P. v. Kelly

Filed 3/1/06 P. v. Kelly 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.

Vicki Marolt Buchanan, 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 Kristen K. Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant guilty of resisting, obstructing, or delaying a peace officer in the performance of his or her duties (Pen. Code, § 148, subd. (a)(1))^[1] and not guilty of battery on a peace officer (§ 243, subd. (b)). Defendant was thereafter placed on probation. Defendant's sole contention on appeal is that the trial court erred in denying his suppression motion and admitting his postarrest statements because the officers did not have probable cause to arrest him. We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On June 28, 2003, Officers Kimberly Belvedere and Scott Mehle were on patrol at the Ontario Mills Mall when they saw a woman, later identified as codefendant Wendy Kelly,^[3] arguing with a security guard next to a big rig truck across the parking lot. The officers also heard the argument over the security radio. The officers drove to the area to investigate further. When they arrived, Wendy had already walked into the mall.

The officers spoke with the security guard, who told them Wendy had refused to move her illegally parked truck, so he was going to have it towed. The truck was parked blocking the number two lane of traffic in violation of the Vehicle Code. The security guard also told them that Wendy had threatened to have her husband (defendant) assault him if the truck was towed. The officers decided to remain there to issue Wendy a traffic citation and make sure the situation did not escalate when she returned.

Meanwhile, Corporal Mark Ortiz and Officer Josh Burks pulled alongside Officers Belvedere and Mehle, who explained what was happening. While the officers were waiting for Wendy and defendant to return, they noticed a pit bull inside the front cab portion of the truck.

A few minutes later, defendant and Wendy returned from the mall to their truck looking upset. Officer Belvedere approached Wendy to notify her of the parking citation. Wendy ignored Officer Belvedere, walked straight up to the security guard, and started yelling and screaming at him. Officer Belvedere approached Wendy again and asked for her identification. Wendy, cursing, told Officer Belvedere that her identification was in her truck and started walking rapidly towards the truck. Officer Belvedere told her to stop several times and to just provide her name and birth date, but Wendy kept walking toward the truck, saying that â€