposed a
$300 restitution fine, $30 restitution fine administrative fee, $40 court operations
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assessment, and $30 criminal conviction assessment, none of which are reflected in the
abstract of judgment. We will order the abstract of judgment corrected. (People v.
Zackery (2007) 147 Cal.App.4th 380, 385 [“Where there is a discrepancy between the
oral pronouncement of judgment and the minute order or the abstract of judgment, the
oral pronouncement controls”].)
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment properly
reflecting the fines and fees imposed at sentencing and to forward a certified copy to the
appropriate supervising agency. The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Robie, J.
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