In re Jesus A.

Filed 3/3/08 In re Jesus A. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Donna Groman, Judge. Affirmed.

Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Jesus A. (hereinafter Jesus), a minor, appeals from the order of wardship (Welf. & Inst. Code, 602) entered following denial of his motion to suppress evidence (Welf. & Inst. Code, 700.1) and his subsequent admission that he possessed methamphetamine (Health & Saf. Code, 11377, subd. (a)). Jesus was placed home on probation. He contends the juvenile court erred by denying his suppression motion and by failing to award precommitment custody credit. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Traffic stop and arrest.

According to the facts set forth in Jesuss motion to suppress, on August 25, 2006, Los Angeles County Sheriffs Deputy Marc Boisvert and his partner encountered Jesus driving his Jeep Cherokee. Because it appeared to Boisvert that the Jeeps windows were illegally tinted, the deputies initiated a traffic stop. When they learned that Jesus did not have a drivers license, he was arrested. During an inventory search of the Jeep, the deputies discovered a white, crystalline substance resembling methamphetamine.

2. The suppression motion.

Jesus moved to suppress the methamphetamine on the ground the initial traffic stop was illegal. He contended that the deputies did not have reasonable suspicion to initiate a traffic stop because the Jeeps windows were not dark enough to block Boisverts view into the Jeep.

The following evidence was adduced at the suppression hearing. On August 25, 2006, at approximately 5:40 p.m., Boisvert and his partner were on routine patrol in Los Angeles in the area of Rosecrans and Spring streets. Traveling in the number one lane, they pulled up behind and to the left of Jesuss 1994 Jeep Cherokee, which was in the number two lane. It was still light out. Boisvert could immediately see that the front drivers side window was dark. In his opinion, the tint did not appear to be factory installed. When looking through the Jeeps drivers side window, Boisvert could see the outline of the occupants inside, but he could not tell whether the driver was a male or female nor could he determine the color of the drivers clothing, the length of the drivers hair, or whether the driver was wearing a hat. He could only see an outline. He could also see that something was hanging from the rearview mirror but could not tell what it was.

Boisvert had been a peace officer for six years. He had participated in numerous ride alongs with other deputies in which the officers stopped vehicles for having illegally tinted windows. He had been involved in more than 30 investigations regarding tinted windows.

Based on its darkness, Boisvert believed the drivers side window was illegally tinted. Generally, when it is not possible to see a vehicles occupants features through a window, the tint is not factory installed. Boisvert explained, [n]on-factory tinted windows are usually very dark. Very dark where youre not able to see exactly who is in the vehicle, if they are making any furtive movements. Youre not able to see any types of movements with the dark tints. [] With factory, due to it being placed in the middle and side of the window, youre able to see more movement. Its a lot easier to see inside the vehicle. The factory tint on vehicles manufactured after 2000 generally appears grayish rather than dark black, and it is possible to see the occupants features through the tint.

Boisvert did not know the exact percentage of tint that was illegal, but he was able to discern whether windows were illegally tinted based on his ability to see through them. When shown a photograph taken of the Jeeps windows, Boisvert opined that the drivers side window appeared lighter in the photograph than it had appeared to him when he observed the Jeep. However, the photograph was taken at approximately 12:30 p.m., when it was lighter outside than at the time of the traffic stop.

Jesus testified that his father purchased the Jeep from a private seller, and neither he nor his father had had the windows tinted. Jesus did not know whether the previous owner had had the windows tinted.

The juvenile court denied the motion. It found that the officer had a reasonable suspicion that the drivers side window was illegally tinted, and his training and experience was sufficient to enable him to make an accurate observation. The fact the officer could see the occupants but could not see any details, such as the drivers gender and clothing, gave Boisvert a reasonable suspicion that the tinting was illegal.

3. Plea.

After the motion was denied, Jesus pleaded guilty to possession of a controlled substance, methamphetamine (Health & Saf. Code, 11377, subd. (a)).

DISCUSSION

1. The juvenile court did not abuse its discretion by denying the suppression motion.

An investigatory detention of an individual in a vehicle is permissible under the Fourth Amendment if supported by reasonable suspicion that the individual has violated the Vehicle Code. (People v. Dolly (2007) 40 Cal.4th 458, 463; see also People v. Saunders (2006) 38 Cal.4th 1129, 1135; People v. Wells (2006) 38 Cal.4th 1078, 1082; People v. Miranda (1993) 17 Cal.App.4th 917, 926.)  The guiding principle in determining the propriety of an investigatory detention is the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal
security. (People v. Dolly, supra, at p. 463; People v. Wells, supra, at p. 1083.)
Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause . . . . [Citation.] (People v. Dolly, supra, at p. 463; People v. Wells, supra, at p. 1083.) To be reasonable, the officers suspicion must be supported by some specific, articulable facts that are reasonably consistent with criminal activity. [Citation.] (People v. Wells, supra, at p. 1083.) Reasonableness is measured by what the officer knew before he or she decided to detain the vehicle. (People v. Hester (2004) 119 Cal.App.4th 376, 386.) A stop based on mere curiosity, rumor, or hunch is unlawful. (People v. Wells, supra, at p. 1083.) The constitutionality of a traffic stop does not depend on the subjective motivation of the officer, as long as the objective circumstances justify the stop. (Whren v. United States (1996) 517 U.S. 806, 813; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1044-1045; People v. Gallegos (2002) 96 Cal.App.4th 612, 627; U.S. v. Wallace (9th Cir. 2000) 213 F.3d 1216, 1219.)

When reviewing a ruling on a motion to suppress evidence, we review the courts resolution of the factual inquiry under the deferential substantial evidence standard. (In re Lisa G. (2004) 125 Cal.App.4th 801, 805; People v. Saunders, supra, 38 Cal.4th at pp. 1133-1134; People v. Hester, supra, 119 Cal.App.4th at p. 385.) We then exercise our independent judgment to determine whether, on the facts found by the court, the search was reasonable under the Fourth Amendment. (In re Lisa G., supra, at p. 805; People v. Saunders, supra, at p. 1134.)

Some, but not all, window tinting is unlawful in California. (See Veh. Code,  26708, 26708.5.)[1] Tinted factory-installed or replacement windshields or front side windows are legal as long as they allow for 70 percent light transmittance. (People v. Niebauer (1989) 214 Cal.App.3d 1278, 1290; U.S. v. Wallace, supra, 213 F.3d at p. 1217; see Klarfeld v. State of California (1983) 142 Cal.App.3d 541, 550.) After-factory tinted coating of the windshield or front side windows is generally illegal, subject to exceptions not at issue here. (Klarfeld v. State of California, supra, at p. 550; People v. Niebauer, supra, at pp. 1285, 1288-1290.)

It is settled that an officer may stop a motorist based on his or her reasonable suspicion that the vehicles windows are illegally tinted. (See People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 10 [reasonable suspicion to stop where tinting was so dark the officer could not see the vehicles front occupants]; People v. Niebauer, supra, 214 Cal.App.3d at p. 1293, fn. 10 [noting, in dicta, that an officer had reasonable suspicion tinting was illegal, justifying traffic stop]; U.S. v. Wallace, supra, 213 F.3d at p. 1217 [where window tinting was twice as dark as legally permissible, officer had reasonable suspicion to stop although he mistakenly believed all window tinting was illegal].)

Here, the trial court did not err by denying Jesuss suppression motion, because the evidence adduced at the suppression hearing was sufficient to establish that Boisvert had a reasonable suspicion supported by specific, articulable facts. Several cases inform our analysis. In People v. Niebauer, supra, 214 Cal.App.3d 1278, a motorist was convicted of driving with illegally tinted windows. An officer observed defendant Niebauer driving with dark tinting material on the side windows which he believed violated the law. The windows were darker than normal and [the officer] could only see Niebauers outline through the window. (Id. at p. 1292.)Upon examining the windows after pulling Niebauer over, the officer determined that a film had been placed on the windows. On appeal, Niebauer argued this evidence was insufficient to prove violation of the law because there was no showing the arresting officer was specially trained in the area of tinted windows, or that he took measurements regarding the light transmittance level through the defendants window. (Id. at p. 1291.)

Niebauer rejected these contentions, explaining 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. (People v. Niebauer, supra, 214 Cal.App.3d at p. 1292.) Instead, a commonsense approach to the enforcement of [section 26708] 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 section 26708(a) if the trial court believes the officer; no further evidence or scientific testimony need be presented. (People v. Niebauer, supra, at p. 1292.) Although the officer had no training or expertise regarding light transmittance, and did not take light transmittance measurements, he testified that his vision was obstructed when he looked through the defendants windows from outside the truck. (Id. at pp. 1292-1293.) The officer had stopped other motorists with the same type of tinting, and those motorists had to roll down their windows at night to see where they were turning. Niebauer noted, in dicta, that this evidence was also sufficient to justify the traffic stop in the first instance. (Id. at p. 1293, fn. 10.)

In U.S. v. Wallace, supra, 213 F.3d 1216, an officer conducting drug surveillance intended to effectuate a pretextual stop of the defendants vehicle. He stopped the defendant after driving alongside it and observing that all the windows were tinted so as to make it difficult to view the interior of the car. The officer mistakenly believed that any window tinting was illegal. In fact, the defendants vehicle windows were over twice as dark as allowed under section 26708. On appeal, the Ninth Circuit held the defendants suppression motion should have been denied. (U.S. v. Wallace, supra, at p. 1221.) The officers testimony that there was a heavy tint on the windows that made if harder to look into the vehicle established that the tinting probably allowed less than 70 percent light transmittance, which in turn established probable cause to believe the vehicle was in violation of California law. (Id. at p. 1220.) The officers legal mistake was immaterial because the objective circumstances justified the stop. (Id. at p. 1220; see also People v. Hanes, supra, 60 Cal.App.4th Supp. at pp. 8, 9-10 [officer had reasonable suspicion to make traffic stop where he observed defendants black Mustang travel through a lighted intersection and the front window was so dark it kind of matched the color of the car, preventing the officer from seeing the vehicles occupants].)

Here, we are not concerned with the sufficiency of the evidence to support a conviction, but only with the sufficiency of the factual showing necessary to support a finding that Boisvert had a reasonable suspicion the Jeeps windows were illegally tinted, a lesser standard. (See People v. Hanes, supra, 60 Cal.App.4th Supp. at p. 10.) Boisvert testified that the tinting was very dark and he was unable to see exactly who was inside the vehicle. He could see the occupants outlines, but could not discern the drivers gender, hair length, or clothing color. (See People v. Niebauer, supra, 214 Cal.App.3d at p. 1293 [investigative stop would have been justified where windows were darker than normal and officer could see only drivers outline through window].) While Boisvert could see an object hanging from the rear view mirror, he could not tell what it was. Under these circumstances, Boisvert did not have a clear, unobstructed view through the window, and therefore had reasonable suspicion to make the stop. (U.S. v. Wallace, supra, 213 F.3d at p. 1220.)

We likewise reject Jesuss contention that Boisvert lacked sufficient training or experience to determine whether the window tint was legal. Boisvert testified that he had been a peace officer for six years; had participated in numerous ride alongs in which drivers were stopped for having illegally tinted windows; and had been involved in over 30 investigations involving tinted windows. This testimony was sufficient to provide substantial evidence that Boisvert was adequately trained to make a determination whether the Jeeps windows were illegally tinted. Jesus cites no authority holding to the contrary. The fact Boisvert did not know the exact percentage of light transmission that was permissible under the statute was immaterial. Boisvert was not taking the bar exam. The issue is not how well [the officer] understood Californias window tinting laws, but whether he had objective, probable cause to believe that these windows were, in fact, in violation. (U.S. v. Wallace, supra, 213 F.3d at p. 1220.) Boisvert knew that some window tinting was legal and some was not. He described the appearance of legal factory-installed tint and distinguished it from the appearance of the drivers side window on Jesuss Jeep.

People v. Butler (1988) 202 Cal.App.3d 602, relied upon by Jesus, does not compel a different result. In Butler, an officer saw a Cadillac stop near a liquor store in an area known for robberies. He followed the car and noticed its side and rear windows were darkened. He stopped the vehicle because he thought the occupants were setting up for a robbery or something, and I also didnt like the idea of the tinted windows, which he believed were an obvious Vehicle Code violation. (Id. at p. 605.) The officer found drugs in the car, and the defendant moved to suppress. On appeal, the court concluded the officer did not have reasonable suspicion to make the traffic stop. (Id. at
p. 607.) The People conceded that not all tinted windows were unlawful. The officer had observed the Cadillac from a distance, late at night as he drove past the liquor store and as the Cadillac sped past him. (Id. at p. 606.) The court reasoned, We disagree with the Peoples suggestion that seeing someone lawfully 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 the type of speculation which may not properly support an investigative stop. (Id. at p. 607.)

Butler is distinguishable. In Butler, the officer observed the vehicle late at night, from a distance, as it sped past. Here, Boisvert observed the Jeep during daylight, from the adjacent lane, no more than a car length away. The record does not disclose the speed of the vehicles, but it is a reasonable inference that, because both vehicles were traveling parallel to each other on surface streets in Los Angeles, Boisvert had a much better opportunity to view the Jeep than did the officer in Butler. Further, in this case there were additional articulable facts presented, beyond the mere conclusory testimony that the windows were an obvious Vehicle Code violation in Butler. As we have discussed, here Boisvert described exactly how much he could see through the window, and contrasted the tint on the Jeep with legal factory-installed tint. Butler, therefore, is distinguishable.

Finally, Jesus contends that Boisvert could not recall which window he was looking through when he made his observations of the item hanging from the rear view mirror. But Boisvert unequivocally testified that he observed that object from one of the drivers side windows. Boisvert testified that he initially approached the Jeep from the adjacent left lane, behind the Jeep, and observed that the Jeep had tinted windows. He described the drivers side front window as very dark and he was not able to see exactly who was inside the vehicle through the front drivers side window. Whether he observed the rear view mirror item from the front or rear drivers side window is therefore insignificant to our analysis. In sum, the suppression motion was properly denied.

2. The record does not establish that Jesus was entitled to precommitment custody credit.

As noted ante, Jesus was declared a ward of the court and placed home on probation. The trial court did not award any precommitment credit. Defense counsel indicated that no precommitment credit was due. The Welfare and Institutions Code section 602 petition states that Jesus was taken into custody on August 23, 2006 at 5:40 p.m., but was not detained. Jesus contends that, because he was taken into custody on August 23, 2006, and a partial day in custody is treated as a whole day for predisposition custody credit purposes, he is entitled to one day of predisposition credit.

Jesuss contention is not persuasive. A minor is entitled to custody credit against his or her maximum term of confinement for time spent in custody before the disposition hearing. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) Penal Code section 2900.5 governs the award of presentence custody credits for adult defendants, but does not directly apply to minors. (In re Randy J. (1994) 22 Cal.App.4th 1497, 1504.) However, Welfare and Institutions Code section 726, subdivision (c), provides that a minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the same offense. (In re Antwon R. (2001) 87 Cal.App.4th 348, 352.) Because an adult would be entitled to presentence custody credit under Penal Code section 2900.5, this has been interpreted to mean that an equivalent amount of time must be subtracted from a minors maximum period of physical confinement. (Ibid.) Under section 2900.5, a defendant is not in custody prior to being processed into a jail or similar custodial situation, and his or her custody credits begin at booking, rather than from the time of arrest. (People v. Ravaux (2006) 142 Cal.App.4th 914, 919.) Further, Welfare and Institutions Code section 726 specifically defines physical confinement as excluding time not spent in a secure facility. (In re Randy J., supra, at p. 1505.) The only evidence in the record demonstrates that while Jesus was arrested at the same time of the traffic stop (Aug. 23, 2006 at 5:40 p.m.), he was not detained but was home. Because the record does not reflect he was held in a secure facility, he is not entitled to precommitment credit. Finally, a determination of custody credits is unnecessary when a juvenile is placed home on probation, as was the case here. (Id. at p. 1503 [Welfare and Institutions Code section 726 should be interpreted as entitling a minor to credit for time previously spent in physical confinement when physical confinement is subsequently selected as a disposition].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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Analysis and review provided by Santee Property line attorney.

[1] Vehicle Code section 26708 provides, in pertinent part: (a)(1) No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows. [] (2) No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the drivers clear view through the windshield or side windows. [] . . . [] (d) Notwithstanding subdivision (a), clear, colorless, and transparent material may be installed, affixed, or applied to the front side windows, located to the immediate left and right of the front seat if the following conditions are met: [] (1) The material has a minimum visible light transmittance of 88 percent. [] (2)  The window glazing with the material applied meets all requirements of Federal Motor Vehicle Safety Standard No. 205 (49 C.F.R. 571.205), including the specified minimum light transmittance of 70 percent and the abrasion resistance of AS-14 glazing, as specified in that federal standard. [] (3) The material is designed and manufactured to enhance the ability of the existing window glass to block the suns harmful ultraviolet A rays. []  (4)  The driver has in his or her possession, or within the vehicle, a certificate signed by the installing company certifying that the windows with the material installed meet the requirements of this subdivision and identifies the installing company and the materials manufacturer by full name and street address, or, if the material was installed by the vehicle owner, a certificate signed by the materials manufacturer certifying that the windows with the material installed according to manufacturers instructions meets the requirements of this subdivision and identifies the materials manufacturer by full name and street address. [] (5) If the material described in this subdivision tears or bubbles, or is otherwise worn to prohibit clear vision, it shall be removed or replaced. Subdivisions (b) and (c) contain exceptions not relevant here.

Vehicle Code section 26708.5 provides: (a)  No person shall place, install, affix, or apply any transparent material upon the windshield, or side or rear windows, of any motor vehicle if the material alters the color or reduces the light transmittance of the windshield or side or rear windows, except as provided in subdivision (b), (c), or (d) of Section 26708. [] (b)  Tinted safety glass may be installed in a vehicle if (1) the glass complies with motor vehicle safety standards of the United States Department of Transportation for safety glazing materials, and (2) the glass is installed in a location permitted by those standards for the particular type of glass used.