Opinion
F040463.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. RUBEN EREBIA, Defendant and Appellant.
Linnea M. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Robert K. Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Ruben Erebia of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 1), transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 2), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3) and misdemeanor driving under the influence of drugs and/or alcohol (driving under the influence) (Veh. Code, § 23152, subd. (a); count 4). Appellant admitted an allegation that he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). The court imposed the four-year upper term on count 2 plus one year for the prior prison term enhancement, for a total of five years; found that appellant was addicted or in imminent danger of becoming addicted to narcotics (Welf. & Inst. Code, §§ 3050, 3051), stayed imposition of sentence and ordered appellant committed to the Department of Corrections for placement.
On appeal, appellant contends the court erred in (1) denying appellants motion to suppress evidence (Pen. Code, § 1538.5) and (2) finding that appellant was ineligible for probation. We will affirm.
FACTS
At approximately 1:30 a.m. on November 1, 2001, California Highway Patrol (CHP) Officer Amedee Irey was on patrol, traveling southbound on State Route 99, approaching the State Route 58 interchange, when he saw a Honda Civic traveling in the far right lane "at a slower rate of speed than normal," i.e., 50 to 60 miles per hour, "much slower than the other vehicles at that time." The speed limit on that part of State Route 99 was 65 miles per hour.
Because appellant challenges the denial of his suppression motion and does not challenge the sufficiency of the evidence supporting his conviction, the factual statement is taken from the hearing on the suppression motion. (People v. Fiscalini (1991) 228 Cal. App. 3d 1639, 1644, fn. 5, 279 Cal. Rptr. 682 ["our review [of the denial of suppression motion] is limited to the evidence before the court at the suppression motion hearing"].)
Officer Irey further observed the Honda make the turn onto the "transition road" connecting southbound State Route 99 with eastbound State Route 58 and, over a distance of "at least" 1,000 feet, "continuously weave[] side to side" within the lane in which it was traveling, "with its speed fluctuating between 50 and 60 miles per hour." At that point, Officer Irey, suspicious that the driver "might be under the influence of something," based on "the slow rate of speed, . . . [the] weaving within the lane, and the fluctuation of the speed," effected a stop of the Honda. Appellant was the driver.
At no point did Officer Irey see appellant violate any traffic laws. At no point while traveling on State Route 99 did the Honda weave, and while traveling on the transition road to State Route 58, it did not weave outside its lane. At all times, the Honda was traveling at a "safe speed."
State Routes 58 and 99 run at right angles to each other. The transition road that connects southbound State Route 99 with eastbound State Route 58 is a "large, sweeping curve."
Officer Irey was an 11-year veteran of the CHP. He was a "drug recognition expert," i.e., he had "been to a special school that specially trained [him] for recognizing people under the influence of drugs." His training included a course in which he was "taught different driving patterns of people under the influence of both alcohol and drugs . . . ."
DISCUSSION
Motion to Suppress Evidence
Appellant moved to suppress all evidence seized as a result of the stop of his vehicle. The courts denial of this motion, appellant contends, was error. Specifically, he argues that the stop of his vehicle was unreasonable under the Fourth Amendment to the United States Constitution and therefore all evidence seized as a result of that stop should have been suppressed. There is no merit to this contention.
"[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.) " The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal— to "enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges." "(People v. Leyba (1981) 29 Cal.3d 591, 599, 174 Cal. Rptr. 867, 629 P.2d 961.)
"When discussing how reviewing courts should make reasonable-suspicion determinations, [the United States Supreme Court has] repeatedly said they must look to the totality of the circumstances of each case to see whether the officer has a particularized and objective basis for suspecting legal wrongdoing." (United States v. Arvizu (2002) 534 U.S. 266, 273, 151 L. Ed. 2d 740, 122 S. Ct. 744.)
We review the courts denial of appellants suppression motion under the following well-established standard: "We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362, 902 P.2d 729; accord, People v. Leyba, supra, 29 Cal.3d at pp. 596-597, People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal. Rptr. 13, 507 P.2d 621.)
Here, as indicated above, Officer Irey based his decision to stop appellants vehicle on three factors. As we explain below, the factual bases for each of these factors is, for the most part, undisputed and, taken together, these factors support a reasonable suspicion that appellant was driving while under the influence of drugs and/or alcohol.
First, the courts reasonable-suspicion determination is supported by the uncontradicted evidence that appellant was traveling at what Officer Irey considered an unusually low rate of speed, viz., 50 to 60 miles per hour on a portion of State Route 99 on which the speed limit was 65 miles per hour. (People v. Gibson (1963) 220 Cal. App. 2d 15, 20, 33 Cal. Rptr. 775 ["The fact that a driver proceeds at a speed slower than the speed limit under circumstances where he might normally proceed at the higher speed also is a factor appearing to justify an officers investigation."].)
Second, Deputy Irey testified, again without contradiction, that while driving on the transition road for a distance of at least 1,000 feet appellants speed was "fluctuating between 50 and 60 miles per hour." Driving at varying speeds over such a distance, in our view, provides further support for a reasonable suspicion that appellant was under the influence of drugs and/or alcohol.
Finally, it is undisputed that appellant was weaving within his lane as he drove on the transition road. On this point, we find instructive People v. Bracken (2001) 83 Cal.App.4th Supp. 1. In that case, "the only reason the citing officer initiated a traffic stop was because appellants vehicle was weaving within its own lane for a distance of approximately one-half mile." (Id. at p. Supp. 3.) In upholding the trial courts denial of the defendants suppression motion, the appellate department of the superior court stated: "There is a reasonable inference that something is wrong when a vehicle weaves while it is being followed by a law enforcement officer and that the cause may be a driver under the influence of alcohol or drugs. . . . [P] . . . The officer in the instant case was an expert in the area of driving under the influence cases. He observed appellants vehicle weave within its lane for a considerable distance. These facts are sufficient to establish reasonable suspicion." (Id. at p. Supp. 4.)
We recognize that in the instant case the distance appellant drove while weaving was less than the one-half mile driven by the defendant in Bracken. Nonetheless, when a police officer observes a vehicle weaving within its lane over a distance of 1,000 feet, the officer has seen enough to suspect, as in Bracken, that "something is wrong . . . ." (People v. Bracken , supra, 83 Cal. App. 3d at p. Supp. 4.) Appellant suggests such an inference is not reasonable because, he argues, the observed weaving occurred "only for 1,000 feet on a sharply curved interchange . . ." (Emphasis added.) However, there was no evidence the transition road was "sharply curved." Rather, Officer Irey testified the road was a "long sweeping curve" which connected two highways which ran at right angles to each other. The within-the-lane weaving that the officer observed was, in our view, sufficient to contribute to a reasonable suspicion that appellant was driving while under the influence of drugs or alcohol.
We do not suggest that either of the first two factors, considered alone, would support a reasonable suspicion determination. And although Bracken held that an experienced officer may form a reasonable suspicion of unlawful activity based solely on observing a driver weave within his own lane, we assume without deciding that weaving within a lane, even over a "considerable distance," is similarly insufficient, without more, to justify a vehicle stop. However, as indicated above, we must consider the " totality of the circumstances. " (United States v. Arvizu , supra, 534 U.S. at p. 273.) Here, the record supports the conclusion that the citing officer observed appellant (1) drive at an unusually slow speed on State Route 99, turn onto the transition road to State Route 58 and, over a distance of 1,000 feet, (2) weave within his lane and (3) travel at "fluctuating" speeds between 50 and 60 miles per hour. Undoubtedly, each of these factors alone is susceptible of an innocent explanation. As appellant points out, "driving slightly slower than the speed limit alone is innocuous behavior." (Emphasis added.) However, when considered in combination, they sufficed to form a particularized and objective basis for believing that appellant was driving under the influence of drugs or alcohol and therefore violating the law.
Appellant argues that in considering appellants within-the-lane weaving as part of the reasonable-suspicion determination, this court should be "guided by the logic" of United States v. Jimenez-Medina (9th Cir. 1999) 173 F.3d 752. In that case, a border patrol agent stopped a vehicle after becoming suspicious that the driver was engaged in alien smuggling. The agent based his suspicion on several factors, including his observation that the vehicle "weaved within its lane, leading the agent to believe that the driver was preoccupied with the agents presence." (Id. at p. 754.) In holding the stop constitutionally unreasonable, the court distinguished another case in which "the rapid exit from the highway combined with weaving in and out of lanes without singling justified the stop," stating that "it is a stretch to say suspicion can rest here on weaving because the record demonstrates only movement within the proper lane of travel." (Id. at p. 756.). The court further stated: "The law of this circuit teaches that the presence of such facts as driver preoccupation, slow speed, movement within ones lane of traffic, even coming from the wrong neighborhood does not give rise to legally sufficient reasonable suspicion. " (Id. at p. 755, emphasis added.)
Jimenez-Medina does not assist appellant. That case holds that the fact that the driver weaved within his lane, whether considered alone or in combination with the other factors present in that case, did not give rise to a reasonable suspicion that the driver was engaged in illegal conduct; it does not hold that weaving within a lane may never form part of the basis for a reasonable suspicion that a driver has violated the Vehicle Code or some other law. The instant case is factually distinguishable, perhaps most significantly because there is no evidence that the driver, like appellant, drove at "fluctuating" speeds between 50 and 60 miles per hour over a distance of 1,000 feet. Moreover, the court in Jimenez-Medina considered whether within-the-lane weaving indicated the driver was preoccupied with the agents presence and whether this factor contributed to a reasonable suspicion that appellant was guilty of alien smuggling. The court did not consider whether such driving could give rise to a resonable suspicion that the driver of the vehicle was impaired due to alcohol or drug use, and "cases are not authority for propositions not considered." (People v. Burnick (1975) 14 Cal.3d 306, 317, 121 Cal. Rptr. 488, 535 P.2d 352.)
In the instant case, as demonstrated above, the record supports the conclusion that the citing officer had a reasonable suspicion that appellant was engaged in illegal activity. Therefore, the officers stop of appellants vehicle was reasonable within the meaning of the Fourth Amendment.
Denial of Probation
Appellant contends the court erred in failing to grant him probation pursuant to Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36) (Pen. Code, § 1201 et seq.)
All further statutory references are to the Penal Code.
Proposition 36 was adopted by the voters of California in November 2000 and, in general, mandates probation without incarceration for specified drug offenses. The stated purpose and intent of the act was: " (a) To divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers and parolees charged with simple drug possession or drug use offenses; [P] (b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration-and reincarceration-of nonviolent drug users who would be better served by community-based treatment; and [P] (c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies. " (See Historical and Statutory Notes, 51 Wests Ann. Pen. Code (2002 supp.) foll. § 1210, p. 207.)
Under Proposition 36, a trial court must grant probation to a defendant convicted of a "nonviolent drug possession offense[]" unless the defendant is disqualified from probation under section 1210, subdivision (b). (§ 1210.1, subd. (a).) Persons disqualified under subdivision (b) include: "(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." (§ 1210.1, subd. (b)(2), emphasis added.) Subdivision (d) of section 1210 defines the phrase " misdemeanor not related to the use of drugs " to mean "a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in paragraph (1)." (§ 1210, subd. (d).)
A defendant also loses eligibility if he or she has a prior serious or violent felony conviction that was not "washed out" under section 1210.1, subdivision (b)(1); possesses or is under the influence of a subset of controlled substances "while using a firearm" (§ 1210.1, subd. (b)(3)); is convicted in the same proceeding of any felony (§ 1210.1, subd. (b)(2)); refuses drug treatment as a condition of probation (& sect; 1210.1, subd. (b)(4)), or has twice been granted diversion and treatment but is found to be unamenable to rehabilitation. (& sect; 1210.1, subd. (b)(5).)
In the instant case, appellant was convicted of two offenses which qualify as "nonviolent drug possession offenses" within the meaning of section 1201, subdivision (a), viz., possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)). ( § 1210, subd. (a); In re Scoggins (2001) 94 Cal.App.4th 650, 652.) And as indicated above, appellant was also convicted of misdemeanor driving under the influence. Appellant contends his conviction of that offense did not render him ineligible for probation because misdemeanor DUI "involves . . . the simple possession or use of drugs" within the meaning of section 1210, subdivision (d) and therefore is not "a misdemeanor not related to the use of drugs or any felony" within the meaning of section 1210.1, subdivision (b)(2). We disagree.
As appellant asserts and the People do not dispute, appellant is not disqualified from probation under Proposition 36 by any of the other provisions of section 1210.1, subdivision (b).
Driving under the influence does not involve the "simple" possession or use of drugs. Driving under the influence involves the additional element of impaired driving which creates a separate risk to public safety that is not present in the simple possession or use of drugs. (People v. Goldberg (2003) 105 Cal.App.4th 1202, 1209-1210.) Therefore, misdemeanor driving under the influence of drugs is a misdemeanor not related to the use of drugs. (Ibid.) On that basis, appellant is disqualified from probation and treatment under Proposition 36.
Appellant challenges this construction of section 1210, subdivision (d). Specifically, he argues that driving under the influence of a drug "involves" simple possession of drugs, notwithstanding that the offense involves more. We reject this construction.
When a court is required to interpret a voter initiative, it applies the same principles that govern statutory construction. (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276, 980 P.2d 927.) Accordingly, in interpreting Proposition 36, we apply the following principles: "Words used in a statute should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the . . . voters . . . . [Citations.] [P] But the plain meaning rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in the light of the statutory scheme [citation]; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation]. . . ." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal. Rptr. 115, 755 P.2d 299.)
Appellants construction is consistent with a literal reading of the statute, but it is contrary to the intent of Proposition 36. The proponents of Proposition 36 stated it was "strictly limited" and "only affects simple drug possession. No other criminal laws are changed." (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26.) If driving under the influence was deemed a misdemeanor related to the use of drugs, as urged by appellant, Proposition 36 would effect a change in the legislative scheme designed to impose increasingly severe punishments for those who repeatedly drive under the influence of drugs. The Legislature has unequivocally declared its intent that drivers convicted of multiple driving under the influence offenses within a seven-year period receive mandatory and increasingly severe punishments. (Veh. Code, § 23217.) The current scheme mandates a 96-hour jail term for the first offense (Veh. Code, § 23536, subd. (a)), 90 days for a second offense within seven years (Veh. Code, § 23540), 120 days for a third offense within seven years (Veh. Code, § 23546), and a wobbler felony offense requires 180 days of local custody for a fourth offense within seven years (Veh. Code, § 23550). These recidivist statutes impose punishment upon proof of a prior violation and conviction for driving under the influence within a seven-year period. (People v. Casillas (2001) 92 Cal.App.4th 171.) However, if a defendant was eligible for probation under section 1210.1 notwithstanding a driving under the influence conviction, the defendant upon completing the drug treatment program could obtain an order expunging the driving under the influence conviction, and any subsequent offense would be treated as a first offense. Accordingly, an interpretation that driving under the influence is an exempt misdemeanor permitting probation and diversion would be inconsistent with Proposition 36s expressed intent that it was strictly limited, affected only simple drug possession, and changed no other laws.
Section 1210.1, subdivision (d)(1) provides that after completing the treatment program the defendant may seek an order dismissing all charges, and if the order is granted, "both the arrest and the conviction shall be deemed never to have occurred" for most purposes.
Appellant also argues that the court erred in not granting him probation because driving under the influence, like the other three offenses of which he stands convicted, is a " nonviolent drug possession offense " within the meaning of section 1210, subdivision (a). Specifically, he argues, section 1210, subdivision (a) contains a list of offenses that do not qualify as " nonviolent drug possession offenses " (§ 1210, subd. (a)), and the omission of driving under the influence from this list of disqualifying offenses indicates an intent to include driving under the influence among the offenses that do qualify as " nonviolent drug possession offenses. " Therefore, appellant argues, the court was required to grant him probation under Proposition 36 because all of the offenses of which he was convicted in the instant proceeding were nonviolent drug possession offenses. We disagree.
Section 1210, subdivision (a) provides: "The term nonviolent drug possession offense [as used in, inter alia, section 1210.1] means the unlawful possession, use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term nonviolent drug possession offense does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 [unauthorized possession of controlled substances in a penal facility]or 4573.8 [unauthorized possession of drugs or alcohol in a penal facility]." (Emphasis added.)
As indicated above, subdivision (a) of section 1210, provides that "the term nonviolent drug possession offense means" certain enumerated offenses. "In ascertaining the Legislatures intent, we turn first to the language of the statute, giving the words their ordinary meaning." (People v. Birkett (1999) 21 Cal.4th 226, 231, 980 P.2d 912.) When we give the language of subdivision (a) of section 1210-especially the word "means"-its ordinary meaning, we find this definition to be clear and unambiguous: Nonviolent drug possession offenses are possession, use, transportation, and being under the influence of a controlled substance. Driving under the influence is not among the crimes expressly listed in section 1210, subdivision (a) as nonviolent drug possession offenses. Therefore, we conclude that offense is not a nonviolent drug possession offense.
To summarize, driving under the influence is not a nonviolent drug possession offense which qualifies appellant for probation under Proposition 36 in the absence of any disqualifying factors. Moreover, although appellant was convicted of three nonviolent drug possession offenses in the instant proceeding, he was also convicted of driving under the influence, an offense which, because it was a "misdemeanor not related to the use of drugs," disqualifies him from probation and treatment under Proposition 36. (§ 1210.1, subd. (b)(2).) Therefore, the court did not err in not granting appellant probation under Proposition 36.
DISPOSITION
The judgment is affirmed.