(Super. Ct. No. 11F04165)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Francisco Arriola was charged with felony driving under the influence with three prior convictions; he moved to suppress the evidence obtained from the traffic stop on the ground that the stop was unlawful. The magistrate disagreed, concluding the arresting officer had sufficient cause to stop defendant after he made an unsafe pass.
On appeal following a plea of no contest, defendant contends the magistrate erred in denying his suppression motion. He argues there was not substantial evidence to support a legal traffic stop because "the magistrate did not credit the officer's testimony regarding speed and distance, but improperly denied the motion based on the officer's subjective belief of an unsafe pass, without any objective criteria to support such a legal finding." We disagree and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2011, Sacramento Police Officers Marcel Loriaux and Andy Hall were driving northbound in their patrol car on a two-lane road. Officer Loriaux saw a Honda driving southbound making a right turn into a complex. Defendant, driving behind the Honda, "went into the northbound lane of traffic at a high rate of speed and then cut back into the southbound lane." There were four or five cars in front of the officers at this time, and defendant was in the oncoming traffic lane for about four or five seconds.
Though traffic was "moderate," Officer Loriaux concluded the maneuver was "not safe"; it "seemed dangerous to [him]" because of defendant's "high rate of speed coupled with being in the opposite lane of traffic." After pulling defendant over, Officer Loriaux contacted defendant and noticed he had "bloodshot, watery eyes" and a "strong odor of an alcoholic beverage coming from his person." Officer Loriaux conducted a field sobriety test and a preliminary alcohol screening test, concluding that defendant's blood-alcohol content was about .26 percent, which was later confirmed by a criminalist.
Defendant was charged with two counts of felony driving under the influence with three prior convictions and one count of misdemeanor driving with a suspended or revoked license. At the preliminary examination, Officer Loriaux testified that at approximately 45 miles per hour, defendant travelled about 12 to 15 feet in the opposite lane for four to five seconds. The magistrate interjected that a car travelling at that speed would travel 12 to 15 feet in about one second. Later, defense counsel argued speeding was not an issue both because the officer did not know the speed limit on the road and his distance estimates were not consistent, which the magistrate confirmed. In response, the magistrate said that "speed, in and of itself, I don't think is the big issue." The magistrate continued, however, that "[t]he gist of [the officer's] testimony was that he felt the defendant made an unsafe pass . . . under the conditions of the road with the oncoming traffic."
Defendant moved to suppress all "evidence obtained in the present case . . . since it was obtained as a result of a warrantless search." Defendant argued the officer's testimony was unreliable because Officer Loriaux was travelling toward defendant, contending Loriaux was unable to accurately gauge defendant's speed. Additionally, defendant argued the officer's estimations of defendant's speed, the time defendant spent in the northbound lane, and the distance he travelled in that lane were inconsistent. The magistrate concluded, however, that Officer Loriaux "in good faith, honestly did believe that [defendant] made an unsafe pass" "notwithstanding any internal inconsistency or discrepancy in his testimony regarding distances." Accordingly, the magistrate denied the suppression motion.
Defendant renewed the suppression issue in the superior court with a motion to dismiss under Penal Code section 995, but the trial court denied that motion. Defendant then pled no contest to driving with a blood-alcohol content of .08 percent or higher and was sentenced to two years in prison.
On appeal, defendant contends there was not substantial evidence to support a legal traffic stop because "the magistrate did not credit the officer's testimony regarding speed and distance, but improperly denied the motion based on the officer's subjective belief of an unsafe pass, without any objective criteria to support such a legal finding." He argues there were no specific and articulable facts presented to support a reasonable suspicion defendant violated any Vehicle Code*fn1 provision, making the traffic stop unlawful. In particular, defendant points to the magistrate's statement that "speed, in and of itself, I ...