Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. 193828
Premo, J.
Defendant Peter Allen Flores was convicted by a jury of one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1); one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); count 2); one count of resisting a peace officer (§ 148, subd. (a); count 3); one count of giving a false name to a peace officer (§ 148.9; count 4); one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 5); and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1); count 6). In a bifurcated proceeding, the trial court found true the special allegations that, prior to the commission of the instant offenses, Flores had suffered three prior felony “strike” convictions and had one prior prison term within the meaning of section 667.5, subdivision (b). (§§ 187, subd. (a), 1170.12, subd. (c)(2).) Flores was sentenced to a total term of 50 years to life, plus an additional eight years for the enhancements.
All further statutory references are to the Penal Code.
Counts 1 through 4 arose from an incident which occurred in 1996 (hereafter the “1996 incident”), whereas counts 5 and 6 arose from an incident which occurred in 1995 (hereafter the “1995 incident”).
Flores appealed and, in a nonpublished opinion, we remanded his case to the trial court to conduct a new hearing on Flores’ motion to suppress evidence obtained in connection with the 1996 incident. Upon remand, the trial court again denied the motion to suppress and reimposed the original sentence. The instant appeal followed.
We have taken judicial notice of the record in Flores’ previous case, People v. Flores (Jan. 5, 2007, H029150 [nonpub. opn.]), in which Flores challenged the trial court’s orders denying his motions to suppress evidence obtained in connection with both the 1995 and the 1996 incidents. (See Evid. Code, § 452, subd. (d).) In our decision, we affirmed the trial court’s denial of the motion to suppress the evidence seized in connection with the 1995 incident, but directed the trial court to conduct a new hearing on Flores’ motion to suppress as to the 1996 incident “based on the parties’ existing motion papers, the existing testimony, any supplemental motion papers requested by the trial court, and the parties’ arguments at the new hearing.” (People v. Flores, supra, H029150.)
We appointed counsel to represent Flores in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Flores of his right to submit written argument in his own behalf within 30 days. Within that time period, we received a written request from Flores for an extension of time so that he could retain private counsel to respond on his behalf. By written order dated November 14, 2008, we granted Flores’ request and gave him an additional 30 days to submit written argument. That period has elapsed. We have received no further requests for extensions of time nor have we received any written argument from Flores or from any counsel purporting to represent him.
I. Factual and Procedural Background
Our recitation of the factual background is from our prior nonpublished opinion in People v. Flores, supra, H029150.
“Retired San Jose Police Sergeant Michael Schembri testified to the following, which occurred while he was on active duty and driving his patrol car: he saw a car stop on the street next to a bus stop and the driver converse with females at the bus stop; the car was impeding traffic; he drove behind the car to make a traffic stop; the car drove onto the freeway; he followed, activated his red lights, and stopped the car; he approached the car and contacted the driver who was defendant; he asked defendant for his driver’s license; defendant stated that he did not have a license because it had been taken from him by a Milpitas police officer; he asked defendant to exit the vehicle; defendant exited; he asked defendant for defendant’s name; defendant gave a name and date of birth that later proved to be false; he observed that defendant wore a tattoo on his shoulder that was possibly a ‘homemade’ prison tattoo and a red belt that caused concern because of the color’s association with area gangs; he pat-searched defendant for his safety and to learn whether defendant possessed identification; he felt an object in one pocket and another object in another pocket; he then noticed that defendant’s ‘heart started to raise [sic]’; he also noticed that defendant started to pan the area as if planning to flee; he called on his hand pack radio for assistance and conveyed defendant’s given identity and date of birth; the radio operator replied in code that he or she had confidential information concerning the given identity; he answered that he was not yet ready to receive the information; Officer Bindi arrived to assist him, and the two took positions on the sides of defendant; he told defendant that he was going to handcuff him; defendant resisted and struggled with the two officers; the officers drove defendant to the ground and handcuffed him; they searched his pockets and found cash and methamphetamine; they placed defendant in the patrol car; they searched defendant’s car and found a gun, marijuana, and a knife.”
“Sergeant Schembri’s police report states that defendant also wore a tattoo on his stomach that read ‘Norte,’ a tattoo that the parties accept as arguably gang-related. But, in testifying, Sergeant Schembri could not describe what tattoos he saw at the scene; and he believed that defendant was wearing a shirt at the scene. The only reasonable inference from this evidence is that Sergeant Schembri became aware of the stomach tattoo only after defendant was arrested and searched at the police station.”
“The police code, 10-36, generally means that the police have information relating to the identified person, such as that the person might be armed and dangerous, is subject to a warrant, or is affiliated with a gang.”
On remand, the trial court again denied Flores’ motion to suppress, finding that the officer had probable cause to arrest him based on his statement that his driver’s license had been taken from him by a Milpitas police officer and therefore the subsequent pat-down search could be considered a search incident to arrest.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.
II. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.