P. v. Torres

Filed 5/11/06 P. v. Torres CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Lawrence J. Mira, Judge. Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Fabio Alberto Torres pleaded no contest to one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) after the trial court denied his motion to suppress evidence. The trial court placed appellant on probation for three years pursuant to Proposition 36.

Appellant appeals on the ground that the trial court erroneously denied his suppression motion under Penal Code section 1538.5.

FACTS

The facts surrounding appellant's detention and arrest are contained in the transcript of his preliminary hearing, which the parties requested the trial court to read with respect to the motion to suppress, and in supplemental testimony by Deputy Tim Stanley at the motion hearing. Stanley testified that on August 22, 2003, at approximately 2:00 a.m. he and his partner, Deputy Treinen, were patrolling Surfrider Beach, a public beach owned and operated by Los Angeles County. Stanley saw appellant and a female sitting on the beach, along with approximately six other persons. Stanley was aware that the Malibu Municipal Code, section 17.12.350, prohibited persons from being on the beach after midnight.[1]

Deputies Stanley and Treinen told the people to leave the beach. The officers then got back into their patrol car and waited for everyone to leave. Appellant and the others walked off the beach. Stanley saw appellant and his female companion standing and talking next to a wall at the entrance to the beach. Then, appellant turned around and headed back to the beach where he had come from. The deputies approached the female and asked her where appellant was going. Stanley called out to appellant, telling him to come back, and appellant slowly turned around and began heading back towards Stanley.

When appellant arrived at a spot approximately 10 feet from the deputies, Deputy Stanley asked appellant what he was doing and why had he turned around. Appellant was not answering, and it seemed he did not understand. Stanley noticed appellant had a blank stare and that something was wrong. As appellant came closer, Stanley could smell phencyclidine (PCP), which has a distinctive odor. That factor, in combination with appellant's blank stare, robotic movements, and vertical and horizontal nystagmus indicated to Stanley that appellant was under the influence of PCP.

The deputies arrested appellant. In the search incident to the arrest, Deputy Stanley found a glass bottle in appellant's pocket. The bottle contained two hand-rolled cigarettes that also exuded a distinctive odor. Tests of one of the cigarettes revealed that it had been treated with PCP. At the police station, Stanley found two plastic baggies of methamphetamine in appellant's wallet.

DISCUSSION

I. Appellant's Argument

According to appellant, he was unlawfully detained when Deputy Stanley called appellant back to Stanley's location. Appellant contends the deputies needed to articulate facts that indicated appellant was actually loitering on the beach, which appellant defines as being on the beach for the purpose of committing a crime. Because the deputies had no such facts, the deputies illegally detained appellant, and all the incriminating evidence they obtained was the â€