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>P. v. Torres





















Filed
7/30/10 P. v. Torres 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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, Plaintiff and Respondent, v. JUAN TORRES, Defendant and Appellant.

F058102 (Super. Ct. No. F08200230) >OPINION

APPEAL from
a judgment of the Superior Court of Fresno
County. Denise Lee Whitehead, Judge.

Catherine
Campbell, under appointment by the Court of Appeal, for Defendant and
Appellant.

Edmund G.
Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General,
Ward A. Campbell and Harry Joseph Colombo, Deputy Attorneys General, for
Plaintiff and Respondent.

-ooOoo-

Pursuant to
a no contest plea, defendant was convicted of possession of methamphetamine while armed
with a loaded firearm. On appeal, he
contends the trial court erred by denying his motion to suppress. We will affirm.

PROCEDURAL SUMMARY

On July 17,
2008, the Fresno County District Attorney charged defendant with possession of
methamphetamine while armed with a loaded firearm (Health & Saf. Code,
§ 11370.1, subd. (a); count 1) and possession of narcotics paraphernalia
(Health & Saf. Code, § 11364; count 2).

Defendant
unsuccessfully moved to suppress evidence obtained during a search of his
vehicle. He withdrew his not guilty plea
and entered a plea of no contest. Count
2 was dismissed in the interests of justice.


The court
granted defendant two years' probation subject to his serving 90 days in the
county jail.

FACTS^[1] >

On March
29, 2008, Deputy Swiney was in uniform on patrol in a marked sheriff's
car. At about 2:20 a.m., he was
patrolling on Highway 180 near Napa Avenue in Fresno County when he observed a
Chevrolet sports utility vehicle (the SUV) pulling a flatbed trailer full of
aluminum siding. The SUV was travelling
in the opposite direction, so Swiney made a U-turn and followed it. He noticed the trailer had no identifying
marks or license plate, a Vehicle Code violation, so he activated his overhead
lights. The SUV pulled over and Swiney
stopped his patrol car behind the trailer.
Swiney got out of his patrol car and walked to a position from which he
could see the SUV's license plate. He
ran the plate number and confirmed with dispatch that the plate number had no
warrants and was not wanted as a stolen vehicle.

Swiney then
approached the passenger side of the SUV, and saw defendant (who was driving)
and one passenger. Swiney identified
himself and asked defendant for his identification. Defendant provided his driver's license, but
the passenger had no identification.
Defendant seemed upset; he told Swiney he had already been pulled over
near Firebaugh. Swiney asked defendant
to step out of the SUV, which he did, and Swiney had him step back between the
trailer and the patrol car. Swiney told
defendant why he had pulled him over. In
Swiney's opinion, when he asked defendant to step out of the SUV, he was free
to refuse.

Swiney
asked defendant if he had ever been arrested, and defendant answered that he
had been arrested in the past. Swiney
asked if he was on probation or parole, and defendant answered, â€