Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF102418A
ROBIE, J.
After defendant Larry Lynn Ganner made the tires of his vehicle “break traction” with the road while accelerating at a green light, a nearby police officer made a traffic stop. A subsequent search revealed defendant was in possession of narcotics and a stolen loaded handgun. The trial court denied defendant’s motion to suppress evidence, and he pled guilty to possession of cocaine base for sale and being a felon in possession of a firearm. Defendant also admitted a prior strike conviction. The trial court sentenced him to seven years four months in prison.
Defendant appeals, contending the trial court erred in denying his motion to suppress. Defendant argues his vehicle tires “breaking traction” with the road did not give the police reasonable suspicion to believe any traffic violation had occurred. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the afternoon of October 26, 2006, Stockton Police Officer Eric Azarvand stopped at a red light at an intersection on March Lane in Stockton. Officer Azarvand was in the left turn lane, defendant’s minivan was in the right lane, and another vehicle was in between Officer Azarvand’s patrol car and defendant’s minivan.
The People and defendant disagree about the intersection where the incident occurred, but the actual location of the incident is not a factor in our reasoning and has no bearing on our decision.
Officer Azarvand testified “[t]he light turned green and the van immediately accelerated -- I heard the engine accelerate, the front tires broke traction.” Officer Azarvand did not see smoke coming from defendant’s vehicle and he did not know how fast defendant was driving. Officer Azarvand testified, however, “I do know that it was [defendant’s] vehicle that broke traction. He was the only vehicle moving from where [I was] at.”
In his opening brief, defendant emphasizes that his tires only “chirped” when he accelerated at the green light. Officer Azarvand testified on cross-examination at the preliminary hearing, “[the minivan] just chirped.”
At the hearing on the motion to suppress, the trial court ruled the traffic stop was lawful. The court reasoned as follows: “While your tires are making sounds, they are not in connection with the road, so if you don’t have traction with the road, you are not steering, you don’t have the capacity to start or stop.... So I think it’s a legitimate reason for the officer to be pulling people over and giving them tickets for starting too quickly here to the point where they lose traction or break traction.”
DISCUSSION
I
Standard Of Review
“In reviewing the trial court’s ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27 Cal.4th 287, 327.)
Police may lawfully detain a motorist based on no more than reasonable suspicion of a traffic violation or violation of some other law. (See United States v. Sharpe (1985) 470 U.S. 675, 682 [84 L.Ed.2d 605, 613]; People v. Castellon (1999) 76 Cal.App.4th 1369, 1376, fn. 3.) Reasonable suspicion requires only that “the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) “[R]easonable suspicion is ‘something more than an “inchoate and unparticularized suspicion or ‘hunch,’”’ [citation], but something less than probable cause,....” (People v. Bennett (1998) 17 Cal.4th 373, 387.) Furthermore, “an officer’s reliance on the wrong statute does not render his actions unlawful if there is a right statute that applies to the defendant’s conduct.” (In re Justin K. (2002) 98 Cal.App.4th 695, 700, citing U.S. v. Wallace (9th Cir. 2000) 213 F.3d 1216, 1221.)
II
Exhibition Of Speed
On appeal, defendant contends the traffic stop was unjustified and violated the Fourth Amendment. In his opening brief, defendant argues, “[t]here was no traffic violation, as [defendant] neither performed an unsafe start nor engaged in an exhibition of speed.” In their respondent’s brief, the People argue defendant’s actions provided reasonable suspicion to initiate a traffic stop for either: (1) an unsafe start; (2) an exhibition of speed; or (3) reckless driving. We conclude there was reasonable suspicion to stop defendant for an exhibition of speed and thus do not address the unsafe start or reckless driving arguments.
Vehicle Code section 23109, subdivision (c), provides in relevant part as follows: “A person shall not engage in a motor vehicle exhibition of speed on a highway.” Defendant argues the noise made by his vehicle tires does not constitute an exhibition of speed. In People v. Grier (1964) 226 Cal.App.2d 360, 362-364, the Court of Appeal for the Second District addressed whether “peeling” or “screeching” tires constitutes an exhibition of speed.
In Grier the defendant appealed his conviction of exhibition of speed contending the evidence was insufficient to show he violated Vehicle Code section 23109. (People v. Grier, supra,226 Cal.App.2d at p. 362.) At the bench trial, the police officer testified he first saw the defendant driving onto a public street when his vehicle tires “‘peeled, screaming quite loud.’” (Ibid.) The officer then saw the defendant make a right turn; “‘his automobile tires again peeled, screeching, losing traction with the roadway.’” (Ibid.) In affirming the conviction, the appellate court reasoned as follows: “Where a person accelerates a vehicle in such manner as to deliberately cause it to skid, he is not only diminishing his control but increasing the hazard to bystanders or other vehicles from flying gravel. Whether the action is deliberate or not is for the trier of fact under the circumstances of the particular case. Obviously, not all cases of tire ‘peeling’ or ‘screeching’ would constitute violations of the statute. It is also common knowledge that the deliberate screeching and screaming of tires on the pavement are tension producers which increase nervousness in drivers and others, thereby increasing the likelihood of accident.” (Id. at p. 363, italics added.)
Grier addressed former Vehicle Code section 23109, subdivision (a). Its modern equivalent is Vehicle Code section 23109, subdivision (c).
In re F. E. (1977) 67 Cal.App.3d222, 225, applied the reasoning in Grier. At the hearing before the referee, the officer testified he saw the subject make a right hand turn, causing his rear tires to lose traction with the road. (Ibid.) The subject continued to lose traction, causing “smoke and black tire marks to appear on the roadway for over 100 feet.” (Ibid.) The court upheld the referee’s decision reasoning, “appellant’s conduct was within that described in Grier.” (F. E. at p. 226.)
In this case, Officer Azarvand testified that when he heard an engine accelerate and wheels break traction with the road, defendant’s vehicle was the only one moving. Vehicle tires “breaking traction” is the exact conduct addressed in Grier. Furthermore, Grier upheld the bench trial finding that the defendant was guilty of an exhibition of speed. (People v. Grier, supra, 226 Cal.App.2d at pp. 361, 362.) If “breaking traction” is sufficient conduct to constitute a violation of the statute, then certainly it is sufficient conduct to supply reasonable suspicion for a traffic stop.
Defendant argues his actions could “hardly be called a ‘willful’ exhibition of speed” as required by CALCRIM No. 2202. However, CALCRIM No. 2202 sets forth what the People must show “to prove that the defendant is guilty of [an exhibition of speed].” (Italics added.) As our California Supreme Court has explained, the question for us is not whether defendant’s vehicle was in fact in full compliance with the law at the time of the stop, but whether the officer had “articulable suspicion” it was not. (People v. Saunders (2006) 38 Cal.4th 1129, 1136, citing People v. Celis (2004) 33 Cal.4th 667, 674.)
CALCRIM No. 2202 provides in relevant part that “[t]o prove that the defendant is guilty of this crime, the People must prove that:
In his reply brief, defendant contends, “It is more likely [defendant]... released the clutch too quickly” than that he was deliberately engaging in an exhibition of speed. The standard for a traffic stop is reasonable suspicion. Regardless of the actual cause of the tires “breaking traction,” the fact that the tires “broke traction” was a sufficient basis for the officer to conduct a traffic stop to investigate whether defendant engaged in an exhibition of speed.
Defendant further emphasizes the Grier language: “‘[o]bviously, not all cases of tire “peeling” or “screeching” would constitute violations of the statute.’” (People v. Grier, supra, 226 Cal.App.2d at p. 363, italics added.) We do not disagree. However, the question before this court is not whether defendant’s actions amounted to a violation of the statute provable beyond all reasonable doubt; rather, the question is whether defendant’s actions gave Officer Azarvand reasonable suspicion to initiate a traffic stop for an exhibition of speed. We conclude they did.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.
At the motion to suppress, defense counsel confronted Officer Azarvand about his “chirping” remark at the preliminary hearing. Officer Azarvand replied, “If that’s what [the transcript] says, that’s what I said. [The minivan] still broke traction, either way.” The defense cross-examined Officer Azarvand about what “chirping” meant. Officer Azarvand answered, “The engine revved up, the wheels broke traction, you could hear it break traction, and it continued down the road.” Whether the sound Officer Azarvand heard defendant’s tires make is characterized as “chirping” or “breaking traction,” our analysis is the same.
“1. The defendant drove a motor vehicle on a highway
“AND
“2. While so driving, the defendant willfully engaged in an exhibition of speed.
“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intended to break the law, hurt someone else, or gain any advantage.”