P. v. Valencia

Filed 6/21/07 P. v. Valencia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed.

Warren P. Robinson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

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I. INTRODUCTION

Donald Lee Valencia pled guilty to possession and transportation of heroin found inside his car during a search that took place in the course of a routine traffic stop. He was ordered to serve eight years in prison.[1] Valencia argues on appeal that his motion to suppress evidence found during the search should have been granted because the arresting officer violated Valencias Fourth Amendment right to be free from unreasonable searches and seizures by unduly prolonging the detention. We conclude that (1) Valencias constitutional rights were not violated when the arresting officer took reasonable measures to ascertain why Valencia was unable to provide proof of insurance upon request, and (2) in any event, Valencia consented to the search. Accordingly, the motion for suppression was properly denied.

II. FACTS

On the morning of August 12, 2005, Kevin Roncevich, a police officer for the city of Cypress, pulled over Valencia for driving without a front license plate. Roncevich asked Valencia to produce his drivers license, registration and proof of insurance, but Valencia answered that he did not have proof of insurance because he had just purchased the car the previous day. Valencias registration confirmed that he had indeed bought the car a day earlier, and Roncevich later testified that the paperwork satisfied him that the car was not stolen. Valencia said the reason he had not attached the plate to the front bumper of the vehicle was that the vehicle was missing the bracket needed to mount the plate and the replacement bracket he ordered had not yet arrived. Valencia later testified that he pointed out to Roncevich that he had placed the license plate in the front windshield of the car, but Roncevich did not recall seeing the plate, or Valencias mention of it, and there was no notation about the plate being in the windshield in Roncevichs police report.

Roncevich then asked Valencia about his criminal past, something he routinely did for officer safety purposes. Valencia told Roncevich that he had been arrested for possession of cocaine and attempted murder, but was not on parole or probation. Roncevich returned to his vehicle and radioed for a backup unit while he conducted a license plate check on the vehicle. The check indicated that the plate did not match the DMV record for the vehicle. At that point, Roncevich asked Valencia to sit on the curb. Then he requested permission to search the vehicle for both the proof of insurance and anything illegal. While the parties submitted conflicting testimony as to whether Valencia indeed gave Roncevich consent to search, the trial court found Roncevich more credible on that matter and ruled that Valencia had consented to the search.

After hearing Valencias consent, Roncevich entered the vehicle and saw, in plain view, what he recognized as Mexican black tar heroin located in the half-open ashtray of the vehicle. At no point during the encounter did Roncevich begin to write out a ticket for any traffic violation. Roncevich noted in his testimony that he usually writes a ticket as soon as I have all the proper documents for a citation and that if I start to write a ticket, I finish it. There was no ticket attached to the police report.

After Valencia was arrested, he brought a motion to suppress the heroin found in the ashtray. The trial court denied it, and this appeal followed.

III. DISCUSSION

Valencia argues on appeal that the heroin found inside his vehicle should have been suppressed because Roncevich discovered it during an unreasonably prolonged detention that violated his Fourth Amendment right to be free from unreasonable searches and seizures. The parties do not dispute that the traffic stop was justified at the outset. Rather, the issues before this court are: (1) whether the stop was reasonably related in scope to the circumstances that justified Valencias initial detention; and (2) whether the search of Valencias vehicle was lawful. The trial court found that Valencias detention was not unreasonably prolonged because Roncevich had not yet fulfilled his duties at the time he conducted the search. The court also found that the search was valid because Roncevich was impliedly authorized to look for required documentation, and Valencia validly consented to the search.

A. The Stop Was Not Unreasonably Prolonged

A traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. (Florida v. Royer (1983) 460 U.S. 491, 500.) In ascertaining the permissive length of a stop, there is no set time limit. (People v. Russell (2000) 81 Cal.App.4th 96, 102.)The circumstances of each stop are unique and the question is whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly. (United States v. Sharpe (1985) 470 U.S. 675, 686.) An officer may not unduly prolong an investigation by imposing a general crime investigation upon the detained traffic offender[.] (Williams v. Superior Court (1985)168 Cal.App.3d 349, 358.) A stop becomes illegal when it extends beyond the time reasonably necessary under the circumstances for the police to wind up their investigation. (People v. Paz (1981) 118 Cal.App.3d 332, 334.)

Valencia first argues that he did not commit any violation of the Vehicle Code[2] and therefore Roncevich had no cause to detain him. He contends that because he placed his license plate in the front windshield of his car, his actions were in conformity with the statutory provisions of sections 5200 and 5201, which require only that the license plate be placed in the front of the vehicle and not more than 60 inches from the ground.

Valencias statutory interpretation, however, is irrelevant in light of the trial courts finding that it was merely possible the plate was in the windshield of Valencias car at the time of the stop. A reviewing court must uphold the implied findings of a trial court when supported by substantial evidence (People v. Williams (2006) 145 Cal.App.4th 756, 761) and therefore we must conclude that Roncevich had valid cause to detain Valencia for driving without a front plate.

Valencia further argues that he was not in violation of section 16028, subdivision (a) which requires the driver of a motor vehicle to provide proof of financial responsibility upon demand from a peace officer. He asserts that because a different provision of the Vehicle Code, section 4000.38 subdivision (a), does not require the owner of a vehicle to submit proof of financial responsibility to the DMV for a period of 30 days, there must be a 30-day grace period during which a person is under no obligation to provide proof of insurance to a peace officer pursuant to section 16028. Valencia also observes that it is the general practice in this state . . . that a buyer of a vehicle takes possession of it and drives it before obtaining . . . insurance.

Whatever the general practice of drivers in this state, Valencia fails to cite any authority in support of the idea of a safe-harbor 30-day grace period under section 16028. Section 16028 does not make any mention of such a grace period, and Valencias extrapolation of the temporal limitations in section 4000.38, subdivision (a), is unconvincing and misapplied. Section 4000.38 pertains to the grounds on which the DMV may revoke the registration of a vehicle. It applies regardless of whether the registered owner ever drives the vehicle. By contrast, section 16028 circumscribes its application to persons who drive their vehicles. The two provisions are entirely consistent and not interdependent. The owner of a vehicle has 30 days to report his insurance information to the DMV, but if the owner chooses to drive the vehicle, he must be able to provide proof of insurance to a peace officer upon request. The purpose of requiring drivers to provide proof of insurance is to keep financially irresponsible drivers off the road. (See Woods v. Department of Motor Vehicles (1989) 211 Cal.App.3d 1263, 1268-1269 [discussing legislatures goal in enacting section 16000 et seq.].) This purpose would be significantly undermined if we adopted Valencias interpretation of the law. Accordingly, Valencias actions were not in compliance with section 16028.

Valencias basic argument is that the stop took too long, regardless of whether he had violated the Vehicle Code. If the former, Roncevich should have written him a ticket and sent him on his way. If the latter, he should have been free to go.

The argument fails, however, because it is based on a false premise, namely, that Roncevich had all of the information he needed to either issue a citation or not, so there was no reason to prolong the investigation.

Not so. Roncevich did not have all the information needed to determine whether to issue a citation because Valencia was not forthcoming with his proof of insurance.

An officer is not obligated to take the drivers word that he does not have a required piece of documentation and, contrary to Valencias contention, no showing of cause is necessary to request permission to search a vehicle when the request does not result in unreasonable delay. (See In re Arturo D. (2002) 27 Cal.4th 60, 78[noting that an officer need not accept a drivers assurance that he does not have a valid drivers license]; People v. Gallardo (1998) 130 Cal.App.4th 234, 239 [holding that reasonable suspicion is not required to request permission to search, so long as it does not unreasonably prolong the detention].) Because Roncevich had not yet collected all the documentation he needed to issue a citation, he had not fully discharged his duties and was justified in seeking permission to search the vehicle for proof of insurance.

While Roncevich did ask for permission to search the vehicle after he radioed for help, this measure was not unreasonable in light of Valencias arrest for attempted murder, which posed a potential risk of violent behavior. A person with a criminal record cannot reasonably expect to be wholly divorced from that record, nor can he reasonably expect officers of the law completely to disregard it when in the course of their duties. (People v. Hollins (1959) 173 Cal.App.2d 88, 93.) Under such circumstances, the compelling justification for protecting an officers safety outweighs the mere inconvenience to the driver. (See Pennsylvania v. Mimms (1977) 434 U.S. 106, 110-111 [noting the inordinate risk confronting an officer as he approaches a person seated in an automobile].) Moreover, it is imprudent for a court to impose the clarity of hindsight on the tactics chosen by an officer who is reacting to precarious circumstances. (See Sharpe, supra, 470 U.S. at p. 686 [A court . . . should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.].) Because Roncevich was entitled to seek Valencias consent to search the vehicle, it was not unreasonable for Roncevich to extend the detention for a period of five minutes while waiting for backup to arrive so that the search could be conducted safely.

Moreover, Roncevich was entitled to question Valencia about his criminal past because, as the court said in People v. Brown (1998) 62 Cal.App.4th 493, 499, One minute of generalized questioning during a routine traffic stop is not unreasonable. The questioning took only seconds and gave Roncevich pertinent information about the individual he had detained. (Ibid.)Likewise, it was not improper for Roncevich to ask Valencia to step outside of his vehicle because a brief removal of defendant for officer safety is not unconstitutional. (People v. Grant (1990) 217 Cal.App.3d 1451, 1457.[3])

Admittedly, it is not entirely clear why Roncevich felt the need to conduct a license plate check while awaiting the arrival of a secondary unit. A license plate check is instructive as to whether or not a vehicle has been stolen (see People v. Gonzales (1985)164 Cal.App.3d 1194, 1197 [license plate check revealed that vehicle had been stolen]), but we have not uncovered any case law demonstrating that it would provide any pertinent information as to whether Valencia had proof of insurance. Roncevich testified that he was already satisfied the car was not stolen when Valencia produced his registration papers and nothing further had transpired at that point that would give Roncevich reason to believe otherwise. Nevertheless, a license plate check is considered presumptively valid, regardless of the officers reasons for doing it, as long as it does not add to the delay already lawfully experienced by the offender. (People v. McGaughran (1979) 25 Cal.3d 577, 584.) Because Valencia was already lawfully detained as a result of violating two traffic code provisions, the license plate check was both legally reasonable and commendably prudent in light of the possibility of past violence.

Valencia seeks to analogize the instant case to that in McGaughran, where an officer executed a traffic stop after witnessing an automobile proceeding the wrong way down a one-way street. (McGaughran, supra, 25 Cal.3d at p. 581.) In McGaughran, the officer continued to detain the vehicles occupants for a period of ten minutes after issuing a warning, during which he conducted a warrant check on the vehicle. (Ibid.) The court held that the warrant check was improper because an officer may only temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop. (Id. at p. 584.) Because the officer had already issued a warning for the traffic violation, the continued detention was unlawful in the absence of an independent reasonable suspicion of wrongdoing. (Id. at p. 587.) The court added that conducting a warrant check is not necessarily improper if it can be completed within that same period, but becomes unconstitutional if it takes place after the officers duties are complete. (Id. at pp. 585-586.)

Unlike the situation in McGaughran, however, Roncevich had not yet fully discharged his duties at the time he conducted the license plate check since he had not obtained all the documentation needed to issue a citation. Because the license plate check took place simultaneously with Roncevich awaiting backup to conduct the search, it did not unduly prolong the investigation. Moreover, the results of the license plate check indicated a discrepancy between the plates and the registered owner of the vehicle, which further reinforced the need for closer investigation. Accordingly, Valencias continued detention did not constitute a general crime investigation, but rather a lawful and proper extension of Roncevichs uncompleted duties. (See Williams, supra, 168 Cal.App.3d at p. 358.)

B. Valencia Gave Valid Consent to the Search

An officer is entitled to conduct a warrantless search if he or she receives valid consent to do so. (Florida v. Jimeno (1991)500 U.S. 248, 250-251.) The trial court found that Valencia gave such consent.

It is the role of the trial court to weigh the evidence and draw the appropriate inferences. On appeal those inferences must be upheld when supported by substantial evidence.

Here, Valencia was not required to give consent; he could have simply refused. (See Grant, supra, 217 Cal.App.3d at p. 1457.) Instead, he allowed Roncevich to search his car, whereupon Roncevich discovered an illicit substance in plain view.

Valencias argument that his consent should be deemed the unlawful fruit of prior illegal conduct is untenable in light of our prior determination that the detention was not unlawfully prolonged. Accordingly, Valencia gave valid consent to the search of the vehicle and the motion for suppression was properly denied.

IV. DISPOSITION

The judgment of the trial court is affirmed.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

ARONSON, J.

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[1] Valencia also faced special allegations that he had four prior strike convictions and four prior prison terms. (See Pen. Code,  667, subds. (d) & (e), 667.5, subd. (b).) He admitted all the prior convictions but, pursuant to the plea agreement, the court struck three of the four prior convictions.

[2] All undesignated section references will be to the California Vehicle code.

[3] Arguably overruled on the irrelevant point in this appeal concerning whether a traffic stop qua traffic stop constitutes a seizure. (See People v. Brendlin (2006) 38 Cal.4th 1107, 1115, 1122-1123.)