Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA083017, Charles E. Horan and Juan Carlos Dominguez, Judges.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Elizabeth Esqueda, pled guilty to controlled substance possession. (Health & Saf. Code, § 11377.) Defendant also admitted she had previously served a prison term within the meaning of Penal Code section 667.5. Imposition of sentence was suspended. Defendant was placed on three years’ probation pursuant to Penal Code section 1210.1 (Proposition 36 probation). She was ordered to pay: a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)); a $200 probation revocation restitution fine (Pen. Code, § 1202.44); $200 for “placement and supervision”; a “$100 fee for drug treatment and testing”; and a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)). Defendant contends the trial court erred in denying her Penal Code section 1538.5 evidence suppression motion. We reverse the judgment in part with directions, and affirm in part as modified.
II. BACKGROUND
Defendant’s sole contention on appeal is that the trial court improperly denied her Penal Code section 1538.5 motion to suppress evidence. The testimony at the suppression of evidence hearing was as follows. Los Angeles County Deputy Sheriff Henry Saenz was on patrol in a marked cruiser in Baldwin Park at approximately 10:25 p.m. on April 25, 2008. Deputy Saenz passed a black 2006 Ford Escape going in the opposite direction. Deputy Saenz did not know how fast he was going, but normal speed for the area was 30 to 35 miles per hour. Deputy Saenz noticed the windows of the Ford Escape were tinted “rather dark.” Deputy Saenz was unable to see into the Ford. Deputy Saenz turned around and approached the Ford from behind. He performed a computer check concerning the license plate and conducted a traffic stop. The reason for the traffic stop was, “Tinted windows, coupled with some knowledge of the vehicle.” The tinted windows were so dark Deputy Saenz could not see into the vehicle until he was standing on the driver’s side of the car. All of the windows, except the front windshield, were tinted—a violation of Vehicle Code section 26708, subdivision (a)(2).
Defendant, the driver, had two small children with her. Deputy Saenz obtained defendant’s driver’s license. Deputy Saenz asked defendant if she had anything illegal in the vehicle. Defendant said no. Deputy Saenz asked defendant if he could check and she said, “Sure, go ahead.” Deputy Saenz had defendant and the two small children get out of the Ford. As Deputy Saenz placed defendant in the back seat of his patrol car, she told him she was on parole for drug sales. Deputy Saenz found methamphetamine in a Ziplock baggie in the interior front door handle area on the driver’s side. Deputy Saenz arrested defendant. Deputy Saenz advised defendant of her rights. She said she understood. She told Deputy Saenz, “[S]he forgot the methamphetamine was in the vehicle and that she purchased it from a guy in El Monte earlier that day.” Defendant told Deputy Saenz it was for personal use. From the time the traffic stop was initiated to the time defendant was arrested, 7 to 10 minutes elapsed.
When cross-examined, Deputy Saenz explained that he had seen the Ford or one that looked like it parked at a “known narcotics location” in the Covina area on several different occasions. Deputy Saenz further testified that when he passed defendant’s Ford going in the opposite direction, he could not see in the front windshield because it was a dark evening. All the windows looked dark. But he could see that the windows were tinted. Deputy Saenz could see that the front windshield was not tinted; it was a lot clearer than the others. But, as he passed by, Deputy Saenz really could not tell how dark a tint was on the side windows. Deputy Saenz’s intent when he stopped the vehicle was to investigate how dark the windows were and for narcotics.
Defendant testified that when Deputy Saenz stopped her, he asked whether she was on probation or parole. She said she did not know; she was not sure. Later, she learned she was not on probation or parole. Deputy Saenz asked her to exit the vehicle. He made defendant and the children sit on the curb while he sat in his patrol car for a while looking at his computer. Then he said he was going to search the car. On cross-examination, defendant admitted it was possible she was confused and told Deputy Saenz she was on parole. She did tell Deputy Saenz there was nothing illegal in the Ford; she did not know the methamphetamine was in the car. She had no idea how it got there. It was near the door handle. She thought it had been there all day. She testified: “I told [Deputy Saenz] I didn’t know where—I mean, I didn’t even know it was there. I just told him I bought it off a $2 hooker from El Monte because he just wanted an answer, so I just told him that. I don’t remember purchasing it. I just don’t remember it being there.” Defendant was on parole in 1999 for methamphetamine sales. But in this instance she possessed it for use, not for sale. Upon questioning by the trial court, defendant testified the “dope in the door handle” belonged to her, but she did not remember where she got it.
Defense counsel argued: tinted windows were not a proper basis for a traffic stop; Deputy Saenz pulled defendant over for tinted windows; Deputy Saenz failed to articulate on the record any facts demonstrating the tinted windows were illegal; and it was too dark out for Deputy Saenz to determine the darkness of the tint on the windows. The trial court found defendant was not credible. The trial court further concluded the traffic stop was valid and denied defendant’s suppression motion.
III. DISCUSSION
A. The Suppression Motion
In reviewing a ruling denying a suppression motion, we defer to the trial court’s factual findings, when supported by substantial evidence, and view the record in the light most favorable to the challenged ruling. (People v. Ramos (2004) 34 Cal.4th 494, 505; People v. Weaver (2001) 26 Cal.4th 876, 924.) The power to judge credibility, weigh the evidence, and draw reasonable inferences is vested in the trial court. (People v. Monterroso (2004) 34 Cal.4th 743, 758; People v. James (1977) 19 Cal.3d 99, 107.) We exercise our independent judgment to determine whether, on the facts found, the search and seizure was reasonable under the Fourth Amendment. (People v. Memro (1995) 11 Cal.4th 786, 846; People v. Loewen (1983) 35 Cal.3d 117, 123.)
A car may be stopped when the facts and circumstances known to an officer support a reasonable suspicion of a Vehicle Code violation. (People v. Durazo (2004) 124 Cal.App.4th 728, 731; People v. Miranda (1993) 17 Cal.App.4th 917, 926.) Generally, it is unlawful to tint vehicle windows so as to obstruct or reduce the driver’s visibility. (Veh. Code, § 26708, subd. (a)(2).) Prior to its amendment in 2008, Vehicle Code section 26708, subdivision (a) stated: “(1) No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows. [¶] (2) No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver’s clear view through the windshield or side windows.” Not all tinted windows are illegal. (See Veh. Code, §§ 26708, 26708.5; People v. Niebauer (1989) 214 Cal.App.3d 1278, 1284-1291; People v. Butler (1988) 202 Cal.App.3d 602, 606-607; United States v. Wallace (9th Cir. 2000) 213 F.3d 1216, 1220.) However, an officer may stop a motorist based on a reasonable suspicion the vehicle’s windows are illegally tinted. (People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 8-10; see People v. Niebauer, supra, 214 Cal.App.3d at pp. 1292-1293 & fn. 10; United States v. Wallace, supra, 213 F.3d at pp. 1219-1221.) When a law enforcement officer observes darkly tinted windows and is unable to see the occupants, probable cause to believe the vehicle is in violation of state law restricting tinted windows of certain degree is established. A law enforcement officer may then stop the car in order to investigate. (People v. Hanes, supra, 60 Cal.App.4th Supp. at p. 10; see United States v. Wallace, supra, 213 F.3d at pp. 1219-1221; People v. Niebauer, supra, 214 Cal.App.3d at pp. 1292-1293 & fn. 10.)
On appeal, defendant argues: “Because not all tinted windows are unlawful,... under the circumstances of the case at hand,... the investigative stop of [defendant] was unreasonable since there were no facts in the record to suggest that [Deputy] Saenz had a reasonable suspicion that the windows in the Ford were made of illegally tinted, rather than legally tinted, safety glass (People v. Butler[, supra, ] 202 Cal.App.3d 602; Health and Saf. Code [sic] secs. 26708 and 26708.5 (b).)” We conclude the suppression motion was properly denied. Deputy Saenz stopped the Ford defendant was driving based on observed facts that reasonably led him to believe its window tinting violated the Vehicle Code. Deputy Saenz passed defendant’s Ford traveling at a relatively slow rate of speed. He observed that the window tinting was so dark he could not see into the Ford. Although it was a dark evening, he could see that the side and rear windows were darker than the windshield. People v. Butler, supra, 202 Cal.App.3d at page 607, does not compel a different result. Butler held a detention for tinted windows was unlawful where the officer failed to articulate facts suggesting the tinted glass was illegal. (Id. at p. 607; see People v. Hanes, supra, 60 Cal.App.4th Supp. at pp. 9-10.) Here, Deputy Saenz articulated such facts.
B. Drug Program Fee
The trial court was required to impose a drug program fee under Health and Safety Code section 11372.7, subdivision (a) in an amount up to $150 provided it found defendant had the ability to pay the fee. (Health & Saf. Code, § 11372.7, subd. (b); People v. Martinez (1998)65 Cal.App.4th 1511, 1516; People v. Clark (1992) 7 Cal.App.4th 1041, 1050.) No express ability to pay finding is required. (People v. Martinez, supra, 65 Cal.App.4th at p. 1516; People v. Staley (1992) 10 Cal.App.4th 782, 785.) On a silent record, we presume the trial court found the defendant had the ability to pay. (People v. Walz (2008) 160 Cal.App.4th 1364, 1371; People v. Clark, supra, 7 Cal.App.4th at p. 1050.) Here, the trial court imposed a “$100 fee for drug treatment and testing.” We construe that order as imposed under Health and Safety Code section 11372.7, subdivision (a). We presume the trial court determined defendant had the ability to pay that fee. However, the drug program fee is a fine. (People v. Martinez, supra, 65 Cal.App.4th at p. 1522; People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1696.) Because it is a fine it is subject to additional assessments, surcharge, and penalties. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257; see People v. Sierra, supra, 37 Cal.App.4th at pp. 1694-1696.) Specifically, the $100 drug program fee is subject to the following: a $100 section 1464, subdivision (a)(1) penalty assessment; a $70 Government Code section 76000, subdivision (a)(1) penalty assessment; a $20 Government Code section 76000.5, subdivision (a)(1) penalty assessment; a $20 state surcharge under Penal Code section 1465.7, subdivision (a); a $30 Government Code section 70372, subdivision (a)(1) state court construction penalty (the amount payable in Los Angeles County); a $10 deoxyribonucleic acid penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and a $10 deoxyribonucleic acid state-only penalty under Government Code section 76104.7, subdivision (a). Upon remittitur issuance, the trial court is to determine whether defendant has the ability to pay the Health and Safety Code section 11372.7, subdivision (a) drug program fee in light of all the financial circumstances and the additional assessments, fees, the surcharge, and penalties we have noted are due. (People v. Castellanos, supra, 175 Cal.App.4th at pp. 1531-1533.)
C. Criminal Laboratory Analysis Fee
Because defendant was convicted of a violation of Health and Safety Code section 11377, the trial court was required to impose a $50 Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee. (People v. Turner (2002) 96 Cal.App.4th 1409, 1414; People v. Martinez, supra, 65 Cal.App.4th at p. 1519.) The failure to impose a criminal laboratory analysis fee was jurisdictional error subject to correction on appeal. (People v. Martinez, supra, 65 Cal.App.4th at p. 1519.) Further, the criminal laboratory analysis fee is a fine. (People v. Martinez, supra, 65 Cal.App.4th at p. 1522; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.) Therefore, the criminal laboratory analysis fee is subject to additional assessments, a surcharge, and penalties. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Castellanos, supra, 175 Cal.App.4th at p. 1528.) And this court may correct the omission even though the issue is raised for the first time on appeal. (People v. Talibdeen, supra, 27 Cal.4th at p. 1157; People v. Stone (1999) 75 Cal.App.4th 707, 717-718; People v. Terrell, supra, 69 Cal.App.4th at pp. 1256-1257.) The $50 criminal laboratory analysis fee is subject to the following: a $50 section 1464, subdivision (a)(1) penalty assessment; a $35 Government Code section 76000, subdivision (a)(1) penalty assessment; a $10 Government Code section 76000.5, subdivision (a)(1) penalty assessment; a $10 state surcharge under Penal Code section 1465.7, subdivision (a); a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty (the amount payable in Los Angeles County); a $5 deoxyribonucleic acid penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and a $5 deoxyribonucleic acid state-only penalty under Government Code section 76104.7, subdivision (a). Thus, the sum owed by defendant in addition to the criminal laboratory analysis fee is $130. Health and Safety Code section 11372.5, subdivision (a) has no ability to pay requirement. Thus, the judgment must be modified to add the laboratory fee and the additional sums we have noted must be imposed. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects the modifications to the judgment we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan ((2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The drug program fee is reversed. Upon remittitur issuance, the trial court is to make an ability to pay determination in light of all of defendant’s financial circumstances including the total sums payable as a result of his conviction. If defendant does have the ability to pay, the drug program fee is to be reinstated with the additional assessments, the surcharge, and penalties. The judgment is modified to additionally impose the $50 Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee plus: a $50 section 1464, subdivision (a)(1) penalty assessment; a $35 Government Code section 76000, subdivision (a)(1) penalty assessment; a $10 Government Code section 76000.5, subdivision (a)(1) penalty assessment; a $10 state surcharge under Penal Code section 1465.7, subdivision (a); a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty; a $5 deoxyribonucleic acid penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and a $5 deoxyribonucleic acid state-only penalty under Government Code section 76104.7, subdivision (a). The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.