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The People v. Fidencio Osuna-Avila et al

December 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FIDENCIO OSUNA-AVILA ET AL., DEFENDANTS AND APPELLANTS.



Super. Ct. No. 09795

The opinion of the court was delivered by: Robie,j.

P. v. Osuna-Avila CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Siskiyou

Defendant Fidencio Osuna-Avila (Osuna) pled no contest to transportation of methamphetamine while personally armed with a gun. Co-defendant Abel Gonzalez, Jr., also pled no contest to transporting methamphetamine, and to actively participating in a criminal gang; he further admitted having served two prior prison terms. The trial court sentenced both defendants to prison, granting defendant Osuna 326 days of conduct credits for 326 days of custody, and limiting defendant Gonzalez to 162 days of conduct credits for the same amount of custody because he was convicted of a "serious" felony.

On appeal, both defendants challenge the superior court's denial of their renewed motions to suppress. Defendant Gonzalez also contests an order requiring him to reimburse the county for his attorney's legal fees. We affirm the judgment as modified.

FACTS

The circumstances underlying the offenses and enhancements are irrelevant; instead we relate the testimony from the preliminary hearing on the motion pertinent to the argument on appeal. (We will include the facts pertinent to the legal-fees order in that part of the Discussion.)

In May 2009, a highway patrolman was on duty, monitoring midmorning northbound traffic while parked in the median of Interstate 5 in a marked vehicle that was facing south. It was a warm and sunny day. He noticed a red car about a quarter mile away approaching him in the fast lane. As it passed alongside him (about 30 feet away), he noticed all the windows other than the windshield were "dark tinted," which was a violation of law with respect to the front side windows. (At the evidentiary portion of the preliminary hearing, he had testified that the windows were "heavily tinted.") In the past, he had stopped hundreds of vehicles for such violations. He decided to initiate a traffic stop of the car.

The officer approached on the passenger side. The tinting on the rear window was even darker, but as he came abreast of the car he could see someone lying on the backseat. He opened the door and rolled down the window (before closing the door again) in order to speak with the rear seat passenger and keep him under observation. This was defendant Osuna. The other passenger (who was defendant Gonzalez) rolled down his window; the officer explained the reason for the stop to the driver, whom he asked to accompany him back to the patrol car.

The driver produced a Washington driver's license. He said that they were in route from Los Angeles to Washington. The driver identified defendant Osuna and said he was his cousin. However, the driver asserted that he did not know the name of defendant Gonzalez. The officer found it odd that the driver did not know a nickname for his passenger (given the length of time that they would be driving together). The officer was also suspicious about the lack of any luggage in the passenger compartment, an air freshener hanging above the right rear door, and an empty can of energy drink on the floorboard (although the officer never clearly articulated at the hearing what criminal activity the latter could signify). The officer radioed for backup. In the meantime, he directed the driver to stay by the patrol car, then asked defendant Osuna to stand at the far side of the shoulder while he questioned him.

A second officer arrived about two minutes after the first officer had radioed for him. The second officer approached the car (in which defendant Gonzalez was still seated) and saw an empty gun holster on the right rear floor. He alerted the first officer. Believing that a gun was somewhere in the car, they handcuffed the three men. A third officer arrived about five minutes later. When asked if there was a gun in the car, defendant Osuna gestured with his head toward the backseat (where he had been lying). The officers found a gun underneath the seat when they lifted it up. When the officers opened the glove box, it fell out of the dashboard and revealed two containers of methamphetamine inside the dashboard.

In ruling on the suppression motion, the superior court adopted the ruling of the magistrate. The ruling cited the first officer's experience in detaining vehicles for illegal tint, his viewing of the car's windows from a short distance away in daylight, and his subsequent view of the car after the traffic stop that confirmed his initial impression of illegal tinting. The officer's brief detention of the occupants, during which he questioned them about identification, ownership, and details of their trip was reasonable in light of the suspicions raised when the driver asserted his ignorance of his passenger's name. Once the ...


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