Opinion
C097329
06-13-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE RAMON MORA, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 21FE004642)
RENNER, Acting P. J.
At defendant Jose Ramon Mora, Jr.'s preliminary examination, and upon his renewed motion, the magistrate and trial court denied his motion to suppress a loaded gun and ammunition found on his person and three loaded magazines, cocaine, and money found in his car. Defendant pled no contest to unlawfully possessing cocaine while armed with a firearm, and the trial court sentenced defendant to four years in prison. On appeal, defendant argues the police officer violated the Fourth Amendment by engaging in a patdown search without reasonable suspicion. We shall affirm.
I. BACKGROUND
We take most of the facts from the arresting officer's body camera footage and as further explained by his testimony at the preliminary hearing.
At the preliminary hearing, Officer MacLean testified he was assigned to the north gang enforcement team, and he had seized no less than 75 firearms in his patrol area. The area where this stop occurred was known for high gang activity and handgun crimes. The officer noticed a car parked at the gas pumps at a gas station that had "very dark tinted front windows" in violation of section 26708 of the Vehicle Code. He saw three men get out of the car and ran a records check showing the car was registered to defendant.
Without activating his lights, Officer MacLean parked his marked patrol car about a car-length behind defendant's car and got out of his car. Officer MacLean testified he intended to contact defendant and advise him of his unlawful window tint. Defendant was standing by the open driver's door with his back to the officer and the front of his body facing the front of the car and the open door.
As Officer MacLean walked up to the car, he said, "How's it going sir?"
Defendant pulled the bottom of his shirt down with his hands, turned his neck towards the officer, but otherwise remained facing in the opposite direction. Defendant then turned to face into the open doorway of the car and responded, "How are you doing?"
The two engaged in this short conversation over the next 49 seconds:
Officer MacLean: "Doing well and yourself?"
Defendant: "Good."
Officer MacLean: "This your vehicle?"
Defendant: "Yes."
Officer MacLean: "O.K. You got window tint on the front windows. You know you can't have that right?"
Defendant turned away from the officer, towards the open front door, raised his open palms upward in a questioning gesture, and said, "Window tint?"
Officer MacLean: "Yeah. You want to just come back over to my car for me?"
Defendant turned his body away from the officer back towards the open doorway of the car, and continued to turn until his body was perpendicular to the officer, looked up, and responded, "No. I -- I wasn't doing anything"
Officer MacLean: "Well, I'm not asking, I'm telling you. Come back to my car for me."
Defendant: "Whoa, I'm not doing anything."
Officer MacLean: "O.K. Well you have window tint on your vehicle sir."
Defendant: "I know, but I'm -- I'm not doing anything."
Officer MacLean: "It's unlawful."
Defendant: "I know, I wasn't going to leave anywhere though."
Officer MacLean: "O.K. Stay right here for me. I'm just going to pat you down for weapons. O.K? Do me a favor--"
Defendant: "For what?
Officer MacLean: "-- interlace your fingers on the back of your head."
Defendant: "For what, I'm not doing anything though."
Officer MacLean: "I'm going to ask you one more time. Interlace your fingers on the back of your head."
Defendant threw the car keys into the car, and placed his fingers on his head, and the officer grabbed the defendant's hands.
Officer MacLean asked defendant if he had anything on him that would poke or stab him.
Defendant responded, "I don't think so."
The officer told him to take a step to his left and asked, "You don't' think so, or you don't know?"
Defendant responded, "I don't know."
Officer MacLean: "Do you have a firearm on you?"
Defendant: "I don't think so."
Officer MacLean: "Spread your feet. What do you mean you don't think so? Spread your feet."
Defendant: "I don't know."
The officer reached down and felt the outside of defendant's right front pants pocket.
At the preliminary hearing, Officer MacLean stated he noticed defendant was acting nervous, and he would not look in the officer's direction. He also noticed defendant's front pockets were bulging and large enough to conceal a weapon, a place his training and experience indicated was where people commonly carry guns. The officer also noticed defendant had gang tattoos on his arms. It was his experience gang members commonly carried guns. It was at this point that he advised defendant to place his hands on top of his head so he could conduct a weapons patdown of his person.
Officer MacLean summarized his reasons for the patdown as follows: (1) there were a significant number of gang and gun arrests in that parking lot and in the adjacent properties; (2) he knew people affiliated with gangs carry guns; (3) defendant was not cooperative when he asked him to come to his car; and (4) he saw a large bulge in defendant's front pockets.
In the subsequent patdown search, Officer MacLean found a loaded .40-caliber semiautomatic handgun in defendant's waistband. The officer also found a loaded .40-caliber magazine in his front pocket, a pill bottle with pills, and a small baggie weighing 3.7 grams containing a substance that tested positive for opiates. Defendant had $500 in cash in his wallet and another $500 also on his person. In the car, Officer MacLean found two more loaded .40-caliber magazines, a loaded nine-millimeter magazine, a box of .40-caliber ammunition, a bag with 27.95 grams of cocaine, a pill bottle with another 5.21 grams of cocaine, and a scale.
On cross-examination, Officer MacLean admitted the first time he saw the car was when it was parked at the gas station (i.e., he did not see it drive on public streets). The officer said he did not conduct a traffic stop, but instead went up to defendant to confirm he was the owner of the car before he took further action. The officer said it was customary for him to ask persons to walk back to his car to address Vehicle Code violations when they are outside of their cars.
Initially, Officer MacLean testified he could not see through the windows at all and that tinting could be a hazard at night because the driver could not see though the tint. After watching the video, he agreed he could see through the windows, but a driver's vision would still be impaired at night given the level of tinting. The video also showed the officer filming the window tinting. At the preliminary hearing, the officer noted while he could see through the windows from that close vantage point, they would be much more difficult to see through from a distance. The officer also stated he was not familiar with a subdivision of Vehicle Code section 26708 that allows tinting if the tinting meets specific "visible light transmission" standards. The officer maintained, however, the window tinting on this car was so dark he could say "without a doubt" it was unlawful.
The prosecution charged defendant with being a felon in possession of a firearm and possession of cocaine with a loaded, operable firearm. (Pen. Code, § 29800, subd. (a)(1); Health & Saf. Code, § 11370.1. subd. (a).) The prosecution also alleged defendant had a prior strike conviction under sections 667, subdivisions (b) through (i) and 1170.12.
Undesignated statutory references are to the Penal Code.
Defendant moved at his preliminary examination, pursuant to section 1538.5, to suppress the evidence discovered. Defense counsel argued the officer did not take any steps to determine whether the windows were improperly tinted and pointed out the contradiction between his earlier testimony the windows were too dark to see through with his later testimony that he could see through the windows to some extent.
The trial court, acting as the magistrate, found the officer acted with reasonable suspicion of the tinting. The court found the video showed "there was clearly a film on the driver's and passenger's side windows," which was enough to support the officer's reasonable suspicion of the Vehicle Code violation and denied the motion.
Defendant renewed this motion in the trial court. At that hearing, defendant focused on the fact the officer did not see him driving on a public street, thus defendant had not committed a Vehicle Code violation. Having reviewed the briefs, the key video excerpt, and preliminary hearing transcripts, the trial court denied the renewed motion. The trial court found that "there was a consensual contact which led to observations which led to a patdown" search. The trial court found the high crime rate of the area was a factor, as well as defendant's gang tattoos, and defendant's mannerisms in responding to the officer. The trial court found there were enough articulable facts to justify a quick patdown search consistent with the Fourth Amendment.
Pursuant to a plea agreement with a stipulated low term of two years (doubled for his prior conviction), defendant pled no contest to unlawfully possessing cocaine while armed with a firearm. (Health &Saf. Code, § 11370.1, subd. (a).) He also admitted his prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12.) At sentencing, the trial court sentenced defendant as agreed.
Defendant timely appealed.
II. DISCUSSION
Defendant argues Officer MacLean violated the Fourth Amendment by detaining him without reasonable suspicion that defendant was armed and dangerous. While defendant does not claim the window tinting on his car was legal or challenge his original detention, he argues the officer was engaged in racial profiling, "hell bent on persecuting a Hispanic male for having tinted windows on his [car]," and without reasonable suspicion to patdown defendant for weapons. Defendant also argues the video does not support the officer's testimony he saw a bulge prior to starting the patdown. We disagree.
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1 (Terry).) "[T]hat Amendment's proscriptions are enforced against the States through the Fourteenth Amendment," applying the same standards of reasonableness. (Ker v. California (1963) 374 U.S. 23, 33.)" '[W]e review the trial court's findings of historical fact under the deferential substantial evidence standard, but decide the ultimate constitutional question independently.'" (People v. Zamudio (2008) 43 Cal.4th 327, 342.) "We must accept factual inferences in favor of the trial court's ruling. [Citation.] If there is conflicting testimony, we must accept the trial court's resolution of disputed facts and inferences, its evaluations of credibility, and the version of events most favorable to the People, to the extent the record supports them." (Ibid.) The prosecution has the burden of proving "that the warrantless search or seizure was reasonable under the circumstances." (People v. Williams (1999) 20 Cal.4th 119, 130.)
We must determine whether the patdown was reasonable under the Fourth Amendment." 'In [Terry], the United States Supreme Court held that there exists "a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." '" (People v. Pantoja (2022) 77 Cal.App.5th 483, 488.)"' "The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." [Citation.] The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous.' [Citation.] '[A]n "inchoate and unparticularized suspicion or 'hunch'" is insufficient.'" (Id. at pp. 488-489.)
The Supreme Court has held an officer's observation of a bulge in defendant's clothing permitted the officer to conclude a suspect is armed and thus posed a serious and present danger to the safety of the officer justifying a patdown search. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111-112.) Further in People v. Lindsey (2007) 148 Cal.App.4th 1390, 1400, the appellate court concluded the officer's observation of the defendant holding what appeared to be something heavy in his pocket or waistline, in an" 'unusual'" manner justified his conclusion the defendant was armed and dangerous. (See also People v. Brown (1985) 169 Cal.App.3d 159, 165-166 [patdown search was justified based on officer's observations of a bulge under the defendant's jacket and his experience that weapons are commonly carried under clothing in that approximate location of the waistband].)
Here, this search occurred in an area known for gun and gang crimes. While this is not enough in isolation, it is a relevant factor that sheds light on whether a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of others was in danger. (People v. Pantoja, supra, 77 Cal.App.5th at p. 488; People v. Limon (1993) 17 Cal.App.4th 524, 532.)
The other articulated and relevant factors consisted of Officer MacLean's observation of defendant's mannerisms as they engaged in their short conversation, defendant's visible gang tattoos, the officer's knowledge and experience with gang members possessing guns, and the bulge the officer saw in defendant's front pocket. The video supports the officer's testimony defendant appeared to be nervous. Moreover, the video also suggests defendant was hiding something given the way defendant pulled down his shirt when the officer approached and his attempts to keep his body turned away from the officer.
We reject defendant's argument the video disproves the officer's statement he saw a bulge in defendant's right front pocket before he checked the defendant for weapons. Most of the video shows defendant above the waistband area and does not give the officer's actual view from the higher vantage point of his eyes. We must accept the magistrate's and trial court's resolution of the disputed facts and inferences if supported by the record. (People v. Zamudio, supra, 43 Cal.4th at p. 342.) It was their determination the officer reasonably believed defendant might be armed and dangerous based on the articulable facts we have recited. The record supports that finding.
III. DISPOSITION
The judgment is affirmed.
We concur: BOULWARE EURIE, J. HORST, J. [*]
[*]Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.