Opinion
H024902.
11-25-2003
In re JOSE PINON-ORTIZ, on Habeas Corpus.
This is a Three Strikes felony driving-under-the-influence-with-three-or-more-prior-convictions case. The superior court granted defendant Jose Pinon-Ortizs petition for a writ of habeas corpus based on ineffective assistance of counsel. Pursuant to Penal Code section 1506 the People appeal asserting that trial counsels failure to file a motion to suppress evidence did not constitute ineffective assistance of counsel.
FACTS
At 1:45 a.m. on September 3, 1995, defendant was driving a 1973 Ford LTD which was equipped with a four-point restraint system which required independent buckling of the shoulder harness and the lap belt. Defendant was stopped in the right-hand turn lane of westbound Alum Rock Avenue in San Jose, preparing to enter the on-ramp to northbound Highway 101. California Highway Patrol Officers Dennis Troxell and Al Jones were exiting the freeway from northbound 101 and were across the intersection from defendant. Troxell saw that the shoulder harness was "hanging straight down," and concluded that the driver was apparently not wearing his seatbelt. When the traffic light changed, defendant started up the on-ramp, passing the officers. They stopped the vehicle. The only reason Troxell initially detained defendant was because of the dangling shoulder harness.
When Troxell asked defendant for his drivers license; he replied that he did not have one. Troxell smelled alcohol and asked defendant if he had been drinking. Defendant stated he had consumed three beers "earlier." Troxell asked defendant to get out of the vehicle. When defendant complied, Troxell observed that his eyes were "red" and "watery" and that he appeared to be "unsteady on his feet." Defendant failed the five field sobriety tests Troxell administered, and Troxell concluded that defendant was driving under the influence. A blood sample taken at 3:05 a.m. after defendant was arrested and transported to the Alcohol Investigation Bureau showed a blood-alcohol content of 0.15 percent.
Defendant was charged in case No. 188510 with two counts of felony driving under the influence of alcohol with three or more prior convictions (Veh. Code, § 23152, subds. (a), (b), counts 1 and 2); misdemeanor driving on a license that had been suspended for a driving under the influence conviction (Veh. Code, § 14601.2, count 3); and misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a), count 4). The information also alleged that defendant had suffered three prior serious or violent felony convictions that qualified as strikes under the Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and that defendant had served two separate prior prison terms (Pen. Code, § 667.5, subd. (b)).
Count 4 was initially erroneously charged as Vehicle Code section 14601.5.
A second information was filed the same day in case No. 188506, alleging that defendant failed to register as a sex offender (Pen. Code, § 290) and that defendant had suffered the above-mentioned three prior serious or violent felony convictions and served two separate prior prison terms.
On March 13, 1997, defendant pled guilty to counts 2 and 3 in case No. 188510 and admitted all the allegations in the information. Counts 1 and 4 were dismissed as was case No. 188506. On July 2, 1997, the trial court denied defendants motion to strike the priors but struck the prior prison terms and sentenced defendant to 25 years to life in state prison. The trial court refused defendants request for a certificate of probable cause.
After two attempts at filing a petition for a writ of habeas corpus in this court and in the trial court, on November 9, 2001, defendant filed a first amended petition for a writ of habeas corpus which the trial court found overcame the procedural deficiencies of the first. The district attorney was ordered to show cause why defendant was not entitled to have his guilty plea set aside. The trial court granted the petition on July 19, 2002, because "the officer had no reasonable suspicion to pull him over for a seat belt law violation because his car, a 1973 Ford LTD, had separate lap belts and shoulder harnesses and the officers observation that the shoulder harness was not in use had nothing to do with whether or not the seat belt was fastened." The court stated that "[t]o the extent the officer thought the 1973 Ford LTD had a three-point restraint system, and therefore seeing the dangling shoulder harness meant the connected lap belt was unfastened, he . . . made a mistake of law. This is a mistake of law because the officer did not know how the seat belt law applied to a 1973 Ford LTD." The court stated that with the motion to suppress granted, case No. 188506 would have proceeded differently. The court found there was a reasonable probability the People would not have achieved a three-strikes sentence in case No. 188506, or the prosecution would have settled the case for less than 25 years to life. This appeal ensued.
In 1998, this court denied a petition for a writ of habeas corpus that defendant had previously filed in case No. 188510 and affirmed the judgment. In October 1999, defendant filed a petition for a writ of habeas corpus in the superior court in case No. 210478 requesting that his guilty plea be set aside because of ineffective assistance of counsel. The trial court denied the petition as procedurally barred in light of defendants failure to explain why he was filing a second petition after this court summarily denied his first.
BAMATTRE-MANOUKIAN, J., Dissenting
I respectfully dissent. I believe that the trial court erred by granting defendants petition for writ of habeas corpus. I believe the stop was supported by a "reasonable suspicion" (People v. Miranda (1993) 17 Cal.App.4th 917, 926; see Terry v. Ohio (1968) 392 U.S. 1) that defendant was not wearing his seat belt, in violation of Vehicle Code section 27315, and, therefore, that there was no "reasonable probability" that a motion to suppress would have been successful (Strickland v. Washington (1984) 466 U.S. 668, 694).
In its order granting defendants habeas petition, the trial court stated that Officer Troxell observed defendants "shoulder harness" hanging straight down. The trial court purported to quote the police report. In fact, the police report states that Officer Troxell initiated the stop of defendants vehicle because he saw that "the seatbelt was hanging straight down." (Italics added.) This is a crucial point of distinction. Officer Troxell apparently mistook the shoulder harness, which was separate from the lap belt, for "the three point restraint system found in almost all modern cars." (See Kodani v. Snyder (1999) 75 Cal.App.4th 471, 475 (Kodani) ["Absent any evidence to the contrary, the most reasonable interpretation of the arresting officers reference to a `seat belt is to the current and most prevalent configuration-a `lap belt and `shoulder harness combination, with the latter component often easily observed from an adjacent oncoming vehicle"].)
The trial court designated the officers mistake as a mistake of law. "To the extent the officer thought [defendant] was required to wear the shoulder harness in addition to the lap belt he made a mistake of law."
If the record supported a finding that Officer Troxell was referring only to a separate shoulder harness, I would agree that he made a mistake of law in believing that defendant was violating Vehicle Code section 27315, subdivision (d)(1), which provides: "No person shall operate a motor vehicle on a highway unless that person and all passengers 16 years of age or over are properly restrained by a safety belt. . . ." Under this code section, the safety belt requirement is satisfied where the driver is wearing only a lap belt. (See Kodani, supra, 75 Cal.App.4th at pp. 475-476; see also 49 C.F.R. §§ 571.208, 571.209.) However, as explained above, the record indicates that Officer Troxell made a mistake of fact, believing that he saw defendants "seat belt"-that is, a three-point harness-hanging down, unfastened. Not wearing such a seat belt would have been a violation of Vehicle Code section 27315.
I believe that Officer Troxell made a mistake of fact: he believed that defendants vehicle had a three-point harness system and that defendant was not wearing that seat belt because the lap belt portion of the restraint system could not be worn separately from the shoulder harness portion. This mistake was objectively reasonable, as the three-point harness is the "most prevalent" type of seat belt (Kodani, supra, 75 Cal.App.4th at p. 475) and because Officer Troxell "was not required to have an intimate knowledge of the make, model and year of [defendants] vehicle and the safety restraint system in that particular vehicle." (Id. at p. 477.) Officer Troxell did not make a mistake of law; he correctly believed that all drivers of passenger vehicles must wear a seat belt. (See Veh. Code, § 27315, subd. (d)(1).) I believe the trial court erred by granting the habeas petition on this basis.
I note that there is no merit to defendants alternative argument: that a motion to suppress would have been successful on the ground that former Vehicle Code section 27315, subdivision (k) prohibited officers from stopping vehicles based only on seat belt violations. (See Stats. 1992, ch. 122, § 2; Stats. 1995, ch. 365, § 1, operative Jan. 1, 1996.) Although the stop was prohibited by state law in 1995, it was not a violation of the Fourth Amendment, and therefore, pursuant to the enactment of California Constitution article I, section 28, subdivision (d) by Proposition 8 in June 1982, the exclusionary rule would not apply. (See People v. McKay (2002) 27 Cal.4th 601.)
For these reasons, I would reverse the trial courts order granting defendants petition for a writ of habeas corpus and setting aside his plea, and remanding the matter with instructions to reinstate defendants conviction.
ISSUE ON APPEAL
The People contend the court erred in finding counsel ineffective for failing to bring a motion to suppress evidence because of the officers mistake of law.
STANDARD OF REVIEW
Upon appeal of an order granting a petition for habeas corpus, the reviewing court is to consider whether substantial evidence supports the trial courts judgment and whether the trial court committed any error of law. (In re Crow (1971) 4 Cal.3d 613, 622.)
DISCUSSION
The People assert that the trial court erred in relying on Kodani v. Snyder (1999) 75 Cal.App.4th 471 (Kodani) as support for the proposition that because of the age of defendants vehicle, it was unreasonable for Officer Troxell to assume that the vehicle had a three-point restraint system, i.e., that the lap belt was connected to the shoulder harness and could not be worn if the shoulder harness was unfastened and dangling. The People "urge that a 1973 Ford LTD was not of such `antique vintage that Officer Troxell could not reasonably expect it to have a three-point restraint system. Given the dangling shoulder harness which was visible to Officer Troxell, it was reasonably uncertain whether defendant was violating the seat belt law and Officer Troxell was entitled to stop the vehicle and resolve the uncertainty."
Kodani states that an officer would not be justified in stopping an older car built before the three-point restraint system was developed because of the observation that a shoulder harness was not in use. (Kodani, supra, 75 Cal.App.4th at p. 477.) A trial court should be "careful to distinguish the circumstances before it from `cases in which the defendants conduct does not in any way, shape or form constitute a crime. . . . [I]f the defendant does not actually break the law, the officers mistaken belief there has been a violation adds nothing to the probable cause equation." (In re Justin K. (2002) 98 Cal.App.4th 695, 699-700 (Justin K.).)
In the instant case, the trial court concluded, "This is the situation presented in [defendants] case. [Defendants] driving of his 1973 Ford LTD with an unfastened shoulder harness in no way, shape or form constitute[s] a crime or indicates a crime was otherwise being committed. The Justin K. court further explained: `In other words, "if an officer simply does not know the law, and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable. The chimera created by his imaginings cannot be used against the driver." (Justin K., supra, [98 Cal.App.4th] at p. 700 [citation].)"
The trial court stated that when there are several reasonable inferences that can be drawn from the known facts, then a detention is necessary to resolve the ambiguity. For example, if an officer sees someone weaving within his or her lane, the driver could be drunk, or distracted by the radio, a cell phone or passengers. The officer may detain to ascertain the cause of the weaving since driving under the influence of alcohol or drugs is a crime. (See People v. Bracken (2000) 83 Cal.App.4th Supp. 1.) However, when there are no further inferences that can be drawn from the known facts, and the only question is whether they amount to a crime, then "`[i]f an officer simply does not know the law, and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable. " (Justin K., supra, 98 Cal.App.4th at p. 700.)
The trial court continued: "a ` "lap belt" [i]s a type of ` "seat belt" [(Kodani, supra, 75 Cal.App.4th at p. 476)]." Therefore, "if someone is wearing a `lap belt, then they are wearing a `seat belt. Since the law merely requires wearing a `seat belt then someone wearing a `lap belt is in compliance with the law. It also necessarily follows that if someone is driving a car with separate and independent lap belts and shoulder harnesses, such that it is physically possible to wear one without the other, then an officer seeing that one is in use or not in use would not have any indication whether the other was in use or not in use. The uncontroverted facts before this Court, as framed by the petition, return, and traverse, are: (1) that [defendant] was driving a 1973 Ford LTD, (2) that [defendants] car had a four point restraint system (i.e. the lap belt was not connected to the shoulder harness and could be worn even if the shoulder harness was unfastened and dangling), (3) that [defendant] was not wearing the shoulder harness, and (4) that the only reason the officer initially detained [defendant] was that his shoulder harness was `hanging straight down. (Quotation from police report.) [¶] On these facts the detention was entirely unjustified. Nothing objectively indicates that [defendant] was not wearing his lap belt-the officer had no information one way or the other. To the extent the officer thought [defendant] was required to wear the shoulder harness in addition to the lap belt he made a mistake of law." (Fn. omitted.)
The trial court did not err. Substantial evidence as set out by the trial court supported its finding that the officer had no objective reason to believe that defendant was violating the seat belt law. There was no mistake of law.
DISPOSITION
The judgment is affirmed.
I CONCUR: Elia, J.