Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC505575
RUSHING, P.J.
STATEMENT OF THE CASE
A jury convicted defendant Keith Christopher Derby of possession of methamphetamine and drug paraphernalia and being under the influence of a controlled substance. (Health & Saf. Code, §§ 11377, subd. (a), 11364, 11550, subd. (a).) The court placed defendant on probation and imposed various fees and fines, including attorney fees for his public defender. (Penal Code, § 987.8, subd. (b).) On appeal from the judgment, defendant claims the court erred in denying his motion to suppress evidence and ordering him to pay attorney fees.
We uphold defendant’s conviction but reverse the judgment and remand the matter for a hearing on defendant’s ability to pay attorney fees.
THE OFFENSES
On August 25, 2005, at approximately 9:35 p.m., San Jose Officer Wali Aminyar stopped defendant’s vehicle because it had a cracked windshield. He asked defendant for his license. Defendant appeared nervous, his pupils were dilated, and his hand shook when he produced his driver’s license. Officer Aminyar asked if he had used any methamphetamine, and defendant said he had done so 18 months ago. Officer Aminyar had defendant step out of the car and asked whether a drug test would show positive for methamphetamine. Defendant said it would. Defendant also admitted that he had some methamphetamine in his pocket. With defendant’s permission, Officer Aminyar found a bag containing 3.81 grams of methamphetamine and a glass smoking pipe in defendant’s pocket. In another pocket, he found another bag of methamphetamine. Officer Aminyar arrested defendant. A blood test revealed the presence of methamphetamine.
EVIDENCE AT THE MOTION TO SUPPRESS
Officer Aminyar testified that at the time of the stop, it was dark, and the area was lit by street lamps. Defendant’s car was next to him, and when he looked over at it, he noticed a “vertical crack [that] ran diagonally across the front windshield,” starting from the base on the driver’s side up and over and up toward the passenger’s side. He explained that there is low visibility in the area and much cross traffic. Moreover, college students often dart out into the street. Although he knew a cracked windshield by itself was not an equipment infraction, he suspected that under the existing circumstances, the crack in defendant’s windshield posed a hazard to defendant and pedestrians who might be on the right side of his car. Consequently, he stopped defendant for a violation of Vehicle Code section 26710, which proscribes driving with a defective windshield that impairs the driver’s vision. He explained that he enforces that provision when there “is something that’s going to impair the visibility of the driver to see what is ahead of [him or her] or to either side as [he or she is] driving down the road.”
Vehicle Code section 2806 provides, in relevant part, “Any regularly employed and salaried police officer . . . having reasonable cause to believe that any vehicle or combination of vehicles is not equipped as required by this code or is in any unsafe condition as to endanger any person, may require the driver to stop and submit the vehicle or combination of vehicles to an inspection and those tests as may be appropriate to determine the safety to persons and compliance with the code.” Vehicle Code section 26710 provides, in relevant 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.”
On cross-examination, defense counsel showed Officer Aminyar photographs of defendant’s car and its windshield. Officer Aminyar could not see the crack in two of them but could see it in the other two. However, the crack shown in the photographs was not consistent with the crack as he remembered seeing it the night of the stop.
On redirect, Officer Aminyar said he was unaware of the circumstances and lighting conditions under which the photographs were taken. He could not tell whether the crack was accurately depicted, and it did not match his recollection.
Defendant testified that the photographs accurately depicted the crack in his windshield on the night he was stopped although it had grown longer since then. He said the crack was not visible in all of the photographs because it was difficult to get it to show up.
DENIAL OF MOTION TO SUPPRESS
Defendant contends that the court erred in denying his suppression motion. He argues that the crack in his windshield did not justify a traffic stop because photographs conclusively established that the crack did not impair his visibility. We disagree.
“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.” (People v. Miranda (1993) 17 Cal.App.4th 917, 922; see People v. Camacho (2000) 23 Cal.4th 824, 830-831; People v. Williams (1988) 45 Cal.3d 1268, 1301.)
An ordinary traffic stop is treated as an investigatory detention (People v. Bell (1996) 43 Cal.App.4th 754, 760-761) and is justified at its inception if the officer has a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (Whren v. United States (1996) 517 U.S. 806, 809-810; People v. Miranda, supra, 17 Cal.App.4th at p. 926.) The reasonableness of a detention is determined based upon the totality of the circumstances. (United States v. Arvizu (2002) 534 U.S. 266, 273.)
Here, Officer Aminyar testified that around 9:30 p.m, he saw a crack that ran diagonally across defendant’s windshield and thought it might be impairing defendant’s vision and ability to avoid pedestrians in the area, where, he explained, college students tended to run out into the street. Officer Aminyar’s testimony support a reasonable suspicion that defendant’s windshield violated Vehicle Code section 27710.
Defendant claims that the photographs conclusively rebutted Officer Aminyar’s description of the crack and negated any reasonable suspicion that it might have impaired his vision and thus justified the traffic stop. We disagree.
We have viewed the photographs.
Insofar as there was a conflict in the evidence between Officer Aminyar’s testimony and defendant’s exhibits, the court implicitly resolved it in favor of the officer by denying the motion to suppress. Thus, the court accepted his testimony that the pictures did not accurately reflect defendant’s windshield at the time of the stop. It does not appear that the photographs were taken under circumstances—e.g., lighting, angle, distance—similar to those at the time of the stop. Moreover, even in the photographs, the crack did not always 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 crack did not in fact significantly impair defendant’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.) ~(RB 5-6)~ Here, Officer Aminyar’s testimony supports the trial court’s finding that his suspicion was reasonable.
Defendant’s reliance on People v. White (2003) 107 Cal.App.4th 636 (White) is misplaced. In White, the court upheld a traffic stop based on a suspected violation of Vehicle Code section 26708, subdivision (a)(2), which prohibits vehicles with an object displayed that obstructs or reduces the driver’s clear view through the windshield or side windows. There, the officer stopped the defendant simply because his car had an air freshener hanging from the rear view mirror, which he believed violated Vehicle Code section 26708, subdivision (a)(1), which prohibits the placement, display, installation or affixing of anything on the windshield or rear windows without regard to whether it impairs vision. (White, supra, 107 Cal.App.4th at pp. 640-641.)
He also stopped the defendant because the vehicle had no front license plate.
On appeal, the court reversed. It noted that the statute cited by the officer was inapplicable because the air freshener was not on the windshield. (White, supra, 107 Cal.App.4th at p. 641.) Moreover, the court found no evidence that the air freshener obstructed the driver’s view, in violation of Vehicle Code section 26707, subdivision (a)(2). The officer did not testify that it obstructed the driver’s view or that he suspected that it might. Nor did the officer testify to other facts, such as hesitant or erratic driving, that might have suggested an obstruction. On the contrary, the defense presented an expert, who opined that the air freshener did not obstruct vision because it covered so little of the total area of the windshield. Moreover, the defendant testified that his vision was not obstructed. (White, supra, 107 Cal.App.4th at p. 642.)
White is distinguishable because here, Officer Aminyar testified that he stopped defendant because from his perspective, he suspected that the crack in the windshield impaired defendant’s vision and posed a safety hazard under the circumstances.
FEES FOR THE PUBLIC DEFENDER
Defendant contends that the trial court erred in ordering him to pay $1,000 in attorney fees for the services of his public defender without conducting a hearing on his ability to pay. The Attorney General concedes that the court erred. We agree.
Penal Code section 987.8, subdivision (b) provides, in relevant part, “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.”
The record reflects that the court did not conduct a hearing on defendant’s ability to pay fees. After the court imposed the $1,000 fee, it simply asked if defendant was employed. It did not inquire about defendant’s finances.
Defendant urges us to simply strike the order. However, the Attorney General asserts that the matter should be remanded to the trial court for a determination of defendant’s ability to pay. We agree with the Attorney General. (People v. Flores (2006) 30 Cal.4th 1059, 1067.)
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to reverse the order to pay $1,000 in attorney fees and conduct a noticed hearing under Penal Code section 987.8, subdivision (b) concerning defendant’s ability to pay.
WE CONCUR: PREMO, J., ELIA, J.