Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF116920A, Jerold L. Turner, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Dawson, J.
Pursuant to a plea agreement, appellant Gregory P. Gutierrez, Jr. pled no contest to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The court suspended imposition of sentence and placed appellant on three years’ probation, one of the conditions being that he serve one year in county jail. The court also ordered that appellant pay, inter alia, a criminal laboratory analysis fee of $50 (Health & Saf. Code, § 11372.7) plus a $130 penalty assessment, and a drug program fee (Health & Saf. Code, § 11372.7) of $100 plus a $260 penalty assessment.
Prior to entering his plea, appellant made a so-called Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) for discovery of police personnel records of a police officer involved in appellant’s arrest. After holding an in camera hearing on the motion, the court ordered disclosure of some information. Thereafter, also prior to entering his plea, appellant made, and the court denied, a motion to suppress evidence (Pen. Code, § 1538.5).
On appeal, appellant contends the court erred in denying appellant’s suppression motion and in failing to specify the statutory bases for the penalty assessments imposed, and asks this court to review the sealed transcript of the in camera hearing on appellant’s Pitchess motion to determine whether the trial court abused its discretion by not ordering disclosure of information which it should have ordered disclosed. We will direct the trial court to identify the statutory bases for the penalty assessments imposed, and in all other respects affirm.
Except as otherwise indicated, our factual statement is taken from the testimony of City of Bakersfield Police Officer Dennis Eddy’s at the hearing on appellant’s suppression motion.
On South H Street in Kern County, at the intersection with White Lane, there are four lanes for travel in the northbound direction. The lane on the far left is designated for left turns or U-turns only, the lane directly to the right of that lane is designated for left turns and for going straight and the two lanes to the right of that lane are designated for going straight only.
At approximately 3:00 a.m. on November 13, 2006 (November 13), Officer Eddy and City of Bakersfield Police Officer Jason Townsend were in a patrol car, stopped at a traffic signal in the northbound straight-only lane immediately to the right of the left-turn/straight lane on South H Street, when they observed the following. There was a silver Honda automobile, stopped at the traffic signal light in the northbound left-turn/straight lane on South H, “slightly” ahead of the patrol car. There were no vehicles in front of the Honda, there was a vehicle directly behind it and there was a vehicle in the turn lane to the left of the Honda. When the light turned green, the Honda proceeded into the intersection and then made an “abrupt” left turn onto White Lane followed by an “immediate” right turn into a convenience store/gas station parking lot, where the driver parked the Honda next to a gas pump. The driver did not signal either turn.
Officer Eddy activated the overhead lights on his patrol car, turned around, pulled into the parking lot and made “contact” with the driver, whom Officer Eddy identified as appellant. Officer Eddy explained to appellant he was stopping him for violating Vehicle Code section 22107 (section 22107). Appellant appeared to be “extremely nervous.” Officer Eddy “asked [appellant] for consent to pat him down for weapons.” Appellant responded, “Go ahead.” Officer Eddy conducted a pat-down search and found a “glass methamphetamine smoking pipe” in appellant’s right rear pants pocket. Thereafter, a search of the Honda was conducted, during which Officer Townsend found a digital gram scale and a plastic bag containing “a large quantity of methamphetamine.”
Section 22107 provides: “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.”
When asked what the vehicle behind the Honda looked like, Officer Eddy responded, “I don’t remember the car. I just remember there being a car there ….”
Officer Townsend also testified. His testimony substantially corroborated Officer Eddy’s testimony as to the events of November 13, although Officer Townsend testified the events he observed that day occurred at approximately 1:30 a.m. When asked if he could “describe the type of car” that was behind appellant’s car as appellant made the left turn, Officer Townsend answered, “No, I could not.”
Appellant testified to the following. At approximately 1:33 a.m. on November 13, he made a left turn from South H onto White Lane, followed by a right turn into a gas station driveway. As he made the left turn, there were no cars in his lane behind him and no cars in the lane to his left. After pulling up to a gas pump, appellant got out of his car. One of the police officers, as he approached appellant, directed appellant to put his hands on the car, “[a]nd then he started patting [appellant] down.” At no time did appellant consent to the officer searching him.
DISCUSSION
Pitchess Motion
Appellant, prior to entering his plea, brought a Pitchess motion requesting personnel records of Officer Eddy “including, but not limited to[,]” records concerning “complaints from jail inmates or citizens regarding acts indicating or constituting dishonesty or false statements [by Officer Eddy], and/or fabrication of charges or evidence by [Officer Eddy].” The People, in their responsive papers, conceded that appellant had made a “sufficient showing . . . to justify an in-camera review of citizen complaints for dishonesty against [Officer Eddy].” Thereafter, records were delivered to the clerk of the superior court consisting of, according to the accompanying declaration of Bakersfield Police Lieutenant William Bailey, Officer Eddy’s “entire personnel file,” including “all citizen complaint(s) against [Officer Eddy]; and the written investigation(s) triggered by said complaint(s) at hearings triggered by motions for Pitchess discovery.” The court examined these records at an in camera hearing, after which the court issued an order, which has remained sealed, that the Bakersfield City Attorney’s Office disclose to defense counsel names, addresses and telephone numbers of certain persons identified at the in camera review.
Appellant has asked this court to review the sealed transcript of the in camera hearing to “determine whether the trial court abused its discretion in refusing to disclose any of the information in the police personnel files.” The People concede such review is proper. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have conducted an independent review of the record of the in camera hearing, and based on that review conclude there was no abuse of discretion.
Suppression Motion
Appellant contends the court erred in denying his suppression motion. Specifically, he argues that Officers Eddy and Townsend illegally detained him, evidence was discovered and seized as a result of this detention and therefore such evidence should have been suppressed.
The Fourth Amendment to the United States Constitution prohibits seizures of persons, including brief investigative detentions, when they are “‘unreasonable.’” (People v. Souza (1994) 9 Cal.4th 224, 229.) In order to pass constitutional muster, a detention must be “based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity.” (Id. p. 230.) Thus, as specific to a vehicle stop, “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 People have the burden to prove the detention was justified.” (People v. Benites (1992) 9 Cal.App.4th 309, 320.) In reviewing the denial of a suppression motion, “We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, 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.)
In determining whether a factual finding is supported by substantial evidence, “[t]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “[W]e do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact.” (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) “‘“To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.”’” (People v. Barnes (1986) 42 Cal.3d 284, 306.)
As indicated above, a driver who makes a turn but does not signal the turn does not commit a violation of section 22107 unless “any other vehicle may be affected by the [turn].” (§ 22107.) The major premise of appellant’s challenge to the denial of his suppression motion is, as also indicated above, the claim that he was illegally detained. That claim is based, in turn, on the claim that the People did not establish there was another vehicle that could have been affected by his left turn because there was “no credible evidence” there was a car behind him when he made that turn. As a result, appellant argues, the People failed to establish Officers Eddy and Townsend harbored a reasonable suspicion appellant committed a violation of section 22107.
Appellant acknowledges that both officers testified there was a car behind appellant’s car but, appellant contends, that testimony was “patently unbelievable” because (1) the presence of this other car was not mentioned in the police report prepared by Officer Eddy; (2) as Officer Eddy acknowledged at the hearing on the suppression motion, at the preliminary hearing he testified he had reviewed his report and determined there was neither anything “wrong” in it nor anything he “forgot to mention”; and (3) at the hearing on the suppression motion, neither officer could describe the car that was behind appellant’s car.
Preliminarily, we note that the police report was not admitted into evidence at the hearing on the suppression motion, and our review of the denial of the suppression motion is limited to the evidence before the court at that hearing. (People v. Fiscalini (1991) 228 Cal.App.3d 1639, 1644, fn. 5.) However, even if we consider the police report, and its failure to state that there was a car directly behind appellant’s car, appellant’s argument fails. Appellant, in essence, asks that we reweigh the evidence. This, as indicated above, we may not do. Both officers testified there was a car behind appellant’s car; the truth of this testimony was not a physical impossibility; and there is no dispute appellant failed to signal. Therefore, substantial evidence supports the inferences that appellant made a left turn, he did not signal the turn and there was another vehicle that could have been “affected” (§ 22107) by the turn. These inferences, in turn, support the conclusion that appellant violated section 22107 and that therefore his detention was unlawful. Thus, the major premise of appellant’s challenge to the denial of the suppression motion, and with it the challenge itself, fail.
A copy of Officer Eddy’s report was attached to appellant’s Pitchess motion. Its account of the events of November 13 contains no mention of any vehicles other than appellant’s car and the officers’ patrol car.
Penalty Assessments
As indicated above, the court imposed penalty assessments as follows: $130 on the $50 criminal laboratory analysis fee and $260 on the $100 drug program fee. However, the court failed to specify the statutory bases for the components of the penalty assessments. This failure, appellant argues, was error.
Appellant bases this claim on People v. High (2004) 119 Cal.App.4th 1192. In that case, the court remanded with directions that the trial court, inter alia, “separately list, with the statutory basis, all fines, fees and penalties imposed” and prepare an amended abstract of judgment reflecting this and other modifications to the judgment ordered. (Id. at p. 1201, italics added.) The court explained: “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.] … At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee, ... the fee must be included in the abstract of judgment. [Citation.] … ‘[A] fine is … is part of the judgment which the abstract must “‘digest or summarize.’” [Citations.]’” (Id. at p. 1200.)
While there is no abstract of judgment in the instant case, the court’s order placing appellant on probation is the functional equivalent (Pen. Code, § 1213), and at least a portion of the rationale set forth in High still applies, viz., “the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts.” (People v. High, supra, 119 Cal.App.4th at p. 1200.)
The People, relying on People v. Scott (1994) 9 Cal.4th 331, argue that appellant has waived this issue by failing to raise it below. We disagree. The court in Scott held that a criminal defendant cannot challenge for the first time on appeal a trial court’s “failure to properly make or articulate its discretionary choices.” (Id. at p. 353, italics added.) The penalty assessments provided in various statutes are mandatory. (Pen. Code, § 1464, subd. (a), Gov. Code, §§ 76000, subd. (a), 76104.6, 76104.7, 70372.) Without a specification of the statutory bases for the penalty assessments, it cannot be determined whether the court fulfilled it duty to impose these mandatory assessments. And, we reiterate, High makes clear that the specification requirement is for the benefit of state and local agencies. Accordingly, we will remand with directions that the trial court state the statutory bases for the component parts of the penalty assessments.
Except as otherwise indicated, all further statutory references are to the Government Code.
Each of the applicable penalty assessment statutes of which we are aware contains a formula for computing the assessment. When we apply those formulas, it appears likely that the total $130 penalty assessment consists of individual assessments in the amounts of $50 (Pen. Code, § 1464, subd. (a), $35 (§ 76000, subd. (a)), $5 (§ 76104.6), $5 (§ 76104.7), $25 (§ 70372, subd. (a)) and $10 (Pen. Code, § 1465.7), and that the $260 assessment consists of double each of these amounts. We are tempted to simply direct that the court’s probation order be amended to so indicate. However, some penalty assessments vary from county to county. (People v. Taylor (2004) 118 Cal.App.4th 454, 460.) For example, the court facilities construction penalty (§ 70372, subd. (a)) must be reduced under circumstances that vary from county to county. (§ 70375; People v. Taylor, supra, 118 Cal.App.4th at p. 460.) We are unable to determine whether the circumstances which lead to reduction of this assessment apply, and thus whether the amount apparently assessed pursuant to section 70372, subdivision (a) is correct. Therefore, remand is appropriate. (People v. Taylor, supra, 118 Cal.App.4th at p. 460.)
DISPOSITION
The matter is remanded and the court is directed to identify the statutory bases of all penalty assessments imposed. In all other respects, the judgment is affirmed.