People v. Conley CA5

Filed 2/22/16 P. v. Conley CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F069679 Plaintiff and Respondent, (Tulare Super. Ct. No. VCF268030) v.

KENNY CONLEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

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* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.

INTRODUCTION Defendant Kenny Conley was found guilty of possession of a controlled substance, methamphetamine, and possession of drug paraphernalia. The trial court imposed a sentence of three years’ probation, with various fines and fees. Defendant contends his convictions should be reversed because the trial court erred in denying his motion to suppress; Proposition 47 mandates automatic resentencing; and the Penal Code1 section 1205 fine in the amount of $35 should be reduced to $30. We agree the section 1205 fine must be reduced, but in all other respects affirm. FACTUAL AND PROCEDURAL SUMMARY On April 4, 2012, Officer Joel Arjona was a patrol officer with the Visalia Police Department. Around 3:46 a.m., Arjona saw a pickup truck in the parking lot of a motel with its lights on. Given the hour and that the lights were on, Arjona stopped his patrol car and went to check on the occupants. Officer Arjona was in full uniform. He did not activate the overhead lights or siren when he pulled into the parking lot and stopped. Arjona did not block the truck or the parking lot exit in any way with his patrol car when he parked. Arjona parked his patrol car so that the truck “could have backed up” and “exited like normal.” After parking the patrol car, Officer Arjona walked over to the driver’s side window of the truck, which was open. Arjona did not observe any “furtive movements” by the occupants of the truck, but the windows of the truck were tinted in the back. The driver was defendant and there also were two passengers, a male and female, in the truck. Officer Arjona asked if anybody in the vehicle was on probation; the female responded affirmatively. Arjona and defendant engaged in “small talk” while defendant was seated in the truck, and then Arjona asked defendant if he would “exit the vehicle.”