Opinion
NOT TO BE PUBLISHED
Monterey County Super.Ct.No. SS081762
Duffy, J.
This appeal arises from a felony conviction following a plea of no contest by defendant Kimberly Monique Duggs to driving under the influence of alcohol with a blood alcohol level of.08 percent or greater. Prior to entry of the plea, defendant made a motion to suppress pursuant to Penal Code section 1538.5, which was denied by the magistrate. Her renewed motion to suppress was denied by the trial court.
The record also reflects that defendant’s married name was Kimberly Thompson. At the time of sentencing, defendant indicated that although she was no longer married, her surname was still Thompson.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant challenges the conviction entered on her no contest plea, contending that it was based upon an illegal traffic stop. She also contends that a probation condition concerning firearms imposed by the court is unconstitutional. For the reasons below, we conclude that the traffic stop was lawful and the court below properly denied defendant’s suppression motion. We hold further that the probation condition must be modified to proscribe only knowing possession, receipt, or transportation of firearms, ammunition, or other deadly weapons. As modified, we will affirm the judgment of the trial court.
FACTS
At approximately 12:51 a.m. on June 16, 2008, Monterey Police Officer Kyle Gentry was patrolling in the business district of downtown Monterey; the businesses in the area were primarily restaurants and hotels. Traffic was light in the area he was patrolling. As Officer Gentry made a left turn from Alvarado Street to Del Monte Avenue, he noticed to his right a blue BMW convertible making the same turn. As the BMW proceeded west on Del Monte and after passing through the traffic light at the intersection with Calle Principal, it stalled. Shortly afterward, the driver restarted the engine and “redlined” the engine to the maximum RPMs for five to 10 seconds. Officer Gentry testified, “[I]t was very loud. And completely abnormal.” Based upon his six years of experience as a peace officer, he had never encountered anyone redlining her engine in such a fashion. Officer Gentry stopped his patrol car and turned his attention to the BMW as its driver was redlining the engine. He then heard a sound that appeared to be associated with “a clutch being slipped.” After the clutch was eventually engaged, the car rolled forward in the number three (far right) lane and made a right turn onto Pacific Street. Officer Gentry, who was in the number two lane, activated his emergency lighting system and followed the BMW on Pacific to make a patrol stop. He had concluded by that time that the driver of the BMW was operating it in an unsafe manner.
The facts are taken from the testimony of the peace officer and defendant at the combined preliminary hearing and hearing on defendant’s motion to suppress. All dates are 2008 unless otherwise specified.
Officer Gentry testified that after the intersection of Calle Principal as one proceeds west on Del Monte, there is a slight incline. He stated that a driver unable to operate a manual transmission car at that point would start rolling backward.
After stopping his patrol car and as he approached the BMW on foot, Officer Gentry “smelled a very distinct odor of burning clutch.” When he contacted the driver of the BMW—whom he identified as defendant—he told her that he had “pulled her over for her erratic driving.” Officer Gentry asked for her driver’s license, registration, and proof of insurance; defendant could not provide any of the items requested and gave the officer a false name.
Immediately upon making contact with defendant, Officer Gentry observed a number of objective signs that she was intoxicated. Defendant exhibited bloodshot, glassy, and watery eyes, and she had slurred speech. There was “an extremely strong odor” of alcohol from her breath. After defendant got out of her car, she had difficulty standing. He asked defendant if she had been drinking; she responded that she had had no alcohol at all, but that she had been taking a prescription drug, Ativan, that made her feel like she was intoxicated. Officer Gentry asked defendant to perform a number of field sobriety tests, each of which she failed. After arresting defendant and taking her to jail, he performed breath tests in which defendant first registered a.17 blood alcohol content (BAC) and then registered a.16 BAC—thereby confirming that defendant had been driving with at least twice the legal limit of alcohol in her system.
Officer Gentry testified that he asked defendant to perform the following tests that she failed: (1) a “standing Romberg” test in which defendant was asked to stand at attention, tilt her head back and with closed eyes hold the position for 30 seconds; (2) a counting test in which defendant was asked to count backward from 107 to 77; (3) a test in which defendant was asked to blow into a preliminary alcohol screening device; and (4) a nystagmus test in which the horizontal gaze of defendant was measured.
Defendant testified that at the time of the traffic stop, she had owned the BMW for only three days. She had had no experience with driving a manual transmission car for the previous eight years.
PROCEDURAL BACKGROUND
A five-count complaint against defendant was filed on June 18. Defendant was charged with driving under the influence of alcohol, a felony (Veh. Code, § 23152, subd. (a); count 1); driving under the influence of alcohol with a BAC of.08 percent or greater, a felony (Veh. Code, § 23152, subd. (b); count 2); driving with a suspended license, a misdemeanor (Veh. Code, § 14601.2, subd. (a); count 3); furnishing false information to a peace officer, a misdemeanor (Veh. Code, § 31; count 4); and possession of an open container while driving, a misdemeanor (Veh. Code, § 23222, subd. (a); count 5). As to counts 1 and 2, it was alleged further pursuant to Vehicle Code section 23550, subdivision (a), that defendant had suffered three prior convictions.
On June 27, the court conducted concurrently a preliminary hearing and a hearing on defendant’s oral motion to suppress. The court denied the motion to suppress, held defendant to answer to the charges in counts 1 and 2, and certified the remaining counts to the superior court on the existing complaint. The parties stipulated that the matter would be certified to the superior court on the existing complaint.
Defendant thereafter filed a motion to suppress evidence pursuant to section 1538.5. She argued that the initial traffic stop was unlawful because Officer Gentry had no objective facts indicating that a crime had been committed that justified detaining defendant in the first instance. The People opposed the motion. After a hearing on August 1, which was based upon the transcript from the preliminary hearing, the court denied the motion to suppress.
Immediately after the denial of her motion, defendant pleaded no contest to count 2 (Veh. Code, § 23152, subd. (b)) and admitted the three prior convictions of driving under the influence as alleged, on the condition that she would receive felony probation. She also pleaded no contest to a misdemeanor charged in another case of driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)) and admitted a probation violation in another case. The court found that defendant had knowingly and voluntarily waived her rights in connection with the no contest plea and that there was a factual basis supporting it. On September 4, the court suspended imposition of the sentence, placed defendant on probation for a period of five years, and imposed a probation condition that defendant serve 180 days in county jail with 121 days’ credit. The court dismissed the remaining charges Defendant filed a timely notice of appeal of the denial of the motion to suppress. The denial of the suppression motion may be challenged by an appeal from the judgment entered after defendant’s guilty or no contest plea. (§ 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
DISCUSSION
I. Issues on Appeal
Defendant raises the following issues on appeal:
1. Whether the motion to suppress should have been granted because the traffic stop was unlawful.
2. Whether the probation condition concerning firearms is unconstitutional in that it does not include as an element that defendant have knowledge of the possession, receipt, or transportation of firearms.
II. Denial of Suppression Motion
A. Standard of Review
“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law,... is also subject to independent review.” (People v. Williams (1988) 45 Cal.3d 1268, 1301; see also People v. Ayala (2000) 23 Cal.4th 225, 255.) All presumptions favor the trial court’s exercise of its power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence, and draw factual inferences, “ ‘and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’ ” (People v. Leyba (1981) 29 Cal.3d 591, 596-597, quoting People v. Lawler (1973) 9 Cal.3d 156, 160.) And where “the facts are basically undisputed, we independently review the [trial court’s] decision....” (People v. Downing (1995) 33 Cal.App.4th 1641, 1650, fn. omitted.)
Based upon its factual findings, the trial court has the duty to determine whether “the search was unreasonable within the meaning of the Constitution.” (People v. Lawler, supra, 9 Cal.3d at p. 160.) This issue is a question of law. Therefore, we must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure. (Ibid.; People v. Leyba, supra, 29 Cal.3d at p. 597.)
Under California Constitution, article I, section 28, subdivision (d), the reasonableness of the search or seizure is measured against federal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674.) Only evidence that is the product of an unreasonable search and seizure in violation of federal standards shall be suppressed. (In re Lance W. (1985) 37 Cal.3d 873, 890.)
B. Whether Motion to Suppress Was Properly Denied
1. Applicable law concerning traffic stops
The legal basis upon which a peace officer may detain a citizen has been explained as follows: “[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded on other grounds by Cal. Const., art. I, § 28.) “The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]” (In re Tony C., supra, at p. 893, citing Terry v. Ohio (1968) 392 U.S. 1, 22.)
“Since the passage of Proposition 8 in 1982 (Cal. Const., art. I, § 28), the subjective belief of the citizen set out in In re Tony C.[, supra,] 21 Cal.3d 888, no longer applies in analyzing whether an encounter is a detention. [Citation.] Rather the federal standard of analyzing the objective facts of the incident controls. [Citation.]” (In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2, citing In re Lance W. (1985) 37 Cal.3d 873.)
In determining the lawfulness of a temporary detention, courts look at the “ ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu (2002) 534 U.S. 266, 273, quoting United States v. Cortez (1981) 449 U.S. 411, 417; see also People v. Souza (1994) 9 Cal.4th 224, 239.) This standard of “ ‘reasonable suspicion’... [is one] less demanding than probable cause ‘not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.’ ” (People v. Souza, at pp. 230-231, quoting Alabama v. White (1990) 496 U.S. 325, 330.)
A traffic stop, lawful at its inception based upon “a reasonable suspicion that any traffic violation has occurred,” is not made unlawful simply because the peace officer does not ultimately cite the motorist. (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510.) Further, “[t]he possibility of an innocent explanation for [erratic driving] does not preclude an officer from effecting a stop to investigate the ambiguity. [Citations.]” (People v. Saunders (2006) 38 Cal.4th 1129, 1136-1137.) “ ‘Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal—to “enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges. [Citation.]” ’ [Citations.]” (People v. Leyba, supra, 29 Cal.3d at p. 599, quoting In re Tony C., supra, 21 Cal.3d at p. 894.)
2. Discussion
Defendant contends that Officer Gentry did not have a reasonable suspicion to detain her. She argues that the limited information presented to the officer—i.e., that defendant stalled her manual transmission car and redlined the engine after restarting it—was insufficient to justify the traffic stop based upon the conclusion that she was driving while impaired. In support of this position, and relying primarily on two federal cases (U.S. v. Colin (9th Cir. 2002) 314 F.3d 439 (Colin); U.S. v. Lyons (10th Cir. 1993) 7 F.3d 973, 976 (Lyons)), she likens this case to instances in which courts have found detentions unlawful based upon minor instances of weaving within the lane on a highway.
In Colin, the officer stopped a car that had been traveling on the highway at 70 miles an hour after observing it “drift onto the solid white fog line on the far side of the right lane[,]... travel along the fog line for approximately ten seconds... then drift[] to the left side of the right lane,... [and] move[] into the left lane. [It then]... drift[ed] to the left side of the left lane where its left wheels traveled along the solid yellow line for approximately ten seconds. The car then returned to the center of the left lane,... and moved into the right lane.” (Colin, supra, 314 F.3d at p. 441.) The driver signaled before each lane change. (Ibid.) The Ninth Circuit Court of Appeals held the traffic stop unlawful, because there was neither “ ‘pronounced weaving,’ ” nor a “weave for a ‘substantial distance’ ” (id. at p. 446); rather, the vehicle simply “touch[ed] the right fog line and the center yellow line each for 10 seconds, after legitimate lane changes.” (Ibid.) Under this set of facts, the appellate court concluded that the evidence was insufficient for the officer to have maintained a reasonable suspicion that the car’s driver was under the influence. (Id. at p. 445.) As a postscript to the court’s analysis, it found it “curious” that the officer, after making the traffic stop, did not even conduct a field sobriety test or ask the driver if he had been drinking. (Id. at p. 446.)
Colin does not suggest that the traffic stop here was unlawful. In this instance, unlike in Colin,the car did not drift briefly within its lane; rather, Officer Gentry observed that the BMW stalled in the roadway, the driver restarted the engine and redlined the engine to its maximum RPMs for five to 10 seconds. The engine redlining was very unusual; the officer testified that he had never experienced it during his six years on the force. And unlike in Colin, Officer Gentry’s immediate focus after contacting defendant was to investigate her sobriety, both by asking her questions on the subject and by conducting multiple field sobriety tests, each of which she failed.
In Lyons, supra, 7 F.3d at page 974, the officer pulled over a truck after observing it, over a distance of approximately two miles, “ ‘weave’ three to four times within its lane of the divided highway.... [¶] Recalling that some drivers on this stretch of road came from gambling in Las Vegas or Mesquite, Nevada, where they had been drinking or gone without sleep, [the officer] decided to investigate further.” After the officer pulled alongside the driver who failed to make eye contact with him, and after the officer concluded that the driver “ ‘had a withdrawn look [about] him,’ ” the officer pulled the truck over. (Ibid.) The Tenth Circuit Court of Appeals held that the traffic stop was unlawful. (Id. at pp. 975-976.) In so concluding, the court emphasized that the officer admitted in his testimony that “ [1] ‘very few’ people drive on the interstate without ‘some weaving’ in their lane of traffic... [2] defendant’s ‘weaving’ violated no Utah law... [; and 3] he was unable to articulate any specific reason for believing [the] defendant was impaired and merely relied upon his ‘sixth sense as an experienced highway patrolman.’ When pressed, however, [the officer] contended the fact that persuaded him was the defendant’s refusal to ‘make eye contact with us.’ ” (Id. at p. 975.) Under these circumstances, and because the officer’s “reliance [on his ‘sixth sense’]... is not the stuff of objective reasonability,” the court concluded that the traffic stop was based upon hunch rather than the constitutionally required reasonable suspicion. (Id. at p. 976.)
Lyons does not convince us that the detention here was unlawful. As is true also with the underlying facts in Colin, the minor “ ‘weaving’ ” of the vehicle within its own lane is not similar to the circumstances here. And as was the case in Colin, the officer in Lyons (the court emphasized) did nothing after stopping the truck to determine if the driver was impaired. (Lyons, supra, 7 F.3d at p. 975.) By contrast, here, Officer Gentry’s immediate focus was finding out whether defendant was intoxicated. Simply put, we conclude that the circumstances surrounding the officers’ decisions to initiate traffic stops in Colin and Lyons cannot reasonably be analogized to those in the case before us.
Defendant also places considerable reliance on Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480 (Arburn), a case in which the majority of this court found that the officer did have a reasonable suspicion for detaining the motorist. In Arburn, the officer observed the motorist weaving within his lane at the speed limit on a city street at approximately 5:00 p.m. (id. at p. 1482); he “ ‘almost hit the west curb’ ” bordering the lane in which he was traveling. (Id. at p. 1483.) After the officer initiated a traffic stop, he observed objective signs that the motorist was intoxicated. (He was ultimately determined to have had a blood alcohol content almost three times the legal limit.) Although the trial court concluded that the suspension of the motorist’s license by the Department of Motor Vehicles could not be upheld because the officer did not have a reasonable suspicion to initiate the traffic stop, we reversed. The majority rejected the motorist’s contention that the record showed only a single weave within the lane and that this minimal deviation did not support a reasonable suspicion that the motorist was intoxicated; it reasonably inferred from the record that the motorist weaved within the lane and, at one point as it was moving back and forth, almost struck the curb. (Ibid.) In so holding, the majority rejected the argument that the absence of evidence that the motorist had been observed to have been weaving for a distance that was “substantial” (People v. Perez (1985) 175 Cal.App.3d Supp. 8, 11) or “considerable” (People v. Bracken (2000) 83 Cal.App.4th Supp. 1, 4) did not preclude a finding that the officer entertained a reasonable suspicion warranting the traffic stop. (Arburn, supra, at p. 1485.) “ ‘Weaving’ for even the length of a block may signify that something is amiss, and the distance of observation is not a controlling factor in evaluating a traffic stop.” (Id. at pp. 1485-1486.)
The dissent in Arburn disagreed that the officer had a reasonable suspicion to initiate the traffic stop, concluding that based upon “the incomplete state of the record presented at the DMV hearing,... [a]ll that may be gleaned from the record is that [the motorist], while proceeding at the speed limit, drove poorly for a brief period of time and over a short distance.” (Arburn, supra, 151 Cal.App.4th at p. 1487, dis. opn. of Duffy, J.)
The record here presents a showing of reasonable suspicion to justify the traffic stop that is at least as compelling, if not more so, than the record that existed in Arburn. Officer Gentry observed defendant driving her car in a manner that he described as “completely abnormal.” After stalling the BMW and starting it up again, she inexplicably redlined the engine at maximum RPMs for five to 10 seconds. Defendant argues that the length of time that the car was redlined and the short distance that the car travelled before she regained control of it suggest normal driving behavior that did not provide reasonable suspicion for the traffic stop; we, however, disagree. Borrowing (and extrapolating) from our reasoning in Arburn, the stalling of a car engine, its restarting, and the inexplicable redlining of the engine “... for even the length of a block [or for even a matter of less than a minute] may signify that something is amiss, and [neither] the distance of observation [nor the length of time of aberrant driving] is... a controlling factor in evaluating a traffic stop.” (Arburn, supra, 151 Cal.App.4th at pp. 1485-1486.)
Moreover, we reject defendant’s argument that the erratic driving here did not justify the traffic stop because “stalling a stick-shift car is not a widely-recognized characteristic of an intoxicated driver.” This position ignores the requirement that we look to the “ ‘totality of the circumstances’ ” (United States v. Arvizu, supra, 534 U.S. at p. 273) in assessing whether there were reasonable grounds for the detention. In addition to stalling her car, defendant, after restarting it, redlined the engine to its maximum RPMs for five to 10 seconds before engaging the clutch and regaining control of the car. While the mere stalling of a stick-shift car, of itself, might not have warranted the traffic stop, the totality of the circumstances here did provide a reasonable suspicion for the detention.
Furthermore, the fact that there could have been an innocent explanation for the erratic driving—e.g., that the driver was unfamiliar with, or less than proficient in operating, the manual transmission of the car—does not preclude a finding that there was reasonable suspicion for the traffic stop. The officer was entitled to investigate the cause of such erratic driving to determine whether it was due to the driver being impaired or because of some other reason—he was entitled to investigate the matter further to resolve the ambiguity. (People v. Saunders, supra, 38 Cal.4th at pp. 1136-1137; People v. Leyba, supra, 29 Cal.3d at p. 599.)
Based upon the totality of these circumstances, we conclude that there was a reasonable basis for Officer Gentry’s initiation of the traffic stop. Accordingly, the court properly denied defendant’s motion to suppress.
Defendant also argues that the traffic stop cannot be justified under the community caretaker exception. (See generally People v. Ray (1999) 21 Cal.4th 464.) Because we conclude that the officer’s observation of erratic driving justified the stop, we need not address the alternative rationale for the stop. (See People v. Zapien (1993) 4 Cal.4th 929, 976.)
III. Probation Condition
The court imposed the following probation condition challenged by defendant here: “Not possess, receive or transport any firearm, ammunition or any deadly or dangerous weapon. Immediately surrender any firearms or ammunition you own or possess to law enforcement.” Defendant argues that the condition violates her right to due process because “it does not contain a knowledge requirement.” The Attorney General concedes that the probation “condition is unconstitutionally overbroad because it could lead to an unwitting violation....”
Defendant here did not object to the probation condition. In fact, she acknowledged to the court that she understood and accepted each of the terms and conditions of probation. Defendant, however, did not forfeit her constitutional challenge to the firearms probation condition. (In re Sheena K. (2007) 40 Cal.4th 875, 889 [constitutional challenge to probation condition involving pure questions of law not forfeited despite failure to assert it in trial court].)
“[P]robation conditions that implicate constitutional rights must be narrowly drawn,...” (People v. Garcia (1993) 19 Cal.App.4th 97, 102; see also People v. Jungers (2005) 127 Cal.App.4th 698, 704 [“probation conditions that restrict constitutional rights must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant”].) Thus, for instance, probation conditions have been held to be overly broad where they impermissibly infringe on the probationer’s constitutional right of association, such as where a condition proscribed the probationer from associating with (1) drug users and sellers, felons, and ex-felons, regardless of whether the probationer had knowledge of the person’s status (People v. Garcia, supra, at p. 102); or (2) gang members, irrespective of the probationer’s knowledge of the person’s gang affiliation (People v. Lopez (1998) 66 Cal.App.4th 615, 629). (See also People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [probation condition prohibiting association with persons under 18 held vague; modified to prohibit association only where the defendant knows or reasonably should know that person is under 18].)
Likewise, here the probation condition is constitutionally infirm because it does not include as a predicate that defendant have actual knowledge that she is possessing, receiving, or transporting firearms, ammunition, or other deadly weapons. Such a condition should not be left to implication. (See People v. O’Neil (2008) 165 Cal.App.4th 1351, 1357 [probation condition prohibiting association with persons designated by probation officer overly broad; probationer’s knowledge that he is prohibited from associating with particular person is required and is condition that should not be left to implication].) An appellate court is empowered to modify a probation condition in order to render it constitutional. (In re Sheena K., supra, 40 Cal.4th at p. 892.) Accordingly, we will order the firearms probation condition modified to read as follows: “Not knowingly possess, receive or transport any firearm, ammunition or any deadly or dangerous weapon. Immediately surrender any firearms or ammunition you own or possess to law enforcement.”
DISPOSITION
The probation condition concerning firearms is modified to read as follows: “Not knowingly possess, receive or transport any firearm, ammunition or any deadly or dangerous weapon. Immediately surrender any firearms or ammunition you own or possess to law enforcement.” As modified, the judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.