Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F01225
ROBIE, J.
In this cocaine possession case, defendant Robert Lee Harris contends the initial traffic stop that lead to his arrest violated the Fourth Amendment to the United States Constitution, and therefore the trial court erred in denying his suppression motion. He argues the vehicle in which he was a passenger displayed a valid indicia of current registration -- a temporary operating permit -- and accordingly, the police had no reasonable grounds to justify the traffic stop based on expired registration. Defendant also contends he is entitled to 10 additional days of presentence credits.
Finding the traffic stop was lawful, we will affirm the judgment. As to the presentence credit, we will direct the trial court to correct the abstract of judgment to properly reflect 222 days instead of 212 days of credit.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of February 14, 2008, Officers Kevin Griffin and George Singewald of the Sacramento Police Department got behind a 1991 Geo Storm hatchback while driving their unmarked police car. The officers saw expired registration tags on the Geo’s license plate. Officer Singewald, a 10-year police veteran riding as a passenger in the police car, did not observe a temporary operating permit on the back windshield. They then radioed the police dispatcher to conduct a license plate records check, which revealed the registration had expired as of August 2007. There was no additional suspicion of criminal activity other than the suspected vehicle registration infraction. Believing the vehicle was being operated unlawfully, the officers conducted a traffic stop and pulled the Geo over to the side of the road.
The record is void of testimony from Officer Griffin regarding a temporary operating permit. This was not a factual issue at trial, and Officer Griffin was not called as a witness at the suppression hearing, so the record lacks his testimony about the circumstances prior to the traffic stop.
The information the police dispatcher reviews during the vehicle license plate check is called a computer automated data report.
While Officer Griffin contacted the driver, Beverly Ann Sykes, Officer Singewald approached defendant, who was seated in the front passenger seat, and asked defendant to step out of the car. When defendant said he was on active parole, Officer Singewald searched him and arrested him for carrying cocaine in his front pants pocket.
Defendant was charged with felony possession of cocaine base. At trial, defendant made an oral motion to suppress evidence because he claimed to have received new information that Sykes’s Geo displayed valid registration at the time of the traffic stop. To avoid delay of the jury trial, the court scheduled the hearing to take place after the verdict. The jury ultimately found defendant guilty of cocaine possession.
Defendant and the People both agree the trial court properly allowed defendant’s motion to suppress to be brought after trial had commenced because defendant’s motion rested on information not available before trial and discovered during the proceedings. (See Pen. Code, § 1538.5, subd. (h).)
On June 20, 2008, the court heard defendant’s motion to suppress evidence on the issue of whether the traffic stop was illegal. At the hearing, Officer Singewald testified that in addition to the records check with the police radio dispatcher revealing the Geo had expired registration, it also indicated the vehicle was “pending master file record.” He testified that pending master file record status means it is “in the process of being registered to somebody else,” but pending registration “still means it’s expired.”
Officer Singewald further testified that when a vehicle has an expired registration tag on the license plate, a temporary operating permit must be displayed on the vehicle. He initially testified he “did not recall seeing [a temporary permit]” on the back window of Sykes’s vehicle, but later stated he did not see one. Sykes, on the other hand, testified she had a red and white temporary registration permit displayed on the back window of her Geo when she was pulled over. However, Sykes failed to present the actual temporary permit or a copy of the permit, or demonstrate in some manner other than her testimony that she had been issued a temporary permit for her vehicle. Both parties agreed the Geo’s license plate showed expired registration tags.
Defendant, it appears, had an investigator at one point go to the Department of Motor Vehicles to obtain a printout of the temporary permit at issue. At the hearing, there was confusion as to what documents the investigator actually gave to the parties and the investigator appears not to have shown up at the hearing, even though he was issued a subpoena. In any event, defendant was given an opportunity to put the proceedings over for the investigator to testify, but defendant did not want this and the hearing continued without the investigator.
The court denied defendant’s motion to suppress the evidence, stating there was “sufficient evidence to believe that this is a legal stop based on there not being legal registration displayed.” At the subsequent sentencing hearing on July 10, the court granted defendant 212 days of presentence credit by adding together his actual days in custody and his conduct -- good time/work time -- credit. According to the court, defendant earned 148 days of credit from the date of arrest, February 14, to the date of sentencing, July 10. Furthermore, based on these days, defendant earned 74 days of conduct credit.
DISCUSSION
I
Vehicle Registration
Defendant contends the trial court erred in denying his motion to suppress evidence of cocaine possession because the officers had no reasonable suspicion the Geo was in violation of vehicle registration laws.
“Pursuant to article I, section 28[, subd. (f)(2)], of the California Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution.” (People v. Banks (1993) 6 Cal.4th 926, 934.) “In ruling on a motion to suppress, the trial court finds the historical facts, then determines whether the applicable rule of law has been violated.” (People v. Hernandez (2008) 45 Cal.4th 295, 298.) In reviewing the trial court’s resolution, we “defer to the trial court’s factual findings, express or implied, where supported by substantial evidence.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) In determining whether the search or seizure was reasonable under the Fourth Amendment, “we exercise our independent judgment.” (Ibid.)
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 20 [20 L.Ed.2d 889, 905].) “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) 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. Wells (2006) 38 Cal.4th 1078, 1082–1083.) An officer may effect a traffic stop if based on reasonable suspicion that vehicle registration laws have been violated. (See People v. Hernandez, supra, 45 Cal.4th at pp. 300-301; People v. Saunders (2006) 38 Cal.4th 1129, 1136.) A passenger in a vehicle is seized within the meaning of the Fourth Amendment during a traffic stop. (Brendlin v. California (2007) 551 U.S. 249, 263 [168 L.Ed.2d 132, 143].)
Here, the parties dispute whether the vehicle actually displayed a temporary operating permit. A vehicle is being operated legally despite an expired registration tab on the rear license plate if a valid temporary operating permit is correctly displayed. (Veh. Code, §§ 4156, 5202.) As the Supreme Court has explained, the question for us is not whether Sykes’s vehicle was in fact in full compliance with the law at the time of the stop, but whether Officer Singewald had “‘“articulable suspicion”’” it was not. (People v. Saunders, supra, 38 Cal.4th at p. 1136, citing People v. Celis (2004) 33 Cal.4th 667, 674.)
Although the Vehicle Code does not expressly require a temporary operating permit be displayed on the rear window -- as opposed to other locations on the vehicle -- it does indicate a sticker, sign, or other material shall be displayed in the lower right or left corner of the windshield or right-hand corner of the rear window, depending on its size. (Veh. Code, § 26708, subd. (b)(3).) As gleaned from the record, the preferred location for a temporary operating permit is the rear window.
Vehicle Code section 4156, subdivision (a), provides in pertinent part: “Other provisions of this code notwithstanding,... the department in its discretion may issue a temporary permit to operate a vehicle when a payment of fees has been accepted in an amount to be determined by, and paid to the department, by the owner or other person in lawful possession of the vehicle. The permit shall be subject to the terms and conditions, and shall be valid for the period of time, that the department shall deem appropriate under the circumstances.”
Vehicle Code section 5202 provides in pertinent part: “Every license plate... shall remain attached during the period of its validity to the vehicle for which it is issued while being operated... and no person shall operate... any vehicle unless the license plate is so attached. Special permits issued in lieu of plates shall be attached and displayed on the vehicle for which issued during the period of their validity.”
Defendant contends there was a valid temporary operating permit displayed on the slanted rear window of the Geo hatchback. At the suppression hearing, however, Officer Singewald testified he did not see a temporary operating permit. Sykes’s testimony that she had a permit displayed on the rear window of the vehicle directly contradicted Officer Singewald’s testimony.
To the extent defendant’s contention that the vehicle displayed a temporary operating permit challenges the trial court’s findings of fact, it is not cognizable on appeal. The trial court found Officer Singewald’s testimony that he saw no temporary operating permit credible. Furthermore, the trial court noted there was “competent evidence” missing of whether the temporary permit was actually there. Only Sykes testified it was. Thus, when defendant contends the officers “failed to see the temporary registration sticker,” he asks us in effect to take his assertion as true, even though the trial court found otherwise. We cannot do so because the trial court’s finding is supported by substantial evidence, and we are bound by it. (People v. Hoyos (2007) 41 Cal.4th 872, 891.)
On the ultimate question of whether the traffic stop was lawful, the Fourth Amendment requires an articulable and reasonable suspicion of a Vehicle Code violation. (People v. Hernandez, supra, 45 Cal.4th at pp. 300-301.) Defendant cites People v. Nabong (2004) 115 Cal.App.4th Supp. 1 for the notion that under the facts known to Officer Singewald, the stop was unreasonable because he had a duty to investigate further by searching “more thoroughly for a temporary registration sticker or to question the driver about it” when he did not observe one displayed on the vehicle.
In Nabong, a police officer stopped the defendant in his vehicle after noticing an expired registration tag on the vehicle’s license plate. (People v. Nabong, supra, 115 Cal.App.4th at p. Supp. 2.) The officer also observed a temporary operating permit for the current month on the rear window, but continued with the traffic stop because in his experience about half of the temporary stickers on vehicles he had stopped were invalid. (Id. at p. Supp. 3.) In finding the officer violated the defendant’s Fourth Amendment rights, the court held that if an officer sees a valid temporary registration permit displayed on a vehicle, the officer has no grounds to effect a traffic stop absent some other reasonable suspicion of criminal activity. (Id. at pp. Supp. 1, 4.)
Defendant’s effort to analogize Nabong to the present case is unpersuasive. Here, unlike in Nabong where the officer deliberately rejected the significance of a temporary permit and stopped the vehicle to verify its validity, Officer Singewald did not see a temporary permit displayed on the Geo. Officer Singewald’s suspicion of expired registration was supported by the radio dispatcher’s confirmation that Sykes’s registration was “pending master file record.” Officer Singewald testified this term means it is in the process of being registered to somebody else, but it “still means it’s expired.” Whether one construes “pending master file record” to mean that Sykes’s registration was pending as defendant asserts or expired as Officer Singewald presumes, Sykes was still required to display a temporary operating permit since her license plate registration tag was expired. (Veh. Code, §§ 4156 subd. (a), 5202.) She did not. Accordingly, defendant’s argument it was unreasonable for Officer Singewald to not take additional steps to find the temporary permit or inquire as to its whereabouts is not supported by the law.
Here, the facts are more analogous to In re Raymond C. (2008) 45 Cal.4th 303, which the People cite as presenting a similar question. In that casethe officer did not see a temporary operating permit or license plates displayed while he drove behind the defendant. (In re Raymond C., at p. 305.) There was, however, a temporary operating permit in the front window, which he could not see from his vantage point. (Ibid.) The officer conducted a traffic stop because the vehicle did not have license plates, an apparent violation of the Vehicle Code, which requires either valid license plates or a valid temporary permit be displayed. (See Ibid; Veh. Code, §§ 5200, 5201.) The court held the officer’s conduct did not violate the Fourth Amendment because it was reasonable for him to stop the car without maneuvering around it to look for a permit, when he did not see a temporary permit in the rear window. (Id. at pp. 307-308.)
Similar to In re Raymond C., the record here shows Officer Singewald did not see a temporary operating permit on defendant’s vehicle because one was not displayed. While it is evident Officer Singewald did not search the vehicle for a permit or ask the occupants if there was one, the Fourth Amendment does not require this, contrary to what defendant asserts. He was under no duty to investigate further why a temporary permit was not displayed on the vehicle when he did not see one and he performed a records check indicating the registration was “pending master file record” before executing the stop. Accordingly, the stop was lawfully justified because Officer Singewald had reasonably articulable suspicion of a vehicular registration infraction.
So far as defendant challenges what occurred after the initial stop, he misses the point. Once an officer makes a valid traffic stop, the Fourth Amendment is not violated if the officer orders the vehicle’s occupants to exit the car. (Maryland v. Wilson (1997) 519 U.S. 408, 410, 415 [137 L.Ed.2d 41, 45, 48].) Here, Officer Singewald asked defendant to step out of the car and questioned him about his parole, which eventually led to the discovery of cocaine. This, of course, occurred after the legal traffic stop had already taken place. Therefore, under the circumstances, the People met their burden to justify the officer’s actions in initiating the traffic stop and defendant failed to show in response the justification was inadequate. (See People v. Smith (2002) 95 Cal.App.4th 283, 296.)
We conclude the facts in this case substantially support Officer Singewald’s reasonable suspicion the car was being driven in violation of vehicular registration requirements and for that reason the subsequent traffic stop conformed to the Fourth Amendment. This conclusion is sufficient to affirm the trial court’s denial of defendant’s motion to suppress.
II
Presentence Custody Credit
Defendant next contends his sentence should be credited with 10 days of presentence credit. Defendant asserts the trial court miscalculated when adding 148 custody credits to 74 conduct credits. Indeed, the People concede this issue and we agree defendant should be awarded 10 additional days.
“In all felony and misdemeanor convictions,... when the defendant has been in custody,... all days of custody of the defendant... shall be credited upon his... term of imprisonment....” (Pen. Code, § 2900.5, subd. (a).) The sentencing court is obligated to “determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section.” (Id., subd. (d).) A sentencing court’s computational error resulting in an unauthorized sentence can be corrected at any time. (People v. Guillen (1994) 25 Cal.App.4th 756, 764.)
Here, the record shows the trial court simply committed a clerical error and miscalculated defendant’s credits. Defendant’s presentence custody credits amounted to 148 days, which is derived from the date he was arrested on February 14, 2008, to his sentencing hearing on July 10, 2008. Based on these credits, the trial court correctly determined defendant was entitled to 74 days of conduct credit. (Pen. Code, § 4019.) However, when adding 148 and 74 together, the trial court miscalculated the credits to equal 212 days. Defendant should have been awarded 222 days of custody and conduct credits.
Pursuant to Penal Code section 4019, 148 days is equal to 37 sets of 4 days. For these 37 sets, defendant is entitled to 74 days of conduct credit -- 37 for labor (work time) and 37 for compliance with rules and regulations (good time). (People v. Smith (1989) 211 Cal.App.3d 523, 527.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect 222 days of presentence custody and conduct credits and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON Acting P. J., BUTZ , J.