P. v. Lombera

Filed 6/11/08 P. v. Lombera CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles L. Peven, Judge. Affirmed.

John Doyle, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Jose Gaspar Lombera appeals from the judgment entered after he pleaded no contest to one count of possessing cocaine for sale (Health & Saf. Code,  11351), contending that the drugs and other evidence found in his possession should have been excluded because there was no probable cause for the police search that located them. We affirm.

FACTS AND PROCEDURAL HISTORY

Around 7:20 p.m. on February 9, 2007, Los Angeles Police Officer Alan Cieto was on patrol in the San Fernando Valley when he saw a car with darkly-tinted windows pass by. Believing that the windows were tinted darker than allowed by law, he and his partner pulled the car over. When Cieto asked the driver, Jose Lombera, for his drivers license, Lombera said he did not have one. Cieto asked Lombera to step out of the car. As Lombera did so, Cieto saw in the handle of the drivers side door a plastic baggie containing a crystalline substance that looked like methamphetamine. A further search of Lombera and the car turned up more methamphetamine, some cocaine, and more than $1,000 in cash. Lombera was arrested and charged with four counts related to the possession and transportation for sale of drugs. (Health & Saf. Code,   11351, 11352, subd. (a), 11378, 11379.)

Lombera moved to suppress evidence from Cietos search on the ground that the search was made without a warrant, and asked that the prosecution justify the search on the basis that Cieto had a reasonable belief some law had been broken. (Pen. Code,  1538.5.) That motion was heard as part of Lomberas preliminary hearing. Cieto testified that Lomberas car was about one block away when he first saw it, but that he got as close as three car lengths before pulling Lombera over. Cieto testified that the front and rear windows were tinted so much that he could see only a slight, silhouette . . . shadowy figure, but that he could not see the occupants of the car.

Cieto had been a police officer for six years. He based his belief that the tinting was illegal on his training and experience, time in the field, and talking to tint shops and just learning the different tints that they have available. As part of that experience, he had seen windows with legal tints. Cieto also testified that he believed window tinting was illegal if it allowed in no more than 75 percent of the light, when in fact windows that let in just 70 percent of the light were permitted. He carried no tools for testing the legality of window tinting because no such tests or tools were available.

The prosecutor argued that despite Cietos mistaken belief about the permitted amount of light transmission, the officer had a reasonable belief that the window tinting law had been violated because he also said he was unable to clearly see the occupants of the car. Defense counsel did not argue that Cietos mistaken belief about the laws requirements defeated probable cause. Instead, she argued that his mere observation that the windows allowed him to see only a silhouette was not a sufficiently articulable fact to permit a finding of probable cause. The magistrate found that Cietos observations were sufficient and denied the suppression motion.

After being bound over for trial at the preliminary hearing, Lombera moved to set aside the information (Pen. Code,  995) on the ground that Cietos mistaken belief about the requirements of the window tinting laws made the search illegal. Based on the evidence introduced at the earlier suppression motion, the trial court denied the motion to set aside the information. Lombera then agreed to plead no contest to one count of possessing cocaine for sale (Health & Saf. Code,  11351) in exchange for dismissal of the other charges and a sentence of three years on probation.

STANDARD OF REVIEW

If a criminal defendants motion to suppress evidence is denied at the preliminary hearing, the defendant may raise the search and seizure issue by way of a motion to set aside the information. (Pen. Code,  995, subd. (a)(2)(B); People v. McDonald (2006) 137 Cal.App.4th 521, 528-529.) Under Penal Code section 995, the superior court acts as an appellate court reviewing the sufficiency of the evidence to affirm a judgment. On appeal from a denial of a section 995 motion seeking to reverse the denial of a defendants earlier motion to suppress, we disregard the section 995 motion and instead directly review the magistrates denial of the initial suppression motion. (Id. at p. 529.) The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts 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. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Only evidence admitted at the suppression hearing is to be considered when determining the correctness of the ruling. (People v. Marks (2003) 31 Cal.4th 197, 218.)

DISCUSSION

In general, it is unlawful to tint the windows of a vehicle in a way that obstructs or reduces a drivers view. (Veh. Code,  26708, subd. (a)(2).)[1] Window tinting may be applied to car windows so long as it complies with federal car safety regulations requiring at least 70 percent light transmittance. ( 26708, subd. (d)(2), 26708.5, subd. (b); see 49 C.F.R. 571.205.) Therefore, Cieto was wrong when he testified that the law required at least 75 percent light transmittance, leading Lombera to argue on appeal that Cieto did not have a reasonable, objective basis for stopping Lomberas car, as required by the Fourth Amendment to the United States Constitution. We disagree.

[A] police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Miranda (1993) 17 Cal.App.4th 917, 926, original italics.) While a traffic stop is unlawful if made by an officer who does not know the law and who based the stop on objective facts that cannot constitute a violation,  [i]f the facts are sufficient to lead an officer to reasonably believe that there was a violation, that will suffice, even if the officer is not certain about exactly what it takes to constitute a violation. [Citations.] [Citation.] (In re Justin K. (2002) 98 Cal.App.4th 695, 700.) As set forth below, the record shows that despite Cietos mistaken belief about the amount of light transmittance required by the window tinting law, the stop was still lawful because he based it on objective facts that gave him reason to believe a violation had occurred.

Our starting point is People v. Niebauer (1989) 214 Cal.App.3d 1278 (Niebauer), where the issue was whether there was sufficient evidence to uphold the defendants conviction for having violated section 26708 because the window tinting on his car was too dark. The officer who cited the defendant testified that he stopped defendant because the windows on his car were darker than normal, allowing the officer to see only the drivers outline. Although the officer had no training or expertise regarding light transmittance and did not take any light measurements from inside the car, he said that when looking through the windows from outside the car, his vision was obstructed.

Defendant contended this evidence was insufficient because the officer had not received specialized training on window tinting and had taken no measurements showing the amount of light transmitted by the tinting. The Niebauer court rejected that argument because it would impose an impractical burden on law enforcement. We expect that law enforcement officers enforcing this statute, based upon their training and experience with vehicles in general, 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 on the windows obscures the light below the 70 percent margin. We dont call upon the officers to be scientists or carry around and use burdensome equipment to measure light transmittance, nor do we expect them to discuss the sufficiency or insufficiency of the light transmittance as if they were an expert witness on the subject. [] Rather, a commonsense approach to the enforcement of this statute was envisioned by the Legislature. If an officer forms an opinion in a commonsense examination of a vehicle that there is a film placed upon the vehicles windows in an unauthorized place or that light is obstructed in the fashion contemplated by the statute, such evidence will be sufficient to support conviction under [the statute] if the trial court believes the officer; no further evidence or scientific testimony need be presented. (Niebauer, supra, 214 Cal.App.3d at pp. 1291-1292.)

Although defense counsel cross examined the officer, no contrary evidence was offered. Based on that record, the Niebauer court held the evidence was sufficient to support the conviction. In a footnote, the court said that even though no Fourth Amendment challenge was made as to the initial stop, the facts presented would also justify such a stop in this case. [The officer] testified to additional facts giving him reasonable suspicion Niebauer was driving with illegally tinted windows other than merely the bare statement Niebauers truck had tinted windows. [Citation.] (Niebauer, supra, 214 Cal.App.3d at p. 1293, fn. 10.)

Niebauers reasoning and its dicta concerning the validity of the search have since been applied to uphold the legality of police stops for window tint violations in both U.S. v. Wallace (9th Cir. 2000) 213 F.3d 1216 (Wallace) and People v. Hanes (1997) 60 Cal.App.4th Supp. 6 (Hanes). In Wallace, the officer mistakenly believed that any car window tinting was illegal, but also testified that the tinting on defendants car windows was a heavy tint where the occupant inside was at a harder degree to look [sic] into the vehicle. Relying on Niebauer, the court said the officers mistaken impression that all front-window tint is illegal is beside the point. [The officer] was not taking the bar exam. The issue is not how well [the officer] understood Californias window tinting law, but whether he had an objective, probable cause to believe that these windows were in fact, in violation. (Wallace, supra, at p. 1220.) In Hanes, the officer, a three year veteran of the highway patrol, stopped a car because he believed the window tinting violated section 26708, and ended up arresting the driver for drunken driving. Defendant challenged the validity of the stop, claiming the officer lacked probable cause. The officer testified that he had stopped cars for the same violation some 400 times, that the front window was so black it kind of matched the color of the car, and that he could not see its occupants. Relying on Niebauer, the Hanes court held that the officers experience and observations were enough to give rise to probable cause. (Hanes, supra, at pp. 8-10.)

Applying those principles here, we hold that Cieto had reasonable cause to believe a window tint violation had occurred. Cieto stopped Lomberas car because the window tinting was so dark he could see no more than a shadowy silhouette. His belief was also based on his six years as a police officer, his training and experience, and his conversations with the operators of window tint shops. As in Hanes and Wallace, these objective facts gave Cieto ample reason to suspect that Lomberas car was in violation of section 26708. Lomberas reliance on People v. Butler (1988) 202 Cal.App.3d 602 to show otherwise is misplaced. The arresting officer in that case stopped a car for no other reason than his dislike of tinted windows. The court held that seeing someone lawfully driving with tinted windows, standing alone, did not justify an investigative stop. (Id. at p. 607.) That is certainly not the case here, and Butler was distinguished for the same reasons in Niebauer, supra, 214 Cal.App.3d at page 1293, footnote 10 and in Hanes, supra, 60 Cal.App.4th Supp. at pages 8 through 10.

DISPOSITION

For the reasons set forth above, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

FLIER, J.

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[1]All further undesignated section references are to the Vehicle Code.