People v. Curenio CA6

Filed 12/21/15 P. v. Curenio CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041925 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS132594A)

v.

CEFERINO ANASTACIO CURENIO,

Defendant and Appellant.

I. INTRODUCTION After his motion to suppress evidence was denied, defendant Ceferino Anastacio Curenio pleaded no contest to possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1))1 and admitted that he had a prior conviction that qualified as a strike (§ 1170.12, subd. (c)(1)) and that he had served a prior prison term (§ 667.5, subd. (b)). The trial court imposed a 32-month sentence for defendant’s conviction of possession of ammunition and a one-year consecutive sentence for the prior prison term allegation, for an aggregate prison term of three years eight months. On appeal, defendant contends the trial court erred by denying his motion to suppress. We conclude the trial court did not err, and we will affirm the judgment.

1 All further statutory references are to the Penal Code unless otherwise noted.

II. BACKGROUND On December 18, 2013, Monterey County Sheriff’s Deputy Dustin Hedberg was on patrol. He stopped defendant’s vehicle, determined that defendant was on parole, and conducted a search. The search revealed two unexpended 12-gauge shotgun shells in defendant’s pants pocket. The search also revealed 56.7 grams of marijuana in the trunk of defendant’s car. Defendant was charged with possession of ammunition by a felon (§ 30305, subd. (a)(1); count 1) and transportation of marijuana (Health & Saf. Code, § 11360, subd. (a); count 2). The information alleged that defendant had suffered a prior conviction that qualified as a strike (§ 1170.12, subd. (c)(1)) and that he had served a prior prison term (§ 667.5, subd. (b)). Defendant subsequently filed a motion to suppress evidence (§ 1538.5), arguing that there was no reasonable suspicion or probable cause for the vehicle stop. At the hearing on defendant’s motion to suppress, Deputy Hedberg testified that he stopped defendant’s vehicle because the front passenger and driver’s side windows were tinted, to such a degree that he could not see the inside of the vehicle or distinguish how many occupants there were. He could not even see the driver. Because Deputy Hedberg could not see inside the vehicle, he requested defendant roll down all the windows before he approached the vehicle. As he approached defendant’s vehicle, he could smell marijuana. Defendant admitted that he was on parole, and Deputy Hedberg performed a parole search, which led to his discovery of the ammunition and marijuana. Deputy Hedberg first observed defendant’s vehicle at 9:21 p.m. He was sitting about 50 or 60 feet from the vehicle at the time. There was no natural lighting, but the artificial lighting from a nearby gas station was “pretty good.” Deputy Hedberg was familiar with tinted safety glass as well as window tinting that is obtained by applying a film to the inside of the window. He believed the window tinting on defendant’s vehicle was “after factory installation,” because he had “never seen any factory tinting that dark.”