In re A.C.

Filed 10/15/08 In re A.C. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Charles Q. Clay III, Judge. Affirmed as modified.

Bruce G. Finebaum, 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, Senior Assistant Attorney General, Linda C. Johnson and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
INTRODUCTION

Appellant A.C., a minor, appeals from an order continuing wardship (Welf. & Inst. Code,  602) entered after the juvenile court denied his motion to suppress evidence and found he had possessed cocaine for sale (Health & Saf. Code,  11351). The court ordered him home on probation and calculated the maximum term of confinement as four years, eight months. Appellant was a passenger in a car that was stopped by a deputy sheriff who believed the car had illegally tinted windows. Appellant contends his incriminating statements and the cocaine found during a search of the car should have been suppressed because the traffic stop was not justified by reasonable suspicion. We affirm the order as modified.^[1]

FACTS

A. Prosecution Evidence

According to the evidence at the suppression hearing, at around 1:25 a.m. on March 23, 2007, Deputy Sheriff Ulysses Logeman was on patrol when he saw a Honda Civic with tinted windows on the drivers side. Deputy Logeman testified any tinting on the drivers side windows was prohibited, but the tint on the front windows of this vehicle were dark enough, too, where I couldnt see inside the vehicle. He could not tell whether the driver was male or female, nor could he discern the drivers clothing, or whether the drivers hands were holding anything. Deputy Logeman initiated a traffic stop and approached the Honda Civic as the male driver was rolling down his window. Deputy Logeman asked the driver if he were currently on probation or parole. The driver did not respond; but appellant, a passenger in the car, volunteered he was on probation. Deputy Logeman ordered the driver, appellant and a second passenger out of the Honda Civic. After obtaining the drivers consent, Deputy Logeman conducted a search of the car and found seven plastic baggies containing a white powdery substance resembling cocaine under the back passenger seat where appellant had been sitting. Deputy Logeman showed the baggies to appellant and his companions. Deputy Logeman also retrieved some empty baggies. After being advised by Deputy Logeman of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), appellant admitted he had purchased the cocaine earlier.

B.Defense Evidence

Anthony S., the driver, testified in appellants defense. At around 1:25 a.m. on March 23, 2007, Anthony S. was driving his Honda Civic. With him were his friends Rafael in the front passenger seat and appellant in the back seat. The car windows were rolled down or at least halfway up; the front windows were rolled about 25 percent up. When Anthony S. saw the deputy sheriffs car, he rolled down the windows. Knowing he would be stopped for having unlawfully tinted windows, Anthony S. always drove with the windows of his Honda Civic rolled down. According to Anthony S., Deputy Logeman searched the Honda Civic without permission.

DISCUSSION

In reviewing the ruling on a motion to suppress, whether arising from a juvenile court or adult criminal proceeding (see In re William V. (2003) 111 Cal.App.4th 1464, 1468), the appellate court defers to the trial courts factual findings, express or implied, when supported by substantial evidence. (People v. Brendlin (2006) 38 Cal.4th 1107, 1113; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, supra, at p. 107.) In determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.^[2] (Brendlin, supra, at p. 1113; People v. Ramos (2004) 34 Cal.4th 494, 505.)

[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.) The record shows the stop was lawful because Deputy Logeman based it on objective facts that gave him reason to believe the Honda Civics window tinting was in violation of the Vehicle Code. Generally, 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).)^[3]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.)^[4]

Appellants claim to the contrary notwithstanding, Deputy Logeman initiated the traffic stop, not simply because the Honda Civics driver side windows were tinted, but because the tinting was so dark that his view of the driver was obscured. Deputy Logeman testified he was unable to look through the windows and see the drivers gender or clothing and whether the drivers hands were holding anything. These articulable facts supported Deputy Logemans reasonable and objective suspicion the window tinting was in violation of section 26708. (See People v. Niebauer (1989) 214 Cal.App.3d 1278, 1292-1293 [officers testimony he stopped motorist after noticing trucks side windows were darker than normal such that he could only see drivers outline was substantial evidence of section 26708 violation]; People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 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 cars occupants].) Additionally, Deputy Logemans belief the window tinting was illegal was confirmed by the driver of the Honda Civic. Anthony S. testified he was subject to being cited by police for having windows that tinted.

Appellants reliance on People v. Butler (1988) 202 Cal.App.3d 602 to show otherwise is misplaced. The arresting officer in Butler stopped a car for no other reason than his dislike of tinted windows, which is not the case here, and Butler was distinguished for the same reasons in People v.Niebauer, supra, 214 Cal.App.3d at page 1293, footnote 10.

DISPOSITION

The maximum term of confinement is stricken. As modified, the juvenile courts order is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.

We concur:

PERLUSS, P. J.

ZELON, J.

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^[1]Appellants additional challenge to the juvenile courts order setting a maximum period of physical confinement is well taken. Because he was placed home on probation, the courts calculation of that maximum term is of no legal effect. (See In re Ali A. (2006) 139 Cal.App.4th 569, 572-574 [when minor placed home on probation, juvenile court is not required to include maximum term of confinement in disposition order; maximum term of confinement contained in such an order is of no legal effect]; In reJoseph G. (1995) 32 Cal.App.4th 1735, 1744 [[o]nly when a court orders a minor removed from the physical custody of his parent or guardian is the court required to specify the maximum term the minor can be held in physical confinement].) Accordingly, we strike that portion of the juvenile courts order.

^[2] Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art I,  28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; see People v. Brendlin, supra, 38 Cal.4th at pp. 1113-1114.)

^[3] All further statutory references are to the Vehicle Code, unless otherwise indicated.

^[4] Vehicle Code section 26708 provides: (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.