IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
FIDENCIO OSUNA-AVILA ET AL., DEFENDANTS AND APPELLANTS.
Super. Ct. No. 09795
The opinion of the court was delivered by: Robie,j.
P. v. Osuna-Avila CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Fidencio Osuna-Avila (Osuna) pled no contest to transportation of methamphetamine while personally armed with a gun. Co-defendant Abel Gonzalez, Jr., also pled no contest to transporting methamphetamine, and to actively participating in a criminal gang; he further admitted having served two prior prison terms. The trial court sentenced both defendants to prison, granting defendant Osuna 326 days of conduct credits for 326 days of custody, and limiting defendant Gonzalez to 162 days of conduct credits for the same amount of custody because he was convicted of a "serious" felony.
On appeal, both defendants challenge the superior court's denial of their renewed motions to suppress. Defendant Gonzalez also contests an order requiring him to reimburse the county for his attorney's legal fees. We affirm the judgment as modified.
The circumstances underlying the offenses and enhancements are irrelevant; instead we relate the testimony from the preliminary hearing on the motion pertinent to the argument on appeal. (We will include the facts pertinent to the legal-fees order in that part of the Discussion.)
In May 2009, a highway patrolman was on duty, monitoring midmorning northbound traffic while parked in the median of Interstate 5 in a marked vehicle that was facing south. It was a warm and sunny day. He noticed a red car about a quarter mile away approaching him in the fast lane. As it passed alongside him (about 30 feet away), he noticed all the windows other than the windshield were "dark tinted," which was a violation of law with respect to the front side windows. (At the evidentiary portion of the preliminary hearing, he had testified that the windows were "heavily tinted.") In the past, he had stopped hundreds of vehicles for such violations. He decided to initiate a traffic stop of the car.
The officer approached on the passenger side. The tinting on the rear window was even darker, but as he came abreast of the car he could see someone lying on the backseat. He opened the door and rolled down the window (before closing the door again) in order to speak with the rear seat passenger and keep him under observation. This was defendant Osuna. The other passenger (who was defendant Gonzalez) rolled down his window; the officer explained the reason for the stop to the driver, whom he asked to accompany him back to the patrol car.
The driver produced a Washington driver's license. He said that they were in route from Los Angeles to Washington. The driver identified defendant Osuna and said he was his cousin. However, the driver asserted that he did not know the name of defendant Gonzalez. The officer found it odd that the driver did not know a nickname for his passenger (given the length of time that they would be driving together). The officer was also suspicious about the lack of any luggage in the passenger compartment, an air freshener hanging above the right rear door, and an empty can of energy drink on the floorboard (although the officer never clearly articulated at the hearing what criminal activity the latter could signify). The officer radioed for backup. In the meantime, he directed the driver to stay by the patrol car, then asked defendant Osuna to stand at the far side of the shoulder while he questioned him.
A second officer arrived about two minutes after the first officer had radioed for him. The second officer approached the car (in which defendant Gonzalez was still seated) and saw an empty gun holster on the right rear floor. He alerted the first officer. Believing that a gun was somewhere in the car, they handcuffed the three men. A third officer arrived about five minutes later. When asked if there was a gun in the car, defendant Osuna gestured with his head toward the backseat (where he had been lying). The officers found a gun underneath the seat when they lifted it up. When the officers opened the glove box, it fell out of the dashboard and revealed two containers of methamphetamine inside the dashboard.
In ruling on the suppression motion, the superior court adopted the ruling of the magistrate. The ruling cited the first officer's experience in detaining vehicles for illegal tint, his viewing of the car's windows from a short distance away in daylight, and his subsequent view of the car after the traffic stop that confirmed his initial impression of illegal tinting. The officer's brief detention of the occupants, during which he questioned them about identification, ownership, and details of their trip was reasonable in light of the suspicions raised when the driver asserted his ignorance of his passenger's name. Once the second officer saw the empty handgun holster, this justified the continued detention of the occupants and provided probable cause to search the car for the gun.
The Motion To Suppress
Both defendants assert the first officer lacked reasonable grounds for a violation of the Vehicle Code that would justify the traffic stop. (See People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1148.) Disagreeing with the ruling on the motion to suppress, they contend the present matter is akin to People v. Butler (1988) 202 Cal.App.3d 602, which the ruling distinguished, and not People v. Niebauer (1989) 214 Cal.App.3d 1278 and People v. Hanes (1997) 60 Cal.App.4th Supp. 6, on which the ruling relied. In essence, they claim the officer failed to articulate the factual basis for his opinion that the forward side windows were tinted illegally, and therefore this was merely a hunch that was not reasonable under the circumstances.
The officer in Butler testified only that he observed a car at night with "darkened" windows, did not like the "'idea'" of a car with tinted windows, and made a traffic stop on the bases of both his suspicions about other conduct and to warn or issue a correction citation for the tinting. (People v. Butler, supra, 202 Cal.App.3d at pp. 604-605.) Noting that installed tinted windows complying with federal standards are legal, Butler found the record did not contain facts establishing that the windows "were made of illegally tinted, rather than legally tinted, safety glass" (id. at p. 606 & fn. 1), and rejected "the People's suggestion that seeing someone . . . driving with tinted glass raises a reasonable suspicion of illegality such that a reasonable inquiry is justified. Without additional articulable facts suggesting that the tinted glass is illegal, the detention rests upon . . . speculation." (Id. at p. 607, italics added).
Niebauer involved the sufficiency of the evidence of a conviction for illegally tinted windows. In articulating a standard for evaluating the evidence, Niebauer held "a commonsense approach to the enforcement of this statute" should apply; "[i]f an officer forms an opinion in a commonsense examination of a vehicle that . . . [the window] is obstructed in the fashion contemplated by the statute, such evidence will be sufficient . . . ; no further evidence or scientific testimony need by presented." (People v. Niebauer, supra, 214 Cal.App.3d at p. 1292.) In finding the evidence sufficient (the windows were "darker than normal," the officer could see only the outline of the driver through the window, and the officer had seen other drivers with equivalent tinting needing to roll down their windows at night to see where they were turning), Niebauer also noted in dictum that this evidence justified the officer's traffic stop. (Id. at pp. 1292-1293 & fn. 10.) It distinguished Butler as involving only a "bare statement" that the windows were "tinted." (Id. at p. 1293, fn. 10.)
The officer in Hanes made a nighttime traffic stop, having observed a black Mustang cross in front of him at a traffic light with a passenger window that appeared almost as dark as the car's paint, through which the officer could not see the occupants. The officer had stopped vehicles about 400 times for tinting violations. (People v. Hanes, supra, 60 Cal.App.4th Supp. at p. 8.) Hanes concluded that it was proper to give "considerable weight" to the experience of an officer in assessing the reasonableness of the officer's suspicions. (Id. at p. 9.) It distinguished Butler as lacking the additional facts of officer experience or a description of the basis for his belief that the tint was illegal, leaving the bare assertion of a dislike of tinted windows that Hanes thought was pretextual. (Id. at pp. 9-10.) Therefore, Hanes upheld the traffic stop on the basis of the officer's experience and description of the window being as dark as the black paint, blocking his view of the occupants. (Id. at p.10.)
In more recent cases that defendant Gonzalez identifies, an officer testified that he drove alongside the defendant's car, looked through the open side passenger window, and could not see through the driver's side window; this testimony was sufficient to uphold the stop for illegally tinted windows, without any discussion of the officer's experience in investigating tinting violations. (People v. Roberts (2010) 184 Cal.App.4th 1149, 1190, 1191.) Reciting even slimmer evidence, People v. Carter (2010) 182 Cal.App.4th 522, 529, identified only the officer's testimony that the defendant's car caught his eye "because it had tinted front windows" as constituting sufficient evidence of a reasonable basis for the traffic stop (citing Niebauer without any discussion of the officer's experience or the facts on which the officer based his belief).
Merely because Niebauer and Hanes involved both evidence of the officer's experience with illegal tinting investigations and an articulated basis for the conclusion of illegal tint does not mean this is necessary in every case; Butler did not have any evidence of either (the Butler officer not even suggesting that there was an unusual degree of tinting). Having extensive experience with investigating tinting violations, of itself, makes it reasonable to accept an officer's asserted conclusion that tinting was illegal without stating the basis unless it is challenged in some fashion. The defendants never sought to establish that the officer was in fact incorrect or that this was a pretext for a hunch. We do not agree with defendants that the prosecution must produce evidence that an officer's other traffic stops for illegal tinting were upheld, or the manner in which the present tinting compared with other illegal tinting that the officer had seen before a trial court can rely on an officer's experience and accept the obvious unspoken premise that the window looked too dark. Therefore, the first officer's experience with numerous traffic stops for illegal tinting was sufficient to establish that the officer had a reasonable unarticulated basis for concluding that the tinting (viewed in daylight from only 30 feet away) was illegal. As a result, the court properly denied the suppression motion in this respect.
Cost Of Court-Appointed Counsel
The probation report recommended that defendant Gonzalez pay $5,395 to reimburse the cost of appointed counsel. (Pen. Code, § 987.8, subd. (b).) It noted the 35-year-old defendant was presently unemployed, was still in the process of getting a GED, was recently divorced with two young children, and had previously worked for four years as a forklift operator with some experience in masonry and welding. It identified only his prison stipends and earnings as a resource.
On the issue of legal fees, defense counsel stated he had spent 83 hours on the case, but defendant Gonzalez "was indigent and remains so. He was not even able to post relatively modest bail . . . of $25,000. He has got substantial fines and assessments . . . . I would ask that the Court, if it imposes it, would stay it. But I would ask the Court not to impose counsel fees in view of his indigency status." The trial court instead set the amount of legal fees and suspended imposition of reimbursement unless his parole was revoked.
Defendant Gonzales contends the reimbursement order, stayed or not, lacks substantial evidence in support of it to establish the unusual circumstances necessary to overcome the statutory presumption that he does not have the present ability to pay it, which is limited to his resources within six months of sentencing. (Pen. Code, § 987.8, subds. (e) & (g)(2)(B); People v. Flores (2003) 30 Cal.4th 1059, 1068-1069; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 [also holding there must be an express finding of unusual circumstances]; People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) He further challenges the authority to stay imposition of the fees pending successful discharge from parole.
The People concede the lack of any evidence that unusual circumstances are present in this case. We therefore will strike the reimbursement order and do not need to consider the argument regarding a court's authority to stay it pending discharge from parole.
The attorney fee reimbursement order is stricken from the judgment as to defendant Gonzalez. As modified, the judgment is affirmed. The trial court shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
BLEASE , Acting P.J.
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