Filed 4/26/13 P. v. Rubio 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NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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.
ERIC
MICHAEL RUBIO,
Defendant and
Appellant.
F064565
(Super.
Ct. No. BF138725A)
OPINION
APPEAL from a judgment of the
Superior Court of
Elizabeth Campbell, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, 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
STATEMENT OF THE CASE
On December
20, 2011, appellant, Eric Michael Rubio, was charged in an information with
being a convicted felon in possession of
ammunition (Pen. Code, § 12316, subd. (b)(1), count 1), misdemeanor
driving a vehicle under the influence of alcohol (Veh. Code, § 23152,
subd. (a), count 2), and misdemeanor driving with a blood alcohol level of .08
percent or higher (Veh. Code, § 23152, subd. (b), count 3). The information alleged as to counts 2 and 3
that appellant refused a blood alcohol test (Veh. Code, § 23612). It was further alleged that appellant had one
prior serious felony conviction within the meaning of the three strikes law
(Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)).
At the conclusion of a hearing on
January 27, 2012, to suppress evidence pursuant to Penal Code section 1538.5,
the trial court denied appellant’s motion.
On February 3, 2012, appellant entered into a plea bargain and waived
his rights pursuant to Boykin/Tahl.
counts and admitted the three strikes allegation with the understanding that
the trial court would strike it at the sentencing hearing. Under the plea agreement, the court would
impose a term of two years on count 1 and a concurrent misdemeanor sentence on
count 2. Appellant pled no contest to
the first two counts, admitted the prior serious felony conviction allegation,
and the remaining allegations were stricken pursuant to the
On March 16, 2012, the trial court
struck the prior serious felony conviction and sentenced appellant pursuant to
Penal Code section 1170, subdivision (h) to a term of two years on count 1 and
a concurrent sentence of 90 days on count 2.
The court imposed a restitution fine of $240 and granted two days of
custody credits. Appellant contends that
the trial court erred in denying his suppression motion. We disagree and affirm the judgment.
FACTS
California
Highway Patrol (CHP) Officer Jeremiah Bridges was on duty at 11:26 p.m. on
September 15, 2011, when he saw appellant’s GMC pickup truck break traction
with the roadway as it exited a gas station parking lot. Bridges drove up behind appellant and
initiated a traffic stop. Bridges talked
to appellant through the open driver’s side window. When Bridges asked appellant for his driver’s
license, vehicle registration, and proof of insurance, appellant did not
immediately provide them.
Bridges
observed that appellant’s speech was slurred, he emitted the odor of alcohol
from his breath, and his eyes were red and watery. Bridges could also see a green and white
ammunition box on the bench seat directly beside appellant’s right side. Bridges asked appellant to exit the vehicle
to conduct a driving under the influence (DUI) investigation. Appellant complied and provided his driver’s
license.
Appellant
refused to perform any field sobriety tests.
Bridges believed appellant was under the influence of alcohol. Bridges arrested appellant for DUI. Bridges parked appellant’s pickup truck in a
nearby parking lot and placed the ammunition box under the seat.
Appellant refused to agree to any
blood alcohol test. Appellant told
Bridges that he did not have to submit to a blood alcohol test because he was
no longer on parole. Appellant admitted
that he had prior felony convictions.
Bridges contacted the CHP dispatcher and learned that appellant had
prior felony convictions, including a weapons conviction. Bridges later went back to appellant’s pickup
truck and retrieved the box of ammunition.
DISCUSSION
Appellant
contends there was insufficient evidence that he committed a Vehicle Code
violation merely because he broke traction with the roadway and the officer did
not have reasonable suspicion to conduct a vehicle stop of appellant. Appellant argues, therefore, that the trial
court erred in denying his suppression motion.
When
reviewing a trial court’s ruling on a suppression motion, we accept the court’s
implicit or explicit factual findings when supported by substantial evidence
and independently determine, in light of the facts so found, whether the search
and seizure was reasonable. (
Cal.4th 668, 673; People v.
1408 (Watkins).) Law enforcement officers may lawfully detain
a motorist based on no more than a reasonable suspicion of a traffic violation
or some other law. (United States v. Sharpe (1985) 470 U.S. 675, 682;
(1999) 76 Cal.App.4th 1369, 1376, fn. 3.)
Exhibition
of speed is regulated by Vehicle Code section 23109.
been considered within the purview of section 23109. In People
v. Grier (1964) 226 Cal.App.2d
360, 363 (Grier), the court explained
why breaking traction with the roadway presents a danger to other motorists and
bystanders:
“It is common knowledge that maximum control of a vehicle
upon the highway is maintained through the retention of traction between tires
and pavement and that, during any process of skidding of the wheels of a
vehicle, there is a corresponding diminution of the driver’s control over the
vehicle. Accordingly, safety measures
are designed to reduce the skidding of vehicles, even during the process of
reducing speed through the application of brakes.
Where a person accelerates a vehicle in such manner as to deliberately
cause it to skid, he is not only diminishing his control but increasing the
hazard to bystanders or other vehicles from flying gravel.
the trier of fact under the circumstances of the particular case. Obviously, not all cases of tire ‘peeling’ or
‘screeching’ would constitute violations of the statute.
knowledge that the deliberate screeching and screaming of tires on the pavement
are tension producers which increase nervousness in drivers and others, thereby
increasing the likelihood of accident.â€
(Grier, supra, 226 Cal.App.2d at p. 363; also see In re F.E. (1977) 67 Cal.App.3d 222, 225.)
There is no
dispute that appellant broke traction with the roadway and this was directly
observed by the officer. Appellant
argues, however, that because not every instance of breaking traction with the
roadway constitutes a violation of section 23109, and the officer observed no
other discernable infraction or driving impairment, there was ipso facto no
reasonable suspicion for the officer to detain him. We disagree.
A traffic stop that is lawful at
its inception, based on a reasonable suspicion that a traffic violation has
occurred, is not made unlawful because the officer does not ultimately cite the
motorist. “A traffic stop is lawful at
its inception if it is based on a reasonable suspicion that
if it is ultimately determined that no violation did occur.†(Brierton
v. Department of Motor Vehicles
(2005) 130 Cal.App.4th 499, 510; also see People
v. Miranda (1993) 17 Cal.App.4th 917, 926 (Miranda).) Officer Bridges
observed appellant break traction as he left a gas station. Had this occurred in a remote, unpopulated
venue, perhaps appellant’s argument would be more compelling.
Gas stations have many types of
patrons, including motorists, bicyclists, and pedestrians. Appellant’s conduct constituted a hazard to
any other patrons using the gas station, as well as to motorists using the
roadway appellant was entering. Even
though Officer Bridges did not apparently observe appellant’s tires smoking, or
breaking traction for an extended time or distance, appellant’s actions
presented Bridges with reasonable suspicion appellant had committed an
infraction and was, therefore, subject to a traffic stop and a brief
detention. We conclude that Bridges’s
traffic stop was justified.
Bridges’s arrest of appellant was
permitted after appellant failed to initially provide his driver’s license,
obvious signs of alcohol intoxication, and the plain view sighting of the
ammunition box on the seat next to appellant.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Gomes, J., and Detjen, J.
name="_ftn2" title="">[1]
re Tahl (1969) 1 Cal.3d 122.
