Opinion
C081864
06-14-2017
THE PEOPLE, Plaintiff and Respondent, v. DANTE FOSTER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F03395)
Defendant Dante Foster appeals from the denial of his suppression motion. He contends no valid reason supported the traffic stop that led to the discovery of contraband. He reasons neither the officer's estimate of his speed, nor his signaled lane change across three lanes, supported the stop. We affirm the judgment and order a correction to the abstract of judgment.
BACKGROUND
While driving a black, unmarked Crown Victoria, an officer saw a Dodge Charger pull out from a parking lot and drive in the opposite direction. The driver (defendant) looked back at the police car and accelerated rapidly.
The officer made a U-turn, and the Dodge continued to accelerate. It "flew by" two cars in the right lane that appeared to being going the speed limit. To the officer, the Dodge appeared to be going over 60 miles per hour — in a 45-mile-per-hour zone. The officer identified that as a traffic violation.
The officer accelerated, trying to catch the Dodge. As the Dodge approached an intersection, it changed lanes from the left lane, through the right lane, to the right-turn lane, all in a single motion. The officer recognized this maneuver as an unsafe lane change.
The officer originally testified it was an unsignaled lane change. After reviewing his report, he corrected himself; defendant had used a turn signal.
At the intersection, while the light was red, the officer saw the Dodge turn right into a parking lot without stopping. The Dodge was going 10 to 15 miles per hour. The officer identified that as running a red light. Defendant would later testify: "I can't remember if it was green or — but it appeared to be green because traffic was still moving."
The officer stopped the Dodge. During the traffic stop, defendant said he had a suspended license. A records check also revealed outstanding federal holds. Defendant consented to a vehicle search that uncovered contraband.
Before trial, defendant moved to suppress evidence from the vehicle search. The trial court denied the motion. The court noted the stop was pretextual, but it was supported by independent justification. The court found defendant had exceeded the speed limit. He had also crossed from the number one lane, past the number two, all the way to the right-turn lane in one fell swoop that "did violate the pertinent vehicle code." Finally, the court found the officer credible and noted defendant was initially unsure of the traffic signal's color, before deciding it was green.
Defendant, thereafter, pleaded no contest to possessing cocaine for sale (Health & Saf. Code, § 11351), possessing ammunition as a felon (Pen. Code, § 30305, subd. (a)(1)), and possessing marijuana for sale (Health & Saf. Code, § 11359). He admitted to being armed with a firearm while possessing cocaine for sale. (Pen. Code, § 12022, subd. (c).) He also admitted two prior convictions for distributing cocaine. (Health & Saf. Code, § 11370.2 subd. (a).)
The trial court imposed an eight-year aggregate prison term.
DISCUSSION
I
Suppression Motion
On appeal, defendant challenges the denial of his suppression motion. He contends he was unlawfully detained. We disagree.
"[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.)
In reviewing the denial of a motion to suppress, we defer to the trial court's factual findings, express or implied, when supported by substantial evidence. (People v. Tully (2012) 54 Cal.4th 952, 979.) But we independently determine, on the facts found, whether the search was reasonable under the Fourth Amendment. (Ibid.)
Speeding
Defendant first argues the officer's speed estimate did not support the stop. He reasons there was no testimony regarding the skill and training of the officer in estimating vehicle speed. In support, defendant cites People v. Nice (2016) 247 Cal.App.4th 928 at pages 937-938 (Nice), review granted August 24, 2016, S235635. Nice applied the framework of a Fourth Circuit Court of Appeals case (U.S. v. Sowards (4th Cir. 2012) 690 F.3d 583): " '[T]he reasonableness of an officer's visual speed estimate depends, in the first instance, on whether a vehicle's speed is estimated to be in significant excess or slight excess of the legal speed limit. If slight, then additional indicia of reliability are necessary to support the reasonableness of the officer's visual estimate.' " (Nice, at p. 940.)
"While review is pending . . . , unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only." (Cal. Rules of Court, rule 8.1115(e)(1).) --------
Here, the trial court's finding of a speeding violation was well supported. Additional indicia of reliability were present. The officers saw the Dodge accelerate rapidly; it "flew by" two cars that appeared to be going the speed limit; and the officer was forced to accelerate to catch the Dodge. Moreover, exceeding 60 miles per hour in a 45-mile-per-hour zone is more than a slight excess of the legal speed limit. (Cf. Nice, supra, 247 Cal.App.4th at p. 941 [noting the slight excess in the Fourth Circuit case was an estimated 75 miles per hour in a 70-mile-per-hour zone].)
Crossing Lanes
Defendant next argues his signaled lane change from the left lane, through the right lane, to the right-turn lane, was lawful. He reasons no other cars were impacted by his lane change, and no other facts were presented that would establish his action was somehow unsafe. We disagree.
We conclude defendant's change between three lanes without stopping, combined with the officer's testimony it was an unsafe lane change, is substantial evidence of a Vehicle Code violation — even if no other vehicles were affected. (See Veh. Code, § 22107 ["No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety"]; Veh. Code, § 21658 ["A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety"]; Nice, supra, 246 Cal.App.4th at p. 937 [" 'An officer is entitled to rely on his [or her] training and experience in drawing inferences from the facts he [or she] observes, but those inferences must also "be grounded in objective facts and be capable of rational explanation" ' "].)
The Red Light
Finally, the traffic stop was also justified by defendant running a red light. The officer testified defendant turned right at a red light without stopping. (See Veh. Code, § 21453 ["A driver facing a steady circular red signal alone shall stop at a marked limit line"].)
The trial court did not expressly find defendant ran a red light; it found the officer credible and noted defendant was unsure of the signal's color before ultimately concluding the light was green. Still, the record is sufficient to provide yet another justification for the stop. (People v. Dawkins (2014) 230 Cal.App.4th 991, 1004 [" 'If right upon any theory of the law applicable to the case, [a decision] must be sustained regardless of the considerations which may have moved the trial court to its conclusion' "].)
We conclude the trial court properly denied the suppression motion.
II
Abstract of Judgment
As part of the aggregate 8-year term, the trial court imposed 16-month terms for counts two and three, to run concurrently with count one. Yet the abstract of judgment reflects terms of one year 8 months for those counts. We will therefore order a corrected abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 ["An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment"].)
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting the imposition of 16-month terms for counts two and three, to run concurrently with count one. The trial court is further directed to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
HOCH, J. We concur: /s/_________
MURRAY, Acting P. J. /s/_________
RENNER, J.