P. v. Montes

Filed 8/14/06 P. v. Montes CA

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Suzanne Knauf^* and Craig Riemer, Judges. Affirmed.

George P. Hobson, Jr., for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Raymond M. DiGuiseppe, Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant pleaded guilty to one count of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and one count of selling, transporting, furnishing, or administering methamphetamine (Health & Saf. Code, § 11379, subd. (a)). In accordance with the plea agreement, defendant was thereafter placed on formal probation for four years. Defendant's sole contention on appeal is that the trial court erred in denying his suppression motion. We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND^[1]

On January 30, 2004, about 7:00 p.m., Riverside County Sheriff's Deputies Robert Kwan and Justino Flores were on patrol in the area of Lake Elsinore in an unmarked patrol vehicle. The deputies were traveling east on Sumner Street, approaching Lowell Street. The succeeding cross streets were Kellogg and Lindsay Streets, respectively. This stretch of Sumner Street was relatively wide and could accommodate one lane of traffic in each direction, as well as curbside parking. The area was also primarily residential; about 20 residences were along that portion of the street, as well as a school and a church just east of Lindsay Street. Deputy Kwan believed that stretch of the street along Sumner was a residential area with a speed limit of 25 miles per hour (mph). However, he was unsure whether any posted speed limit signs were in the area. Deputy Flores opined the speed limit was 35 mph due to the nature of the area and because he had, in the past, seen a speed limit sign to that effect. He believed, however, that the speed limit was 25 mph in the area where the school was located.

As the deputies proceeded down Sumner Street that evening, they had their windows down. At the time, they did not see any pedestrians or other vehicles. When their vehicle was about 20 to 25 feet west of Lowell Street, they heard a vehicle behind them, heading in the same direction on Sumner Street, accelerating at a high rate of speed. Defendant was identified as the driver. Deputy Kwan looked into his rearview mirror and saw the car's headlights approaching. The car was about 100 to 150 yards away at that time. The deputies then pulled onto Kellogg Street, positioning their patrol vehicle to face Sumner Street. They waited and watched for the car to pass them. Deputy Kwan stuck his head out of the window and noticed the car was still traveling at a high rate of speed. His view was unobstructed. The deputies, who had been trained to estimate vehicle speed, estimated the car was approaching them at a rate between 45 and 50 mph. The deputies opined defendant was traveling too fast for the existing conditions and was in violation of Vehicle Code section 22350.

There was a dip in the road near the intersection of Kellogg and Sumner Streets, where the deputies were parked. A road sign stated the speed limit over the dip was 10 mph. Defendant did not slow down for the dip. After he crossed over the dip, defendant braked hard, slowing his speed to between 20 and 30 mph. The deputies believed defendant did so because he had spotted their patrol car. As defendant drove past the patrol car, the deputies saw a shiny object dangling from his rearview mirror, which they believed violated the Vehicle Code. They were under the impression that any object hanging from a rearview mirror would violate the Vehicle Code.

The deputies then conducted a traffic stop, pulling defendant over near the school due to his excessive speed and the object hanging from his rearview mirror. When Deputy Kwan got out of the driver's seat, he noticed that defendant was repeatedly looking back at the deputies in his rearview mirror. Defendant appeared â€