P. v. Vinton

Filed 3/27/06 P. v. Vinton CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Gary B. Tranbarger, Judge. Affirmed.

Thomas Owen, 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, Senior Assistant Attorney General, and Scott C. Taylor, Supervising Deputy Attorney General, for Plaintiff and Respondent.

After a trial court denied defendant's motion to suppress evidence under Penal Code section 1538.5, defendant pled guilty to manufacturing methamphetamine (Health and Saf. Code,^[1] § 11379.6, subd. (a); count 1) and possession for sale of methamphetamine (§ 11378; count 3). Defendant's sole contention on appeal is that the trial court erred in denying his motion to suppress. For the reasons set forth below, we shall affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On September 15, 2004, Riverside Police Officer Jerry Post, along with seven other officers, went to the Riverside residence of probationer Bradley Penn. The officers were there to conduct a probation compliance check on Penn and to arrest him.

Penn's residence was comprised of a single-family home with a detached garage, and a backyard spanning one-third to one-half acre. About a dozen cars were parked in the backyard.

The officers were under orders to search all areas under Penn's control and common areas to which Penn would have access. Officer Post was positioned in Penn's backyard. According to Officer Post, officers are typically sent to the back of the house when conducting a probation compliance check in order to secure all of the exits. At the time, Officer Post believed the backyard was an area under Penn's control.

When Officer Post and two other officers were in the backyard, they visually checked the cars in the backyard to look for people who were possibly hiding. During this check, Officer Post saw a door of a green van closing slowly. The van was located approximately 75 feet from where Officer Post stood. His view of the van was not obstructed. When Officer Post saw the van door close, he became concerned about his safety and the safety of the other officers because he did not know who was inside the van and whether the individual or individuals had weapons.

Officers Post and Turner approached the van. With his gun drawn, Officer Post opened the van door. He found defendant sitting inside the van and asked him to step out.

Once defendant was outside of the van, Officer Post asked defendant if he had anything illegal on his person. Defendant responded, â€