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The People v. Luis Alfonso Cabrera-Banegas

October 31, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LUIS ALFONSO CABRERA-BANEGAS, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F581)

The opinion of the court was delivered by: Hoch , J.

P. v. Cabrera-Banegas

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Luis Alfonso Cabrera-Banegas entered a negotiated plea of no contest to transportation of cocaine (Health & Saf. Code, § 11352) in exchange for a stipulated low term of three years. The court sentenced defendant to state prison accordingly.

Defendant appeals. He obtained a certificate of probable cause (Pen. Code, § 1237.5).

Defendant contends (1) the trial court abused its discretion in denying his discovery motion based on the failure to present some evidence to support his discriminatory-prosecution claim and (2) the trial court erroneously denied his suppression motion. We reject defendant's contentions and affirm the judgment.

FACTS*fn1

About 8:26 a.m. on January 23, 2010, Sheriff's Detective Christopher McQuillan, who was parked on the southbound side of Interstate Highway 5 (I-5) monitoring traffic, saw a Chrysler Sebring sedan pass his location. The car had a completely fogged-up windshield and side windows with the exception of a small 12-inch by 6-inch area in the bottom, center of the windshield. Detective McQuillan could not see the occupants in the car. The car was traveling at 51 miles per hour in a posted 65-mile-per-hour zone. Other drivers were going at least the speed limit. Detective McQuillan believed the fogged-up windows created a safety hazard and made a traffic stop based on Vehicle Code section 26708, which he interpreted as prohibiting any material, including fog, on the windshield and side windows which blocks the view of the driver.*fn2 Detective McQuillan approached the driver, defendant, and noticed indicators of drug smuggling (strong smell of air freshener, a single key, several religious items, nervousness of defendant and passenger, "third party absent owner of the vehicle"). The officer advised that he planned to issue a warning citation and requested permission to search the car. Another officer arrived and walked around the car with his drug-sniffing dog. The dog alerted to the presence of a controlled substance. The officers searched the car and found 26 ounces of cocaine in a hidden compartment and a large sum of money.

DISCUSSION

I

Discriminatory-Prosecution Discovery Motion

Defendant contends the trial court erroneously denied his discriminatory-prosecution discovery motion brought under Murgia v. Municipal Court (1975) 15 Cal.3d 286.*fn3 Defendant argues that he "made as good a showing as was possible, given the fact it was 'extremely difficult to obtain information on those who were stopped and not arrested/detained due to the transient nature of traffic on I-5 [as] the ...


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