People v. Martinez CA2/6

Filed 2/26/14 P. v. Martinez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B247143 (Super. Ct. No. 2012033262) Plaintiff and Respondent, (Ventura County) v. ROGELIO URIBE MARTINEZ, Defendant and Appellant.

Rogelio Uribe Martinez appeals his conviction by plea to possession for sale of a controlled substance (Health & Saf. Code, § 11378) and possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), entered after the trial court denied his motion to suppress evidence. (Pen. Code, § 1538.5.) Pursuant to a negotiated plea, appellant admitted an out-on-bail enhancement (Pen. Code, § 12022.1, subd. (b)) and admitted two prior drug convictions (Health & Saf. Code, § 11370.2, subd. (c)) and two prison prior enhancements (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to six years eight months state prison. We affirm. Facts and Procedural History On the afternoon of September 13, 2012, Oxnard Police Officer Martin Cook saw a white Ford stopped in the middle of Country Club Circle, a roadway. . Appellant was in the driver's seat and blocking the westbound lane.

Officer Cook asked why appellant was blocking traffic. Appellant's was very nervous, and sweating profusely, his pupils were dilated, his eyes were red and watery, and he spoke rapidly. Appellant said he was dropping off his three year old daughter who was in the back seat. A second man, Martin Diosadado, was in the front passenger seat. Officer Cook determined that appellant was on probation and had search terms. Appellant was asked to exit the vehicle and searched. He had $1,182 cash in his pants pocket. A clear plastic baggy of white powdery substance was in the car center console. Officers found a backpack in the trunk that had appellant's "homework," a baggy of 17.5 grams of methamphetamine, and a loaded .38 caliber revolver. Appellant was arrested and tested positive for amphetamine. Before trial, appellant moved to suppress the evidence on the ground that Officer Cook lacked the authority to conduct a traffic stop and detain appellant on a private road. The motion was based on the theory that County Club Circle was not a public street or highway within the meaning of Vehicle Code section 360. Denying the motion, the trial court found there was reasonable suspicion to justify the stop and detention. Officer Cook "was checking out to see if there was vehicular malfunction and that was the purpose of the stop." Discussion We defer to the trial court's factual findings, express or implied, where they are supported by substantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1119.) We exercise our independent judgment in determining whether, on the facts presented, the search of seizure was reasonable under the Fourth Amendment. (Ibid.) Here the appeal is based on an esoteric discussion of what is a public street or highway. Notwithstanding resolution of this contention, we observe that Officer Cook knew that appellant was on probation and had search terms. Appellant did not dispute it when the motion was argued. The prosecution's opposition papers stated: "Officer