APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. (Los Angeles County Super. Ct. No. LA069443)
The opinion of the court was delivered by: Turner, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part; modified in part; reversed in part and remanded with directions.
A jury convicted defendant, Anthony Corrales, of methamphetamine possession in violation of Health and Safety*fn2 Code section 11377, subdivision (a). He admitted he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Imposition of sentence was suspended. Defendant was placed on one year of Penal Code section 1210.1 probation.
Defendant's sole contention on appeal is that the trial court improperly denied his Penal Code section 1538.5 evidence suppression motion. In the published portion of the opinion, we affirm the trial court's denial of defendant's suppression of evidence motion. Also, upon remittitur issuance, the trial court is to determine defendant's ability to pay a section 11372.7, subdivision (b) drug program fee together with penalties and the surcharge.
A. The Evidence Suppression Motion
Defendant challenges the legality of a traffic stop. Defendant argues the officers could not have legally temporarily detained him. The evidence at the suppression hearing was as follows. At 11:10 a.m. on October 22, 2011, Officer William Lantz and a partner, identified only as Officer Seboda, were patrolling in North Hollywood. Officer Lantz was driving. The officers saw defendant parked on the side of the road using his cellular telephone. Defendant was the sole occupant of a silver Nissan. He was in the driver's seat. Defendant was using his cellular telephone to send a text message. The officers passed right next to defendant, driving very slowly. Five minutes later, the officers approached defendant again. This time defendant was pulling out into traffic as the officers approached. The officers were right behind defendant when he pulled out in front of them and drove southbound on Cahuenga Boulevard. Defendant was leaning and looking down. He was making movements with his hand like he was texting. Defendant continued to text for 30 to 40 seconds. The officers pulled defendant over for texting while driving, a violation of Vehicle Code section 23123.5. Subsequent to the traffic stop, defendant was arrested for being under the influence of a controlled substance.
(§ 11550, subd. (a).) During a search incident to the arrest, the officers found a baggie containing methamphetamine in defendant's right shoe.
Defendant does not contend that once he was stopped, there was no valid basis for the search which uncovered the methamphetamine or his arrest. Rather, defendant contends the initial stop, based on the fact the officers concluded he was as texting while driving, was constitutionally unreasonable. Our Supreme Court has held: "The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Lawler (1973) 9 Cal.3d 156, 160.)" (People v. Glaser (1995) 11 Cal.4th 354, 362; accord, People v. Redd (2010) 48 Cal.4th 691, 719.) A police officer's reasonable suspicion that a driver has violated the Vehicle Code justifies a traffic stop and detention. (Ornelas v. United States (1996) 517 U.S. 690, 693; People v. Wells (2006) 38 Cal.4th 1078, 1082; People v. Vibanco (2007) 151 Cal.App.4th 1, 8.) Reasonable suspicion is a lesser standard than probable cause. (Alabama v. White (1990) 496 U.S. 325, 330; People v. Wells, supra, 38 Cal.4th at p. 1083.) As our Supreme Court held in Wells: "[T]o be reasonable, the officer's suspicion must be supported by some specific, articulable facts that are 'reasonably "consistent with criminal activity."' (In re Tony C. [(1978)] 21 Cal.3d [888,] 894.)" (People v. Wells, supra, 38 Cal.4th at p. 1083.) Further, as the United States Supreme Court has held: "[Law enforcement] officers [may] draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to [him or her] that 'might well elude an untrained person.' [Citations.]" (United States v. Arvizu (2002) 534 U.S. 266, 273; accord, People v. Letner (2010) 50 Cal.4th 99, 145-146; People v. Hernandez (2008) 45 Cal.4th 295, 299.)
Defendant argues the trial court should have granted his motion to suppress all of the evidence because, "[T]he fact that [defendant] was looking down and moving his arm did not, without more, give rise to a reasonable suspicion that he was texting." Further, defendant argues: "[Officer] Lantz only relied on the fact that [defendant] was looking down. [Officer] Lantz admitted he did not see [defendant's] hand, but testified he saw [defendant's] looking down and moving like he was doing something."
The relevant portions of Vehicle Code section 23123.5 are as follows: "(a) A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication, unless the electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation to dictate, send, or listen to a text-based communication, and it is used in that manner while driving. [¶] (b) As used in this section 'write, send, or read a text-based communication' means using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail."
Based on the historical facts found by the trial court, the decision to stop defendant was reasonable. The officers saw defendant parked by the side of the road texting on his cellular telephone. When defendant was texting while parked by the side of the road, the officers drove by very slowly. Approximately five minutes later, the officers returned to where they had seen defendant parked and using his cellular telephone to send a text message. As the officers returned, defendant pulled out into traffic in front of them. The officers saw defendant was driving. Defendant was leaning and looking down a few times as though he was still using his cellular telephone. Defendant was making movements with his hands like he was texting. Defendant engaged in this conduct for 30 to 40 seconds. Officer Lantz had been a police officer for 16 years when defendant was arrested. To sum up, defendant was observed using his cellular telephone, while parked by the side of a road, to send a text ...