Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVA700531 Stephan G. Saleson, Judge.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, and Michael T. Murphy and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Pursuant to a plea agreement, defendant Monwell Anthony Allen pled guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). In return, the remaining enhancement allegations (see Pen. Code, §§ 667, 667.5, 1170.12) and lesser charges in other cases were dismissed, and he was sentenced to the low term of 16 months in state prison. On appeal, defendant contends (1) the trial court erred in denying his suppression motion, and (2) the trial court erred in ordering him to reimburse the county for court-appointed attorney fees. We agree with the parties that the court erred in ordering defendant to pay for his court-appointed attorney fees and will therefore vacate that order. We reject defendant’s remaining contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
The factual background is taken from the April 11, 2007, preliminary hearing.
On February 20, 2007, Fontana Police Officer Matt Kraut conducted a traffic stop of a truck in which defendant was a passenger. Upon contacting the occupants, the officer smelled the odor of burnt marijuana.
Officer Kraut searched the truck and found four baggies of marijuana in the glove compartment of the car. He also found a glass “crack” pipe with residue in it between the front passenger seat and the center console. In the same area, an off-white, rock-like substance, consistent with crack cocaine, was found. A similar white, rock-like substance was also seized from under the passenger seat.
It was stipulated that the total weight of the marijuana was 6.91 grams. It was also stipulated that the white substances were cocaine base with a total weight of 1.86 grams.
II
DISCUSSION
A. Motion to Suppress
Defendant contends the trial court erred in denying his suppression motion because “it was not objectively reasonable for the officer to believe two minute dimples in the lower part of the truck’s windshield constituted a violation of Vehicle Code section 26710.” Section 26710 of the Vehicle Code states, in pertinent part: “It is unlawful to operate any motor vehicle upon a highway when the windshield or rear window is in such a defective condition as to impair the driver’s vision either to the front or rear.”
1. Additional factual background
At the suppression hearing, Officer Kraut, who had over seven years of experience in law enforcement, testified that on February 20, 2007, he was driving a marked patrol car in the lane to the left of the truck when he noticed two cracks in the truck’s windshield. The cracks caught the officer’s attention and were “in the center potion of the windshield” and “about an inch or two inches in length.” The officer was able to observe the cracks through his windshield and the driver’s side window of the truck. Officer Kraut opined that the cracks in the windshield violated the Vehicle Code and that they possibly obstructed the driver’s view.
After Officer Kraut noticed these cracks in the windshield, he initiated a traffic stop by activating his patrol vehicle’s overhead lights. The truck did not initially yield; rather, the driver looked at the patrol car in the rear view mirror. The passenger (defendant), who had been reclining in his seat, meanwhile sat forward and leaned towards the center console. Defendant also leaned towards the glove compartment area. The vehicle eventually stopped.
Upon conducting the traffic stop, Officer Kraut smelled the odor of brunt marijuana emanating from the truck and saw a white residue on the center console. The driver of the truck, LaDeana Dudding, consented to a search of the truck and informed the officer that the windshield cracks were caused by “errant rocks on the freeway.” A search of the vehicle revealed four baggies of marijuana in the glove compartment; rock cocaine and a glass pipe between the center console and the front passenger seat; and rock cocaine under the passenger seat.
The driver of the truck, Dudding, also testified at the suppression hearing. Dudding was present when photographs of the truck were taken. These photographs were admitted into evidence and marked as defense exhibits A and B. Exhibit A was taken a few weeks prior to the suppression hearing and depicts the windshield in the same condition as it was when the truck was pulled over. Dudding was only able to see the one crack above the windshield wiper and described the other crack or “ding” as being located “[t]owards the bottom.” Dudding explained that the cracks in the windshield did not cause her any trouble seeing the road, nor did they obstruct her vision.
The trial court found that there was an “articulable suspicion” for the vehicle stop and denied defendant’s motion to suppress. The court did not make any express findings as to the cracks in the truck’s windshield or whether such cracks “impaired” the driver’s view through the windshield.
2. Analysis
Defendant contends that, “[g]iven the size of the dings and their location on the windshield, there was not sufficient justification to stop the truck and detain [defendant].” Therefore, because the initial detention was not supported by a reasonable suspicion of a Vehicle Code violation, the trial court erred in denying the suppression motion.
“[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law.” (People v. Wells (2006) 38 Cal.4th 1078, 1082.) A traffic stop is reasonable if the detaining police officer can point to specific articulable facts that objectively suggest the detainee is violating the law in light of the totality of circumstances. (People v. Colbert (2007) 157 Cal.App.4th 1068, 1072 (Colbert).) The question is not whether there is substantial evidence the driver’s vision was impaired to support a conviction of the Vehicle Code offense, but whether the officer had a reasonable suspicion that the crack might have impaired the driver’s vision. The notion of probable cause is thus diluted to a mere reasonable suspicion that the driver’s vision was obscured by the two cracks. Thus, the only relevant question is whether the cracked windshield provided an objective justification for the stop.
Defendant argues that the photographs taken of the two cracks in the windshield of the truck negated any reasonable suspicion that the driver’s view was being impaired or obstructed. He infers that the cracks must have been de minimus and therefore did not create a reasonable suspicion the driver’s vision was obscured.
We have viewed the photographs.
Insofar as there was a conflict in the evidence between Officer Kraut’s testimony and defendant’s exhibits, the court implicitly resolved it in favor of the officer by denying the motion to suppress. It does not appear that the photographs were taken under circumstances (lighting, angle, distance) similar to those at the time of the stop. Moreover, even in the photographs, one of the cracks that the officer described at the suppression hearing did not appear, which indicates that the angle at which one looked at the windshield affected how it appeared. Under the circumstances, the trial court’s factual determination is not arbitrary or irrational. Accordingly, we defer to that determination. (People v. Hughes (2002) 27 Cal.4th 287, 327.) This is so because the trial court “‘sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences....’” (People v. Needham (2000) 79 Cal.App.4th 260, 265.)
Furthermore, even if the photographs strongly suggest that the cracks did not in fact significantly impair the driver’s vision, that ultimate fact does not render the stop unreasonable or unjustified because the purpose of a detention is to resolve ambiguities when there is a reasonable suspicion of unlawful conduct and determine whether there is a violation of the law or probable cause for an arrest. (People v. Souza (1994) 9 Cal.4th 224, 233.) Here, Officer Kraut’s testimony supports the trial court’s finding that his suspicion was reasonable.
On appeal of the denial of a motion to suppress, the appellate court must defer to the trial court’s express and implied factual findings as long as they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) The trial court, not the Court of Appeal, has the power to assess the credibility of witnesses, resolve conflicts in testimony, weigh the evidence, and to draw factual inferences. (People v. James (1977) 19 Cal.3d 99, 107.)
In denying the motion to suppress, the trial court articulated express and implied factual findings. The court impliedly found the testimony of Officer Kraut that there were two cracks, one inch to two inches in length apiece, in a central portion of the windshield that possibly obstructed the driver’s view to be truthful and credible. On the other hand, the court impliedly found the photographs inconclusive. We must defer to the court’s pivotal factual finding that the officer had “articulable suspicion” to stop the vehicle based on the two cracks in the windshield.
It is true, as defendant argues, that based on the trial court’s factual findings, we must independently determine whether the officer’s stop was objectively reasonable within the meaning and protection afforded under the Fourth Amendment of the United States Constitution.
We conclude the factual findings resolve the constitutional inquiry. Two cracks, one to two inches long, in the center portion of the windshield provide an objectively reasonable suspicion of a potential violation of Vehicle Code section 26710. That is not to say the driver of the truck did violate the law, because her vision may or may not have been impaired. But any driver risks detention by traveling with a cracked windshield simply because he or she provides a police officer with a reasonable suspicion the crack might obscure his or her vision and thereby constitute an offense pursuant to Vehicle Code section 26710.
Thus, as noted above, a police officer does not transgress the Fourth Amendment by stopping the vehicle and briefly detaining the driver to ascertain whether or not the crack actually does impair his or her vision.
Defendant offers two dangling air freshener cases in support of his argument: People v. White (2003) 107 Cal.App.4th 636 (White) and Colbert, supra, 157 Cal.App.4th 1068. Each case presented the question whether it was objectively reasonable for the police officer to believe that the air freshener obstructed the driver’s view.
In White, the police officer never testified that he believed the air freshener obstructed the driver’s view. (White, supra, 107 Cal.App.4th at p. 642.) The defendant, capitalizing on such a blatant gap in the prosecution’s case, introduced the expert testimony of a civil engineer who had performed an experiment and opined that the tiny air freshener would not obstruct the vision of a six-foot-tall driver. (Ibid.) The defendant also testified the air freshener had not obstructed his vision. (Ibid.) On this evidence, the Court of Appeal in White concluded there were no specific and articulable facts presented to support the officer’s purported belief that the driver’s view had been obstructed. (Ibid.)
By contrast, the evidence presented in Colbert was “precisely what was missing in White....” (Colbert, supra, 157 Cal.App.4th at p. 1073.) Furthermore, there was no evidence of the type supporting the defense theory as there was in White. In Colbert, the officer testified “that the air freshener obstructed defendant’s view through the windshield, and he explained how he had personally experienced that an object of similar size obstructed a driver’s view of vehicles and pedestrians through the windshield.” (Colbert, at p. 1073.) The officer’s testimony, the court concluded, “provided specific and articulable facts that supported an objectively reasonable conclusion that the hanging air freshener in defendant’s vehicle violated Vehicle Code section 26708, subdivision (a)(2).” (Ibid.)
Here, as in Colbert, Officer Kraut testified on the specific facts upon which he based his judgment that the cracks could possibly obstruct the driver’s vision. His testimony, like the testimony in Colbert, provided specific and articulable facts to support an objectively reasonable conclusion that the windshield crack obstructed the driver’s vision in violation of section 26710 of the Vehicle Code.
That is not to say there are no meaningful differences between the facts in Colbert and those before us. Defendant adds force to his argument that the officer lacked objectively “specific facts” to support the officer’s conclusion the cracks obstructed the driver’s view. Specifically, he claims, unlike in Colbert, the officer here “did not testify that he had any experience driving with similar sized dings in his windshield in similar locations and found that they impaired his view.” Though the officer here did not specifically testify about his own personal experiences, the evidence adduced at the suppression hearing was nonetheless sufficient to establish the officer had reasonable suspicion to stop the truck based on the cracks in the windshield and had articulated specific and articulable facts.
“The possibility [that the crack did not impair the driver’s view] does not deprive the officer of the capacity to entertain a reasonable suspicion of [an impairment in violation of the Vehicle Code]. Indeed, the principal function of [the traffic stop] is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal to ‘enable the police to quickly determine whether they should allow the [driver] to go about his business or hold him to answer charges.’ [Citation.]” (In re Tony C. (1978) 21 Cal.3d 888, 894.) We therefore reject defendant’s contention that the officer “did not have a reasonable suspicion that the condition of the windshield was so defective as to impair the driver’s vision.” The observed cracks supported the traffic stop even though, upon closer examination, it could be determined that the cracks did not support a violation of the Vehicle Code.
Defendant’s reliance on White, supra, 107 Cal.App.4th 636 is also misplaced. White is distinguishable because here Officer Kraut testified that he stopped the truck because, from his perspective, he suspected that the crack in the windshield impaired the driver’s vision under the circumstances.
As the court concluded in Colbert, there was no error in denying the suppression motion.
Without citation to case law, defendant further asserts the court’s comments in denying the suppression motion suggest the court made its decision prior to the suppression hearing and “failed to base its ruling on the evidence at the suppression hearing alone. (§ 1538.5, subd. (i)).”
B. Reimbursement of Court-Appointed Attorney Fees
Defendant contends that the trial court erred in ordering him to pay $150 in attorney fees for the services of his public defender without providing him adequate notice and without conducting a hearing on his ability to pay. The People concede that the court erred in failing to conduct a hearing on his ability to pay but argue defendant forfeited any claims as to inadequate notice and a section 987.8 hearing.
Although the trial court complied with section 987.8, subdivision (f) by advising defendant at his arraignment that a determination of his ability to pay for the cost of counsel would be made at the conclusion of criminal proceedings, it failed to comply with the provisions of section 987.8 that come into play once criminal proceedings have concluded. At his arraignment, the trial court advised defendant “if an attorney is appointed, at the end of criminal proceedings the Court will, after a hearing, determine Defendant’s ability to pay costs of attorney and enter a judgment for those costs as Defendant is found able to pay.”
At no time prior to sentencing was defendant given notice that a hearing would be held to determine his ability to reimburse the county for the cost of his defense, and no portion of the sentencing hearing was dedicated to an ascertainment or discussion of defendant’s ability to pay for the cost of his defense. The court simply announced that defendant would be responsible for paying attorney fees. In addition, nothing in the probation report gave defendant such notice. In fact, the probation officer reported that “defendant is not able to reimburse the county for attorney fees.” Also absent from the record is any evidence as to the actual amount expended by the county on defendant’s representation. Stated otherwise, the record in this case is completely devoid of any showing of compliance with section 987.8, subdivisions (b), (d), and (e).
The People do not dispute that the trial court failed to comply fully with the procedural safeguards of section 987.8. They urge us to conclude, however, that defendant’s failure to interpose an objection below constitutes a waiver or forfeiture of his contentions on appeal. We do not agree.
Implied in the trial court’s order requiring defendant to pay attorney’s fees is a finding that defendant had the ability to pay such fees. Defendant’s assertion that the record reflects an inability on his part to pay the attorney’s fees is a challenge to the sufficiency of the evidence supporting the court’s implied finding. No objection is required below to preserve such a challenge for appeal. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537; accord, People Rodriguez (1998) 17 Cal.4th 253, 262.)
Additionally, as noted, due process requires at a minimum notice and a hearing before an indigent defendant can be ordered to pay the cost of his government-provided legal representation.
Some sentencing matters may be waived if not objected to below. In People v. Scott (1994) 9 Cal.4th 331, the California Supreme Court held that “the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (Id. at p. 353.) The court has discretion to determine the defendant’s ability to pay and discretion to determine the manner of payment, but, as this court previously held, there is apparently no discretion to determine a reasonable amount of attorney fees; evidence of actual costs is required. (People v. Poindexter (1989) 210 Cal.App.3d 803, 811.) Similarly, the court has no discretion simply to dispense entirely with notice and a hearing on the issue. Accordingly, this case does not fall within the waiver rule of Scott.
The People’s reliance on People v. Whisenand (1995) 37 Cal.App.4th 1383 is misplaced. In that case, we found that, by failing to raise the issue in the trial court, the defendant had forfeited her right to argue that she did not receive notice that the reimbursement of attorney fees would be addressed at a particular proceeding. (Id. at p. 1394.) While “neither the probation report nor the sentencing hearing gave defendant any notice that the issue of reimbursement for counsel fees was pending” (id. at p. 1395), the trial court held a three-day hearing on the issue of victim restitution at which defendant’s ability to pay was addressed. (Id. at pp. 1387, 1395.) “From that hearing, the trial court drew the conclusion that she was able to reimburse the county for the costs of legal representation.” (Id. at p. 1395.) Here, defendant’s ability to pay was not the subject of any hearing.
Moreover, leaving aside the question of notice, it is evident from our Supreme Court’s decision in People v. Flores (2003) 30 Cal.4th 1059 that summarily awarding attorney fees at sentencing without conducting a hearing on the issue at that time, if there was no previous hearing on it, is inadequate. Neither party is able to point to any other place in the record showing that a prior hearing on attorney fees was conducted. Thus, this case stands in the same posture as Flores, in which “[a]t sentencing, without having given him the notice or hearing required by section 987.8[, subdivision] (b), the trial court ordered defendant” to pay attorney fees. (Id. at p. 1062.)
Defendant here had no reason to expect he might be ordered to pay attorney fees, and no inquiry was made into his ability to pay. We conclude defendant had no meaningful opportunity to object to the imposition of attorney fees and thus did not forfeit his right to challenge those fees on appeal.
The question remaining is whether this is an appropriate case for remand. Defendant contends it would be a waste of “judicial economy” to remand for further proceedings, in that there is no evidence to suggest defendant has the ability to pay and he was sentenced to state prison. We agree.
Unlike People v. Flores, supra, 30 Cal.4th 1059, in which our Supreme Court concluded that “a showing of unusual circumstances was conceivable” because the probation report stated that the defendant possessed a substantial amount of jewelry at the time of sentencing (id. at p. 1068), there is nothing in the record suggesting that a showing of unusual circumstances is conceivable here. Judicial economy compels us to reverse the order imposing attorney’s fees.
III
DISPOSITION
The order directing defendant to pay attorney’s fees in the amount of $150 is reversed. In all other respects, the judgment is affirmed.
We concur: KING, J., MILLER, J.
After hearing the evidence at the suppression hearing, the court stated, “As I say, I listened to the preliminary hearing, I heard Officer Kraut’s testimony back on April 11th. I have reheard the same testimony today. My opinion hasn’t changed. I believe that there was an articulable suspicion, which has been stated now twice by Officer Kraut, to stop the vehicle. I think the stop was appropriate.”
Though the court commented on having heard the “same” testimony at the preliminary hearing, we do not interpret the court’s statements to suggest that the court had predetermined its ruling. The comment was made at the conclusion of the hearing, having heard all the testimony. Furthermore, when a trial court’s ruling on a motion to suppress evidence is challenged on appeal, the appellate court reviews findings of historical facts under the substantial evidence standard and independently applies the appropriate rule of law to those facts to determine whether the challenged conduct meets constitutional standards of reasonableness. (People v. Carter (2005) 36 Cal.4th 1114, 1140.) The court can affirm the denial of the motion on any theory supported by the record, as long as the evidence relating to the theory was fully developed in the trial court. (People v. Robles (2000) 23 Cal.4th 789, 801, fn. 7.)