P. v. Tuyub
Filed 6/22/06 P. v. Tuyub CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE
| THE PEOPLE, Plaintiff and Respondent, v. EDUARDO TUYUB, Defendant and Appellant. | A112060 (San Mateo County Super. Ct. No. SC058800A) |
Following denials of defendant's motion to disclose the confidential informant and motion to suppress evidence (Pen. Code, § 1538.5), he pleaded no contest to possession for sale of a controlled substance and admitted gang affiliation allegations. He appeals from the judgment entered against him on November 17, 2005. Defendant's counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436.) We have reviewed the record and affirm.
On June 9, 2005, the San Mateo District Attorney filed an information charging defendant with one count of possession of 14.25 grams or more of heroin for sale (Health & Saf. Code, §§ 11351 & 11352.5, subd. (1); Pen. Code, § 1203.07, subd. (a)(1)) for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1); count 1); one count of felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1); count 2); and one count of actively participating in a criminal street gang by promoting or assisting in felony conduct (Pen. Code, § 186.22, subd. (a); count 3). The information further alleged that defendant had been convicted of a prior serious felony for which he had served a prison term (Pen. Code, §§ 667, subd. (a), 667.5, subd. (b), 1170.12, subd. (c)(1), 1192.7, subd. (c)(28)).
Defendant filed motions to suppress evidence and to disclose the identity of a confidential informant claiming that the informant was a material witness with respect to the issue of defendant's guilt. After the court denied both motions, defendant pursuant to a negotiated agreement, pleaded no contest to possession of heroin for sale (Health & Saf. Code, § 11351), and admitted the gang affiliation allegations (Pen. Code, §§ 186.22, subd. (b)(1) & 1203.07, subd. (a)(1)), and the prior serious felony enhancement (Pen. Code, §§ 1192.7, subd. (c)(28) & 1170.12, subd. (c)(1)). The court sentenced defendant to six years in state prison (midterm of three years for count 1 doubled pursuant to Pen. Code, § 1170.12, subd. (c)(1)).
The facts giving rise to the underlying offense are summarized from the motion to suppress hearing. On January 26, 2005, at 7:40 p.m., San Francisco Police Officer Moses Gala and his partner, Sergeant Mike Brown, were parked in an unmarked undercover vehicle in the area of the 1300 block of Chelsea Court in Daly City. The officers were engaged in a surveillance operation to determine who lived at 1349 Chelsea Court. After being radioed by Officer Mario Molina or another individual that a person had left 1349 Chelsea Court and driven away in a Honda, Gala observed a gray Honda Accord exit Chelsea Court. At that time, Gala was able to see two occupants, a driver and passenger, both of whom were not wearing seat belts. As soon as the officers got behind the Honda, they noticed a third occupant in the rear seat, but could not determine if he was wearing a seat belt. After following the vehicle for five to six minutes into San Francisco, Gala requested a â€
