(Super. Ct. No. 10F00319)
The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jaime Santos of assault with a deadly weapon upon a peace officer, driving with disregard for safety while fleeing a pursuing peace officer, driving opposite traffic while fleeing a pursuing peace officer, possession of morphine, carrying a loaded firearm, and possession of diazepam. The trial court found true a prior felony conviction allegation and sentenced defendant to an aggregate of 13 years in state prison.
Defendant now contends his trial counsel rendered ineffective assistance by arguing defendant's motion to suppress evidence at the preliminary hearing but then failing to reassert the motion after defendant was held to answer.
Having reviewed the legality of the search and seizure, we conclude defendant has failed to demonstrate that counsel rendered ineffective assistance. But we have identified a clerical error in the abstract of judgment. We will affirm the judgment and direct the trial court to correct the abstract of judgment.
The facts set forth are those adduced at the combined hearing for the preliminary examination and defendant's suppression motion.
Twin Rivers Police Officer Justin Stanley was on duty, in uniform, and driving a patrol car on the evening of January 9, 2010. His car was marked "police" and was equipped with a siren, overhead lights, and a red and blue light bar on top. He was on patrol alone in a residential area near Hamilton Street Park where illicit activity had occurred, including drug sales, trespassing and vandalism, and where neighbors had reported parked cars that did not belong in the area. One of Officer Stanley's duties was to lock the exterior gates of the park after it closed at dusk.
Officer Stanley saw a white Chevy pickup parked five feet from the park and facing the open gates. The pickup's engine and headlights were off, the driver's window was rolled up, the dome light was on, and defendant, the sole occupant, was sitting in the driver's seat looking down toward his lap. Officer Stanley made a U-turn, parked seven to 10 feet behind the pickup, and illuminated the truck with his white spotlight.
Officer Stanley wanted to do a welfare check and ensure there was no illicit activity. The officer approached the truck on the driver's side, noting that the window had been rolled down. The pickup engine was still off. Officer Stanley asked defendant, "[H]ey man, what's up" and "what's going on." Officer Stanley did not have a weapon or night stick in his hand. Showing the officer a disposable camera, defendant said he was looking at the photos and trying to decide which ones to develop. Officer Stanley asked defendant where he lived and what he was doing there. Defendant replied that he lived with family members on Taylor Street, which the officer knew was one-half mile away. Less than a minute into the contact, the officer asked for identification. Defendant claimed that he either did not have a driver's license or that his license was somewhere in the car but never produced one. The officer asked for any other form of identification. Defendant produced a credit card and also provided his date of birth in response to the officer's request. Officer Stanley returned the credit card to defendant and asked whether defendant minded if he "r[a]n [his] name." Defendant asked "what for" and said he had not done anything wrong. The officer walked back to his patrol car. The officer did not draw a weapon, tell defendant that he was not free to leave, or activate his overhead red and blue lights or siren. The officer conducted a criminal records check and learned that defendant had a criminal history and was on searchable probation. About this time, two other officers in another vehicle arrived to help lock up the park.
Officer Stanley and one of the other officers approached the driver's side of the pickup. The driver's window was now partially rolled up. Defendant rolled the window all the way up and started the truck's engine. The officers ordered defendant to stop and to get out. Instead, defendant fled the scene. Officers pursued defendant for more than five miles with their overhead red ...