P. v. Warren CA1/3

Filed 3/26/13 P. v. Warren CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A136106 v. TIMOTHY C. WARREN, (Sonoma County Super. Ct. No. SCR610771) Defendant and Appellant.

Appellant Timothy C. Warren appeals from an order denying his motion to suppress evidence. (Pen. Code, § 1538.5.)1 Following entry of that order, appellant pled no contest to felony possession of methamphetamine for sale in violation of Health and Safety Code section 11378, subdivision (a), and was sentenced to three years to be served in jail and on mandatory supervised probation. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, requesting that we conduct an independent review of the entire record on appeal. Having done so, we affirm the trial court’s order. FACTUAL AND PROCEDURAL BACKGROUND On February 27, 2012, an information was filed charging appellant with felony violations of Health and Safety Code section 11378, possession of methamphetamine for

1 Unless otherwise stated, all further statutory references herein are to the Penal Code.

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sale, and section 12020, subdivision (a)(1), possession of a billy club.2 With respect to both violations it was alleged appellant had been convicted of a prior drug crime within the meaning of Health and Safety Code section 11370.2, subdivision (c). On April 25, 2012, appellant filed a motion pursuant to section 1538.5 to suppress evidence seized from his person and vehicle by Officer John Whitten of the Santa Rosa Police Department. Appellant argued that, at the time of his arrest on November 19, 2011, he was detained without reasonable suspicion. At a subsequent hearing on the suppression motion, Officer Whitten testified to the following facts.3 At about 6:20 p.m. on November 19, 2011, Officer Whitten was on patrol in a marked police vehicle. After switching off his vehicle’s headlights, Officer Whitten pulled into the mostly-full Montecito Center parking lot, where he had in the past made about 10 to 20 drug-related arrests, mostly in the area behind Fiorino’s Bar. Officer Whitten parked at a slight angle behind an empty parking spot to the immediate right of the spot where a Dodge pick-up truck was parked, and then walked over to the truck to speak to its occupants through the driver-side window. He did not block the truck from leaving or shine his vehicle’s lights into it. William Hartwell was in the driver’s seat and appellant was in the front passenger seat. Officer Whitten advised the men that he wished to speak to them due to the prevalence of drug activity in the area, and asked whether they were on probation or parole or had any outstanding warrants against them. Hartwell acknowledged a pending drug charge; appellant responded that he may have an outstanding warrant. Although Officer Whitten had a friendly, relaxed tone and did not display a weapon, touch the men