Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD197833, Kerry Wells, Judge.
HUFFMAN, Acting P. J.
A jury convicted Yuri Lavalley of being under the influence of drugs (Health & Saf. Code, § 11550, subd. (a)); driving under the influence of drugs (Veh. Code, § 23152, subd. (a)); possession of narcotics paraphernalia (Health & Saf. Code, § 11364); possession of 28.5 grams of marijuana or less (Health & Saf. Code, § 11357, subd. (b)) and being an unlicensed driver (Veh. Code, § 12500, subd. (a)). Lavalley was sentenced to 180 days in jail. She was granted bail pending appeal.
Lavalley brought a motion to suppress evidence under Penal Code section 1538.5 at the time of the preliminary hearing. The motion was denied. She renewed her motion to suppress in the trial court pursuant to section 1538.5, subdivision (i). In that motion Lavalley requested the trial court to permit her to introduce a police radio recording that she had previously requested, but only received on the day of the trial court suppression motion. Lavalley offered the recording to impeach police officer testimony. The judge hearing the motion denied the request and considered the motion only on the materials presented at the preliminary hearing.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal from her conviction this court reversed the judgment and remanded the case to the trial court with directions to permit the defense to introduce evidence regarding the police recording. We further directed the court to either grant the motion to suppress or, in the event it denied the motion, to reinstate the judgment.
On remand, Lavalley renewed her motion to suppress. The police radio recording was introduced. Lavalley was also permitted to introduce photographs she claimed were taken shortly after the preliminary hearing, which photographs demonstrated she did not have unlawfully tinted windows. After hearing the evidence, the exhibits, the transcripts of the preliminary hearing and the arguments of counsel, the court denied the motion to suppress.
Lavalley again appeals contending police did not have justification for the initial traffic stop. Since Lavalley apparently was on probation at the time and had a Fourth Amendment waiver as a condition of probation, she does not challenge the searches which followed the stop. Rather she contends the subsequent searches are the fruit of the unlawful stop and should have been suppressed.
As we will discuss below, although the traffic stop was apparently a pretext for a narcotics investigation (see Whren v. U.S. (1996) 517 U.S. 806), we are satisfied police had probable cause to believe Lavalley had committed a Vehicle Code violation and were thus lawfully entitled to conduct a traffic stop. Accordingly, we will affirm the judgment and remand the case to the trial court to address the question of custody since Lavalley has been free on bond since her conviction.
Since this appeal challenges only the denial of the motion to suppress evidence, we will omit a statement of the facts of the offenses and discuss only those facts presented at the preliminary hearing and the trial court hearing on the motion.
DISCUSSION
A. Factual Background
On March 22, 2006, San Diego Police Sergeant Rorrison was conducting surveillance of a residence in the 7000 block of Mohawk Street in San Diego. He had received some information that a woman who drove a PT Cruiser was selling methamphetamine from a residence on that street. During that surveillance Rorrison observed Lavalley and another woman attempting to jumpstart a PT Cruiser. The PT Cruiser was parked at an angle with its wheels about 36 inches from the curb. The second vehicle was parked, partly in the roadway, so that battery cables could reach the PT Cruiser. Once the PT Cruiser was started Rorrison observed Lavalley enter the car and drive away. Rorrison was in an unmarked car and did not attempt to stop her. Instead, Rorrison called for a marked car to stop the PT Cruiser because Rorrison thought Lavalley might be the person involved in drug sales and he wanted her to be identified.
A patrol officer stopped Lavalley based upon the sergeant's observations and the officer's statement that he observed Lavalley's car had dark tinted windows. After the stop the officer discovered Lavalley was on probation with a waiver of Fourth Amendment rights and that her license had been suspended. Other searches were conducted after that information was received.
B. Legal Principles
When a defendant brings a renewed motion to suppress evidence under section 1538.5, subdivision (i), the evidence on which the motion can be based is limited to the transcript of the earlier motion unless there is newly discovered evidence which "could not reasonably have been presented at the preliminary hearing." (Anderson v. Superior Court (1988) 206 Cal.App.3d 533, 544; People v. Drews (1989) 208 Cal.App.3d 1317, 1326.)
When we review the denial of a motion to suppress evidence we do so under well-settled principles. Where the motion is based on factual materials, we review the record in the light most favorable to the trial court's ruling. We draw all reasonable inferences in favor of the factual findings and do not make credibility determinations. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) Once the factual basis is determined, we independently apply the law to those facts and decide whether the motion was properly denied. (People v.Glaser (1995) 11 Cal.4th 354, 362.)
C. Appellant's Contentions
Lavalley recognizes the standards we must apply on review. She contends, however, that police did not have any reasonable basis to believe she had violated any Vehicle Code provision. Here, police claimed Lavalley was stopped because she had violated Vehicle Code section 22502, subdivision (a) in the manner in which her car was parked some 36 inches away from the curb, blocking traffic when she was engaged in having her car "jump started" by another person and car. Relying on Vehicle Code section 22504, subdivision (a), Lavalley contends her car was disabled and thus she was not violating any law by the manner in which she was parked. Further, since one of the justifications offered for the police stop was "dark tinted windows," she contends the evidence shows her windows were not unlawfully tinted.
Vehicle Code section 22502, subdivision (a) provides: "(a) Except as otherwise provided in this chapter every vehicle stopped or parked upon a roadway where there are adjacent curbs shall be stopped or parked with the right-hand wheels of such vehicle parallel with and within 18 inches of the right-hand curb, except that motorcycles shall be parked with at least one wheel or fender touching the right-hand curb. Where no curbs or barriers bound any two-way roadway, right-hand parallel parking is required unless otherwise indicated."
Vehicle Code section 22504, subdivision (a) provides: "(a) Upon any highway in unincorporated areas no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park, or leave the vehicle off such portion of the highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of the stopped vehicle shall be available from a distance of 200 feet in each direction upon the highway. This section shall not apply upon a highway where the roadway is bounded by adjacent curbs."
D. Analysis
As the trial court noted, a renewed motion under section 1538.5, subdivision (i) is not a de novo review of the motion. In such motion the trial court acts to review the decision of the magistrate at the preliminary hearing and is bound by any of the magistrate's findings which are supported by substantial evidence. The trial court can, as we have noted, receive some limited additional evidence that could not have been presented at the preliminary hearing. Indeed, we previously remanded the case to permit one item of new evidence, namely police radio recordings. At the renewed hearing on remand, Lavalley offered an additional category of evidence in the form of her testimony and photographs, which purported to show her windows were not unlawfully tinted, to impeach the testimony of the arresting officer given at the preliminary hearing. The Attorney General argues the evidence regarding the windows was outside the scope of the remand from this court and it should be stricken. (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397.) While the evidence was certainly outside the scope of the remand, since it had not previously been presented to the trial court or discussed in the prior appeal, we decline to strike it. Although there was some discussion in the trial court as to why the defendant had waited until remand from appeal to raise this evidence, at the end of the discussion the trial court admitted it without objection. The new evidence creates some confusion in the record, because the trial court ultimately discounted the tinted window basis for the stop, it also acknowledged the magistrate heard the officer's testimony and believed the officer's version. The trial court here noted it was "bound by" the magistrate's finding. Since we find the police had probable cause to believe Lavalley violated Vehicle Code section 22502, we will find it unnecessary to resolve the question of whether the trial court found the new evidence of such value as to undermine the magistrate's decision to accept the officer's testimony.
The prosecution did not object to the new evidence regarding window tinting. Instead it requested and received a continuance to call the arresting officer in rebuttal. When the motion hearing was resumed, the prosecution declined to present any further evidence. The reasonable inference from this record seems to be that the trial court found the officer's testimony was impeached by the new evidence and thus there was not substantial evidence to support a police stop for unlawfully tinted windows. Accordingly, we will assume the motion was not denied on the basis that the officer reasonably believed there was a violation of the Vehicle Code arising from the state of the window tinting at the time of the stop.
Turning then to the question of whether police could have reasonably believed Lavalley was unlawfully parked such that there was a lawful reason to stop her in connection with a Vehicle Code violation.
As we have indicated, the evidence before the magistrate clearly established probable cause to believe Lavalley's car was illegally parked when it was observed by Sergeant Rorrison. Contrary to Vehicle Code section 22502, subdivision (a), the car was parked 36 inches away from the curb, substantially in excess of the 18-inch limitation in the statute. In addition, the sergeant testified that Lavalley's car blocked traffic to the point that several cars had to drive around her car in order to pass.
Lavalley argues, however, that the manner in which she was parked was not illegal because her car was getting a "jump start" and therefore it was "disabled." She relies on Vehicle Code section 22504, which permits temporarily leaving a disabled car in the roadway. As the Attorney General notes, and Lavalley does not dispute, that section applies to vehicles left on highways in unincorporated areas. This case deals with parking at a curb on a city street. Thus Vehicle Code section 22504 has no application to this case.
Lavalley next contends that even if she was illegally parked, police lacked the authority to stop her in order to issue a citation. Relying on Vehicle Code section 40202, subdivisions (a) and (d), she argues that police cannot stop a car that has been driven away before a citation can be placed on its window. She contends that when the car has been driven away, police may only mail a copy of the notice to the registered owner. Unfortunately, the Attorney General has not responded to this particular argument.
Vehicle Code section 40202, subdivisions (a) and (d) provide: "(a) If a vehicle is unattended during the time of the violation, the peace officer or person authorized to enforce parking laws and regulations shall securely attach to the vehicle a notice of parking violation setting forth the violation, including reference to the section of this code or of the Public Resources Code, the local ordinance, or the federal statute or regulation so violated; the date; the approximate time thereof; the location where the violation occurred; a statement printed on the notice indicating that the date of payment is required to be made not later than 21 calendar days from the date of citation issuance; and the procedure for the registered owner, lessee, or rentee to deposit the parking penalty or, pursuant to Section 40215, contest the citation. The notice of parking violation shall also set forth the vehicle license number and registration expiration date if they are visible, the last four digits of the vehicle identification number, if that number is readable through the windshield, the color of the vehicle, and, if possible, the make of the vehicle. The notice of parking violation, or copy thereof, shall be considered a record kept in the ordinary course of business of the issuing agency and the processing agency and shall be prima facie evidence of the facts contained therein. [¶]... [¶] (d) If, during the issuance of a notice of parking violation, without regard to whether the vehicle was initially attended or unattended, the vehicle is driven away prior to attaching the notice to the vehicle, the issuing officer shall file the notice with the processing agency. The processing agency shall mail, within 15 calendar days of issuance of the notice of parking violation, a copy of the notice of parking violation or transmit an electronic facsimile of the notice to the registered owner."
We find nothing in this particular section that indicates a legislative purpose to deprive peace officers the ability to stop persons who have been illegally parked, but have driven away before a citation can be prepared and attached to the vehicle window.
In People v. Hart (1999) 74 Cal.App.4th 479, 488 (Hart), the court dealt with a person who had been detained based on a parking violation. The opinion discusses the authority of a peace officer to detain a person in a vehicle in order to issue a parking citation. Construing Vehicle Code section 40202, the court addressed a claim similar to the one made in this case, i.e., that police may only place a citation on the vehicle window or mail a notice to the registered owner.
The court stated: "An officer may detain and cite a person for violating the Vehicle Code. [Citation.] While an officer may give notice of a parking violation to the owner or the driver of the vehicle by placing a citation on the windshield if the vehicle is unattended (see Veh. Code, § 40202), there is no similar provision for giving notice when the vehicle is attended." (Hart, supra, 74 Cal.App.4th at p. 488.)
Lavalley attempts to distinguish this case from Hart, supra, 74 Cal.App.4th 479,because there the officer approached the defendant in a parked car, whereas the stop in this case was made while Lavalley was driving. We do not find the distinction to be meaningful. The court in Hart clearly held that an officer may detain a person in order to issue a parking citation. We see no constitutional difference where the officer promptly stops the moving vehicle in order to accomplish the detention necessary in order to issue a citation.
We agree with the court in Hart, supra, 74 Cal.App.4th 479, that there is nothing in the statute that restricts the normal authority of a peace officer to temporarily detain a person in order to enforce the Vehicle Code.
We are satisfied that Lavalley was lawfully detained by a patrol officer, even though the original purpose of the sergeant's investigation was related to possible drug violations. (Whren v. U.S., supra, 517 U.S. 806.) Since Lavalley does not challenge the searches that followed after she was stopped by police, we find the trial court correctly denied Lavalley's motion to suppress.
DISPOSITION
The judgment is affirmed and the case is remanded to the trial court so that it may address the issue of custody since Lavalley has been free on bail pending the outcome of this appeal.
WE CONCUR:O'ROURKE, J., IRION, J.