People v. Thomas CA4/1 ( 2021 )

Filed 1/4/21 P. v. Thomas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076981
Plaintiff and Respondent,
v. (Super. Ct. No. SCD282431)
ERIC ANGEL THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Jeffrey B. Barton and David M. Gill, Judges. Affirmed.
William Paul Melcher, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff
and Respondent.
I
INTRODUCTION
After stopping Eric Angel Thomas for a traffic violation, police officers
found methamphetamine and items indicative of drug sales during a search
of Thomas and his vehicle pursuant to a Fourth Amendment waiver, which
was a condition of his postrelease community supervision (PRCS). The trial
court denied Thomas’s motion to suppress in which he challenged the validity
of the stop and asked the court to suppress the evidence obtained during the
search. Thereafter, a jury convicted Thomas of one count of transportation of
controlled substances (Health & Saf. Code, § 11379, subd. (a); count 1) and
one count of possession of a controlled substance for sale (Health & Saf. Code,
§ 11378; count 2). Thomas admitted one prior strike conviction. The court
sentenced him to eight years in state prison.
Thomas contends in this appeal that the trial court erred in denying his
motion to suppress because the police officers did not have a reasonable
suspicion to justify the traffic stop and, therefore, they violated his federal
and state constitutional rights. He also contends the court violated his due
process rights by imposing fines and fees without determining his ability to
pay. We conclude the traffic stop was based on reasonable suspicion and the
court properly denied the motion to suppress. We further conclude Thomas
forfeited his claims regarding the court’s imposition of fines and fees. We,
therefore, affirm the judgment.
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II
BACKGROUND1
On the afternoon of July 9, 2019, a police officer observed a vehicle
driving northbound on 14th Street in the East Village of San Diego. The
vehicle accelerated from a stop sign at a high rate of speed, stopped at a
second stop sign, accelerated again, and drove at a high rate of speed through
a third intersection. The vehicle swerved into another lane to avoid a
pedestrian standing in a crosswalk, then continued down the street and
turned onto another street.
The area was very congested with pedestrian and vehicle traffic. The
officer believed the driver violated the Vehicle Code’s basic speed law because
driving with rapid acceleration at high speeds was unsafe for the prevailing
conditions of the area where a lot of pedestrians, bicycles, scooters, and
pedicabs were moving around the urban area. The police officer and his
partner followed the vehicle and conducted a traffic stop. They drove in
excess of the posted 25-mile-per-hour speed limit to catch up to the vehicle.
Thomas was the driver and the sole occupant of the vehicle.
Before approaching the vehicle, the officer conducted a records check
and discovered Thomas was the registered owner and he was on PRCS, which
meant he likely had a Fourth Amendment waiver. After Thomas confirmed
he was subject to supervision, the officers conducted a search based upon his
Fourth Amendment waiver condition.
Officers found $340 in small bills and a plastic bindle containing 2.3
grams of methamphetamine in Thomas’s pants pocket. In a backpack, they
1 Because the motion to suppress hearing is the subject of this appeal, we
summarize the facts related to the traffic stop from the evidence presented at
that hearing. We draw the facts regarding what was found in the search
from evidence presented at trial for context.
3
found two additional bindles holding 7.14 grams of methamphetamine along
with plastic baggies and a working digital scale. In another backpack,
officers located a glass container along with more baggies containing
crystalline material. In the center console of the vehicle, officers located 100
unused small zippered baggies with yellow biohazard logos.
Thomas did not appear to be under the influence of methamphetamine
during the traffic stop and he did not exhibit physical characteristics of a
heavy methamphetamine user. A detective opined Thomas possessed the
methamphetamine for sale rather than personal use.
III
DISCUSSION
A
Motion to Suppress
1
General Principles
“Both the federal and state Constitutions prohibit unreasonable
searches and seizures. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.) ‘In
California, issues relating to the suppression of evidence derived from
governmental searches and seizures are reviewed under federal
constitutional standards.’ [Citation.] ‘ “[T]he ultimate touchstone of the
Fourth Amendment is ‘reasonableness.’ ” ’ ” (People v. Ovieda (2019) 7
Cal.5th 1034, 1041.)
“A defendant may move to suppress evidence under [Penal Code]
section 1538.5 on grounds that a search without a warrant was unreasonable.
A warrantless search is presumptively unreasonable, and the prosecution
bears the burden of demonstrating a legal justification for the search.”
(People v. Simon (2016) 1 Cal.5th 98, 120 (Simon).)
4
An officer may detain an individual if the officer can point to specific
and articulable facts which, taken together with rational inferences from
those facts, warrant the intrusion. (Terry v. Ohio (1968) 392 U.S. 1, 21
(Terry).) Traffic stops “are treated as investigatory detentions for which the
officer must be able to articulate specific facts justifying the suspicion that a
crime is being committed.” (People v. Hernandez (2008) 45 Cal.4th 295, 299.)
“[T]he reasonable suspicion standard of Terry[, supra, 392 U.S. 1] is not
a particularly demanding one, but is, instead, ‘considerably less than proof of
wrongdoing by a preponderance of the evidence.’ [Citation.] ‘In reviewing
the propriety of an officer’s conduct, courts do not have available empirical
studies dealing with inferences drawn from suspicious behavior, and we
cannot reasonably demand scientific certainty from judges or law
enforcement officers where none exists. Thus, the determination of
reasonable suspicion must be based on commonsense judgments and
inferences about human behavior.’ ” (People v. Letner and Tobin (2010) 50
Cal.4th 99, 146.) “[T]he possibility of innocent explanations for the factors
relied upon by a police officer does not necessarily preclude the possibility of a
reasonable suspicion of criminal activity. [Citations.] In determining
whether a search or seizure was supported by a reasonable suspicion of
criminal activity, ‘ “the relevant inquiry is not whether particular conduct is
‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular
types of noncriminal acts.” ’ ” (Id. at p. 147.)
In ruling on a motion to suppress, “[t]he trial court ‘ “find[s] the
historical facts, select[s] the rule of law, and appl[ies] it to the facts in order
to determine whether the law as applied has been violated.” ’ [Citation.] We
review de novo a trial court’s resolution of the legal questions resolved in a
suppression motion, and we review the trial court’s resolution of factual
5
issues under the more deferential substantial evidence standard.” (People v.
Vargas (2020) 9 Cal.5th 793, 814; Simon, supra, 1 Cal.5th at p. 120 [based on
the facts found by the trial court, we exercise independent judgment to
determine if the search was reasonable].) We “view the evidence in a light
most favorable to the order denying the motion to suppress” and “ ‘ “must
accept the trial court’s resolution of disputed facts and its assessment of
credibility.” ’ ” (People v. Frederickson (2020) 8 Cal.5th 963, 1010.)
2
Procedural Background
Thomas’s motion to suppress challenged only the basis for the stop.
Defense counsel argued there was no reasonable suspicion to pull Thomas
over because there was no evidence of how fast he was driving, the officers
did not initially stop him when they observed him accelerate through two
intersections, and Thomas took evasive action to avoid a pedestrian illegally
in a crosswalk even though Thomas had the right of way.
Because the defense satisfied its prima facie burden of showing a
search without a warrant, the burden shifted to the People to show a
justification for the warrantless search. The trial court summarized the
evidence presented by the People as follows: “The testimony showed that the
officer was experienced in the area, observed the defendant for several blocks,
that he sped out from the stop sign at two stops prior to swerving around a
pedestrian. The observations … appeared to be from … a basis of experience
in the area and the traffic and congestion. The officer appeared credible and
was not impeached.”
Discussing the legal basis for the stop offered by the officer, the court
said, “Basic speed law indicates that no person shall drive a vehicle upon a
highway at a speed greater than is reasonable or prudent having due regard
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for weather, visibility, or traffic and in no event at a speed which endangers
the safety of persons or property.” After applying the facts to the law, the
court denied the motion based on the totality of the evidence. The court said,
“I do think the testimony established a reasonable basis for the stop.”2
3
Analysis
As he did below, Thomas contends the officer did not establish he drove
above the speed limit and his speed adjustments along with avoiding a
pedestrian illegally in a crosswalk were innocent behaviors that cannot form
reasonable suspicion to justify an investigatory stop. He also contends the
totality of the circumstances gave rise to nothing more than a hunch Thomas
was involved in criminal behavior, which was insufficient to justify the stop.
We disagree.
There is no evidence the officers stopped Thomas based on a hunch he
was involved in criminal activity, such as drug sales. This was not a
situation where an officer suspected illegal activity because a driver appeared
to moderate his speed when he observed an officer (People v. Loewen (1983)
35 Cal.3d 117, 127) or because he did not know the area (United States v.
Diaz-Juarez (9th Cir. 2002) 299 F.3d 1138, 1147–1148). Even if Thomas
drove below the posted speed limit and even if he had the right of way when
he encountered the pedestrian, the officer testified he and his partner
stopped the vehicle because they observed driving behavior that was unsafe
for the conditions, which violated the basic speed law.
2 Thereafter, Thomas undertook his own representation and refiled the
motion to suppress before trial. The trial judge denied the motion finding no
new or different evidence to justify rehearing the motion. Thomas does not
challenge this ruling on appeal.
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The basic speed law set forth in Vehicle Code section 22350 states: “No
person shall drive a vehicle upon a highway at a speed greater than is
reasonable or prudent having due regard for weather, visibility, the traffic on,
and the surface and width of, the highway, and in no event at a speed which
endangers the safety of persons or property.” Read as a whole, the basic
speed law “regulates speed based on the totality of circumstances, including
the way a person is driving.” (People v. Farleigh (2017) 13 Cal.App.5th
Supp. 12, 15.) “The first portion of the statute prohibits driving over the
speed appropriate for external conditions, and the second portion of the
statute prohibits driving at any excessive speed. Read together, both
portions of the statute have effect and protect the public from any sort of
dangerous speed.” (Id. at p. 16.)
The trial court found credible the officer’s testimony that the officers
believed Thomas’s driving behavior was unsafe for the conditions of the
congested downtown area at the time. This gave rise to a reasonable
suspicion of criminal behavior justifying the stop. Once they initiated the
stop, the officers learned Thomas was subject to a Fourth Amendment waiver
and conducted a search consistent with that condition. Under these
circumstances, the court properly denied the motion to suppress.
B
Fines, Fees, and Assessments
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Thomas
contends the court violated his constitutional rights of due process and
protection against excessive fines by imposing fines and fees without
determining he has the ability to pay them. Thomas asks us to remand the
matter for the court to conduct an ability to pay hearing. The People contend
Thomas forfeited this claim and, alternatively, the restitution fine was
8
constitutional and any due process violation in imposing the non-punitive
fees without a determination of Thomas’s ability to pay was harmless beyond
a reasonable doubt. We conclude Thomas forfeited the claim.
“At the core of the Dueñas opinion is its holding that imposition of
fines, fees or assessments without a hearing on ability to pay denies due
process. It was that court’s view it was the trial court’s duty to hold a
hearing and thus failure to seek a hearing did not result in forfeiture.
Further, the court found that the burden to prove ‘present’ ability to pay was
on the prosecution. Other courts, including this court, have disagreed with
Dueñas on these key principles.” (People v. Keene (2019) 43 Cal.App.5th 861,
863; see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 327, review granted
Nov. 26, 2019, S258946 [rejecting the Dueñas due process analysis for fines
and fees]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [applying
excessive fine analysis for restitution fines]; and People v. Kopp (2019)
38 Cal.App.5th 47, 95–96 (Kopp), review granted Nov. 13, 2019, S257844
[concluding a defendant who requested ability to pay hearing bears burden of
proof and applying due process analysis to court assessments and excessive
fines analysis to restitution fines].)
It is not necessary for us to reach these broader issues in this case
because we conclude Thomas forfeited his claim. Thomas’s probation report
recommended a restitution fine of $4,800 (Pen. Code, § 1202.4) with an
additional restitution fine of $4,800 (Pen. Code, § 1202.45), to be stayed
unless his supervision is revoked. Without objection, the court reduced the
restitution fines to $2,400 each. It imposed recommended fees and
assessments totaling an additional $1,044.3
3 The fees and assessments included $40 in court security fees (Pen.
Code, § 1465.8); $30 as an immediate critical needs assessment (Gov. Code,
9
Penal Code section 1202.4 authorizes a restitution fine of up to $10,000
in felony cases, and requires a sentencing court to impose a minimum fine of
$300 notwithstanding a defendant’s inability to pay that amount. Dueñas
considered whether a minimum fine imposed under the statute was
constitutional. But even before the Dueñas decision, a defendant’s ability to
pay was a relevant consideration in determining whether to impose a
restitution fine greater than the statutory minimum. (Pen. Code, § 1202.4,
subds. (c) and (d).)
Notwithstanding some broad language in Dueñas, cases since then
have concluded that even when challenging a minimum fine, defendants bear
the initial burden of (1) advising the court that they are unable to pay the
fines and/or fees that the court proposes to assess, and (2) introducing
minimal evidence to support that assertion. (E.g., People v. Castellano (2019)
33 Cal.App.5th 485, 490 [“a defendant must in the first instance contest in
the trial court his or her ability to pay the fines, fees and assessments to be
imposed”]; Kopp, supra, 38 Cal.App.5th at p. 96 [“it is Appellants’ burden to
make a record below as to their ability to pay these assessments”].)
The court here questioned the probation officer regarding the
recommended restitution fine of $4,800 and, on its own, chose to impose a
fine of $2,400. It was defendant’s burden to explain why the court should
impose a lesser amount than was proposed. (Pen. Code, § 1202.4, subd. (d);
People v. Avila (2009) 46 Cal.4th 680, 729 (Avila).) The failure to do so means
an appellate challenge based on ability to pay is forfeited. (Id. at p. 729.)
§ 70373); a $154 criminal justice administration fee (Gov. Code, § 29550.1); a
$615 drug program fee (Health & Saf. Code, § 11372.7); and a $205 lab
analysis fee (Health & Saf. Code, § 11372.5).
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Having failed to object, the argument regarding Thomas’s inability to
pay the assessed restitution fine is forfeited. (People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1033.) Moreover, because he did not object to the $2,400
restitution fine, Thomas has similarly forfeited any challenge to the fees and
assessments. (Ibid.)
IV
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
AARON, J.
DATO, J.
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