IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 3, 2010
THE PEOPLE, PLAINTIFF AND APPELLANT,
JESSIE ELI RAMIREZ CORIA, DEFENDANT AND RESPONDENT.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge, and Bambi Moyer, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) (Super.Ct.No. RIF150955)
The opinion of the court was delivered by: Hollenhorst J.
P. v Coria
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 and respondent Jessie Eli Ramirez Coria was charged with possession for sale of methamphetamine (Health & Saf. Code, § 11378) and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)). He moved to suppress the prosecution's evidence against him pursuant to Penal Code section 1538.5, and the court granted the motion. After the motion was granted, the People announced they were unable to proceed without the suppressed evidence. The trial court dismissed the case under Penal Code section 1385. The People now appeal the trial court's granting of the motion to suppress (the motion). We affirm.
At the hearing on the motion to suppress, Deputy Moline of the Riverside County Sheriff's Department Special Enforcement Team testified that on May 25, 2009, he was on routine patrol. He stopped a vehicle for having an "obstructed view," in violation of Vehicle Code section 26708, subdivision (a)(2).*fn1 When asked what was obstructing the driver's view, Deputy Moline said, "He had an air freshener hanging from the rearview mirror." Deputy Moline could not recall what the air freshener looked like. He testified that he had previously stopped approximately six or seven people for that same violation. The prosecutor submitted into evidence a series of photographs that Deputy Moline took to demonstrate "how an air freshener can block your view." Deputy Moline hung an air freshener from a rearview mirror, and then had another deputy stand about 35 feet away from the front of a car. The picture showed that the air freshener obstructed the view of the other deputy.
Defendant was the driver of the car that Deputy Moline had pulled over. Deputy Moline arrested him after determining that he was driving with a suspended driver's license. Defendant was placed in the back of the patrol car. Deputy Moline impounded defendant's car and conducted an inventory search. He found "a suspected marijuana cigarette inside a Marlboro cigarette pack." He then called for a K-9 unit. The K-9 found about 10 grams of methamphetamine in the car.
Defendant and his girlfriend testified at the suppression hearing. His girlfriend testified that a week or two prior to the date of defendant's arrest, she bought him an air freshener that clipped onto the air conditioning vent. She testified that on the morning of May 25, 2009, defendant "came by [her] house" in his car. She did not notice anything hanging from his rearview mirror. Defendant also testified that there was nothing hanging from his rearview mirror that day. He said he remembered clearly that he had an air freshener in the air conditioning vent.
The Trial Court Properly Granted the Motion to Suppress
The People argue that the trial court erred in granting the motion to suppress because there was reasonable suspicion to stop and detain defendant, and because the trial court failed to "make the necessary credibility call and resolve the conflicts in testimony." We disagree.
A. Suppression Hearing
Following the testimonies of the witnesses, the trial court heard argument from counsel. It then made several comments. The trial court noted that "not everybody gets stopped for having things hanging from their windows." However, Deputy Moline "ha[d] a tip, or just a hunch that this guy is dirty." That was the first issue the trial court identified.
The next issue the trial court identified was that, since defendant was in custody, it did not seem like a search was justified. The trial court further commented that "looking inside a cigarette box" seemed more like "a general search rather than an inventory search."
The third issue the trial court identified involved equal protection. The trial court cited section 26708, which prohibits any person from driving a car with any object that can obstruct or reduce the driver's "clear view." It then noted that there were several exceptions for things like rearview mirrors and rear window wipers. The trial court saw an equal protection problem "in the things that are bad and things that are, quote, good." The trial court further stated that "something sticking up, whether it's an air freshener or GPS navigator thing, isn't a violation, where a hanging thing is."
The trial court was also concerned that the deputy did not take a picture of the defendant's alleged air freshener. Noting that the air freshener was the reason for the stop, and that officers have digital cameras, it stated that the deputy should have taken a picture of the air freshener at the scene. Moreover, the deputy did not remember what the air freshener looked like. In contrast, the other two witnesses remembered exactly what the air freshener looked like, and they testified that the air freshener was "sticking up from the air-conditioning vent." The trial court stated that it was not convinced "the officer saw what he saw," since he did not take a picture and could not remember what it looked like. The trial court then granted the suppression motion.
The prosecutor asked the trial court to clarify the basis of its ruling. The trial court stated that one basis was the equal protection problem. The other basis was that the deputy could not recall what the air freshener looked like and did not take a picture of it. The prosecutor then asked the trial court if the ruling was based on the fact that it did not believe the officer's testimony. The trial court said it believed the officer, and noted that the officer could not remember what the air freshener looked like. The trial court repeated that the air freshener was the important part of the case, and the fact that the officer failed to take a picture of it led the trial court to believe he was mistaken as to where it was located. The prosecutor then asked whether the trial court was saying it did not believe there was an obstructed view. The trial court said it was not that it did not believe the view was obstructed, but the air freshener was "just like a GPS, but that's not prohibited." That was why, in the trial court's view, there was an equal protection argument.
B. Relevant Law
"'Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess "reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity." [Citations.] Such reasonable suspicion "requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct." [Citation.]' [Citation.]" (People v. White (2003) 107 Cal.App.4th 636, 641 (White).) "The officer's subjective suspicion must be objectively reasonable, and 'an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]' [Citation.] But where a reasonable suspicion of criminal activity exists, 'the public rightfully expects a police officer to inquire into such circumstances "in the proper exercise of the officer's duties." [Citation.]' [Citation.]" (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
"'A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. . . . The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings--whether express or implied--must be upheld if supported by substantial evidence.' [Citation.] Our review is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling. [Citation.]" (People v. Dimitrov (1995) 33 Cal.App.4th 18, 27 (Dimitrov).)
C. There Was No Reasonable Suspicion
In his suppression motion, defendant argued that he was detained without reasonable suspicion. Thus, any evidence obtained from the illegal detention had to be suppressed. The trial court agreed and granted the motion. On appeal, the People contend that Deputy Moline had reasonable suspicion to stop defendant's car because he observed the air freshener hanging from the rearview mirror, down the center of the front windshield, such that the driver's view was obstructed, in violation of section 26708, subdivision (a)(2).
In White, supra, 107 Cal.App.4th 636, a police officer observed that a car had no front license plate and had a tree-shaped air freshener hanging from the rearview mirror. (Id. at pp. 639-641.) The officer believed that the lack of a front license plate and the hanging air freshener were Vehicle Code violations, and he detained the vehicle. He then found narcotics. (Id. at p. 640.) The defendant moved to suppress the evidence on the ground that the detention was unlawful. The trial court concluded that the hanging air freshener justified the detention under section 26708, subdivision (a)(2), and it denied the suppression motion. (Id. at p. 639.) However, the First District Court of Appeal reversed. (Id. at p. 645.) The court in White stated that "[b]y its plain language, Vehicle Code section 26708, subdivision (a)(2), prohibits driving a vehicle with an object displayed that obstructs or reduces the driver's clear view through the windshield or side windows. The statute does not flatly prohibit hanging any object on a rearview mirror." (White, supra, 107 Cal.App.4th at p. 642.) The court posed the issue as "whether it was objectively reasonable for [the officer] to believe that the air freshener obstructed or reduced [the driver's] clear view through the windshield so as to constitute a possible violation of the Vehicle Code." (Ibid.) The evidence that was before the trial court on the suppression motion was very limited. The court noted that the officer "never testified that he believed the air freshener obstructed the driver's view" or identified any "other specific and articulable facts, like hesitant or erratic driving, that might suggest the driver's clear view was impeded." (Ibid.)
The defense, on the other hand, presented testimony by a civil engineer who had performed an experiment and concluded "that the air freshener covered less than .05 percent of the total surface of the car's windshield" and that the hanging air freshener "would not obstruct the vision of a six-foot-tall driver." (White, supra, 107 Cal.App.4th at p. 642.) The driver testified that the air freshener had not obstructed his vision when he was driving the car. (Ibid.) The trial court had itself "stated that it had 'difficulty accepting' that such an object would really obstruct a driver's view." (Ibid.) In view of the evidence that was before the trial court, the Court of Appeal concluded that the detention had not been supported by specific and articulable facts supporting the officer's belief that the driver's view was obstructed. (Ibid.)
In contrast, in People v. Colbert (2007) 157 Cal.App.4th 1068 (Colbert), which concerned the same issue, the officer testified that he believed that a hanging air freshener obstructed the driver's view, and he identified specific and articulable facts to show the driver's view was impeded. (Id. at pp. 1070-1072.) The officer "explicitly testified that the air freshener was 'large enough to obstruct [the driver's] view through the front windshield.' He described the precise dimensions of the air freshener and related how he had personally experienced the view obstruction that an object of that size could pose when he hung a similar-sized object from the rearview mirror of his personal vehicle. [He] explained that the proximity to the driver's face of an object hanging from the rearview mirror resulted in the object 'actually obstruct[ing] the view of larger objects such as vehicles or pedestrians' despite the hanging object's small size." (Id. at p. 1073.) The court in Colbert affirmed the trial court's denial of the suppression motion. (Id. at pp. 1073-1074.)
Here, Deputy Moline testified that he stopped defendant's car for a violation of section 26708, subdivision (a)(2). When asked what was obstructing the driver's view, Deputy Moline said, "He had an air freshener hanging from the rearview mirror." However, just as in White, Deputy Moline did not actually testify that he believed the air freshener was obstructing defendant's view. (See White, supra, 107 Cal.App.4th at p. 642.) Deputy Moline testified that he could not remember what the air freshener looked like or how big it was, in direct contrast to the officer in Colbert. Moreover, Deputy Moline did not take a picture of the air freshener. Instead, for purposes of the suppression hearing, Deputy Moline hung an air freshener in a patrol car and then took a picture to "show an example of how an air freshener can block your view." Deputy Moline did not testify that the picture he took demonstrated how defendant's specific air freshener obstructed the view in defendant's car. In addition, as in White, Deputy Moline did not identify other "specific and articulable facts, like hesitant or erratic driving, that might suggest the driver's clear view was impeded." (White, at p. 642.) From Deputy Moline's testimony, the trial court inferred that he was mistaken as to where the air freshener was located.
On the other hand, the defense here presented testimony by defendant's girlfriend indicating she recently bought defendant an air freshener that clipped onto the air conditioning vent. She also testified that she saw defendant in his car on the morning of May 25, 2009, and did not notice anything hanging from his rearview mirror. Defendant similarly testified that he clearly remembered he had an air freshener in his air conditioner vent that day, and that he never "put an air freshener on [his] rearview mirror."
As noted by the trial court, the case depended on Deputy Moline seeing the air freshener. However, Deputy Moline could not recall defendant's exact air freshener, and he did not identify any specific facts to suggest defendant's clear view was obstructed. Based on the evidence presented at the hearing, the trial court could conclude there was no reasonable suspicion to justify the traffic stop.
The People additionally argue that the granting of the motion must be reversed because the trial court failed to make the "credibility call and resolve the conflicts in the testimony." The People then state that the trial court found credible the testimony of Deputy Moline that defendant's windshield appeared to be obstructed by an air freshener, yet it still granted the suppression motion. However, the record does not demonstrate that the trial court found such testimony credible. When the prosecutor asked the trial court whether it was basing its ruling on the fact that it did not believe Deputy Moline's testimony, the trial court replied, "I believe the officer. He said he can't remember what it looked like. And they [defendant and his girlfriend] describe something specific." The trial court further stated that it believed Deputy Moline saw an air freshener, but because he failed to take a picture of it, the trial court was led to believe he was "mistaken as to where it was." The trial court contrasted the deputy's testimony with the testimonies of defendant and his girlfriend, who both described specifically that defendant had an air freshener that clipped onto the air conditioning vent. Thus, the trial court believed Deputy Moline saw an air freshener, but inferred that he was mistaken as to where it was located. It also apparently believed defendant and his girlfriend. On appeal, we must presume that the trial court properly exercised its power to weigh evidence and draw factual inferences. (Dimitrov, supra, 33 Cal.App.4th at p. 27.)
The People further argue that the trial court's ruling, based on a finding of an equal protection violation, should be reversed because section 26708, subdivision (a)(2), does not violate equal protection, and because there was no indication that defendant was singled out for disproportionate treatment. We note that defense counsel did not raise an equal protection challenge to the statute at hand, and there was no showing that the state had adopted a classification that affected two or more similarly situated groups in an unequal manner. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Although it is apparent that the trial court incorrectly based its ruling on an equal protection violation, we note that it also based its ruling on the ground that the People failed to establish that the officer had reasonable suspicion for the traffic stop. That ground alone is sufficient to sustain the ruling here, even if the trial court was incorrect about the constitutionality of the statute. (People v. Zapien (1993) 4 Cal.4th 929, 976 ["'"[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion"'"].)
The People further contend that the trial court erroneously rejected the prosecutor's argument that the search was an inventory search, based on defendant's car being impounded pursuant to section 14602.6, subdivision (a)(1). The trial court did mention that "looking inside a cigarette box" seemed "like more than a general search rather than an inventory search." The trial court appeared to just be responding to the prosecutor's inventory search argument; however, it did not base its grant of the suppression motion on this ground.
In sum, while we may not agree with all the trial court's reasons for its ruling, we conclude that the suppression motion was properly granted on the ground that the evidence failed to support a finding of reasonable suspicion for the traffic stop.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: RAMIREZ P. J.