Opinion
NOT TO BE PUBLISHED
Santa Clara County, Super. Ct. No. CC755220
Bamattre-Manoukian, J.
After his motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant Rick Henry Kase pleaded no contest to possession of a cane sword (§ 12020, subd. (a)(1)) and admitted that he had three prior strikes (§ 1170.12) and had served five prior prison terms (§ 667.5, subd. (b)). The trial court struck two of the prior strikes and sentenced defendant to 11 years in state prison.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that the trial court erred in denying his motion to suppress. Defendant was a passenger in a vehicle that was stopped for violating Vehicle Code section 27465 by having insufficient tire tread. He contends that the traffic stop was not supported by reasonable suspicion. We find that the traffic stop was not supported by reasonable suspicion that the driver had violated the law, and we will reverse the judgment.
BACKGROUND
After defendant waived a preliminary hearing, he was charged by first amended information with possession of a cane sword (§ 12020, subd. (a)(1)). The information further alleged that defendant had three prior strikes (§ 1170.12) and that he had served five prior prison terms (§ 667.5, subd. (b)). He filed a motion to suppress evidence (§ 1538.5), contending that the evidence supporting the section 12020, subdivision (a)(1) charge was obtained as a result of an unlawful detention. The prosecutor filed opposition to the motion, contending that the officer lawfully detained defendant based on reasonable suspicion. San Jose Police Officer Macedonio Zuniga, the sole witness at the June 8, 2007 hearing on the motion, testified as follows.
On the evening of January 20, 2007, the officer was on routine patrol in a marked patrol car, a Chevy Tahoe SUV. Around 6:50 p.m., he was stopped at the stop light at the intersection of Alum Rock and White Road, heading east. It was dark but the streetlights were on and there was additional lighting from the vehicles and businesses in the area. Stopped next to and slightly ahead of the patrol car on the left was a white 1980s Toyota Camry.
The officer looked over his left shoulder and did “a good visual on” the Camry. He saw that defendant, the passenger, had tattoos on his neck. Looking down, he could clearly see one of the Camry’s rear tires, although he could not see the rear of the car. He noticed that the tire looked like it “had some wear” “around the edges.” He could see “some tread”; the tire was “not completely bald.” He knows that Vehicle Code section 27465 requires that tires used on a highway have a tread of at least one thirty-second of an inch, but he would not be able to determine whether this tire had that much tread without getting out and inspecting it. He has made more than five vehicle stops in his career based only on bald tires, and based on that experience he thought that this tire “was iffy. It could go either way.” “It was borderline, it could go either way, whether it was, you know, in clear violation of the Vehicle Code section or whether it just was, you know, barely legal.” He felt that he needed to make a further investigation before he could determine whether he needed to write a “fix-it ticket” or to just give the driver a warning.
The officer did not recognize either defendant or the female driver of the Camry. Nor did he suspect that they were doing anything illegal. The Camry pulled in front of the officer when the two lanes merged into one, and the officer followed the car for about two blocks. He could not see the tire tread depth while the Camry was moving forward. He initiated his patrol car’s emergency equipment and the Camry immediately pulled over. The officer contacted the driver, and asked her for her license, registration, and proof of insurance. She said that she did not have a license. She explained that she was driving as defendant was unable to drive because he had a cast on his foot. The officer looked over and saw that defendant had a cast on his right leg.
The officer asked defendant whether he had a license and defendant responded that he had a valid license. The officer then asked defendant whether he was on probation or parole and defendant responded that he was on parole. “After everything was confirmed,” the officer conducted a parole search of the car.
The officer was not asked, and he did not testify about, what he found during his search of the car. However, in defendant’s motion to suppress evidence defendant states: “After assisting [defendant] out of the vehicle in order to conduct a parole search, Zuniga observed a walking cane in the area between the passenger seat and door. He then conducted a full search of the vehicle, which revealed that the walking cane concealed a sword. A police scanner was also located in the vehicle. [Defendant] was arrested and booked into the Santa Clara County jail for possession of an illegal weapon (the cane sword) in violation of Penal Code § 12020(a)(1) and a violation of parole.”
The court took the matter under submission and, on June 18, 2007, filed its order denying the motion to suppress. The order states in pertinent part: “Based upon a review of the testimony of Officer Zuniga and the points and authorities submitted by the People and Defendant, the Court finds that Officer Zuniga was able to articulate what the law required as it relates to vehicle tire tread depth and that he had a reasonable suspicion that the tire tread depth on the vehicle being driven in this case did not comply with those requirements. The officer testified he had a clear view of the tire, had made stops previously for violations of Vehicle Code Section 27465, and there was sufficient light to see the condition of the tire. Accordingly, the detention based upon a reasonable suspicion that the vehicle was in violation of Vehicle Code Section 27465 was proper and the Defense motion to suppress is therefore denied.”
On June 27, 2007, defendant entered a no contest plea to the weapon offense and admitted the three prior strike and five prior prison term allegations. On October 26, 2007, defendant filed a motion requesting that the court reduce the weapon offense to a misdemeanor pursuant to section 17, or, alternatively, that the court dismiss the prior strikes pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The prosecutor filed opposition to the motion. On October 29, 2007, the court denied the section 17 motion but struck two of the three prior strikes. It then sentenced defendant to the upper term of three years, doubled under the Three Strikes law, with five consecutive one-year terms for the prison priors, for a total term of 11 years. Defendant filed a timely notice of appeal. (Cal. Rules of Court, rule 8.304(b)(4)(A).)
DISCUSSION
Defendant contends that the traffic stop of the Toyota Camry in which he was a passenger was not supported by reasonable suspicion. He argues that the observations of Officer Zuniga “were ‘unbelievable per se,’ ” and that “no one, including a trained police officer, could possibly have made the observation claimed by Officer Zuniga.” “The things Zuniga acknowledged in his testimony, combined with the conditions at the time of the car stop itself, make it improbable to the point of impossibility that events transpired in the manner to which he testified at the hearing to suppress evidence.”
Respondent contends that Officer Zuniga acted reasonably by stopping the Camry to determine whether its tires were in compliance with the Vehicle Code.
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. 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.) “As the finder of fact in a proceeding to suppress evidence (Pen. Code, § 1538.5), the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.” (People v. Woods (1999) 21 Cal.4th 668, 673 (Woods).) “But while we defer to the superior court’s express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found.” (Id. at pp. 673-674; Glaser, supra, 11 Cal.4th at p. 362.)
“When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. . . . [A] passenger is seized as well and so may challenge the constitutionality of the stop.” (Brendlin v. California (2007) 551 U.S. ___ [127 S.Ct. 2400, 2403].)
“The Fourth Amendment to the United States Constitution prohibits seizures of persons, including brief investigative stops, when they are ‘unreasonable.’ ” (People v. Souza (1994) 9 Cal.4th 224, 229 (Souza).) “Under the cases, an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.] The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083 (Wells); see also Whren v. United States (1996) 517 U.S. 806, 809-810.)
“Reasonable suspicion is a lesser standard than probable cause . . . . But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.’ ” [Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (Wells, supra, 38 Cal.4th at p. 1083.)
“The question for us, . . . is not whether [the] vehicle was in fact in full compliance with the law at the time of the stop, but whether Officer [Zuniga] had ‘ “articulable suspicion” ’ it was not.” (People v. Saunders (2006) 38 Cal.4th 1129, 1136 (Saunders).) As this court previously determined, “[i]n particular, 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. [Citations.]” (People v. Miranda (1993) 17 Cal.App.4th 917, 926 (Miranda).)
When an officer makes a traffic stop, the stop may last only so long as is reasonably necessary to perform the duties incurred by virtue of the stop. (Miranda, supra, 17 Cal.App.4th at p. 926.) Thus, an officer may ask for and examine the driver’s license and the car registration. (Id. at p. 927; Saunders, supra, 38 Cal.4th at p. 1137.) “If the driver is unable to produce a driver’s license, registration, or satisfactory proof of identity, then the officer may, depending on the circumstances, reasonably expand the scope of the stop, making it incrementally more intrusive. [Citations.]” (Miranda, supra, 17 Cal.App.4th at p. 927.) However, “every action taken by an officer in the course of making a traffic stop [must] be objectively reasonable and justified by the specific facts and circumstances confronting the officer.” (Id. at p. 928; see also People v. Grace (1973) 32 Cal.App.3d 447, 452-453.)
“No person shall use on a highway a pneumatic tire on a vehicle axle when the tire has less than the following tread depth, except when temporarily installed on a disabled vehicle . . .: [¶] (1) One thirty-second (1/32) of an inch tread depth in any two adjacent grooves at any location of the tire . . . .” (Veh. Code, § 27465, subd. (b).) An officer “having reasonable cause to believe that any vehicle . . . is not equipped as required by this code . . . may require the driver to stop and submit the vehicle . . . to an inspection and those as may be appropriate to determine the safety to persons and compliance with the code.” (Veh. Code, § 2806.) Once an officer determines that a vehicle’s equipment is not in compliance with the Vehicle Code, the officer may issue the driver of the vehicle a “fix-it ticket.” (See Veh. Code, § 40303.5, subd. (d).)
In this case, we must “examine ‘the totality of the circumstances’ ” surrounding the traffic stop (Wells, supra, 38 Cal.4th at p. 1083) to determine whether the facts and circumstances known to Officer Zuniga at the time he initiated the traffic stop support a reasonable suspicion that the driver of the Camry violated the Vehicle Code. (Saunders, supra, 38 Cal.4th at p. 1136; Miranda, supra, 17 Cal.App.4th at p. 926.) “In assessing the sufficiency of these facts, we heed the United States Supreme Court’s admonition that the evidence relied on by police officers to justify the seizure of a person ‘must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.’ [Citation.]” (Souza, supra, 9 Cal.4th at p. 240.)
We begin our analysis by finding that substantial evidence supports the trial court’s factual finding that the circumstances of the traffic stop were as stated by Officer Zuniga in his testimony. The officer testified that he had a clear view of the Camry’s rear tire and that there was sufficient light to see the condition of the tire. The trial court found that Officer Zuniga’s testimony was credible, and we must defer to that finding as it is supported by substantial evidence. (Woods, supra, 21 Cal.4th at p. 673; Glaser, supra, 11 Cal.4th 362.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403.)
The quesion remains whether the record supports a finding that Officer Zuniga had a reasonable suspicion supported by some specific, articulable facts that the Camry was in violation of Vehicle Code section 27465 at the time the officer made the traffic stop. (Saunders, supra, 38 Cal.4th at p. 1136.) We find that there is not substantial evidence in the record to support the trial court’s finding that Officer Zuniga “had a reasonable suspicion that the tire tread depth on the vehicle being driven in this case did not comply with [the law’s] requirements.” The officer did not testify that he stopped the Camry because, based on his experience, he suspected that the tire violated the Vehicle Code. Rather, he testified that he stopped the car because, based on his experience, he thought the tire “was iffy. It could go either way.” The officer did not testify that he stopped the car because the tire looked like other tires he had seen that violated the law’s requirements. Rather, he testified that “[i]t was borderline, it could go either way.” The officer did not testify that he stopped the car because the tire appeared to have insufficient tread depth over two adjacent grooves. Rather, he testified that the tire “had some wear” “around the edges,” but he could see “some tread.” It was “not completely bald.” The officer did not testify that he checked the actual condition of the tire after making the traffic stop and there is no other information in the record as to the actual condition of the tire. Thus, the officer’s testimony does not support a finding that the traffic stop was based on “specific, articulable facts that are ‘reasonably “consistent with criminal activity.” ’ ” (Wells, supra, 38 Cal.4th at p. 1083.) Rather, it supports a finding that the officer stopped the Camry based on his subjective suspicion that the tire might be in violation of Vehicle Code section 27465. Because the subjective suspicion was not objectively reasonable, the stop was “ ‘unlawful, even though the officer may [have been] acting in complete good faith.’ ” (Wells, supra, 38 Cal.4th at p. 1083.) Accordingly, on the record before us, we find that the facts and circumstances known to Officer Zuniga at the time he initiated the traffic stop do not support a reasonable suspicion that the Camry’s tire tread depth violated the Vehicle Code’s requirements (Miranda, supra, 17 Cal.App.4th at p. 926; Saunders, supra, 38 Cal.4th at p. 1136), and that the trial court erred in denying defendant’s motion to suppress.
The parties have not cited, and we have not found, any cases discussing reasonable suspicion relating to a traffic stop based on a bald tire.
The parties focused their examination of Officer Zuniga on the circumstances of the traffic stop rather than on the condition of the tire.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with directions to permit defendant to withdraw his no contest plea, to vacate its order denying the motion to suppress, and to enter a new order granting the motion to suppress.
WE CONCUR: RUSHING, P.J., ELIA, J.