IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
October 31, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LUIS ALFONSO CABRERA-BANEGAS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F581)
The opinion of the court was delivered by: Hoch , J.
P. v. Cabrera-Banegas
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Luis Alfonso Cabrera-Banegas entered a negotiated plea of no contest to transportation of cocaine (Health & Saf. Code, § 11352) in exchange for a stipulated low term of three years. The court sentenced defendant to state prison accordingly.
Defendant appeals. He obtained a certificate of probable cause (Pen. Code, § 1237.5).
Defendant contends (1) the trial court abused its discretion in denying his discovery motion based on the failure to present some evidence to support his discriminatory-prosecution claim and (2) the trial court erroneously denied his suppression motion. We reject defendant's contentions and affirm the judgment.
About 8:26 a.m. on January 23, 2010, Sheriff's Detective Christopher McQuillan, who was parked on the southbound side of Interstate Highway 5 (I-5) monitoring traffic, saw a Chrysler Sebring sedan pass his location. The car had a completely fogged-up windshield and side windows with the exception of a small 12-inch by 6-inch area in the bottom, center of the windshield. Detective McQuillan could not see the occupants in the car. The car was traveling at 51 miles per hour in a posted 65-mile-per-hour zone. Other drivers were going at least the speed limit. Detective McQuillan believed the fogged-up windows created a safety hazard and made a traffic stop based on Vehicle Code section 26708, which he interpreted as prohibiting any material, including fog, on the windshield and side windows which blocks the view of the driver.*fn2 Detective McQuillan approached the driver, defendant, and noticed indicators of drug smuggling (strong smell of air freshener, a single key, several religious items, nervousness of defendant and passenger, "third party absent owner of the vehicle"). The officer advised that he planned to issue a warning citation and requested permission to search the car. Another officer arrived and walked around the car with his drug-sniffing dog. The dog alerted to the presence of a controlled substance. The officers searched the car and found 26 ounces of cocaine in a hidden compartment and a large sum of money.
Discriminatory-Prosecution Discovery Motion
Defendant contends the trial court erroneously denied his discriminatory-prosecution discovery motion brought under Murgia v. Municipal Court (1975) 15 Cal.3d 286.*fn3 Defendant argues that he "made as good a showing as was possible, given the fact it was 'extremely difficult to obtain information on those who were stopped and not arrested/detained due to the transient nature of traffic on I-5 [as] the only entity that is controlling the flow of information is [the government].'" We reject his contention.
The officer who stopped defendant's vehicle was assigned to a Domestic Highway Enforcement (DHE) unit of Northstate Initiative California Multi-Jurisdictional Methamphetamine Enforcement Team (NSI Cal-MMET (unit)). Defendant filed a motion for discovery of information "material to the defense of discriminatory prosecution in this case." Defendant claimed that "members of the Shasta County Sheriff's Office (SCSO) are acting in an impermissibly discriminatory manner in that they are enforcing the traffic laws of the State of California against certain minorities, largely Hispanics, while similarly situated Whites are not being singled out for prosecution and/or the same officers are initiating traffic stops of a suspect class of people without probable cause." Defendant sought discovery of numerous items, including copies of traffic citations, DVDs of traffic stops, investigation reports, information about the MMET/DHE program, training materials, policies and procedures for domestic highway operations, memoranda of understanding between law enforcement agencies, and assignments and job duties of law enforcement personnel.
In its response, the People stated that the unit is "specially trained to do highway interdiction" and that the officers monitor I-5, north of Redding, "stopping vehicles for traffic violations and looking for indicators of drug smuggling." In their declarations in support of the People's response, Officer McQuillan and Officer Pat Kropholler, both assigned to NSI Cal-MMET, described their involvement with the unit, its inception and how it functioned. Based on a United States Justice Department 2009 Drug Market Analysis, attached to the People's response, "I[-]5 is routinely exploited by drug traffickers to provide direct access to drug sources located in other areas of California as well as in Mexico and Canada" and in the Central Valley High Intensity Drug Trafficking Area (HIDTA), in which Shasta County is included, the trafficking and abuse of methamphetamine, primarily ice methamphetamine, pose the most significant drug threats. The analysis also stated that Mexican drug trafficking organizations (DTOs) are the primary producers, transporters, and distributors of illicit drugs. "Mexican DTO's represent the primary organizational threat with regard to cannabis cultivation and marijuana production operations in the Central Valley HIDTA region."
Defendant asserted that the unit reports reflected investigations which all started with traffic stops for similar Vehicle Code violations; violations could only be substantiated by observations by the officers; all reports listed drug smuggling "'indicators'" which raised the officer's suspicions; after the stop, other officers arrived, including the drug-sniffing dog; and the suspect was asked about travel plans and eventually for consent to search the vehicle.
Defendant presented statistical evidence. Based on 78 unit reports dated May 2007 through February 2010, 73 percent of the drivers were Hispanic. Defendant presented United States Census Bureau data which showed that Hispanics constituted 36.6 percent of California's population, but only 8 percent of Shasta County's population, 9.8 percent of the state of Washington's population and 11 percent of Oregon's population. Defendant presented statistical evidence of 2008 and 2009 arrests and citations by Redding area CHP, Shasta County Sheriff's Office, Redding Police Department, Anderson Police Department, and the Shasta County Inter Agency Narcotics Task Force. Defendant calculated that Hispanics represented 6.6 percent of the total arrests made by the Shasta County Sheriff's Office in 2008 and 6.9 percent in 2009 and that Hispanics represented 4.9 percent of all arrests made and citations issued by the Redding Police Department in 2009, and 6.1 percent in 2008. In reply to the People's response, defendant presented a chart that purported to be a statistical breakdown of the warning citations issued along I-5 by the unit showing that 80 percent of the Hispanic males were searched while only 44 percent of the White males were searched.
The People argued that defendant failed to demonstrate that similarly situated non-Hispanic persons were not stopped or prosecuted. The People represented that based on traffic and warning citations issued by the unit from January 2009 through May 2010, 43.49 percent were White, 44.27 percent were Hispanic, 4.69 percent were African-American, and 4.43 percent were Asian. The People claimed such statistics were "not distinctively different from the overall California population demographics as shown in [d]efendant's motion." The People included the declarations of Officers McQuillan and Kropholler who both stated that they have never used race as a reason to conduct an enforcement stop of a vehicle and the declarations of the deputy district attorneys assigned to prosecute the unit cases who stated they had never filed a case or declined to file a case based on race.
Trial Court's Ruling
In denying defendant's motion, the trial court applied the test articulated by the Supreme Court in United States v. Armstrong (1996) 517 U.S. 456 [134 L.Ed.2d 687] (Armstrong) that in order to succeed on a discriminatory-prosecution discovery motion, a defendant must produce "some evidence" that there was a prosecution policy that "'had a discriminatory effect and that it was motivated by a discriminatory purpose.'" (Armstrong, supra, 517 U.S. at p. 465, 468-469 [134 L.Ed.2d at p. 701.) Here, the trial court found that defendant had failed to meet his burden of producing "some evidence" of discriminatory effect and discriminatory intent as required by Armstrong. The trial court rejected defendant's statistical argument, stating: "They argue that because the defendants arrested in these cases were all Hispanic, therefore some evidence exists to support the requested discovery. The problem with this is two fold. First, no statistics are provided to show that non-Hispanic persons are not being pursued. In fact, the People have provided statistics to the contrary. The officers involved in the cases before this court are funded by a grant to a five county task force designated as [NSI Cal-MMET]. People's exhibit 'E' shows that Hispanic drivers make up 44.27% of the total number of drivers stopped by the Cal-MMET officers. This is not at great variance with the percentage of Hispanic's in the general California population (36.6%). (See Exhibit L-1, attached to defendants' motion). In addition, much like the study referred to in Armstrong, supra, the People have provided as exhibit 'G' to their opposition, The Central Valley California High Intensity Drug Trafficking Area Drug Market Analysis 2009, prepared by the United States Department of Justice, National Drug Intelligence Center. This study reveals the vast majority of drug trafficking on the area in question here is controlled by drug trafficking organizations with ties to Mexico."
The court reviewed the items of evidence in support of the motion. With respect to the reports generated by the unit officers and defendant's observation that similar reasons are offered for the stops, the trial court stated: "These observations connote nothing. It is not unusual for law enforcement officers to use techniques that prove successful in repeated, similar investigations. In addition, because it is safe to assume that some traffic violations occur more frequently than other violations, there is nothing unusual about the officers giving similar reasons for the various traffic stops."
With respect to defendant's observation that 73 percent of the reports involved Hispanic drivers, the trial court stated: "Because a contact without an arrest is not likely to result in a police report being written, one would expect that reports documenting arrests would mirror the characteristics of the targeted offenses" and "it appears the I-5 drug trade is predominantly controlled by Mexican drug trafficking operations," so "it would not be unexpected that most of the contacts that result in arrests and reports would involve Hispanic individuals."
With respect to defendant's argument regarding the statistical racial makeup of offenders arrested by local law enforcement agencies in Shasta County, the court determined the People had credibly asserted "that the racial makeup of travelers on [I-5] are more likely to be consistent with the overall population of the state than they are with the population of Shasta County, whose racial makeup is quite different than the rest of the state."
The trial court considered and rejected defendant's other arguments as deficient. The trial court found the report of the defense investigator to be deficient because his documentation of a limited number of traffic stops was also limited to just a few days and "not fairly representative of the traffic stops made by the agents." The trial court found the statistics regarding the racial makeup of arrestees by local agencies to be deficient because they "cannot be readily compared" since the unit stops are limited in number, occur only on I-5, and the unit responds to reports from other agencies that observe drug trafficking.
The trial court found no probative value to the fact that CHP terminated its participation in the program.
The trial court rejected defendant's analysis of various police reports and hearing transcripts in support of his claim that the officers fabricated the reasons for a traffic stop and search of a Hispanic driver, finding no evidentiary basis.
The trial court found the declarations of four Hispanics and one Filipino driver deficient to show non-Hispanics are treated differently.
The trial court concluded: "Putting together all the deficient evidence offered in support of this motion does not result in the evidence rising to the level of some evidence that similarly situated non-Hispanic drivers are treated differently than Hispanic drivers. The evidence of the questioned treatment of the designated class does not demonstrate the absence of such treatment towards those outside the class. This remains the fundamental flaw in all the evidence proffered in support of the motion. [¶] Based upon 2009 and 2010 studies referred to in the People's opposition, one would expect that even if vehicles were being stopped precisely according to the racial ratio of the appropriate census pool, a disproportionate number of Hispanics still would be found to be transporting drugs and arrested. Similar to the circumstances addressed in Armstrong, supra, and the study discussed in that case, this result is expected because of the disproportionate share of interstate drug trafficking attributed to the designated class. Even if [it is] true that the majority of arrests for transportation of controlled substances made on I-5 arise from traffic stops of Hispanic drivers, such does not lead to a conclusion that they are being unfairly targeted. It simply corroborates the findings of the 2009 and 2010 studies referred to by the People and cited above."
Defendant contends that the trial court erred in denying his motion. We disagree.
The People's discretion to prosecute and what to charge is constrained by, among other principles, "the equal protection component of the Due Process Clause of the Fifth Amendment." (Armstrong, supra, 517 U.S. at p. 464 [l34 L.Ed.2d at 698]; People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1188 (Baez); Baluyut v. Superior Court (1996) 12 Cal.4th 826, 831-832 (Baluyut).) "The defect lies in the denial of equal protection to persons who are singled out for a prosecution that is 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' [Citation.] [¶] Unequal treatment which results simply from laxity of enforcement or which reflects a non-arbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement. [Citations.]" (Baluyut, supra, 12 Cal.4th at pp. 831-832.)
Under the Armstrong standard, to succeed on a discriminatory-prosecution discovery motion, a defendant must produce "some evidence" that there was a prosecution policy that "'had a discriminatory effect and that it was motivated by a discriminatory purpose.'" (Armstrong, supra, 517 U.S. at p. 465, 468-469 [134 L.Ed.2d at p. 701]; Baez, supra, 79 Cal.App.4th at pp. 1189-1190; Pen. Code, § 1054, subd. (e).) In other words, a defendant must make a "credible showing of different treatment of similarly situated persons." (Armstrong, supra, 517 U.S. at p. 470 [134 L.Ed.2d at p. 702].) "The defendant may satisfy the 'credible showing' requirement by identifying a similarly-situated individual or through the use of statistical evidence." (United States v. James (10th Cir. 2001) 257 F.3d 1173, 1179; Armstrong, supra, 517 U.S. at p. 470 ["study failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted"].) We review a trial court's denial of the motion for abuse of discretion. (Baez, supra, 79 Cal.App.4th at pp. 1185-1186.)
Defendant's summary of his argument ("the information sought here was impossible for the defense to obtain, and easily available to the government") is his argument in toto. For six pages, he sets forth the relevant facts and for six more pages, he sets forth some of the relevant law but with no analysis and no argument explaining why the trial court erred. Not only did defendant fail to present some evidence in support of his discriminatory-prosecution claim, he failed to present some argument in support of his contention on appeal. In any event, defendant's statistical evidence did not demonstrate that persons observed by unit officers violating traffic laws on I-5 and later found to have illegal drugs in their possession were not prosecuted because of their race. It is defendant's burden to make a "credible showing of different treatment of similarly situated persons." (Armstrong, supra, 517 U.S. at p. 470 [134 L.Ed.2d at p. 702].) He failed to do so. The trial court properly denied defendant's discovery motion.
Motion to Suppress
Defendant moved to suppress, raising several issues in the trial court. The only issue he renews on appeal is his claim that the officer lacked any justification for the stop. The People argued that the stop was justified by Vehicle Code section 26708, subdivision (a)(2). Defense counsel claimed subdivision (a)(2) did not apply to a fogged-up windshield because subdivision (a)(3) of that section mentioned windows obstructed by snow or ice, not frost or dew, and section 26712 required a defroster only for vehicles for hire.*fn4 In denying the motion, the trial court disagreed, stating, "I can't imagine not stopping a vehicle that had only a 6 by 12 opening in the fog on their window, driving along [I-5]. An unsafe vehicle, and unsafe condition of that particular section, as well." We conclude that the trial court did not err in denying the motion.
In reviewing a trial court's denial of a suppression motion, "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence" and decide independently whether the officer's conduct in performing the traffic stop and search was constitutionally reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395; People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56.)
To justify an investigative stop or detention, an officer must have specific and articulable facts causing him to entertain a reasonably objective suspicion that some activity relating to crime has occurred or is about to occur and the person to be detained is involved in that activity. (In re Raymond C. (2008) 45 Cal.4th 303, 307; People v. Souza (1994) 9 Cal.4th 224, 231.) The reasonable suspicion standard applies to vehicle stops. (People v. Colbert (2007) 157 Cal.App.4th 1068, 1072; People v. White (2003) 107 Cal.App.4th 636, 641-642; U.S. v. Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, 1104-1105.) Thus, an objectively reasonable suspicion that a driver has violated the Vehicle Code justifies an investigative traffic stop. (Veh. Code, § 2806; In re Justin K. (2002) 98 Cal.App.4th 695, 700 (Justin K.); Lopez-Soto, supra, 205 F.3d at pp. 1104-1105; Whren v. United States (1996) 517 U.S. 806, 810 [135 L.Ed.2d 89, 95].)
It is immaterial that an officer relied on the wrong Vehicle Code section, so long as his suspicions of a Vehicle Code violation was objectively reasonable. (Justin K., supra, 98 Cal.App.4th at p. 700.) However, if an officer "makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable." (Ibid.)
"The guiding principle in determining the propriety of an investigatory detention is 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' [Citations.] In making our determination, we examine 'the totality of the circumstances' in each case. [Citations.]" (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
Defendant argues that Vehicle Code section 26708 does not prohibit driving with fogged-up windows because subdivision (a)(3) of said section limits window obstruction to snow or ice, citing the Latin maxim, inclusio unios est exclusio alterius (the inclusion of one is the exclusion of the other). Assuming, without deciding, that defendant's interpretation of Vehicle Code section 26708 is correct, Vehicle Code sections 26710 and 24002 apply here as well so that it is immaterial that the officer may have relied on the wrong code section. (Justin K., supra, 98 Cal.App.4th at p. 700.) Vehicle Code section 26710 provides, in relevant part, as follows: "It is unlawful to operate any motor vehicle upon a highway when the windshield or rear window is in such a defective condition as to impair the driver's vision either to the front or rear." Vehicle Code section 24002 provides, in relevant part, as follows: "(a) It is unlawful to operate any vehicle . . . which is in an unsafe condition, . . . and which presents an immediate safety hazard." Detective McQuillan testified that he believed the fogged-up windshield and side windows impeded the driver's view and created a safety hazard. His opinion of a safety hazard was supported by the additional fact that defendant was traveling at only 51 miles per hour in a posted 65-mile-per-hour zone where everyone else was traveling at least the speed limit. The officer reasonably concluded that defendant's vision was impaired by the fogged-up windows. The trial court properly rejected defendant's claim that the officer had no objectively reasonable suspicion to stop defendant's car.
The judgment is affirmed.
We concur: RAYE , P. J. NICHOLSON , J.