THE PEOPLE v. TOMAS ESPINDOLA MENDOZA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTSSTATEMENT OF THE CASE

On December 6, 2010, appellant, Tomas Espindola Mendoza, was charged in an information with felony transportation of more than 28.5 grams of marijuana (Health & Saf.Code, § 11360, subd. (a), count one) and felony possession of marijuana for sale (Health & Saf.Code, § 11359, count two).   On January 13, 2011, the trial court denied appellant's motion to suppress evidence pursuant to Penal Code section 1538.5.

On February 1, 2011, appellant entered into a plea agreement in which he would admit an amendment to count one alleging that he was an accessory (Pen.Code, § 32).   Appellant executed and initialed an advisement of rights, waiver, and plea form for felonies acknowledging the terms of the bargain, the consequences of the plea, and waiving his constitutional rights pursuant to Boykin / Tahl.¹

The trial court established that appellant had read, initialed the plea form and understood the terms of the plea agreement.   The trial court established that appellant was waiving his rights and that appellant understood he would, at some time, be deported to Mexico.   The appellant pled no contest to count one as amended and count two was dismissed.   The court sentenced appellant to the low term of 16 months in prison.   Appellant received custody credits of 140 days and conduct credits of 140 days for total credits of 280 days.   Appellant filed a timely notice of appeal, but did not obtain a certificate of probable cause.

Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ).   We will affirm the judgment.

At the suppression hearing, Officer Charles Wilson, with the California Highway Patrol, testified that on September 15, 2010, at 6:27 a.m., he was on patrol in Merced County on State Route 99.   Wilson saw an oncoming car approaching at a high rate of speed and used a hand-held Lidar device to measure the car's speed.   Wilson received four consecutive readings of 78 miles per hour, which was above the posted speed limit.

Wilson turned his patrol car around and stopped the car.   Appellant was the solo occupant of the car.   Wilson told appellant in Spanish that he stopped him for speeding.   When appellant handed Wilson the vehicle registration, Wilson discovered appellant was not the registered owner of the car.²  Wilson could smell the strong odor of marijuana and of fabric softener.   Appellant's driver's license was issued by the state of Oregon.

Appellant told Wilson the car belonged to his cousin and he was coming from Farmersville, south of Fresno.   Appellant was on his way to Oregon to see his sister.   Wilson wrote appellant a speeding ticket.   Appellant signed the ticket and Wilson gave him back his citation, driver's license, car registration, and proof of insurance.   Wilson told appellant he was free to go.

Wilson no longer had his lights on.   Wilson's hand was not on his gun.   Appellant asked Wilson questions about the citation which Wilson answered.   Wilson then asked appellant if he could ask appellant a few questions.   Appellant stopped walking away from Wilson, turned around and walked back toward Wilson and said yes to Wilson's question.   There were no other officers present and Wilson was not displaying any outward signs of authority.

Appellant told Wilson he was going to Oregon to work.   When Wilson asked appellant if he had anything illegal in his car, Wilson replied, “No.” Wilson asked appellant if he had any type of illegal drug or any large sum of money.   Wilson also asked to search appellant's car.   Appellant replied, “Yes,” and signed a consent form written in Spanish.   Wilson found 72 pounds of marijuana in the trunk of appellant's car.

The court found there was reasonable suspicion for Wilson to stop appellant's car for speeding.   The court noted Wilson told appellant he could leave and the detention was not “an extraordinary amount of time.”   The court found appellant had turned, begun to walk away, and turned back voluntarily to talk to Wilson.   The court further found appellant did not blindly sign the consent to search form and denied appellant's suppression motion.

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (Wende, supra, 25 Cal.3d 436.)   The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court.   By letter on June 10, 2011, we invited appellant to submit additional briefing.   To date, he has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  FN*.  Before Wiseman, Acting P.J., Levy, J., and Franson, J.

FN1. Judge McCabe presided over appellant's suppression hearing.   Judge Dougherty accepted appellant's change of plea and sentenced him..  FN1. Judge McCabe presided over appellant's suppression hearing.   Judge Dougherty accepted appellant's change of plea and sentenced him.

FN1. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122..  FN1. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122.

FN2. The insurance card for the car was in appellant's name..  FN2. The insurance card for the car was in appellant's name.

THE COURT *