Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. BF121017A, Stephen P. Gildner, Judge.
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
Appellant, Manuel Cardona, pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377) and admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)) after his motion to suppress was denied. On January 29, 2008, the court sentenced him to a 32-month term, the mitigated term of 16 months doubled to 32 months because of the three strikes law allegations.
On appeal, Cardona contends the court erred when it denied his motion to suppress. We will affirm.
FACTS
On October 18, 2007, Kern County Sheriff’s Deputy Andrew Chaidez detained Cardona as Cardona rode his bicycle and arrested him after finding a bindle of methamphetamine in Cardona’s wallet.
On December 4, 2007, Cardona filed a motion to suppress alleging that he was unlawfully detained. At a hearing on this motion, Chaidez testified that on October 18, 2007, at approximately 9:10 p.m., he was parked facing south of the intersection of Lawson Road and Allen Road when he saw Cardona riding a bicycle directly in front of him traveling eastbound on Lawson. Chaidez noticed that the light on the bicycle Cardona was riding was dim and that the bicycle did not have any rear reflectors on the back. Chaidez drove after Cardona and shined his spotlight on him as he approached Cardona from behind. Cardona stopped his bicycle and walked back toward Chaidez. Chaidez asked if he could talk with Cardona and Cardona said that he could. Chaidez asked if Cardona was on parole or probation and Cardona replied that he was on parole, which Chaidez confirmed with a record check. He asked Cardona if he could search him and his backpack for drugs or weapons and Cardona replied, “Yeah, sure.” During an ensuing search Chaidez found a baggie containing methamphetamine in Cardona’s wallet and arrested him.
Robert Sandoval testified that he lived in the room next to Cardona’s room. On October 18, 2007, sheriff’s deputies delivered Cardona’s bicycle and backpack to him. The bicycle was equipped with a reflector on the rear and a flashlight mounted on the handlebars when it was given to him. Sandoval also testified that a photograph of Cardona’s bicycle that showed a rear reflector mounted behind the bicycle seat accurately depicted the bicycle on the day he received it. According to Sandoval, the flashlight had a diameter of two inches and was “pretty bright.”
During rebuttal, the court asked Deputy Chaidez, “The light extended ten feet, sir? Or less than ten feet?” Chaidez responded, “less than ten feet.”
On December 20, 2007, the court issued a minute order denying the motion.
DISCUSSION
Cardona contends the court erred in denying his motion to suppress because there was insufficient evidence to show that he violated Vehicle Code section 21201, subdivision (d). We will reject this contention.
“‘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. [Citations.]’ [Citation.]
“The Fourth Amendment prohibits detentions of persons by law enforcement if they are unreasonable. (Terry v. Ohio (1968) 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889.) A detention is reasonable under the Fourth Amendment if the detaining officer, at the time of the detention, ‘can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.’ [Citation.]” (People v. Madrid (2008) 168 Cal.App.4th 1050, 1055.)
“‘[A] law enforcement officer may, consistent with the Fourth Amendment, briefly detain a vehicle if the objective facts indicate that the vehicle has violated a traffic law. The officer’s subjective motivation in effecting the stop is irrelevant.’ [Citations.]” (People v. Duncan (2008) 160 Cal.App.4th 1014, 1019.)
Vehicle Code section 21201, subdivision (d), provides, in pertinent part:
All further statutory references are to the Vehicle Code.
“ A bicycle operated during darkness upon a highway, a sidewalk where bicycle operation is not prohibited by the local jurisdiction, or a bikeway, … shall be equipped with all of the following:
“(1) A lamp emitting a white light that, while the bicycle is in motion, illuminates the highway, sidewalk, or bikeway in front of the bicyclist and is visible from a distance of 300 feet in front and from the sides of the bicycle.
“(2) A red reflector on the rear that shall be visible from a distance of 500 feet to the rear when directly in front of lawful upper beams of headlamps on a motor vehicle….” (Italics added.)
In Greeneich v. Knoll (1925) 73 Cal.App. 1, the court discussed an earlier version of section 21201 which required that “[d]uring the period from a half hour after sunset to a half hour before sunrise, ‘every bicycle while on the public highway shall carry a lighted lamp visible under normal atmospheric conditions at least three hundred feet in the direction toward which such bicycle is faced.…” (Id. at p. 6.) The court also explained the requirement that after dark, a bicycle light must be visible from 300 feet: “The foregoing provisions do not require that the front light of a bicycle shall be sufficient to reveal persons or objects on the road ahead, as in the case of motor vehicles. If the front light of a bicycle is itself visible from a point 300 feet ahead, it complies with the law, even though it may reveal no part of the road or objects thereon or be visible from the rear. (Ibid.)
Here, Chaidez testified that the light on Cardona’s bicycle illuminated less than 10 feet in front of him. He did not testify that he made any attempt to determine whether Cardona’s bicycle light was visible from a distance of 300 feet. Thus, Chaidez was not justified in stopping Cardona for violating section 120201, subdivision (d)(1).
However, Chaidez also stopped Cardona because he did not see a rear reflector on Cardona’s bicycle, which clearly constituted a violation of section 21201, subdivision (d)(2). Further, although Sandoval testified that Cardona’s bicycle had a rear reflector when it was given to him the night Cardona was arrested and his testimony appeared to be corroborated by a defense photograph, the trial court was not bound by his testimony.
“The trial court, not the reviewing court, ‘is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.’ [Citation.] ‘The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.’ [Citation.] To reject the statements given by a witness whom the trial court has found credible, either they must be physically impossible or their falsity must be apparent without resorting to inferences or deductions. [Citation.] When two or more inferences can reasonably be deduced from the facts as found, a reviewing court is without power to substitute its deductions for those of the trier of fact. [Citation.]” (People v Duncan, supra, 160 Cal.App.4th at p. 1018.)
Here, the court could reasonably have found from Chaidez’s testimony that Cardona’s bicycle was not equipped with a rear reflector as required by section 21201, subdivision (d)(2). Further, since Chaidez’s testimony was neither physically impossible nor patently false, we are bound by the trial court’s implicit credibility resolution crediting Chaidez’s testimony over Sandoval’s.
Respondent did not address whether the absence of a rear reflector justified Cardona’s detention. Cardona cites Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, and Guthrey v. State of California (1998) 63 Cal.App.4th 1108, to contend that respondent forfeited reliance on the missing rear reflector to justify his detention. These cases are inapposite. In Atchley, the court reiterated the familiar principle that “[w]here a point is merely asserted by appellant’s counsel without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court.” (Atchley v. City of Fresno, supra, 151 Cal.App.3d at p. 647.) In Guthrey, the court held that the failure to cite to the record on a particular contention may be treated as a waiver of that contention. (Guthrey v. State of California, supra, 63 Cal.App.4th 1108, 1115.) However, neither case mandates a finding of forfeiture of a legal issue by the failure to address it in a respondent’s brief. Moreover, Cardona’s assertion of forfeiture is contrary to established law. In People v. Hill (1992) 3 Cal.4th 959, the Supreme court stated, “A failure to respond to an opponent’s argument may be unwise as a tactical matter, but such failure does not warrant the inflexible rule proposed by defendant [, i.e., that it amounts to a concession of the point by respondent]. That is not the law….” (Id. at p. 995, fn. 3, disapproved on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1070, fn. 13.) Further, even a party’s concession on an issue of law does not bind the reviewing court. (Desny v. Wilder (1956) 46 Cal.2d 715, 729.) Accordingly, we reject Cardona’s forfeiture argument and conclude that the court did not err when it denied his motion to suppress.
DISPOSITION
The judgment is affirmed.