Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF100410, Richard Todd Fields, Judge.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Ronald Michael Chiles appeals from judgment entered following jury convictions for possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 1) and transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 2). The trial court also found true the following enhancement allegations: defendant had two prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)); one prison prior (Pen. Code, § 667.5, subd. (b)); and a previous Health and Safety Code section 11351 conviction (Health & Saf. Code, § 11370.2, subd. (a)). The trial court sentenced defendant to 25 years to life in state prison.
Defendant contends the trial court erred in denying his motion to suppress evidence of cocaine found in his car after a narcotics police officer stopped him for failing to signal as he was exiting the freeway. Defendant argues the officer did not have a reasonable suspicion that defendant had violated any traffic law. Defendant also asserts that this court should examine a transcript of an in camera hearing ordered sealed by the trial court and determine if any of defendant’s rights were violated.
In addition, defendant filed a supplemental appellate brief asserting that the court erroneously prevented a witness from testifying that the prosecutor threatened to prosecute the witness for perjury if she did not testify adversely to the defense.
We reject these contentions and affirm the judgment.
1. Facts
On November 14, 2003, defendant exited the State Route 60/Interstate 215 freeway at the University Avenue exit. Detective Dodson, a Riverside narcotics police officer, who was two car lengths behind defendant, pulled defendant over for exiting the freeway without signaling in violation of Vehicle Code section 22107.
Unless otherwise noted, all statutory references are to the Vehicle Code.
Dodson learned that defendant was on parole and searched his car. Dodson found 10 baggies of cocaine base, totaling 53.21 grams, hidden in the front bumper. An expert testified defendant possessed the cocaine base for sale.
2. Motion to Suppress Evidence
Defendant moved to suppress evidence found in his car during the traffic stop (Pen. Code, § 1538.5). During the hearing on the motion, Dodson testified that, while he was traveling on the freeway approximately two car lengths behind defendant’s car, he saw defendant exit the freeway without signaling before entering the exit lane. Dodson pulled defendant over for failing to signal when exiting the freeway in violation of section 22107. Based on Dodson’s testimony, the trial court denied defendant’s motion to suppress on the ground Dodson was entitled to pull defendant over because he violated section 22107.
We must uphold the trial court’s denial of the suppression motion if the facts and circumstances available to the officer at the time of the detention were sufficient to support a reasonable belief that appellant committed a traffic violation. (People v. Miranda (1993) 17 Cal.App.4th 917, 926.) We decide “what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.” (Id. at p. 922.)
Defendant contends the detention was illegal because his failure to signal before exiting the freeway was not a traffic violation and, therefore, not a valid justification for stopping him and searching his car. Defendant argues that the trial court and Detective Dodson misconstrued section 22107 as requiring mandatory signaling whenever turning or changing a vehicle’s direction, regardless of whether another vehicle would be affected. Defendant claims that section 22107 cannot be violated unless the movement of another vehicle was actually affected by his failure to signal and since there was no evidence that another vehicle was affected, there was no section 22107 violation.
Section 22107 states: “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” (Italics added.) Defendant claims the italicized language in section 22107 indicates a driver is not required to signal unless the turn or change in movement affects another vehicle.
We disagree with defendant’s interpretation of section 22107. The italicized language in section 22107 requires a finding that another “may” be affected by the movement. It does not require another driver “actually” or “in fact” be affected. There need not be a finding the movement of another vehicle is actually affected in order for there to be a section 22107 violation. (See People v. Miranda, supra, 17 Cal.App.4th at p. 930 [traffic stop was justified even if vehicle was not driving in a dangerous manner because “failure to properly signal where another ‘may be affected by the movement’ is prima facie unsafe, for it creates the possible danger the statute was designed to prevent”].)
In any event, defendant was required to signal under section 22107 if there were any vehicles in his vicinity. As the court noted in People v. Miranda, “the primary benefit of the signal requirement is for the vehicles to the rear of the signaling vehicle.” (People v. Miranda, supra, 17 Cal.App.4th at p. 930 .) Dodson testified he was following approximately two car lengths behind defendant’s vehicle. He thus could have been affected by defendant’s failure to signal. In turn, the facts and circumstances available to Dodson at the time of the detention were sufficient to support a reasonable belief defendant committed a traffic violation, and the traffic stop was justified.
Defendant cites dicta in People v. Cartwright (1999) 72 Cal.App.4th 1362 (Cartwright) and In re Jaime P. (2006) 40 Cal.4th 128 (Jaime), to support his contention section 22107 is not violated unless the failure to signal actually affected the movement of another vehicle. In a footnote in Cartwright, supra, the court states: “The failure to signal a lane change does not always violate the Vehicle Code. (Veh. Code, § 22107 [signal required only when another vehicle may be affected by the movement].) Thus, it is not altogether clear whether the car in Gonzalez [People v. Gonzalez (1992) 7 Cal.App.4th 381] did anything that might have provided reasonable suspicion to justify a car stop in the first place.” (Cartwright, supra, at p. 1366, fn. 6.)
In Jaime, supra, 40 Cal.4th 128, defendant quotes the following language, as well as language in the dissent: “. . . Police Officer Moody detained minor and three other persons after observing what he believed to be traffic violations. The officer first observed the driver of the car turn corners without signaling and then pull over to the curb, again without signaling. (The People conceded these violations standing alone would not have justified a vehicle stop, as no other vehicles were affected; see Veh. Code, § 22107.)” (Id. at p. 131.)
The People respond that no decisional law supports defendant’s interpretation of the statute and the quoted language in Cartwright and Jaime is dicta. We agree the dicta in Cartwright and Jaime is not dispositive. In Cartwright, supra, 72 Cal.App.4th 1362, the issue was whether the defendant passenger was unlawfully detained when the car in which she was riding was stopped because “computer records indicated the tag had not been issued for the license plate to which it was attached.” (Id. at p. 1364.) The Cartwright court considered several cases that addressed the detained-passenger issue, including People v. Gonzalez (1992) 7 Cal.App.4th 381. In its analysis of Gonzalez, the Cartwright court noted that the failure to signal a lane change does not always violate the Vehicle Code. (Cartwright, supra, 72 Cal.App.4th at p. 1366, fn. 6.)
That footnote, which is the only reference to section 22107 found in Cartwright, is not binding precedential authority: Language used in any opinion is to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not considered. (McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38.)
Such is also the case with regard to the dicta language defendant quotes from Jaime. In Jaime, the issue was whether a juvenile’s probationary search condition justified an otherwise illegal search when officers were unaware of the search condition. With regard to section 22107, the court in Jaime simply acknowledged that the People conceded the driver’s failure to signal, “standing alone would not have justified a vehicle stop, as no other vehicles were affected.” (Jaime, supra, 40 Cal.4th at p. 131.) There was no discussion or argument in Cartwright or Jaime as to whether section 22107 actually requires a finding that other vehicles were affected by the failure to signal.
In view of the foregoing, we conclude that defendant’s Vehicle Code violation provided reasonable cause for Dodson to stop and detain defendant for failing to signal when exiting the freeway. In turn, the trial court properly denied his suppression motion.
3. Court Review of Sealed Transcript
Defendant requests this court to examine a sealed transcript of an in camera hearing in this case on July 19, 2006, during which the court heard testimony from Dodson and thereafter ordered the defense was precluded from asking Dodson any questions requiring him to invoke the government privilege. Defendant wants this court to review the transcript and determine whether the transcript reveals when defendant picked up his car from another individual before being pulled over for the traffic violation and whether defendant was deprived of any constitutional rights.
During the first trial in this matter, Dodson asserted the government privilege under Evidence Code section 1041 when asked what information he had about defendant before the traffic stop. After an in camera hearing, the trial court denied defendant’s motion to disclose the information.
In the second trial, defendant filed a motion to compel disclosure of informant information. Based on the trial transcript of the first trial, defense counsel learned of the existence of an informant and sought disclosure of information concerning the informant. Defendant wanted to investigate the informant to determine what Dodson knew when he pulled over defendant.
The trial court preliminarily denied the motion and ordered the defense prohibited from asking Dodson questions requiring him to invoke the government privilege. The trial court concluded the informant would not be a material witness for the defense and nondisclosure would not deprive defendant of a fair trial. On July 19, 2006, the court held an in camera hearing with Dodson. The court again denied disclosure of any informant information.
The People do not oppose defendant’s request that this court review the sealed transcript of the July 19, 2006 hearing. Based on our review of the sealed transcript, we conclude the trial court did not abuse its discretion in sealing the transcript and denying defendant access to the transcript and informant information. When a trial court has held an in camera hearing and has reasonably concluded, as in the instant case, that “the informant does not have knowledge of facts that would tend to exculpate the defendant, disclosure of the identity of the informer is prohibited by Evidence Code section 1042, subdivision (d), since the public entity has invoked the privilege pursuant to section 1041.” (People v. McCarthy (1978) 79 Cal.App.3d 547, 555.)
The July 19, 2006, transcript does not contain any discoverable material and defendant has not been deprived of any constitutional rights. The trial court properly determined that there was no reasonable possibility that nondisclosure might deprive defendant of a fair trial. The trial court thus did not err in denying defendant’s request for disclosure.
4. Testimony Regarding Threatening a Witness
In defendant’s supplemental appellant’s opening brief, defendant contends the trial court erred in preventing Sandra Barnes from testifying that the prosecutor threatened to prosecute her for perjury if she did not testify the way the prosecutor wanted her to. Based on a review of the record, we find no merit to this contention.
A. Background Facts
Barnes had been romantically involved with defendant on and off since around 1987 and had moved in with him for three or four months around November 2002. In February 2003, defendant moved out.
In February 2003, Barnes called the police and reported that defendant at gunpoint had threatened to kill her because, during an argument, she had said she would tell the police what defendant had told her about the charged offenses.
In March 2003, Barnes told an investigator from the district attorney’s office about defendant’s threat.
In April 2003, upon being served with a subpoena, Barnes gave a recorded statement to the prosecutor, Richard Ramirez, and his investigator, Terry Tesone. According to Tesone, after the tape recorder was turned off, the prosecutor told Barnes he did not believe her. Barnes started crying. She said everything she had just stated during her recorded statement was a lie. She also said she would not testify against defendant because she was afraid of him and feared he might try to take her daughter to get Barnes not to testify against him.
During the first trial in this matter in July and August 2003 (which ended in a mistrial), Barnes testified consistently with her original statement in March 2003.
During the second trial in this case in July 2006, Barnes recanted her previous trial testimony. Barnes testified that, after the tape recorder was turned off during her April 2003 statement, she did not tell Ramirez and Tesone she was afraid of defendant. Out of the presence of the jury, she told the court that, after the tape recorder was turned off, she was crying when Ramirez told her she was lying. She asked him why they were harassing her and would not leave her alone. She told them she was not going to testify to lies but they kept telling her they did not believe her.
The court ordered that there was to be no mention in the presence of the jury of the prosecutor’s statements during the April 2003 interview that he believed Barnes was lying. The court concluded such testimony would be improper vouching for the credibility or lack of credibility of a witness. The court, however, stated that Barnes could testify as to why she was crying: “[S]ince she is saying that she was being harassed, that is one of the words that she used, she probably should be allowed to say that, but without any reference to your comments, she felt like she was harassed. I think that’s probably acceptable, because that’s what she said, but without any reference to your indicating to her that you didn’t believe her. [¶] So I think that that’s, maybe that’s an appropriate area, I’ll let [defense counsel] ask on cross, she may say she was crying because she was harassed, and leave it at that without going any further into it. [¶] Is that acceptable, [defense counsel]?” Defense counsel responded, “Yes, Your Honor.”
The trial court then explained to Barnes that she could testify that she was crying in part because she felt harassed.
Upon the return of the jury to the courtroom, Barnes testified that she had a brief conversation with the prosecutor after the tape recorder was turned off. Although she started crying, she claimed it was not due to her concern for her or her children’s safety because of defendant. Defense counsel asked Barnes why she changed her story after her April 2003 statement. Barnes replied that the district attorney’s office was harassing her:
“[Barnes:] . . . They kept calling me and bothering me. [The prosecutor] kept calling me, bothering me. It was certain things he was saying, I’m not allowed to say, but he was saying this stuff.
“[Defense counsel:] So as a result of being harassed and called, you decided to change your story?
“[Barnes:] Yes. And then I was getting threatened that if I lied, my kids can be taken away from me, all kinds of stuff.
“[Defense counsel:] What do you mean?
“[Barnes:] I can go to jail and stuff like that.
“[Defense counsel:] If you
“[Barnes:] If I change my story.
“[Defense counsel:] From which one?
“[Barnes:] To whatever they was talking about. I don’t – it happened so long ago, I really don’t know, but I was getting threats about if – I can go to jail if I come and say something different from what he got me on the tape or something [¶] I think on the tape it was something different said, I can’t really recall all that.”
B. Discussion
The record shows that Barnes was not prevented from testifying that the prosecutor threatened her with perjury and other legal action if she did not testify as the prosecutor wanted her to. The trial court ruled Barnes was permitted to testify to any harassment committed by the district attorney’s office, and Barnes did so.
We also do not find any merit to defendant’s contention that the trial court should not only have precluded testimony as to the prosecutor’s personal disbelief as to Barnes’s recorded statement in April 2003, but also should have either inquired further on its own or defense counsel should have requested a hearing to determine the extent of the prosecutor’s beliefs and inquire as to what, if anything, the prosecutor did in furtherance of such disbeliefs. The trial court conducted a hearing out of the presence of the jury inquiring as to what occurred after Barnes gave her April 2003 recorded statement. Such inquiry was sufficient for purposes of determining the extent to limit Barnes’s testimony and, ultimately, defense counsel agreed to the court’s order. Defendant thus has forfeited any objection to such court-ordered limitations. (People v. Farnam (2002) 28 Cal.4th 107, 167; People v. Raley (1992) 2 Cal.4th 870, 892.)
We also reject defendant’s ineffective assistance of counsel (IAC) argument. Defendant alternatively argues that he received ineffective representation because his attorney had no rational tactical purpose for not requesting additional inquiry into what Barnes meant by harassment. The trial court ordered that Barnes could testify as to the harassment and defense counsel questioned her concerning her claim she had been harassed. There was no need to request additional inquiry by the court since defense counsel had the opportunity to inquire and, in fact, did so.
To establish a claim of IAC, a defendant must “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) Here, defendant has not established that defense counsel’s performance was deficient or any prejudice.
5. Disposition
The judgment is affirmed.
We concur: McKinster Acting P. J., Miller J.