P. v. Hong

Filed 7/26/06 P. v. Hong 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Lisa B. Lench and Clifford Klein, Judges. Affirmed.

Maria Morrison, 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 Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

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Thai Hong, also known as Binh Hong (defendant), appeals from the judgment entered following his negotiated plea of no contest to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and after he admitted that he had two prior convictions that required sentencing pursuant to the three strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12).[1] Before his plea, the trial court denied defendant's motion to suppress illegally seized evidence. (§ 1538.5.) At sentencing, pursuant to the plea bargain, the trial court struck one of the allegations of prior convictions, and it sentenced defendant to a doubled term of 16 months, or 32 months, in state prison.

On appeal, defendant's sole contention is that the trial court improperly denied his motion to suppress evidence. He argues that there was insufficient justification for a traffic stop and that the traffic stop was unduly prolonged.

We find that apart from defendant's contentions, the tossing of the baggie of methamphetamine was purged from any primary taint, and we affirm the judgment.

FACTS

During the search and seizure motion, the parties stipulated that the officer was not acting pursuant to a warrant. Defendant asserted that there was insufficient evidence of his commission of a traffic infraction that justified the traffic stop and that subsequent to the initiation of the stop, the detention was unduly prolonged within the meaning of the decision in People v. McGaughran (1979) 25 Cal.3d 577, 584 (McGaughran). Defendant also claimed that there was no attenuation dissipating the taint of any primary illegality.

1. The Trial Evidence

San Gabriel Police Officer Charles Ang, an 11-year veteran, was on patrol southbound in the 1600 block of South Abbott Avenue just south of Valley Boulevard in San Gabriel. He saw a silver Toyota 4Runner make a three-point turn (a U‑turn) in the roadway ahead of him. The officer testified that the driver made the U-turn in a business district, the U-turn impeded traffic, and the driver failed to make the turn from a designated turning lane. Based on these observations, the officer concluded that defendant had violated Vehicle Code section 22102, prohibiting certain U-turns in a business district. Officer Ang stopped his police car opposite defendant as defendant drove northbound and told defendant to turn right into an adjacent parking lot. At the hearing, the officer explained that he made that request because the traffic was heavy. When the officer stopped to speak to defendant in the roadway, traffic backed up behind defendant. Defendant complied with the officer's request.

In the parking lot, Officer Ang approached the driver's window of defendant's 4Runner and spoke to him. The officer initiated the traffic stop at about 1:28 p.m.[2] The officer told the defendant the reason for the stop and explained that defendant's U-turn was illegal. The officer asked defendant for his driver's license, registration, and proof of insurance. Initially, defendant did not respond to the request. Officer Ang observed that defendant was acting nervous. At the hearing, the officer said that defendant's nervous conduct went beyond the ordinary nervousness that he observes in traffic violators. Defendant looked for his driver's license and the other items requested and eventually gave them to the officer.

Officer Ang ran defendant's identifying information through the dispatcher. The response was â€