People v. Silva CA5

Filed 6/13/16 P. v. Silva 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069788 Plaintiff and Respondent, (Merced Super. Ct. v. No. CRM032849)

HECTOR TORRES SILVA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Cynthia Lee Barnes, 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, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Appellant Hector Silva Torres appeals the denial of his motion to suppress the 24 pounds of marijuana found in his truck as the fruit of an illegal search. Appellant claims the trial court wrongly found probable cause existed for the search based on the testimony of California Highway Patrol Officer Shandara Kensey and certain allegedly illegally obtained text messages. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND While on patrol in Merced County on April 7, 2014, Officer Kensey observed a Chevy truck fail to stop at the limit line of a stop sign. The truck ultimately came to a stop roughly 10 feet beyond the line, before turning right and proceeding to a gas station. Officer Kensey followed and parked his patrol car behind the truck, but did not activate his lights or sirens. As he approached the driver’s side window, but before reaching the vehicle, Officer Kensey testified he “could smell the strong odor of raw marijuana emitting from within the vehicle.” Appellant stipulated that Officer Kensey was an expert in marijuana and marijuana trafficking, a fact supported by his more than 300 hours of formal training and 15 years of experience. When Officer Kensey reached appellant’s truck, he recognized that appellant had limited English language skills and asked appellant, in Spanish, for his license. Appellant complied. Officer Kensey has limited Spanish language skills. Thus, Officer Kensey relied, at least in part, on motions to request appellant exit his truck, which appellant did. Officer Kensey then asked appellant, it is unknown whether in English or Spanish, if there was marijuana in the truck. Appellant denied marijuana was present. Officer Kensey’s and appellant’s recollections meaningfully diverge at this point. Officer Kensey testified that he asked appellant whether he could perform a search of the truck, and appellant responded by asking for a consent form by saying the word “forma” and indicating a signing motion. Appellant denies asking for a consent form and contends he was asking whether Officer Kensey had a search warrant. Officer Kensey then returned to his patrol car, filled out a Spanish language consent form—which