P. v. Collins
Filed 3/21/13 P. v. Collins CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. FRANCIS RONALD COLLINS, Defendant and Appellant. | D061970 (Super. Ct. No. JCF25089) |
APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Imperial County,
Christopher W. Yeager; Raymundo A. Cota, Judges. Affirmed as modified.
Francis
Collins appeals from a judgment convicting him of href="http://www.fearnotlaw.com/">transportation of methamphetamine and related
offenses. He argues the judgment
must be reversed because the trial court erred in denying his suppression
motion. We find no error in this ruling.
Collins
also argues weight enhancements attached to his offenses must be reversed
because he was charged and convicted under the wrong subdivision of the Health
and Safety Code weight enhancement provision.
We conclude this was a clerical or technical error that did not violate
his due process right to notice of
the charges against him, and we modify the judgment to correct the mistaken
subdivision citation.
As to his
sentence, Collins asserts, and the Attorney General concedes, that the court
erred in failing to stay the sentences on all but the principal count (count 3)
under Penal Code section 654. We agree
and modify the judgment to stay the sentences on counts 1, 2, and 4.
As so
modified, we affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
While
driving on the highway on the night of March
12, 2010, Officer Robert Gonzalez pulled over a BMW vehicle being
driven by Collins because the car had darkly tinted windows. Officer Gonzalez advised Collins that he was
being stopped for the tinted windows; asked for his driver's license,
registration, and proof of insurance; and made general inquiries about the
car. During their interaction, Officer
Gonzalez noticed several unusual aspects of Collins's behavior, including his
hand was trembling when he handed his license to the officer; he was "overly
friendly"; and he could not remember the name nor provide other details
about the auto repair shop in Calexico where he said he had just taken the
BMW. When Officer Gonzalez asked him if
he had any drugs in the car, Collins looked startled, broke eye contact and
stopped looking at Gonzalez, and said, "oh, no."
After
determining that Collins's license was suspended, Officer Gonzalez informed
Collins that his vehicle would be impounded.
Collins pleaded with him "to cut him a break and not impound the
vehicle." During an ensuing
conversation, Collins said he was returning from Mexicali,
whereas he had earlier said he was returning from Calexico. Based on Collins's nervousness and the
totality of circumstances, Officer Gonzalez suspected there was some kind of
illegal activity occurring with the vehicle.
He retrieved his police dog from his patrol unit to sniff the BMW, and
the dog alerted him to several areas of potential drug presence. When Officer Gonzalez unfastened the base of
the back seat and pulled up the cushion, he noticed smudges in an area that
suggested someone had accessed the gas tank where drugs could be hidden.
When the
vehicle was subsequently towed and searched in full, the authorities found a
total of 26.7 pounds (12.114 kilograms) of methamphetamine in packages hidden in
the car. During an interview with a
Narcotics Task Force agent, Collins admitted that he had been hired to drive
the vehicle containing the narcotics across the border and then to a casino.
Collins was
charged and convicted of possession of methamphetamine for sale (count 1),
conspiracy to possess methamphetamine for sale (count 2), transportation of
methamphetamine (count 3), and conspiracy to transport methamphetamine (count
4). The jury also found true weight
enhancements (more than 10 kilograms) for each count. Collins admitted allegations of a prior
drug-related conviction.
The trial
court sentenced Collins to a 16-year term.
The court selected count 3 (transportation of methamphetamine) as the
principal term, and imposed a three-year sentence on this count, plus 10 years
for the weight enhancement and three years for the prior conviction. The sentences on the remaining counts were
ordered to be served concurrently.
DISCUSSION
I. Denial
of Suppression Motion
Collins
argues the trial court erred in denying his motion to suppress the narcotics
found in the vehicle based on his claim that the officer lacked a reasonable
suspicion to stop the vehicle.
>Background
In his
pretrial suppression motion, Collins argued Officer Gonzalez did not have a
sufficient basis to believe he had violated the laws regarding tinted windows,
and hence there was no reasonable suspicion for the stop.
At the
hearing on the suppression motion, Officer Gonzales testified he has been a
California Highway Patrol officer for 12 years, and has conducted about 1,000
traffic stops for illegally tinted windows.
At about 9:30 p.m., he stopped the BMW being driven by Collins because
he assessed that it had illegally tinted windows. He made this determination as he was driving
in the slow lane next to the BMW in the fast lane, and when his driver's window
was aligned with the BMW's passenger window.
He noticed the BMW had an "extremely dark tint" on the
windows.
Officer
Gonzalez stated that window tint is rated by the percentage of light that can
go through the window; the legal percent of window tinting in California is 70
percent; and he estimated the BMW's tint allowed in only about 20 percent
light. Officer Gonzalez elaborated that
at 70 percent the window is "pretty much clear," and a person can
"see through both windows all the way through"; can see the driver's
face; and can see objects inside the vehicle.
The BMW's tint was "extremely dark to the point where [he was not]
able to see inside the vehicle at all."
He opined that the tint prevented Collins from seeing outside of the car
"clearly the way windows were intended."
On
cross-examination, Officer Gonzalez acknowledged that it was dark outside when
he was driving next to Collins on the highway; he was driving 65 miles per
hour; and he was alongside the BMW for about three to five seconds. Nevertheless, he testified he was able to
observe that the BMW had extremely dark windows. Officer Gonzalez also acknowledged that he
made his determination by looking from the outside of the vehicle to the
inside, and he did not know what the driver's view was from inside the
vehicle. Further, he did not use an
available measurement tool to verify whether the tinting was impermissible, and
he had on a "handful" of occasions been mistaken about the illegality
of a tint for a vehicle that he had stopped.
However, he claimed that "when the windows are as dark as Mr.
Collins' windows were, it's very easy to determine" the illegality.
After
hearing Officer Gonzalez's testimony, the trial court found he made a lawful
stop based on his determination that the windows were tinted beyond what the
law allows.
>Analysis
The police
may conduct a traffic stop if the circumstances show a reasonable suspicion
that the driver has violated the Vehicle Code or some other law. (People
v. Durazo (2004) 124 Cal.App.4th 728, 734-735.) A 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.) Reasonable suspicion
is something more than an inchoate and unparticularized suspicion or hunch, but
something less than the fair probability required for probable cause. (People
v. Bennett (1998) 17 Cal.4th 373, 387.)
The courts look at the totality of the circumstances to determine
whether there was a particularized and objective basis for the officer's
suspicion. (People v. Butler (2003) 111 Cal.App.4th 150, 160.) If an officer reasonably suspected a
violation of a traffic law, the stop is lawful even if later investigation
dispels that suspicion. (>People v. Rodriguez (2006) 143
Cal.App.4th 1137, 1149.)
The Vehicle
Code prohibits the placement of material on a window that "obstructs or
reduces the driver's clear view" through the window. (Veh. Code, § 26708, subd. (a)(2).) Further, the code states that "clear,
colorless, and transparent material[,]" designed "to block the sun's
harmful ultraviolet A rays[,]" may be affixed to the front side windows if
the "material has a minimum visible light transmittance of 88
percent" and the "window glazing with the material applied meets [the
federal] . . . specified minimum light transmittance of 70
percent . . . ."
(Veh. Code, § 26708, subds. (d)(1)-(3); see also Veh. Code, §
26708.5.) With respect to traffic stops
for tinted windows, the mere fact of tinting cannot alone support a reasonable
suspicion; rather, there must be "additional articulable facts suggesting
that the tinted glass is illegal . . . ." (People
v. Butler (1988) 202 Cal.App.3d 602, 607; People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 9-10.) However, the courts also recognize that when
enforcing the tinted window statute, officers need not be "scientists or
carry around and use burdensome equipment to measure light transmittance";
rather, "based upon their training and experience with vehicles in
general, [they] will be able to examine a suspect vehicle, look through the
windows if possible, and form an opinion as to whether or not the tinting"
violates the statute. (>People v. Niebauer (1989) 214 Cal.App.3d
1278, 1292.)
On appeal
from a ruling on a suppression motion, we defer to the trial court's express
and implied factual findings that are supported by substantial evidence, and we
independently determine whether, on the facts so found, the search and seizure
was reasonable under the Fourth Amendment.
(People v. Durazo, supra, 124
Cal.App.4th at p. 734.)
The record
shows specific, articulable facts that support a reasonable suspicion that the
BMW windows were illegally tinted.
Officer Gonzalez testified the tint was "extremely dark"; he
could not see inside the vehicle "at all" due to the tint; and based
on his training and experience he assessed the tint allowed in only about 20
percent light and the driver would not be able to see clearly out the
window. These circumstances showed more
than the mere existence of tinting, and justified a stop based on a reasonable
suspicion that the tint failed to comply with the clear view and light
transmittance standards defined in the Vehicle Code. (People
v. Hanes, supra, 60 Cal.App.4th Supp. at p. 10 [officer reasonably stopped
vehicle for tint that "was so dark as to appear black and prevent the
officer from seeing the occupants of the front seats"]; >United States v. Wallace (9th Cir. 2000)
213 F.3d 1216, 1217, 1220-1221 [officer reasonably stopped vehicle for
" 'heavy tint' " that made it difficult to view occupants inside].)
Collins
asserts the circumstances did not show a reasonable suspicion because Officer
Gonzalez only observed the view through the windows from the outside of the
BMW, and he did not know what the driver's view was from the inside of the car. The contention is unavailing because an
officer observing a vehicle's windows prior to a stop will typically only have
a view from the outside of the car. The
reasonable suspicion standard for a traffic stop is satisfied by this outside
observation, even if further investigation ultimately determines the driver's
clear view was not in fact reduced.
Collins
also argues that because it was dark at the time of the stop, it was not
possible for Officer Gonzalez to view the interior of the car regardless of any
window tinting. When cross-examined
about the darkness of the night, Officer Gonzalez testified he was able to
observe the dark tinted windows. The
trial court was entitled to credit this testimony, and to infer that even at
night Officer Gonzalez was able to ascertain that the view into the car was
obstructed due to the window tinting. We
defer to this factual determination.
Collins
further challenges the reasonable suspicion finding because the prosecution did
not present evidence of the actual measurement of the tint, nor a photograph
depicting the tinted windows. This
evidence was not necessary to establish Officer Gonzalez's reasonable suspicion
at the time of the stop. Officer
Gonzalez's testimony describing the tint and his evaluation of the tint based
on his training and experience was sufficient to show the reasonableness of the
traffic stop.
II. Erroneous
Subdivision for Weight Enhancements
For the
weight enhancements on counts 1 through 4, the information, jury verdict, and
sentencing decision all refer to Health and Safety Code section 11370.4, >subdivision (a)(3), which applies to
heroin and cocaine. The correct
subdivision for a weight enhancement for methamphetamine is Health and Safety
Code section 11370.4, subdivision (b)(3).href="#_ftn1" name="_ftnref1" title="">[1] Based on this error, Collins maintains that
under due process principles the weight enhancements must be reversed.
"Due
process requires that an accused be advised of the specific charges against him
so he may adequately prepare his defense and not be taken by surprise by
evidence offered at trial.
[Citations.] This means that
except for lesser included offenses, an accused cannot be convicted of an
offense of which he has not been charged, regardless of whether there was
evidence at his trial to show he committed the
offense. . . . The same
rules apply to enhancement allegations."
(People v. Haskin (1992) 4
Cal.App.4th 1434, 1438; Cole v. Arkansas
(1948) 333 U.S. 196, 201.) Thus, in some
circumstances when a defendant is charged and convicted under a particular code
section, the judgment may not be premised on another code section with
different elements, even if these elements are encompassed within the jury's
verdict. (Cole, supra, 333 U.S. at pp. 197-201; People v. Mancebo (2002) 27 Cal.4th 735, 738-739, 744, 752-753
[defendant could not be sentenced under uncharged multiple-victim special
circumstance rather than charged gun-use special circumstance, even though it
was apparent from information and jury verdict that there were multiple
victims]; Haskin, supra, 4
Cal.App.4th at pp. 1438-1439.) This rule
applies when the defendant was not put on notice that the prosecution was
seeking a conviction based on the uncharged statute. (Cole,
supra, 333 U.S. at p. 201; Mancebo,
supra, 27 Cal.4th at pp. 745, 747, 753; Haskin,
supra, 4 Cal.App.4th at p. 1439.)
In
contrast, when a defendant is fully aware of what charges are being brought
against him or her, a mere citation to the wrong code section is not fatal to
the judgment. (People v. Rivers (1961) 188 Cal.App.2d 189, 193-195; see >People v. Camacho (2009) 171 Cal.App.4th
1269, 1272-1275; People v. Haskin, supra,
4 Cal.App.4th at p. 1439.) In this
circumstance, the defendant "was plainly informed of the nature of his
offense, and the designation of the wrong code section is immaterial. [Citations.]
The defect was merely one of artificiality rather than
substance." (Rivers, supra, 188 Cal.App.2d at pp. 193-195 [defendant knew he was
being charged with narcotics sale based on allegation in information that he
" 'did unlawfully sell' " and evidence presented at trial;
inadvertent citation in information (and ensuing judgment) to statute
pertaining to narcotics possession caused no prejudice]; see >Russell v. United States (1962) 369 U.S.
749, 763 [" 'This Court has, in recent years, upheld many convictions
in the face of questions concerning the sufficiency of the charging
papers. Convictions are no longer
reversed because of minor and technical deficiencies which did not prejudice
the accused.' "]; People v. Camacho,
supra, 171 Cal.App.4th at pp. 1272-1274 [reference to carjacking rather
than robbery in jury verdict form was mere clerical error that is properly
disregarded as surplusage].)
Here,
Collins was charged and convicted only of methamphetamine-related offenses;
thus, he obviously knew the prosecution was not seeking to convict him of the
heroin/cocaine weight enhancement.
Further, in the weight enhancement allegations, the information stated
the methamphetamine exceeded 10 kilograms.
Thus, notwithstanding the citation to the wrong subdivision, Collins
knew what facts were at issue with respect to the weight enhancement
allegations.href="#_ftn2" name="_ftnref2"
title="">[2]
The
citation to subdivision (a)(3) instead of subdivision (b)(3) of the weight
enhancement statute was a clerical or technical error that created no due
process notice violation. Accordingly,
we modify the judgment to reflect the correct subdivision. (See People
v. Mitchell (2001) 26 Cal.4th 181, 185-187; People v. Escarcega (1969) 273 Cal.App.2d 853, 858.)
III. Failure
to Stay Sentences
For count 3
transportation of methamphetamine, the trial court sentenced Collins to a
principal term of three years, plus a consecutive 10-year term for the weight
enhancement and a consecutive three-year term for the prior conviction. The court imposed concurrent terms on the
remaining counts; i.e., for count 1 (possession of methamphetamine for sale)
and counts 2 and 4 (conspiracy to possess methamphetamine for sale and
conspiracy to transport methamphetamine, respectively).
The
Attorney General concedes, and we agree, that the sentences on counts 1, 2, and
4 should have been stayed under Penal Code section 654. For all four counts, defendant had the single
objective of transporting the methamphetamine for sale. (See People
v. Lewis (2008) 43 Cal.4th 415, 539; People
v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We modify the judgment accordingly.
DISPOSITION
The
judgment is modified to (1) change the weight enhancements to a violation of
Health and Safety Code section 11370.4, subdivision (b)(3), and (2) stay the
sentences on counts 1, 2 and 4. As so
modified, the judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.