Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS071614
Duffy, J.
Defendant Ricardo Andrade Morales was convicted after a no contest plea of having a concealed weapon in his vehicle (Pen. Code, § 12025, subd. (a)(1)), and actively participating in a criminal street gang (§ 186.22, subd. (a)). Prior to entry of the plea, defendant made an unsuccessful motion to suppress seized evidence pursuant to section 1538.5. The court suspended sentencing and granted probation on the condition that he serve 120 days in county jail.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant challenges the conviction entered on his no contest plea, contending that it was based upon an illegal traffic stop and a later unlawful pat search that resulted in the discovery of a firearm. He also challenges a probation condition that prohibits him from attending any court proceeding or going to any courthouse unless he is scheduled for a court hearing or the visit is approved by his probation officer. Lastly, defendant asserts that he was denied 118 days of custody credits in connection with the granting of probation subject to the condition that he serve time in the county jail.
For the reasons below, we conclude that the traffic stop and subsequent pat search were lawful and the court below properly denied defendant’s suppression motion. We hold further that the challenged probation condition abridges defendant’s constitutional rights and, accordingly, we will order that it be modified. Lastly, we hold that defendant’s custody credit challenge has been forfeited. Accordingly, we will affirm the judgment of the trial court, as modified to reflect an appropriate narrowing of the probation condition.
The facts are taken from the report of the probation officer. Additional facts relating to the events leading up to defendant’s arrest taken from the testimony of Officer Parsons at the hearing on defendant’s motion to suppress are provided in part II.B. of the Discussion, post.
At approximately 6:44 p.m. on May 6, 2007, Salinas Police Officer Ian Parsons stopped a car driven by defendant. After defendant failed to respond to three requests to get out of the car, Officer Parsons and a backup officer assisted defendant in getting out. In conducting a pat search, the officers found a loaded .38 special black revolver in the pocket of defendant’s pants. After being advised of his rights under Miranda, defendant said that “he carrie[d] the weapon for protection. The defendant told the police that he grew up on Fremont Street, and who he had ‘kicked it with.’ Police noted that Fremont Street is a Salinas based Norteño street gang.” Defendant said that his cousin “ ‘ran that street.’ ” After the police asked defendant about the fact that he was wearing red, he replied that he liked the color but that he didn’t “ ‘bang anymore.’ ” Records reflected that there was a drive-by shooting at defendant’s house in January 2007, and that defendant’s brother had claimed association with the Norteño gang.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
PROCEDURAL BACKGROUND
A three-count information against defendant was filed May 24, 2007. Defendant was charged with having a concealed weapon in a vehicle (§ 12025, subd. (a)(1); count 1), carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1); count 2), and actively participating in a criminal street gang (§ 186.22, subd. (a); count 3). In addition, the information alleged that in the commission of the offenses charged in counts 1 and 2, defendant was an active participant in a criminal street gang (§ 12025, subd. (b)(3)), was not the registered owner of the firearm (§ 12025, subd. (b)(6)), and did so for the benefit of, at the direction of, or in association with the Norteño criminal street gang (§ 186.22, subd. (b)(1)).
Defendant filed a motion to suppress evidence pursuant to section 1538.5. The People opposed the motion. After an evidentiary hearing on November 21, 2007, the court denied the motion to suppress.
Defendant pleaded no contest to having a concealed weapon in a vehicle and actively participating in a criminal street gang; the plea was conditioned upon defendant receiving felony probation. The remaining count and the special allegations were stricken. At the same time in another case (No. SS072521), defendant pleaded no contest to two misdemeanor counts of spousal battery and marijuana possession (§ 273.5 and Health & Saf. Code, § 11357, respectively). As to both cases, the court suspended imposition of the sentence and placed defendant on probation for three years. In the weapons possession case, he was ordered to serve 120 days in county jail as a condition of probation. He was also apparently ordered to serve 212 days in the county jail in the domestic violence case and was given 212 days of credit for time served. Defendant filed a timely notice of appeal of the denial of the motion to suppress and matters occurring after the entry of the plea. The denial of the suppression motion may be challenged by an appeal from the judgment entered after defendant’s guilty or no contest plea. (§ 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
Although the record is unclear and there is no clerk’s transcript provided for the domestic violence case, it is apparent from the reporter’s transcript of the sentencing proceedings that the court adopted the recommendation contained in the probation officer’s report that defendant be required to serve 212 days as a condition of probation in the domestic violence case.
DISCUSSION
I. Issues on Appeal
Defendant raises the following issues on appeal:
1. The motion to suppress should have been granted because the traffic stop and the subsequent pat search were unlawful.
2. The probation condition prohibiting defendant (absent permission from his probation officer) from being present at any courthouse or at any court proceeding other than his own is unreasonably overly broad, violates his constitutional rights, and should therefore be stricken.
3. Defendant is entitled to an additional 118 days of custody credits.
II. Denial of the Motion to Suppress
A. Standard of Review
“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.” (People v. Williams (1988) 45 Cal.3d 1268, 1301; see also People v. Ayala (2000) 23 Cal.4th 225, 255.) All presumptions favor the trial court’s exercise of its power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence, and draw factual inferences, “ ‘and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’ ” (People v. Leyba (1981) 29 Cal.3d 591, 596-597, quoting People v. Lawler (1973) 9 Cal.3d 156, 160.) And where “the facts are basically undisputed, we independently review the [trial court’s] decision . . . .” (People v. Downing (1995) 33 Cal.App.4th 1641, 1650, fn. omitted.)
Based upon its factual findings, the trial court has the duty to determine whether “the search was unreasonable within the meaning of the Constitution.” (People v. Lawler, supra, 9 Cal.3d at p. 160.) This issue is a question of law. Therefore, we must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure. (Ibid.; People v. Leyba, supra, 29 Cal.3d at p. 597.)
Under the California Constitution, article I, section 28, subdivision (d), the reasonableness of the search or seizure is measured against federal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674.) Only evidence that is the product of an unreasonable search and seizure in violation of federal standards shall be suppressed. (In re Lance W. (1985) 37 Cal.3d 873, 890.)
B. Hearing on Motion to Suppress
Officer Parsons testified that he was on patrol at 6:44 p.m. on the evening of May 6, 2007, driving southbound on Rider Avenue in Salinas. He saw a red Nissan Sentra parked next to the curb facing north on Rider. As he passed the Sentra, Officer Parsons noted the license of the car from the front license plate. He ran a Department of Motor Vehicles (DMV) check as he passed the Sentra and made a U-turn. Officer Parsons believed at the time that the one-line entry shown on his computer display—which he admitted that he “didn’t read completely”—reflected that the DMV had no record of registration for the car. This conclusion was based on the “[h]undreds” of DMV checks he had run during his five years as a police officer in which it had been his experience that “when DMV has no record of a registration, it will come back with a single line saying no record on file.” When there is a record of a vehicle being registered, a DMV check will typically result in a computer display of 60 to 70 lines of information. Officer Parsons did not recall if he checked the Sentra’s rear license plate at any time to determine if it had proper registration tags.
After making the U-turn, Officer Parsons followed behind the Sentra, which had pulled away from the curb. The officer observed that “[t]here were several air fresheners hanging from the rearview mirror” of the Sentra that he “believe[d] obstructed the driver’s view” in violation of Vehicle Code section 26708, subdivision (a)(2) (hereafter Veh. Code, § 26708(a)(2)). They were three abreast (about six to seven inches in total width) and were three to four inches in height; therefore, they “block[ed] . . . a significant portion of a windshield.” After concluding that the Sentra was unregistered and that the air fresheners obstructed its driver’s view, Officer Parsons made a traffic stop. He made contact with the driver of the Sentra, defendant, and asked for his driver’s license, registration, and proof of insurance. Defendant insisted that the car was registered. He looked around the car and handed the officer a stack of papers that included several outdated registrations; Officer Parsons went through them but did not find anything current among them.
Defendant then “began to look in strange places . . . He looked in his front right jacket pocket, he looked in the ash tray, places that are not traditionally used to keep registration.” He used his phone to call his father, telling the officer that the father knew that the car was registered. Officer Parsons felt that defendant “seemed extremely nervous, and to the point of becoming frantic.” “[T]he speed at which [defendant] . . . was moving around the car [became] a concern to [the officer] for safety reasons.” Defendant’s hands were not visible at all times. By that point, a backup officer (Officer Adam Shaffer) had arrived at the scene. Because of defendant’s conduct and the concern for officer safety, Officer Parsons asked defendant to terminate the call and step out of the car. Defendant did not comply; the officer repeated the request twice without compliance. Officer Parsons opened the driver’s door and defendant got out of the Sentra and cooperated with the police. At that point, Officer Shafer took the cell phone from defendant.
As defendant was standing next to the car, his hands were at a 45-degree angle away from his body; he then moved his hands towards “the waistband area of his clothing.” This movement concerned Officer Parsons because, based on his “training and experience[,] criminals often carry a variety of weapons in the waistband, pocket, in that area of the clothing or body.” Because of this concern, the officers grabbed defendant’s arms and brought them behind his back. Officer Parsons moved defendant to the back of the car and conducted a pat search for weapons outside of his clothing. The officer found a handgun in the right front pocket of defendant’s pants. Officer Parsons then placed defendant under arrest.
After completion of the stop, Officer Parsons ran another DMV check and confirmed that the Sentra had a valid registration. At that time, he scrolled up on his computer screen and determined that the prior entry had indicated “unable to connect to server, instead of no record on file.”
C. Contentions of the Parties
Defendant contends that the court’s denial of his suppression motion was error because the initial traffic stop was unlawful. He claims that there were no reasonable grounds for Officer Parsons’s admittedly mistaken belief that the Sentra was unregistered, one of the grounds for the traffic stop. He argues further that the officer did not have specific, articulable facts supporting a belief that the air fresheners hanging from the Sentra’s rearview mirror obstructed the driver’s vision in violation of Vehicle Code section 26708(a)(2), the other reason for the traffic stop. Moreover, defendant maintains that neither the traffic stop, nor defendant’s nervous behavior while looking for registration papers, nor defendant’s hand and arm movements justified the pat search that resulted in the finding of the concealed weapon. Accordingly (defendant argues), the prosecution failed to meet its burden of establishing that the traffic stop and the subsequent pat search were lawful.
The Attorney General responds that Officer Parsons made a reasonable mistake in concluding that the Sentra was unregistered and that the stop on that basis was therefore proper. The traffic stop was also proper because the officer had sufficient information upon which to reasonably suspect that the presence of the air fresheners constituted a violation of Vehicle Code section 26708(a)(2). Lastly, the Attorney General argues that Officer Parsons had sufficient information as a result of defendant’s behavior both inside and outside the car from which to form a reasonable suspicion that he was armed and dangerous, thereby justifying the pat search.
D. Whether Motion to Suppress Was Properly Denied
1. Validity of traffic stop
a. applicable law
The legal basis upon which a peace officer may detain a citizen has been explained as follows: “[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded on other grounds by Cal. Const., art. I, § 28.) “The corollary to this rule, of course, is that 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.]” (In re Tony C., supra, at p. 893, citing Terry v. Ohio (1968) 392 U.S. 1, 22.) “Under the cases, an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.) In such an instance, the driver of the vehicle is seized within the meaning of the Fourth Amendment. (Whren v. United States (1996) 517 U.S. 806, 809-810.)
“Since the passage of Proposition 8 in 1982 (Cal. Const., art. I, § 28), the subjective belief of the citizen set out in In re Tony C.[, supra,] 21 Cal.3d 888, no longer applies in analyzing whether an encounter is a detention. [Citation.] Rather the federal standard of analyzing the objective facts of the incident controls. [Citation.]” (In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2, citing In re Lance W. (1985) 37 Cal.3d 873.)
In determining the lawfulness of a temporary detention, courts look at the “ ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu (2002) 534 U.S. 266, 273, quoting United States v. Cortez (1981) 449 U.S. 411, 417; see also People v. Souza (1994) 9 Cal.4th 224, 239.) This standard of “ ‘reasonable suspicion’ . . . ‘[is] less demanding than that for probable cause ‘not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.’ ” (People v. Souza, supra, at pp. 230-231, quoting Alabama v. White (1990) 496 U.S. 325, 330.) A traffic stop, lawful at its inception based upon “a reasonable suspicion that any traffic violation has occurred,” is not made unlawful simply because the peace officer does not ultimately cite the motorist. (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510.) And the officer’s subjective intent relative to the potential seizure of a citizen “is relevant . . . only to the extent that that intent has been conveyed to the person confronted.” (Michigan v. Chesternut (1988) 486 U.S. 567, 575, fn. 7.)
Here, there were two grounds that Officer Parsons stated for his initial detention of defendant, namely, the belief that (1) the Sentra was unregistered, and (2) the air fresheners on the rearview mirror constituted a reduction or obstruction to the driver’s view in violation of Vehicle Code section 26708(a)(2). We address these two potential grounds for the traffic stop separately.
b. vehicle registration
Officer Parsons formed the initial belief that the Sentra was unregistered because he thought that the one-line report from the DMV on his computer monitor indicated that there was no record of registration for the vehicle. Officer Parsons admitted that he erred in reaching this conclusion. The fact that an officer conducts a stop or search and seizure based upon an erroneous understanding of the operative facts does not of necessity invalidate the stop or search and seizure. When a mistake of fact in conducting a search and seizure is reasonable, there is no Fourth Amendment violation. (Illinois v. Rodriguez (1990) 497 U.S. 177, 179, 182, 183-186 (Rodriguez).) This is true because the Fourth Amendment by its own terms demands of the state not perfection, but reasonableness: “The right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated.” (U.S.C.A. Const. Amend 4.) As relevant here, “to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of . . . determinations . . . made by . . . the police officer conducting a search or seizure under one of the exceptions to the warrant requirement . . . is not that they . . . be correct, but that they . . . be reasonable.” (Rodriguez, supra, at p. 185; see also People v. Jenkins (2000) 22 Cal.4th 900, 1057 [noting that under Rodriguez, a search will not be invalidated if based on officer’s reasonable mistake of fact, not a mistake of law].)
Officer Parsons admitted that he did not read the one line of information displayed on his computer before making the stop. His only reasons for not having read it were that he was concentrating on making a safe U-turn and wanted to maintain contact with the Sentra. In his experience, Officer Parsons had seen the one-line entry of “[n]o record on file” approximately 10 times. There appears to be no significant reason why the officer—consistently with his practice on approximately 10 prior occasions—did not read the one-line entry here. Therefore, contrary to the trial court’s conclusion on the issue, we hold that Officer Parsons’s mistake of fact that the Sentra was unregistered was unreasonable. Accordingly, Rodriguez, supra, 497 U.S. at pages 183-186, is inapplicable, and the traffic stop was not justified on the basis of the officer’s unreasonable mistake of fact.
c. violation of Vehicle Code section 26708(a)(2)
The traffic stop was also made because Officer Parsons believed that defendant was violating Vehicle Code section 26708(a)(2). We consider whether the stop was justified on this basis.
“No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver's clear view through the windshield or side windows.” (Veh. Code, § 26708(a)(2).) As the statute plainly states, articles that reduce the driver’s vision—not merely those that obstruct it—are prohibited.
Here, substantial evidence supported the officer’s suspicion that defendant was violating Vehicle Code section 26708(a)(2). Officer Parsons testified that he believed that the multiple air fresheners suspended from the rearview mirror of defendant’s car—which the officer observed while following the Sentra—obstructed the driver’s view. After stopping defendant, the officer determined that the air fresheners were three abreast; about six to seven inches in total width (“probably the same width as the mirror itself”); three to four inches in height; and were therefore “block[ing] . . . a significant portion of a windshield.” The court implicitly found this testimony trustworthy in reaching the conclusion that the stop was justified on the basis of the officer’s reasonable suspicion that the driver’s clear view was obstructed or reduced. (People v. Glaser (1995) 11 Cal.4th 354, 362 [appellate court defers to trial court’s factual findings, both express and implied, if supported by substantial evidence].) Under these circumstances, Officer Parsons had a reasonable basis for concluding that there was an existing violation of Vehicle Code section 26708(a)(2) that justified the traffic stop. Moreover, the fact that defendant may not have been cited for a violation of this Vehicle Code section does not negate the officer’s reasonable suspicion for making the stop. (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510.)
Defendant cites two cases in support of his claim that the officer did not have a reasonable suspicion that defendant was in violation of Vehicle Code section 26708(a)(2). Neither case supports his contention.
In People v. White (2003) 107 Cal.App.4th 636, 639 (White), the appellate court reversed the trial court’s denial of the defendants’ motions to suppress, holding that the People had failed to meet their burden of showing that the patrol officer had a reasonable basis for the belief that a single, tree-shaped air freshener reduced the driver’s clear view. There, the appellate court noted that “the officer never testified that he believed the air freshener obstructed the driver’s view,” there was no other evidence suggesting the driver’s clear view was impeded, and “[t]he defense, on the other hand, presented evidence from [a] civil engineer . . ., who testified that the air freshener covered less than .05 percent of the total surface of the car’s windshield” and who “concluded that based on the relative sizes of the air freshener and windshield, an air freshener hanging from the rearview mirror would not obstruct the vision of a six-foot-tall driver.” (Id. at p. 642.) In addition, the driver in White “testified that the air freshener did not obstruct his vision as he drove the car.” (Ibid.)
White does not compel the conclusion that the stop in this instance was not supported by a reasonable suspicion of a Vehicle Code violation. In contrast to White, here there were three air fresheners suspended from the rearview mirror that collectively were the approximate width of the mirror. Unlike in White—where there was no officer testimony regarding vision obstruction—Officer Parsons testified that the air fresheners were obstructing “a significant portion of the windshield.” In contrast, in White, there was only one air freshener—a circumstance that, according to Officer Parsons’s own testimony would probably not have constituted an obstruction under Vehicle Code section 26708(a)(2). Defendant presented no expert testimony that the air fresheners did not make up a significant part of the windshield. And there was no testimony here (e.g., from defendant) contradicting the officer’s belief that the air fresheners obstructed the driver’s clear vision. Furthermore, we disagree with defendant that White suggests that an officer’s belief in the existence of a violation of Vehicle Code section 26708(a)(2), to be reasonable, requires that the officer testify to erratic driving or other indicia that the driver’s vision is actually obstructed or reduced. The fact that the court in White noted that “the officer never testified to other specific and articulable facts, like hesitant or erratic driving, that might suggest the driver’s clear view was impeded” (White, supra, 107 Cal.App.4th at p. 642), does not suggest that testimony concerning the driver’s behavior is an essential aspect of the testimony of the arresting officer.
In People v. Colbert (2007) 157 Cal.App.4th 1068 (Colbert), we reviewed the denial of a motion to suppress that also involved a traffic stop of a car with a tree-shaped air freshener hanging from the rearview mirror. There, the officer testified that he observed an air freshener “that he believed was ‘large enough to obstruct [the driver’s] view through the front windshield.’ . . . The air freshener was 4.75 inches tall, had a base of 1.75 inches, and was 2.75 inches wide at its widest point.” (Id. at p. 1070.) The officer also testified that he had experience in hanging a similar air freshener from the rearview mirror of his personal car and found that it obstructed his view. (Ibid.) We concluded that the court properly denied the suppression motion, noting that, in contrast to the circumstances in White, supra, 107 Cal.App.4th 636, the officer in Colbert provided specifics as to the dimensions of the air freshener, he “explicitly testified” that it created an obstruction to the driver’s view through the windshield (Colbert, supra, at p. 1073), and “unlike in White, there was no evidence presented by the defense that the air freshener did not obstruct the driver’s view.” (Ibid.)
Here, similarly, the arresting officer directly testified that he believed that the air fresheners obstructed the clear view of the Sentra’s driver, and there was no evidence to the contrary submitted by defendant. And the collective width of the air fresheners here was more than three times that of the air freshener in Colbert. Moreover, contrary to defendant’s contention, it does not follow that because the officer’s belief in Colbert that the driver’s view was obstructed was based in part on the officer’s personal experience with similar air fresheners, Officer Parsons’s testimony here was inadequate to establish a reasonable suspicion of a violation of Vehicle Code section 26708(a)(2). Based upon the evidence presented at the hearing, we disagree with defendant’s characterization of the officer’s testimony here that the air fresheners obstructed defendant’s view as “ambiguous and a mere abstraction.”
The facts presented at the hearing demonstrated a basis for a reasonable suspicion on the part of the arresting officer that defendant was operating his car in violation of Vehicle Code section 26708(a)(2). Therefore, the traffic stop was justified because Officer Parsons had “specific and articulable facts causing him to suspect that (1) some activity relating to crime . . . [was then] occurring . . ., and (2) the person he intend[ed] to stop or detain [i.e., the driver of the Sentra, was] involved in that activity.” (In re Tony C., supra, 21 Cal.3d at p. 893.)
2. The pat search
Defendant argues that the pat search conducted after the traffic stop was unlawful because there were no specific and articulable facts to justify it. Defendant argues that the traffic stop itself, defendant’s nervous behavior, and his movements after he exited the Sentra were not facts that warranted the pat search. We reject defendant’s challenge.
We note initially that “an officer making a traffic stop may, without violating the Fourth Amendment, order the driver and passengers to exit a car. [Citation.] . . . [Under] the rule in Pennsylvania v. Mimms [(1977) 434 U.S. 106, 111, fn. 6,] . . . once a vehicle has been lawfully detained for a traffic violation, a police officer may order the driver to exit the vehicle without any articulable justification. [Citations.]” (People v. Hoyos (2007) 41 Cal.4th 872, 892-893, fn. omitted.) Therefore, Officer Parsons acted properly in ordering defendant out of the car, irrespective of whether defendant’s actions after being stopped provided an additional justification for doing so.
When an officer has a reasonable belief, based upon his or her experience and the circumstances presented, that the individual whose suspicious behavior the officer is investigating at close range is armed and presently dangerous to the officer or to others, the officer has the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. (Terry v. Ohio (1968) 392 U.S. 1, 24 (Terry).) “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.” (Id. at p. 29.) 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. (Id. at p. 20; see also People v. Garcia (2006) 145 Cal.App.4th 782, 786.) “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.” (Terry, supra, at p. 27.)
Here, there were several circumstances that served collectively as justification for the pat search. These facts included defendant’s (1) looking for the registration “in strange places” such as the ash tray and in his jacket; (2) being “extremely nervous . . . to the point of becoming frantic” while still inside the Sentra; (3) quick movements inside the car that caused Officer Parsons concern for his safety; (4) not having his hands visible at all times while inside the car; (5) failure to follow Officer Parsons’s twice-repeated instructions to terminate his telephone call and exit the Sentra; and (6) movement of his hands, after stepping outside of the car, away from his body towards “the waistband area of his clothing.” Although some or all of these individual facts, standing alone, might not have been sufficient cause for the officer’s reasonable suspicion that defendant might be armed, the facts viewed collectively support the officer’s decision to conduct a pat search. (Cf. United States v. Cortez, supra, 449 U.S. at p. 417 [whether police had reasonable suspicion to justify stop is determined by viewing “totality of the circumstances—the whole picture— . . .”].) In this respect, we reject defendant’s claim that the search was unjustified; it is an argument based largely upon an analysis of each fact separately and without viewing them in their totality.
Defendant cites People v. Dickey (1994) 21 Cal.App.4th 952, in support of his challenge to the legality of the pat search. There, an officer approached the defendant after he had stopped his car in the roadway, leaving the engine running. (Id. at p. 954.) The defendant identified himself but was unable to produce the vehicle registration, his driver’s license, or other confirmation of his identity. (Ibid.) The police were able to verify that the car was registered to the defendant. (Ibid.) After the defendant and his passenger complied with the officer’s order to step out of the car, the defendant twice refused the officer’s request that he consent to a search of the car. (Ibid.) The officer, who testified that “he was angry with [the defendant] and told [him] so . . . told [the defendant] he would just look for items in plain view in the car to justify the search.” (Ibid.) Defendant consented to a search of a backpack (that he claimed was not his), which revealed a toothbrush and a film canister of baking soda; the defendant claimed he used the baking soda for brushing his teeth, but the officer believed it to be a cutting agent for narcotics. (Id. at p. 955.) The defendant was nervous and sweating despite the fact that it was a cool day. (Ibid.) The officer then conducted a pat search of the defendant, which he justified later as necessary “for ‘officer safety’ and because [the defendant] ‘potentially may have been armed.’ ” Under these circumstances, the appellate court rejected the officer’s justification for the pat search, finding an absence of “ ‘specific and articulable’ facts” and observing that “[i]n every encounter with a citizen by the police, the citizen may potentially be armed.” (Id. at p. 956.) Accordingly, the court reversed the judgment, holding that “[n]one of these considerations [offered by the officer to justify the pat search], considered singly or in combination, would lead an officer to ‘ “ . . . reasonably believe in the possibility that a weapon may be used against him . . . .” ’ [Citations.]” (Ibid.)
Here, in contrast, there was no evidence that Officer Parsons was using the potential violation of Vehicle Code section 26708(a)(2) as a pretext to search defendant or his car, or that he was angry with defendant. And unlike the defendant in Dickey, defendant here disobeyed multiple officer commands to exit the Sentra and conducted himself both inside and outside the car in a manner that created a concern for officer safety. Dickey does not require a finding that the pat search here was unjustified.
Defendant also cites two out-of-state cases—Interest of G.T. (Fla. 1980) 387 So.2d 485, and State v. Hunter (La. 1979) 375 So.2d 99. Besides the fact that we “are not bound by decisions in other jurisdictions” (Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1306), neither case suggests that the pat search here was not justified. In Interest of G.T., the claimed basis for the pat search was nothing more than that one of the juveniles had a hand in his pocket. (Interest of G.T., supra, at p. 487.) In Hunter, the justification was the mere nervousness of the defendant and the placement of his hand toward his chest several times. (Hunter, supra, at p. 102.) Neither case involved the type of aggregation of circumstances described here that furnished Officer Parsons with a reasonable suspicion that defendant might be armed and dangerous.
We acknowledge, as we said some time ago, that because “minor traffic offenses do not reasonably suggest the presence of weapons, an officer may not search the driver or those areas of a car where a weapon may be hidden and accessible unless the objective circumstances furnish reasonable grounds to believe the driver is armed and/or dangerous and may gain immediate control of a weapon. [Citations.]” (People v. Miranda (1993) 17 Cal.App.4th 917, 927.) However, we also recognize that “[t]he judiciary should not lightly second-guess a police officer’s decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations. [Citations.]” (People v. Dickey, supra, 21 Cal.App.4th at p. 957.) Here, there were sufficient facts from which the officers could reasonably conclude that defendant might have a weapon in his possession that justified the pat search for officer safety. The trial court properly denied defendant’s motion to suppress.
III. Validity of Probation Condition
The court imposed the following probation condition challenged by defendant here: “You shall not be present at any court proceedings or at any courthouse unless you are scheduled for a court hearing, or have the express permission of your Probation Officer.” Defendant argues that the condition is overly broad and is unreasonable because it does not relate to the firearm possession offense of which he was convicted, and it forbids conduct that does not relate to future criminality. He also contends that the probation condition abridges his constitutional right to travel and violates his constitutional right of access to court proceedings.
We review the propriety of the imposition of a probation condition for abuse of discretion. “The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof.” (People v. Lent (1975) 15 Cal.3d 481, 486; see also People v. Welch (1993) 5 Cal.4th 228, 233.) A sentencing court violates this standard only when its probation condition determinations are arbitrary, capricious, or exceed “ ‘ “the bounds of reason, all of the circumstances being considered.” ’ ” (People v. Welch, supra, at p. 234.)
As our Supreme Court has explained: “In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] ‘The court may impose and require . . . [such] reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121, quoting § 1203.1, subd. (j).)
In order for a probation condition to be determined invalid, it must satisfy the three-part Lent test, namely, the probation condition must “ ‘(1) [have] no relationship to the crime of which the offender was convicted, (2) relate[] to conduct which is not in itself criminal, and (3) require[] or forbid[] conduct which is not reasonably related to future criminality . . . .’ [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) And the Lent court made clear that each of these three elements must be met in order to invalidate the probation condition. (Id. at p. 486, fn. 1 [noting that the Supreme Court in In re Bushman (1970) 1 Cal.3d 767, 777, had inadvertently used the disjunctive instead of the conjunctive in describing the three-part test]; see also People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3.)
The Attorney General argues that defendant forfeited his challenge that the probation condition is unreasonable because he failed to object below. We agree.
Under People v. Welch, supra, 5 Cal.4th at page 237, a challenge to the reasonableness of a probation condition is forfeited on appeal if it is not preserved at the time of its imposition in the trial court. (See also In re Sheena K. (2007) 40 Cal.4th 875, 882.) Defendant here not only did not object to the probation condition, he advised the court that he understood each of the conditions and that he was willing to comply with each of them “[t]o the fullest.” His appellate claim that the probation condition concerning attending court proceedings is unreasonable is forfeited.
As to defendant’s constitutional challenges, the Attorney General concedes that under In re Sheena K., supra, 40 Cal.4th 875, they are not forfeited. There, the Supreme Court held that a challenge to a probation condition on constitutional grounds that involves pure questions of law are not forfeited despite the defendant’s failure to assert the challenge in the trial court. (Id. at p. 889.) We therefore address defendant’s constitutional challenge here.
We begin by noting that if a probation condition serves the dual purposes under section 1203.1 of fostering rehabilitation and protecting public safety, it “may impinge upon a constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ [Citation.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 624, quoting People v. Peck (1996) 52 Cal.App.4th 351, 362.) On the other hand, it is certainly the case “that probation conditions that implicate constitutional rights must be narrowly drawn, . . .” (People v. Garcia (1993) 19 Cal.App.4th 97, 102; see also People v. Jungers (2005) 127 Cal.App.4th 698, 704 [“probation conditions that restrict constitutional rights must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant”].)
Defendant argues that the probation condition should be stricken because it is not narrowly tailored and restricts both his constitutional right to travel (United States v. Guest (1966) 383 U.S. 745, 757), and his constitutional right of access to both criminal trials (Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596; People v. Cummings (1993) 4 Cal.4th 1233, 1298-1299) and civil trials (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208). He asserts that the condition prohibits him, for example, from attending a trial to support a family member, doing business with other agencies located at the courthouse, responding to jury summonses, or using the law library. He also argues that there is no nexus between the gun possession offense and the condition restricting his travel to any courthouse.
We disagree with the latter claim because it ignores the fact that defendant was also convicted of actively participating in a criminal street gang in violation of section 186.22, subdivision (a). Although defendant did not admit current membership in the Norteño gang, the probation report disclosed that he had a history of some association with the Fremont Street branch of that gang and that his cousin was an active gang member. Therefore, some form of gang conditions—where they were reasonably designed to prevent future criminal behavior (People v. Lopez, supra, 66 Cal.App.4th at p. 624; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1503), or promoted the goal of rehabilitation and public safety by forbidding conduct reasonably related to future criminality (People v. Lopez, supra, at pp. 625-626)—were appropriate. Prohibiting persons with gang affiliations from attending criminal trials in which they have no direct involvement promotes public safety. It is commonly known that witness intimidation is a significant problem in the prosecution of gang-related crimes and persons alleged to be affiliated with gangs. (See Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1149, fn. 15 [describing severe problem of witness intimidation by prison gangs].) Therefore, to the extent that the challenged probation condition restricts defendant from attending criminal trials in which he is neither the accused nor a subpoenaed witness, it is appropriate.
The grant of probation also included other gang-related conditions that defendant does not challenge here, such as prohibiting defendant from being present in a known or suspected gang gathering area; associating with persons he knows or suspects to be gang members; possessing, wearing or displaying any items known to be associated with gang membership; or obtaining any new gang tattoos.
In so concluding, we find defendant’s reliance on In re White (1979) 97 Cal.App.3d 141, to be misplaced. There, the challenged probation condition that the court found unreasonable restricted the defendant from being present in a designated area of the city of Fresno at any time. (Id. at pp. 143-144.) Here, the restriction is not limited to a geographical area, but to specified buildings, i.e., courthouses.
The condition, however, is much broader than merely prohibiting defendant from attending criminal trials with which he has no involvement. It prohibits attendance “at any court proceedings or at any courthouse” unless defendant is scheduled for a court hearing. (Italics added.) First, we accept the Attorney General’s suggestion that the condition should be modified so that the prohibition is limited to criminal matters. However, we believe that the Attorney General’s suggested modification of the probation condition to “criminal court proceedings, criminal courthouse buildings, and criminal courtrooms” is still problematic. Under the restriction suggested by the Attorney General, defendant would be prohibited from attending a criminal trial not his own even if he were a subpoenaed witness or a prospective juror responding to a jury summons. He would also be prohibited from setting foot in any criminal courthouse, even if it were for such benign reasons as going to the law library or seeking access to governmental offices located within a criminal courthouse facility. We will therefore modify the courthouse probation restriction to read as follows: “You shall not be present at any criminal court proceeding or at any criminal courthouse building or criminal courtroom unless you are scheduled for a court hearing or have the express permission of your Probation Officer.”
Justice McAdams dissents from our holding, concluding that the probation condition, “[e]ven as modified . . . [constitutes] an indiscriminate exclusion of someone from courthouse proceedings [that] is too broad and [is] of questionable constitutionality . . . .” (Dissenting opn., p. 1.) But we believe that the probation condition here promotes the twin goals of fostering defendant’s rehabilitation (i.e., by prohibiting defendant’s potential association at criminal proceedings with gang members or others having a criminal history and/or being accused of criminal conduct), and of protecting public safety (i.e., by reducing the risk of witness intimidation common in gang-related cases). Given defendant’s gang ties—his admitted past gang association, his no contest plea to actively participating in a criminal street gang, and the fact that at least one of his relatives is an active Norteño gang member—we respectfully disagree with the implicit conclusion of our colleague that the imposition of the probation condition, as modified, is antithetical to the broad discretion enjoyed by the trial court to fashion appropriate probation conditions that foster rehabilitation and protect public safety. (People v. Carbajal, supra, 10 Cal.4th at pp. 1120-1121.)
IV. Sentencing Credits
Defendant contends that the court erred in providing him with 32 days of custody credits, rather than 150 days of credits to which he was entitled. He argues that he was actually in custody for 150 days and that the court erroneously applied section 2900.5, subdivision (b) to deny him custody credits. He argues that since sentence was suspended, that code section—applicable where consecutive sentences are imposed—should not have been applied.
The Attorney General argues that defendant forfeited this challenge by failing to raise it in the court below. Defendant fails to respond to this forfeiture contention in his reply brief. We agree with the Attorney General that the claim is forfeited.
As the Supreme Court recently reiterated, “[o]rdinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. [Citations.]” (In re Sheena K., supra, 40 Cal.4th at p. 880.) “The purpose of this [forfeiture] rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Thus, in People v. Scott (1994) 9 Cal.4th 331, 351-354, the Supreme Court held that a defendant’s objection that the trial court failed to make or articulate a discretionary sentencing choice is forfeited if not objected to at the time of sentencing. And as we mentioned above, a challenge to the reasonableness of a probation condition is forfeited on appeal if it is not preserved at the time of its imposition in the trial court. (People v. Welch, supra, 5 Cal.4th at p. 237.)
Here, since the court suspended imposition of the sentence and granted probation, defendant cannot avail himself of the forfeiture exception recognized in People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139, where the court held that it would consider the defendant’s argument that the court erred in failing to grant presentence custody credits at sentencing “[b]ecause the calculation of credits is purely mathematical, and . . . [the] argument involves a statutory interpretation of first impression . . . .” The decision of the trial court here to require that defendant serve 120 days in county jail “to run consecutive to” the domestic violence case as to which defendant was also granted probation was part of the court’s exercise of discretion in granting probation. As such, defendant, in belatedly challenging the court’s failure to give 118 days’ additional custody credits, is disputing the reasonableness of a condition of probation. His failure to preserve that challenge to the reasonableness of the probation condition bars its assertion here. (In re Sheena K., supra, 40 Cal.4th at p. 882; People v. Welch, supra, 5 Cal.4th at p. 237.)
DISPOSITION
The probation condition concerning defendant’s participation in court proceedings or presence at courthouses is modified to read as follows: “You shall not be present at any criminal court proceeding or at any criminal courthouse building or criminal courtroom unless you are scheduled for a court hearing or have the express permission of your Probation Officer.” As modified, the judgment is affirmed.
I CONCUR: Mihara, Acting P.J.
McAdams, J., Concurring and Dissenting opinion.
I concur in part II, affirming the denial of defendant’s motion to suppress, and in part IV, rejecting defendant’s contention that he is entitled to further sentencing credits.
I dissent from part III, the section affirming, as modified, the probation condition prohibiting defendant’s presence at any criminal court proceeding or criminal courthouse or courtroom unless attending his own scheduled hearing or attending with probation officer permission. Even as modified, such indiscriminate exclusion of someone from courthouse proceedings is too broad and of questionable constitutionality without some evidence, for example, that defendant poses a specific threat by his presence at the courthouse. Since the record contains no such specific information, I can only assume this is a general term applied to all gang members granted probation. The court did impose gang-related conditions prohibiting defendant from associating with known gang members, being in a gang gathering area, and wearing or displaying items known to be gang-related. These conditions may be sufficient to prevent such a gang presence at the courthouse, but if there are legitimate concerns about threats of gang violence in or near the courthouse or intimidation of witnesses, the court could consider narrowly tailoring the terms to preclude defendant’s presence at or near proceedings involving known gang members or where known gang members are in attendance, as well as buildings and courtrooms where defendant is aware of proceedings involving gang members or attended by gang members.