P. v. Lowery

Filed 6/30/06 P. v. Lowery CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appeal from a judgment of the Superior Court of Orange County, Ronald Owen (retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Gregg L. Prickett, Judges. Reversed.

Maureen J. Shanahan, 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, Assistant Attorney General, Robert M. Foster and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

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The trial court found Mattie Georginne Lowery guilty of one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) based on evidence obtained following a traffic stop of Lowery's van. Lowery challenges her conviction on the ground the trial court erred by denying her motions under Penal Code section 1538.5, subdivision (i) to suppress that evidence. She argues the traffic stop and warrantless search of her person were unlawful because the evidence did not support a finding she had violated Vehicle Code section 22107, the asserted justification for stopping her van. We agree and therefore reverse.

I. Facts and Proceedings in the Trial Court

The evidence at trial established the following facts. About 9:30 p.m. on November 6, 2004, Anaheim Police Officer Gustavo Maya and his partner were patrolling the area near the intersection of Brookhurst and Broadway Streets in the City of Anaheim. They were in uniform in a marked patrol car. Maya saw a vehicle make a right turn after flashing its left turn signal and stopped the vehicle to cite the driver, Lowery, for a traffic violation. During the traffic stop, Lowery consented to a search of her person. In one of her pockets, Maya found three small plastic baggies. Two of the baggies contained white residue, and the third contained a white, crystal-like substance which he believed to be methamphetamine. In Lowery's purse, Maya found a glass pipe used for smoking methamphetamine.

Maya believed, based on his training and experience, the third baggie contained a usable quantity of methamphetamine. He did not believe the residue in the first two baggies was of a usable quantity.

Before the preliminary hearing, Lowery moved under Penal Code section 1538.5, subdivision (i) to suppress the evidence obtained from the traffic stop and subsequent search. At the close of the preliminary hearing on April 14, 2005, the trial court denied the motion to suppress and held Lowery to answer. The information, filed on April 21, 2005, charged Lowery with one count of felony possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). In July 2005, Lowery renewed her motion to suppress under Penal Code section 1538.5, subdivision (i) and based the renewed motion on evidence adduced at the preliminary hearing. On July 8, 2005, the trial court denied the renewed motion to suppress following argument of counsel.

Lowery waived a jury trial. Following a bench trial, the court found Lowery guilty as charged. The court denied her motion to sentence as a misdemeanor, sentenced her to three years of formal probation, and found her eligible for drug treatment under Penal Code section 1210. Lowery timely appealed.

II. Discussion

A. Evidence at the Preliminary Hearing

Lowery argues the trial court erred in denying her motions to suppress because the prosecution did not present sufficient evidence at the preliminary hearing to establish a justification for stopping her van. Our review of the denial of Lowery's motions to suppress is based on the evidence before the trial court when it ruled. (People v. Castro (2006) 138 Cal.App.4th 486, 492.) That evidence was the testimony of Maya and of Lowery's minor son, Edward, from the preliminary hearing.

Maya testified that during the evening of November 6, 2004, he and his partner were on patrol near the intersection of Broadway and Brookhurst Streets in the City of Anaheim. Maya had arrested many people for unlawful narcotics possession in that area, which was known for heavy criminal activity. Maya and his partner were in full uniform and in a marked patrol car.

At about 9:36 p.m. on November 6, Maya was driving the patrol car northbound on Brookhurst Street, approaching Broadway Street. To the right of the patrol car was a shopping center in which a bar called â€