P. v. Ervin CA2/2

Filed 4/2/13 P. v. Ervin CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B241960

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA081235) v.

FRANK LEROY ERVIN,

Defendant and Appellant.

THE COURT:*

Appellant Frank Leroy Ervin (Ervin) appeals from the judgment entered following his conviction upon a plea of nolo contendere. Statement of the Case An information filed November 23, 2011, charged Ervin with one count of vehicle taking (Veh. Code, § 10851, subd. (a)) and one count of evading an officer (Veh. Code, § 2800.2, subd. (a)) and with allegations of five strike priors. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Ervin waived his right to counsel and represented himself. On November 29, 2011, he pleaded not guilty to both counts and denied the allegations.

* BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.

Ervin then filed two written motions to suppress evidence on the ground that the search and his arrest were effected without a warrant. Evidence was taken; the motions were argued; and the trial court denied the motions, concluding that there was probable cause for Ervin’s detention and arrest. The parties stipulated to amend the information to add count 3, charging Ervin with violation of Penal Code section 496d, receiving a stolen vehicle. Pursuant to a plea agreement, the prosecution dismissed all but one of the alleged strike priors; Ervin pleaded nolo contendere to count 3, and was sentenced on June 7, 2012, to an agreed mid-term of two years, doubled to four years for one strike prior, with a waiver of presentence custody credits. Notice of appeal was filed June 7, 2012. Factual Background At around 3:00 p.m. on May 26, 2011, Los Angeles Sheriff’s Deputies Matthew Wheatcroft and Shaun Kennedy were on patrol at 112th Street and Vermont Avenue when they passed by a Hyundai vehicle driven by Ervin. As part of his normal patrol routine, Deputy Kennedy ran a random license plate check on a Hyundai vehicle, which came back showing the plates were lost or stolen and belonged to a 2011 Ford vehicle. Stolen license plates affixed to another vehicle are an indication that that vehicle may be stolen. The officers made a U-turn to follow the Hyundai and confirmed with dispatch that the plates were lost or stolen. Gloria Guzman testified that the subject plates were for her 2011 Ford; she reported them stolen on April 25, 2011. Deputy Wheatcroft followed the Hyundai southbound on Vermont Avenue and activated his forward-facing red lights. When the Hyundai did not pull over, Deputy Wheatcroft hit the siren a few times. The deputies followed the Hyundai eastbound on Imperial Highway and the Hyundai moved into the center passing lane and sped up. Deputy Wheatcroft activated his full rotating lights and siren, and the Hyundai sped away at speeds unsafe for traffic conditions. The deputies requested assistance from additional units and radioed a description of the driver, a Black male, age 30 to 40, with his hair in braids or corn rows.