P. v. Rivers

Filed 3/7/07 P. v. Rivers CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Matias R. Contrearas, Judge. Affirmed.

PROCEDURAL BACKGROUND

Appellant was charged with possession for sale of a controlled substance in violation of Health and Safety Code section 11378 and transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a). As to each charged offense it was further alleged that at the time they were committed, appellant was on bail on three previous cases in violation of Penal Code section 12022.1.

Appellant's motion to suppress was denied. He then entered a plea of nolo contendere to the substantive offenses and admitted the special allegations. Probation was denied and appellant was sentenced to the midterm of three years in prison on the charge of transporting a controlled substance. A three-year sentence imposed for sale of a controlled substance was stayed pursuant to Penal Code section 654. Additional two-year sentences imposed on the bail enhancements were also stayed and later were dismissed pursuant to negotiated dispositions in two other cases.

A timely notice of appeal was filed.

On appeal, the record of evidence presented to this court was by way of a settled statement because neither the recording nor the transcript of appellant's suppression motion could be located. We concluded the appellate record was insufficient and incomplete and directed the court and parties to present a new settled statement. On October 6, 2006, a hearing was held. At that time witnesses previously examined at the May 23, 2005, suppression hearing were recalled for the purpose of refreshing the trial court's recollection concerning the evidence presented at that hearing. The parties thereafter submitted a "Settled Statement and Amendment to Settled Statement" and filed supplemental briefs.

FACTUAL BACKGROUND

On August 24, 2004, at approximately 8:36 a.m., Imperial County Sheriff's Deputy Raymundo Perez De La Rosa observed appellant driving toward him in a tan pickup truck. Officer De La Rosa could see that the pickup truck had an object hanging from the rearview mirror. The officer believed the object was large enough to fully or partially obstruct appellant's view, so he stopped the truck.

During the traffic stop, Officer De La Rosa noticed appellant's eyes were bloodshot, red and glassy, symptoms consistent with narcotics use. With appellant's consent the officer searched appellant's person and found a small baggie containing a leafy green substance and a pipe with white and black residue. He then searched the vehicle. In the glove compartment he found a white powdery substance and aluminum foil. He also found approximately 20 grams of methamphetamine. While sitting in the driver's seat, Officer de La Rosa found the object hanging from the rear view mirror was an air freshener that would partially obstruct appellant's view while driving.

At the hearing on the motion to suppress, appellant's expert Tim Bright, an accident reconstructionist, found an exemplar vehicle and located a fishbowl-shaped air freshener like the one that had been hanging in appellant's car. He took photographs from the driver's seat through the windshield, using a camera perspective closely simulating the human eye. He also performed calculations as to how the air freshener would affect appellant's ability to see through the windshield. One of the photographs taken by Bright showed a child-sized palm tree approximately 20 to 30 feet in front of the truck. He opined that while the car was in motion the driver would be able to see the tree, but the air freshener was of a size that would obscure the driver's view of the palm tree, or a child while the vehicle was stopped.

DISCUSSION

Upon review of a motion to suppress evidence, all presumptions favor support of the trial court's factual findings, whether express or implied. (Ornelas v. United States (1996) 517 U.S. 690, 699 [116 S.Ct. 1657].) On review we view the facts favorable to the trial court's decision and exercise our independent judgment in determining whether on the facts found the search or seizure was reasonable under the Fourth Amendment. (People v. Celis (2004) 33Cal.4th 667, 679; People v. Glaser (1995) 11 Cal.4th 354, 362.) We will uphold the trial court's ruling where it is supported by substantial evidence, that is, where the evidence reasonably inspires confidence and is of solid value. (People v. Redmond (1969) 71 Cal.2d 745, 756.) Viewing the record in this light, substantial evidence supports the ruling of the court.

It is a traffic violation to drive a vehicle with any object or material that obstructs or reduces the driver's clear view through the windshield. (Veh. Code,  26708, subd. (a)(2).) A driver is one who drives or is in actual physical control of a vehicle. (Veh. Code,  305; Adler v. Dept. of Motor Vehicles (1991) 228 Cal.App.3d 252, 258.)

We perceive that one is driving when in physical control of a car that comes to a stop in traffic, for example at a red light, stop sign or blind intersection. Because the evidence is undisputed that the air freshener here would partially obscure driver vision when the car was stopped, such that a child 20 to 30 feet away would not be seen, it clearly presented a danger that upon continuing to drive from such a traffic stop, he might not see a child entering the obscured area.[1]

People v. White (2003) 107 Cal.App.4th 636 does not assist appellant. Among the factual dissimilarities with this case, in White the defendant's expert offered evidence that given the calculations of defendant's height, the size of the air fresher and dimensions of windshield surface, there would be no obstruction. Here appellant's own expert testified that given his calculations, there would be obstruction sufficient to block the view of a small child when the car was stopped.

The evidence supports the trial court's ruling.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

I CONCUR:

IRION, J.

J. McINTYRE:

I dissent. While we review findings of historical fact, both expressed and implied, under a deferential standard, we must be careful not to infer findings of fact beyond those directly supported by the record (Ornelas v. U.S. (1996) 517 U.S. 690, 699) and we consider de novo the question of reasonable suspicion. (Id. at pp. 697, 699.)

Here, we can infer that the trial court determined, as a matter of historical fact, that there was an object like the exemplar air freshener hanging from the rearview mirror of appellant's truck as observed by the officer prior to the stop which the officer believed obstructed the driver's view in violation of the Vehicle Code. Based on a de novo review of the available record, however, I think it was unreasonable for the officer to believe that the small, mostly clear object suspended from the rearview mirror could have obstructed appellant's view absent "other specific and articulable facts, like hesitant or erratic driving, that might suggest the driver's clear view was impeded." (People v. White (2003) 107 Cal.App.4th 636, 642.)

Appellant's expert, Tim Bright, testified that when the truck is in motion, movement and binocular vision would allow the driver to observe a child-sized palm tree approximately 20 to 30 feet in front of the truck. The amended settled statement adds Bright's testimony that the air freshener would block the driver's view of a child-sized palm tree approximately 20 to 30 feet in front of the truck if the truck was stationary. The majority seizes on this testimony as justification for the traffic stop; however, the question is whether it was reasonable for the officer to believe that the object hanging from the mirror obstructed the driver's view. After the fact photographs of an exemplar truck and air freshener taken from the driver's perspective inside a stationary vehicle do not support this finding.

In any event, this new fact does not change my conclusion because when the truck started moving, the child-sized palm tree would have become visible and appellant would have had sufficient time to stop or slow down. Significantly, there are absolutely no facts in the record showing that appellant nearly collided with a person or other object or was speeding away from stop lights or stop signs and would have had insufficient time to stop his vehicle after viewing a potential hazard 20 to 30 feet away.

On this record, I cannot conclude that the stop was justified; accordingly, the motion to suppress should have been granted.

McINTYRE, J.

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[1] We have examined the air freshener introduced at trial as Exhibit A and we note the view presented directly through the air freshener, which is the manner in which it would be viewed by a driver, also places objects in an upside down position.