People v. Velles CA1/1

Filed 1/23/14 P. v. Velles CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A136938 v. CLARENCE LARRY VELLES, (Napa County Super. Ct. No. CR161532) Defendant and Appellant.

Defendant Clarence Larry Velles pleaded no contest to a drug possession charge after police found methamphetamine in his pocket. Defendant was detained and searched when police watched him walk through a deserted commercial parking lot in the early hours of the morning, only to reverse course suddenly upon spotting them. He contends the detention was not based on a reasonable suspicion of criminal activity. We affirm. I. BACKGROUND In an amended information filed June 15, 2012, defendant was charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and drug paraphernalia (Health & Saf. Code, § 11364). Following the trial court’s denial of defendant’s motion to suppress evidence pursuant to Penal Code section 1538.5, he pleaded no contest to the methamphetamine possession charge and was placed on three years’ probation. The sole issue at the hearing on defendant’s motion to suppress was whether his detention was justified by a reasonable suspicion of criminal activity. The primary witness, Officer Curtis Madrigal of the Napa Police Department, testified he was driving

a patrol car at 1:30 a.m. when he spotted defendant walking across a commercial parking lot serving several different businesses, including a grocery store and restaurant. The businesses appeared to Madrigal to be closed, and the area was very dark. During narcotics enforcement training two years earlier, Madrigal had been told the parking lot was one of the “areas [officers] might want to pay more attention to” because drug transactions had occurred there. When defendant saw Madrigal’s patrol car turn into the parking lot, he “went out of his way” to make a “quick” turn and begin walking toward the back of the grocery store, away from the car. He appeared to pass through some shrubbery, although later investigation revealed defendant had taken a path that led behind the shrubbery, rather than cut through it. Madrigal concluded defendant was attempting to “conceal[] himself” and “avoid contact” with him. He and his partner left the patrol car, and Madrigal told defendant to “come over here.” Defendant complied. He was calm but avoided eye contact with Madrigal. At this point in Madrigal’s direct examination, defense counsel told the court, “[M]y motion is based on the initial detention. So I don’t think . . . [the prosecutor] needs to go into all of what happened after the initial detention,” and the prosecutor ended his examination. At the preliminary hearing, Madrigal had testified he searched defendant and found suspected methamphetamine and a glass pipe with residue. In explaining its denial of the motion to suppress, the trial court cited the late hour, the closed businesses, the officer’s knowledge of prior drug transactions in the area, and defendant’s change of direction upon seeing the officers, which appeared to Madrigal to constitute evasion. II. DISCUSSION Defendant contends the arresting officer lacked reasonable suspicion to justify his detention. “ ‘The Fourth Amendment prohibits “unreasonable searches and seizures” by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. [Citations.] Because the “balance between the public