P. v. Burgess

Filed 8/30/06 P. v. Burgess 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Thomas N. Douglass, Jr., Judge. Affirmed.

Donna L. Harris, 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, Barry Carlton, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Kevin Duane Burgess, Jr., who was charged with possession of more than an ounce of marijuana (Health & Saf. Code, § 11357, subd. (c)), moved to suppress the prosecution's evidence against him, contending that it was the product of an unlawful detention. (Pen. Code, § 1538.5.) The trial court denied the motion. Defendant then entered a negotiated plea, and the trial court granted summary probation for a period of three years.

On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence since the police were not justified in detaining him and subsequently searching his car. We disagree and affirm.

FACTUAL BACKGROUND

The following statement of facts is derived from the hearing on the motion to suppress: On March 4, 2005, at approximately 10:10 p.m., Officers Jonathan Enos and Michael Mauch were dispatched to the scene of a shooting in Cathedral City. Two witnesses told Officer Enos that they observed an older model four-door black car drive by, and that they heard gunshots fired from that car. One of the witnesses also said she observed the car driving westbound on Corral Road and that a tan-colored car appeared to be chasing it. Officer Enos broadcast this information over the radio so that other police units in the area could look for the car.

Officer Abraham Michael Tokier was approximately three miles away from the scene of the shooting when he heard the radio call. He parked his car at a certain intersection, and within less than a minute, he saw a black sedan traveling westbound. Officer Tokier pulled up behind the car to get a better look at it and noticed that the rear window was shattered out. It appeared that a bullet had gone through the window. Officer Tokier requested backup units to assist him in stopping the car. Officer Tokier initiated a high risk traffic stop. A high risk stop is a vehicle stop where there is a potential that the suspect is armed.

Officer Daniel Ray Anes heard the radio calls regarding the black car at issue. He testified that one of the radio calls stated that there was â€