P. v. Parkerton

Filed 9/7/06 P. v. Parkerton CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Theodore M. Cropley and Marissa Bejarano Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Michael John Parkerton appeals the trial court's denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. Defendant argues that the initial stop violated the Fourth Amendment because the police did not have reasonable suspicion to conduct a traffic stop. We find the police had sufficient reasonable suspicion and affirm.

I

FACTS

We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) On the afternoon of March 1, 2005, Officer Sean Whiteley and Lieutenant Charles Celano of the Tustin Police Department were on duty in a patrol car. Whiteley, the driver, pulled behind a white Mitsubishi Gallant, later determined to be driven by defendant. When the Gallant braked at a stoplight, Whiteley noticed that the brake light on the right was not functioning properly. Celano noticed that the Gallant's right brake light was not illuminating as well as the left, and that the car had a crack of approximately two or three inches in the right taillight, through which he could see white light.

Whiteley decided to pull the car over for violating the Vehicle Code, specifically Vehicle Code section 24252.^[1] As the Gallant came to a stop, Whiteley noticed the passenger, later identified as Denise Lopez, remove something from the center console and stuff it into her pants.

During the stop, defendant admitted to Whiteley that he was driving with a suspended license and was currently on probation. While speaking with defendant,

Whiteley smelled marijuana coming from the vehicle. At Whiteley's request, defendant exited the vehicle and consented to the police searching him and the car.

Whiteley found some marijuana cigarettes, a small electronic scale, and some unused plastic bags. The passenger, Lopez, also had an outstanding arrest warrant. While searching her, the police found several grams of cocaine base, marijuana, and methamphetamine hidden in her underwear. A videotape was taken of the vehicle stop, and the parties later stipulated that light was coming from the left and right sides of the vehicle's brake light system.

Defendant was charged with six counts relating to his possession and transportation of the drugs found during the search. It was further alleged that he had a prior juvenile adjudication for a serious felony. (Pen. Code, §§ 667, subds. (d), (e)(1) and 1170.12 subds. (b), (c)(1).) Defendant moved to suppress the evidence uncovered during the search.

At the hearing on defendant's motion, Pamela Brown testified that she had loaned the rented Gallant to defendant. A representative of the rental car company testified that the rental paperwork indicated no damage at the time it was rented to Brown and that there were no charges for damage upon return.

After the trial court denied defendant's motion to suppress, he pled guilty to all counts and admitted the special allegation. The trial court granted defendant probation, conditioned on him spending 365 days in county jail and registering as required by Health and Safety Code section 11590. Defendant now appeals from the denial of his motion to suppress.

II

DISCUSSION

The standard of review in this matter is well-settled. We defer to the lower court's findings of fact supported by substantial evidence, but exercise independent

judgment in determining whether the Fourth Amendment was violated. (People v. Glaser (1995) 11 Cal.4th 354, 362.) To uphold this search we must conclude, under the facts

found by the trial court, that police harbored a reasonable suspicion for suspecting defendant of violating the Vehicle Code. (Whren v. U. S. (1996) 517 U.S. 806, 809-810; People v. White (2003) 107 Cal.App.4th 636, 641.) â€