Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC064640
Wager, Acting P. J.
After the trial court denied defendant William Lewis’s motion to suppress the evidence (Pen. Code, § 1538.5), he entered a plea of no contest to one count of robbery with personal use of a firearm (§§ 212.5, subd. (c), 12022.5, subd. (a)), and admitted to having served two prior prison terms. (§ 667.5, subd. (b).) The remaining charges and allegations were dismissed.
All subsequent statutory references are to the Penal Code except where otherwise indicated.
Sentenced to state prison for a total term of nine years, defendant appeals. He contends the trial court erroneously denied his suppression motion in that the police officer did not have probable cause to stop the vehicle he was riding in just before his arrest. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
We take the facts from the transcript of the hearing on the motion to suppress.
At approximately 11:00 p.m. on August 26, 2007, officer Anthony Baroni was patrolling in a marked vehicle. He observed three people, including defendant, running out of a motel toward a four-door Dodge Neon that was parked at the curb. As defendant entered the rear passenger door, Baroni saw that he appeared to be holding an object in his hand.
The driver pulled away from the curb without having first turned on the car’s headlights. However, the lights were turned on within one to two seconds. The driver also did not signal as she moved over from the number two lane to the number one lane. As he followed the Neon in his patrol car, Baroni could see defendant was “sort of fidgety in the right rear seat.”
As the Neon proceeded, the driver signaled and moved from the number one lane back into the number two lane and made a right turn onto a two-lane residential street. The street does not have a center line separating the two lanes of traffic. The car’s turn went wide, straddling the center of the road, so that a portion of the car was in the opposing lane of traffic for “a second or two.” There were no other vehicles on the street at this time. Baroni decided to pull over the Neon, believing that the wide turn violated Vehicle Code section 22107. He activated the patrol car’s lights to signal the traffic stop. The Neon pulled over to the curb in the middle of the block near a street light.
Vehicle Code 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 Baroni stepped out of his patrol car, he could see defendant “doing some fidgeting in the back seat,” possibly trying to conceal something. As Baroni approached the vehicle, he shined his flashlight into the backseat area of the Neon and asked defendant to place his hands on the headrest. He observed that none of the rear passengers were wearing seatbelt.
Baroni spoke with the driver, Louise Chu, and asked for her driver’s license. She stated that she did not have her license with her, but gave her true name and date of birth to the officer. Baroni then asked the passengers for identification. Defendant did not produce an identification card, but told the officer that his name was “Julio Luis” and supplied a date of birth. Baroni gave this information to his partner, Officer Hepler, for a records check. Hepler reported that he could not find a driver’s license or identification card for Julio Luis.
Baroni returned to the Neon, opened the rear passenger door, and asked defendant to step out of the car. After defendant exited the car, Baroni asked if he could pat him down for weapons. Defendant consented and volunteered that he was carrying a pocket knife. Baroni found the knife and continued to pat him down, feeling several “bulgy items” in defendant’s front pocket. Baroni asked if he could remove these items and defendant consented. Baroni removed a glass smoking pipe that was coated with a whitish residue. He placed defendant in handcuffs and had him sit on the sidewalk.
Baroni then approached the Neon and shined his flashlight through the open door toward the right rear floorboard. He saw the wooden handle of what appeared to be a sawed off shotgun. After ordering everyone out of the Neon, he searched the car and retrieved the shotgun, which was loaded. He also seized a duffel bag from the rear passenger area that contained numerous shotgun shells. Defendant and Chu were arrested.
DISCUSSION
“ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.” ’ [Citation.]” (People v. Ayala (2000) 24 Cal.4th 243, 279.)
“The Fourth Amendment guarantees ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision. [Citations.] An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” (Whren v. United States (1996) 517 U.S. 806, 809–810; see also People v. Superior Court (1972) 7 Cal.3d 186, 200; People v. Miranda (1993) 17 Cal.App.4th 917, 926.)
Though Baroni testified that he thought Chu had violated Vehicle Code section 22107, the trial court found justification for the stop was actually supplied by Vehicle Code section 21650, which provides: “Upon all highways, a vehicle shall be driven upon the right half of the roadway,” unless a specified exception applies. “[A]n officer’s reliance on the wrong statute does not render his actions unlawful if there is a right statute that applies to the defendant’s conduct.” (In re Justin K. (2002) 98 Cal.App.4th 695, 700.) Based on Baroni’s testimony, there was substantial evidence that Chu crossed into the opposing lane of traffic when she turned onto the residential street, albeit for a short period of time. This is sufficient to have constituted a violation of Vehicle Code section 21650.
Defendant claims that Chu did not violate the Vehicle Code when she made the wide right turn onto the residential street. In particular, he claims that “straddling the imaginary center line with a portion of the car for one to two seconds on a deserted street did not constitute a violation of section 21650 or any other Vehicle Code provision.” He asserts that in order to “drive” impermissibly on the left side of the roadway, “the entire vehicle needs to travel on the left side of the road for more than a second or two and be propelled forward for more than a couple of feet.” This qualification finds no support in the statute or in case law.
Manifestly, a car that intrudes into the opposing lane of traffic can strike a vehicle that is proceeding towards it even if the first vehicle does not completely enter the left lane. For example, in a civil case, contributory negligence was found where the plaintiff collided with the defendant’s car when she attempted to pass to the left around stopped traffic, partially encroaching into the opposing lane: “The jury could have reasonably concluded that the plaintiff did not keep a proper lookout with respect to the other traffic, that she saw the southbound traffic in her lane stopped, and that she attempted to pass the stopped car, partially driving over on the wrong side of the street.” (Neyens v. Sellnow (1962) 202 Cal.App.2d 745, 749.) Further, depending on the proximity and speed of an oncoming car, a second or two in the opposing lane might be a sufficient amount of time to cause a collision. Accordingly, defendant’s argument fails.
Defendant’s reliance on United States v. Colin (9th Cir. 2002) 314 F.3d 439 is misplaced. In that case, the appellate court found that the defendants did not violate Vehicle Code section 21658, subdivision (a), the lane-straddling statute, when the vehicle’s tires touched, but did not cross, two painted lane lines for approximately 10 seconds just prior to making safe lane changes. The court reversed the district court’s denial of the defendants’ motion to suppress, stating: “Touching a dividing line, even if a small portion of the body of the car veers into a neighboring lane, satisfies the statute’s requirement that a driver drive as ‘nearly as practical entirely within a single lane.’ [Citations.]” (Colin, supra, at pp. 444–445.) In the present case, the evidence supports the conclusion that a relatively substantial portion of the Neon had encroached into the oncoming lane of traffic, not merely the portion of the vehicle that extends out past the tires. Moreover, Vehicle Code section 21650 does not contain an “as nearly as practical” qualification.
Vehicle Code section 21658, subdivision (a), provides: “A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.”
We also disagree with defendant’s suggestion that Chu’s wide turning motion did not violate Vehicle Code section 21650 because the Neon “did not present a hazard to any other users of the road.” The statute does not create an exception for non-hazardous lane infringements. Unlike defendant, we do not believe that enforcement of this statute against drivers who make wide turns without causing a hazard to other motorists or pedestrians would render absurd results. But even if defendant is correct, his argument presents a policy issue best addressed to the Legislature.
Chu’s traffic violation may not have been particularly serious, nonetheless, it was a violation sufficient to warrant detention. (See People v. McGaughran (1979) 25 Cal.3d 577, 582, [defendant traveling in wrong direction on a one-way street lawfully stopped]; People v. Jardine (1981) 116 Cal.App.3d 907, 912–913, [officer observed two traffic violations and could stop the van and issue citations: driving left of center after making a turn and throwing an object from the van], disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 1158, 1167.)
DISPOSITION
The judgment is affirmed.
We concur: Margulies, J., Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.