Opinion
H046676
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO OGARRIO GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 17CR03851)
After the trial court denied his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Francisco Ogarrio Garcia entered into a plea agreement and pleaded guilty to possession of a controlled substance for sale and possession of a loaded firearm.
On appeal, Garcia argues the trial court erred in denying his motion to suppress. He further raises two claims of sentencing error: (1) the trial court erred in imposing fines and fees without first conducting a hearing on his ability to pay pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157; and (2) he was entitled to an additional two days of custody credit.
We agree that the motion to suppress should have been granted and will reverse the judgment. As a result, we need not and do not reach Garcia's additional arguments relating to his sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural history
On October 17, 2017, the district attorney filed an information charging Garcia with transporting heroin (Health & Saf. Code, § 11352, subd. (a); count 1); possession of heroin with intent to sell (Health & Saf. Code, § 11351; count 2); possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count 3); and carrying an unregistered loaded firearm in a vehicle (Pen. Code, § 25850, subd. (c)(6); count 4). The information further alleged that, as to count 2, Garcia possessed 14.25 grams or more of heroin for sale within the meaning of Penal Code section 1203.07, subdivision (a)(1) and (a)(3).
After the trial court denied his motion to suppress, Garcia pleaded guilty to possession of heroin with intent to sell (Health & Saf. Code, § 11351; count 2), and carrying an unregistered loaded firearm in a vehicle (Pen. Code, § 25850, subd. (c)(6); count 4) in exchange for a sentence of two years.
At the February 28, 2019 sentencing hearing, the trial court sentenced Garcia to a total term of two years in county jail, consisting of the lower term of two years on count 2 with a concurrent middle term sentence of two years on count 4. Garcia was awarded two days of custody credit. The remaining two counts (counts 1 & 3) and the allegation regarding the amount of heroin possessed for sale were dismissed. The trial court imposed a restitution fine of $300 (Pen. Code, § 1202.4, subd. (b)), an $80 court operations assessment (Pen. Code, § 1465.8), and a $60 criminal conviction assessment (Gov. Code, § 70373).
B. Hearing on Garcia's motion to suppress evidence
Ed Delfin, an investigator inspector with the Santa Cruz County District Attorney's office, testified that he was patrolling the City of Santa Cruz as a member of a gang task force on June 16, 2017. He was partnered with another officer that day and they were patrolling the area of Depot Park in an unmarked vehicle. At around 4:00 p.m., Delfin saw a man, later identified as Garcia, sitting in a blue truck parked in the lot at Depot Park. When Delfin came by the parking lot again a short time later, Garcia was "outside of the truck just kind of working on the truck without really any . . . skateboards, soccer equipment to indicate that he was there to use the park for those reasons."
During Delfin's testimony, there was some confusion about whether the encounter with Garcia occurred at 4:00 p.m. or 6:00 p.m. Delfin conceded that he may have made a mistake in converting "16:08" from military time in his report, but it was still daylight in any event. Given that the stop took place in the middle of June, it is reasonable to assume that there would be ample daylight regardless of whether the stop took place at 4:00 p.m. or 6:00 p.m.
Delfin drove around the block and as he approached the entrance to the parking lot, Garcia was just pulling out of the lot. Delfin saw that the "taillights of the truck was [sic] actually tinted[,] . . . and the tint on it was peeling." Delfin followed the truck. Despite the tinting, Delfin could "[a]bsolutely" see when Garcia put on his brakes. Delfin said that the tinting "diminished the light that's comings [sic] out of the actual taillight especially if you contrast it with the area that's peeling." The part where the tinting was peeled "is actually brighter." However, Delfin could still see the "light very well" even in the "areas where it's covered," though the light was "somewhat diminished." Delfin believed that the tinting violated Vehicle Code section 26101, subdivision (b), so he turned on his lights and siren and Garcia pulled over.
At some point after he stopped Garcia, Delfin took photos of the taillight assembly and one of those photos was admitted into evidence.
Unspecified statutory references are to the Vehicle Code.
Delfin approached the vehicle and asked Garcia for his license and insurance. He then asked if Garcia had "anything illegal" in the vehicle. Garcia said he did not have anything illegal, though he did have some marijuana. As Garcia began to retrieve his license and insurance documents, Delfin saw "a little bit of a . . . clear plastic bindle" coming out of a panel directly below the steering column. Based on his training and experience relating to narcotics sales, Delfin believed that the bindle contained drugs because that is a common location for people to hide such items. Delfin also observed two phones in the vehicle "ringing off the hook . . . buzzing or making some kind of notification kind of noise." In Delfin's experience, the presence of the phones and how active they were was also consistent with narcotics sales.
Delfin asked Garcia about the bindle underneath the steering column, but Garcia kept "trying to divert" Delfin's attention to different areas of the vehicle. Garcia grabbed a different plastic baggie with "some kind of vehicle parts" in it, as well as another empty plastic baggie. When it became clear that Delfin was referring to the baggie underneath the steering column, Garcia "started getting really nervous" and Delfin could see "his hands shake." As Delfin was concerned Garcia would drive off, Delfin asked him to turn off the ignition and step out of the vehicle.
After Garcia complied, Delfin pulled out the bindle and discovered that it contained what he suspected was heroin. Delfin took photographs of the "heroin and where [he] found it" and a photograph showing the interior of Garcia's truck with a portion of a plastic baggie sticking out underneath the steering column was entered into evidence. Delfin continued to search the vehicle and found "another large bindle in the center console . . . that contained three smaller bindles" as well as a loaded handgun in the "center console . . . kind of behind where the stereo would be."
On cross-examination, Delfin testified that during the time that he saw Garcia parked in the lot, he did not see anyone approach the vehicle or exit it. Delfin admitted that there was a soccer field and a public restroom near where Garcia was parked and there were other people at the park that day. Up until the time Delfin began to follow Garcia, Delfin "did not observe anything illegal about . . . Garcia's activities."
When asked about Garcia's taillamps, Delfin testified that he wrote in his police report that the tinting "was a violation of the [Vehicle] [C]ode section 24600[,] [subdivision] (e)" which is specific to taillamps. Delfin did not indicate in his report that Garcia had "violated the code section specific for brake lights." Delfin also did not note anywhere in his report that he "had trouble seeing any lights" including the stoplamps on Garcia's vehicle.
While these are commonly referred to as "brake lights," we use the terminology employed by the Legislature in section 24603.
Before ruling on the motion, the trial court asked Garcia's counsel "how do you get beyond the [sic] that there is a dark gray covering that obscures the pure red and Amber [sic] light of the assembly?" Garcia's counsel responded "we don't have a picture of it lighted up. . . . [A]nd there's no testimony that it was not red . . . . It doesn't matter if it's . . . tinted. That's not illegal by itself. It has to violate that particular Section 26400 and . . . there's no indication from this picture that you can conclude that it's not a red light when it's lit." Counsel continued, "the officer testified today that this was about brake lights[.] . . . The brake light section . . . [has] two requirements, that they're red and they can be seen from 300 feet away. That's [section] 26403[,] . . . subsection (f). [¶] So we have no evidence to that. . . . The officer was asked multiple times could you see the brake lights? Yes, I could. . . . [W]as there a difference between the part that was scraped and the other part. The officer said yes. Well, could you see them both? Yes. He testified he had clearly seen it and he never testified they're not red."
The trial court denied the motion and explained its decision, as follows: "So based on 14 years of hearing Vehicle Code violations I don't see—let me begin again[.] . . . I mean I don't see how you can prevail on a motion. The evidence before the Court is that there's a film placed over the entire assembly and to parse it out ignores what the Court believes as to fact in that he's placed a film or a covering over a brake end [sic] taillights. That is not lawful in the state of California."
Following sentencing, Garcia timely appealed.
II. DISCUSSION
A. Motion to suppress
1. Standard of review and applicable legal principles
In reviewing a suppression ruling, "we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found." (People v. Woods (1999) 21 Cal.4th 668, 673-674.) The legality of the stop and the admissibility of the evidence found as a result are assessed under federal constitutional standards. (People v. Lomax (2010) 49 Cal.4th 530, 564, fn. 11.)
Under the Fourth Amendment "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures" is guaranteed. (U.S. Const., 4th Amend.) As a rule, warrantless searches are per se unreasonable unless the search falls within a recognized exception. (Katz v. United States (1967) 389 U.S. 347, 357.) An investigatory stop of a vehicle, based on an objectively reasonable suspicion that the person stopped has violated the Vehicle Code or some other law, is a well-recognized exception to the prohibition on warrantless searches. (United States v. Twilley (9th Cir. 2000) 222 F.3d 1092, 1095.) However, if the stop does not meet this test, any resulting search violates the detainee's Fourth Amendment rights and a motion to suppress any evidence obtained pursuant thereto must be granted. (See Wong Sun v. United States (1963) 371 U.S. 471, 484 [evidence seized during an unlawful search may not be used as proof against the victim of the search].)
An objectively reasonable suspicion requires a showing of specific and articulable facts that would cause a reasonable officer in a like position, drawing on the officer's training and experience, to believe a violation has occurred or is about to occur. (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded by statute on other grounds as stated in In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2.) "A detention is reasonable under the Fourth Amendment when the detaining officer 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." (People v. Souza (1994) 9 Cal.4th 224, 231.)
"The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved." (Heien v. North Carolina (2014) 574 U.S. 54, 66 [no Fourth Amendment violation found where officer's mistaken belief that statute required two working brake lights was reasonable].) "[T]he reasonableness of an officer's stopping a vehicle is judged against an objective standard: would the facts available to the officer at the moment of the stop ' "warrant a man of reasonable caution in the belief" that the action taken was appropriate[?]' " (People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1148.) "If the officer turns out to have been mistaken the mistake must be one which would have been made by a reasonable person acting on the facts known to the officer at the time of the stop. Under the foregoing test, a traffic stop will not violate the Fourth Amendment if the officer making the stop reasonably suspects the violation of a traffic law even if later investigation dispels that suspicion." (Id. at pp. 1148-1149.)
2. Analysis
Garcia argues that the traffic stop violated his Fourth Amendment rights because the officer had no reasonable suspicion that the tinted taillamp assembly on his truck was unlawful. We agree.
The Attorney General maintains the stop was justified because Delfin observed that Garcia's taillight assembly had been modified and concluded that this modification "impermissibly altered the illumination from the light." At the suppression hearing, the trial court denied Garcia's motion because the "evidence before the Court is that there's a film placed over the entire [taillight] assembly and to parse it out ignores what the Court believes as to fact in that he's placed a film or a covering over a brake [and] taillights. That is not lawful in the state of California." The Attorney General and the trial court are incorrect.
Section 26101, subdivision (b) provides, "A person shall not use upon a vehicle, and a person shall not drive a vehicle upon a highway that has installed a device that is intended to modify the original design or performance of a lighting, safety glazing material, or other device, unless the modifying device complies with Section 26104." Section 26104, subdivision (a) requires "[e]very manufacturer who sells, offers for sale, or manufactures for use upon a vehicle devices subject to requirements established by the department" to "have laboratory test data showing compliance with such requirements," "before the device is offered for sale," subject to proof of compliance upon request at any time. Reading these two statutes together, it is clear a person can lawfully drive a vehicle installed with a device that modifies its taillights so long as the modified lights were laboratory tested to show compliance with the applicable standards.
We recognize it would be exceedingly difficult, if not impossible, for any law enforcement officer to gauge, in the field and by sight alone, whether a modification to a vehicle complies with section 26104 and is therefore not in violation of section 26101. Section 26104 requires the manufacturer of the product, not the purchaser, to retain and provide on request the laboratory test data showing that the product is in compliance. Even if one could expect a vehicle owner to keep and carry such data with them, an officer would still have to initiate a stop in order to inspect that data, thereby defeating the requirement that an officer form an objectively reasonable suspicion of illegality before stopping a vehicle.
Certainly, some modifications—covering the taillight assembly with an opaque material, for example—would be unambiguous violations of section 26101, subdivision (b), but we are not confronted with such a clear-cut violation here.
How then can an officer, prior to initiating a vehicle stop, form an objectively reasonable suspicion that a modification violates the Vehicle Code? As it happens, the Vehicle Code provides specific guidance relating to the required physical characteristics of both taillamps and stoplamps. When an officer observes that a vehicle's taillamps or stoplamps have been modified, the officer can follow that vehicle and determine if: (1) the modified taillamps are "red in color" and are "plainly visible from all distances within 1,000 feet to the rear" (§ 24600, subd. (e)); or (2) the modified stoplamps "emit a red light" (§ 24603, subd. (e)(1)) which is "plainly visible and understandable from a distance of 300 feet from the rear of the vehicle both during normal sunlight and at nighttime." (§ 24603, subd. (f).) If the modifications result in any of these statutory requirements not being met, the officer can reasonably suspect that the vehicle is in violation of the Vehicle Code and may justifiably stop the vehicle.
Having reviewed the photograph of Garcia's taillight assembly, along with Delfin's testimony, we conclude substantial evidence does not support the trial court's findings. Although Delfin testified he stopped Garcia's vehicle because its "taillights . . . [were] tinted . . . and the tint on it was peeling" in violation of section 26101, subdivision (b), he had no reasonable basis for believing that the modification did not comply with section 26104. Delfin could have possibly formed such a suspicion had he, upon following Garcia's vehicle, observed that the modification made the taillamps or stoplamps noncompliant with sections 24600 and 24603.
Delfin did not testify to any such observations. Rather, as he followed Garcia, at an unspecified distance in broad daylight, Delfin said he could "[a]bsolutely" see when Garcia was applying his brakes. Although the tinting reduced the illumination of the taillights—at least where the tinting had not peeled away—Delfin could still "see the light [of the covered portion] very well." As result, there was no evidence presented at the hearing to show that the modification violated either section 24600, subdivision (e) or section 24603, subdivisions (e) or (f).
Delfin was not asked to estimate the distance between the two vehicles at the time he observed Garcia applying his brakes, so there is no way to know the approximate distance at which he observed Garcia's stoplamps. It is reasonable to infer that Delfin was much closer than 300 feet, at least for some period of time, since Delfin could see that some of the tinting was peeling off the taillight assembly.
People v. Butler (1988) 202 Cal.App.3d 602 (Butler) is instructive. In Butler, the officer testified he stopped a vehicle because he observed a car at night with "darkened" (id. at p. 604) windows, did not like the " 'idea' " of a car with tinted windows, and made a traffic stop based on his suspicions about other conduct and to warn or issue a correction citation for the tinting. (Id. at p. 605.) Noting that installed tinted windows complying with federal standards are legal, Butler found the record did not contain facts establishing that the windows "were made of illegally tinted, rather than legally tinted, safety glass" (id. at p. 606 & fn. 1), and rejected "the People's suggestion that seeing someone . . . driving with tinted glass raises a reasonable suspicion of illegality such that a reasonable inquiry is justified. Without additional articulable facts suggesting that the tinted glass is illegal, the detention rests upon . . . speculation." (Id. at p. 607.)
As in Butler, supra, 202 Cal.App.3d 602, the traffic stop here was not based upon an objectively reasonable suspicion that the taillamps or stoplamps were improperly modified or that Garcia's vehicle exhibited any other violation of law. Because the detention was based on nothing more than speculation, it violated Garcia's Fourth Amendment rights, and his motion to suppress should have been granted. The error is by its nature prejudicial where, as here, a defendant pleads guilty after the erroneous denial of his suppression motion. (People v. Ruggles (1985) 39 Cal.3d 1, 13.) Accordingly, Garcia must be allowed, if he chooses, to withdraw his guilty plea.
B. Dueñas and custody credits
Because we conclude that the motion to suppress should have been granted, we need not address whether, at sentencing, the trial court erred by failing to hold an ability to pay hearing under Dueñas or whether Garcia was entitled to additional custody credits.
III. DISPOSITION
The judgment is reversed. On remand, the trial court shall permit Garcia to withdraw his plea. In the event he elects to withdraw his plea, the trial court shall vacate its order denying the motion to suppress, and enter a new order granting that motion.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.