P. v. Weeks

Filed 1/31/07  P. v. Weeks CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

            Defendant was convicted of unlawfully taking a vehicle (Veh. Code, §  10851, subd. (a)) and possession of methamphetamine (Health & Saf. Code, §  11377, subd. (a)) by plea of no contest.  He was sentenced to two years in state prison.^[1]  He appeals, alleging that the trial court erred in denying his motion to suppress pursuant to Penal Code section  1538.5.  We find no error and affirm.

Background

            The facts surrounding defendant's arrest are not in dispute, and are drawn from the preliminary hearing transcript.^[2]  At approximately 11:00 p.m. on October 2, 2005, San Pablo Police officer Matt McClaflin was driving southbound on San Pablo Avenue when he observed a black Honda Accord.  As he pulled up along side and slightly behind the Honda, McClaflin could see that the driver was a white male wearing a dark blue jacket.  Due to the vehicle's tinted windows, McClaflin could not tell if there were passengers in the vehicle.  Officer McClaflin called in a check on the Honda's license plate.  Both vehicles turned right onto Brookside Drive and proceeded westbound.  The Honda turned right onto Regello Court and officer McClaflin continued west on Brookside to respond to a call at 1550 Rumrill Boulevard, about one and a half miles away.

            After McClaflin responded to a disturbance on Rumrill, he received a response on his check on the Honda's license plate, indicating the vehicle was stolen.  He was advised by Sergeant Hughes that Hughes had seen the Honda abandoned in front of 1949 Regello Court and that a man wearing a blue jacket was walking eastbound on Kenny Plaza (which parallels Brookside) toward 23rd Street.  Officer McClaflin responded to the area, and within one to two minutes, he turned east on Brookside and saw a white male on the northwest corner of 23rd and Brookside; the man was wearing a blue coat that appeared to be made of the same material as the coat worn by the man that McClaflin had observed driving the Honda.  McClaflin could not remember if the man was walking or standing still, but he was talking to another white male.  McClaflin made a U-turn and pulled up beside the individual, telling him to stop.  The man, later identified as defendant, did not attempt to flee.  Another officer, identified as Bloomberg or Lindbloom arrived on the scene and also approached defendant.  Defendant was cooperative and provided identification when requested to do so.

            Officer McClaflin noticed that defendant was breathing and sweating heavily, despite the cold weather, as though he had been running.  Defendant was approximately one-half mile from the location on Regello Court where the Honda was observed by Sergeant Hughes.  Officer McClaflin believed that he had sufficient cause to detain defendant for investigation of driving a stolen vehicle and decided to patsearch him for weapons.  McClaflin testified that car thieves â€