Opinion
Super. Ct. No. 03F6857
NOT TO BE PUBLISHED
RAYE, Acting P.J.
Defendant Timothy Marvin Santos, whose motion to suppress the traveling methamphetamine lab found in his truck was denied, contends the police did not have a reasonable suspicion to stop him for driving with a cracked windshield because the crack did not obstruct his vision. He complains the prosecution violated its duty to preserve evidence when the truck operator sold the truck (California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413] (Trombetta)), and the trial court abused its discretion when it denied his request to hold a second suppression hearing after the truck and its new owner were found about three years later. The windshield remained cracked but the cracks had grown. Defendant also complains of the court’s failure to give a unanimity instruction.
In his 85-page opening brief, defendant has thoroughly explored every possible legal issue involving the cracked windshield. But even if we were to accept his arguments that the police officer exaggerated the number and size of the cracks, that the prosecutor sold the truck in bad faith, and that the tow truck driver and the new truck owner truthfully represented that the crack did not obstruct the driver’s vision, the dispositive fact remains that the cracked windshield was observable by the three percipient witnesses. That fact alone gave the officer a reasonable suspicion to stop defendant to investigate whether the crack obstructed his vision. And that fact alone moots his Trombetta claim as well as his challenge to the denial of his second suppression motion. We also reject defendant’s instructional challenge and affirm the judgment.
FACTS
On a sunny September morning in 2003, Shasta County Sheriff’s Deputy Christopher McQuillan was parked in a marked police car observing traffic. He testified he saw a red truck approaching and noticed a crack in the center of the windshield running from the top to the bottom. He also saw smaller cracks running horizontally. He stopped the driver of the truck because he believed that the crack impaired the driver’s view. He testified that in his experience, cracks in a windshield reflect the light toward the driver and can blind him.
Defendant and his passenger appeared nervous, almost paranoid. Defendant told the deputy his registration had blown out of the vehicle. McQuillan requested back-up for his own safety. After another deputy arrived, his dog “alerted” on the truck and the deputies noticed a strong chemical smell. In the truck, the deputies found ephedrine, hydrochloric acid with ephedrine inside it, red phosphorous, iodine, marijuana, and an open container of alcohol. Based on his training and experience and the presence of these chemicals, McQuillan believed the truck was a rolling methamphetamine laboratory. He requested assistance from the Shasta Interagency Narcotic Task Force (SINTF).
SINTF Agent David Kent testified that defendant told him the chemicals were used for manufacturing methamphetamine, claimed they belonged to a friend, but admitted that he had arranged to make methamphetamine for himself and the friend. Boasting that he knew more about chemistry than all the agents at the scene, he claimed he had a patent that would speed up the process of making methamphetamine. He also told the agent he had been manufacturing it at his house in Shasta Lake City. The agents thereafter seized a treasure trove of chemicals and drug paraphernalia at the house.
Defendant’s then girlfriend lived at the house with her three children, ages 8, 10, and 12. She told the SINTF agent she was upset because defendant had been “cooking” methamphetamine in their kitchen and in the bathroom. Later she recanted those statements.
Defendant testified at trial. Although he admitted he had been addicted to methamphetamine since he was 14 or 15 years old, he claimed he ran a lucrative business and supported his family. He testified he had not admitted to the officers he manufactured methamphetamine and insisted he told the officers the chemicals belonged to someone else. He explained that he used the chemicals found in his house to clean the expensive paintbrushes he used to apply finishes to decks. He claimed that Deputy McQuillan initially told him he was pulled over for speeding and then changed his justification to the windshield. Defendant testified there was “a small chip” in the windshield.
The officers impounded defendant’s vehicle. The towing company operator also testified there was a crack in the middle of the windshield, but he opined that the crack did not obstruct the driver’s vision. A defense investigator took pictures of the truck from between 75 and 90 feet away because he could not come inside the wrecking yard where the truck was stored. These pictures, as well as those taken by the police, were of poor quality. A crack in the windshield was not discernible in the photos.
The operator of the tow truck company sold the truck without giving defendant or his family the proper notice. The truck had not been located at the time of the first suppression hearing. When it was located about three years later, the defense made a second suppression motion based on what in its view constituted new evidence. The new owner of the truck would have testified that the windshield had a crack in it extending from top to bottom midline, but it did not obstruct his vision.
The defense also offered evidence that Deputy McQuillan, in a case many years earlier, had failed to include in his report that a defendant made incriminating statements after he invoked his Miranda rights. Defendant argues that McQuillan’s credibility was at issue. He also points out that McQuillan had prior information that a red truck matching the impounded truck’s description was possibly involved in sales of narcotics.
A jury convicted defendant of possession of a substance with the intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(1)), conspiracy to manufacture methamphetamine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379.6), possession of a smoking device (Health & Saf. Code, § 11364), possession of a hypodermic needle without a permit (Bus. & Prof. Code, § 4140), possession of marijuana while driving (Veh. Code, § 23222, subd. (b)), and child endangerment (Pen. Code, § 273a, subd. (b)). The court found all the enhancements for prior convictions and prior prison terms to be true. The trial court sentenced defendant to state prison for an aggregate term of 36 years to life.
I MOTIONS TO SUPPRESS
The two suppression motions and the Trombetta claim all involve the cracked windshield. Section 26710 of the Vehicle Code states, in pertinent part: “It is unlawful to operate any motor vehicle upon a highway when the windshield or rear window is in such a defective condition as to impair the driver’s vision either to the front or rear.” Deputy McQuillan, the towing company operator, and the new owner of the truck did testify, or would have, that a centerline crack in the windshield ran from the top to the bottom. McQuillan further testified that he believed the crack impaired the driver’s vision, and therefore he stopped the truck to investigate.
Defendant argues there was no probable cause to stop him. He believes the stop for a vehicle violation was pretextual, that McQuillan had preexisting information that a red truck had been involved in the sale of illegal drugs, and that the crack in the windshield was used to justify an otherwise unlawful detention. He either misunderstands or misapplies a few basic concepts fatal to his challenge to the legality of the stop.
“[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law.” (People v. Wells (2006) 38 Cal.4th 1078, 1082.) A traffic stop is reasonable if the detaining police officer can point to specific articulable facts that objectively suggest the detainee is violating the law in light of the totality of circumstances. (People v. Colbert (2007) 157 Cal.App.4th 1068, 1072 (Colbert).) The question is not whether there is substantial evidence the driver’s vision was impaired to support a conviction of the Vehicle Code offense, but whether the officer had a reasonable suspicion that the crack might have impaired defendant’s vision. The notion of probable cause is thus diluted to a mere reasonable suspicion that defendant’s vision was obscured by the centerline crack.
Defendant’s aspersions on the police officer’s motives are misplaced. Although the police officer’s suspicions must be objectively reasonable as measured by specific articulable facts, any ulterior subjective motives are irrelevant. Thus, the only relevant question is whether the cracked windshield provided an objective justification for the stop.
Defendant argues that none of the photographs taken either by his investigator or the arresting officers captured the crack. He infers that the crack must have been de minimus and therefore did not create a reasonable suspicion his vision was obscured. He contends the towing company operator’s testimony that the crack did not impair his vision provides further evidence the officer’s suspicion was not objectively reasonable.
Defendant minimizes the trial court’s factual findings. We cannot. On appeal of the denial of a motion to suppress, the appellate court must defer to the trial court’s express and implied factual findings as long as they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) The trial court, not the Court of Appeal, has the power to assess the credibility of witnesses, resolve conflicts in testimony, weigh the evidence, and to draw factual inferences. (People v. James (1977) 19 Cal.3d 99, 107.)
In denying the motion to suppress, the trial court articulated express factual findings. The court found the testimony of McQuillan and the towing company operator that there was a large crack in the windshield truthful and credible. On the other hand, the court found the photographs inconclusive. There was extensive testimony that the defense investigator took his photographs from too great a distance, and the quality of the police photographs was extremely poor. As a result, there was ample evidence to support the trial court’s factual findings. We must defer to the court’s pivotal factual finding that there was a long crack in the middle of defendant’s windshield.
It is true, as defendant argues, that based on the trial court’s factual findings, we must independently determine whether the officer’s stop was objectively reasonable within the meaning and protection afforded under the Fourth Amendment of the United States Constitution.
We conclude the factual findings resolve the constitutional inquiry. A long, vertical crack running through the middle of a windshield provides an objectively reasonable suspicion of a potential violation of Vehicle Code section 26710. That is not to say defendant did violate the law because his vision may, or may not, have been impaired. But any driver, let alone a driver of a rolling methamphetamine lab, risks detention by traveling with a cracked windshield simply because he provides a police officer with a reasonable suspicion the crack might obscure his vision and thereby constitute an offense pursuant to section 26710.
Thus, a police officer does not transgress the Fourth Amendment by stopping the vehicle and briefly detaining the driver to ascertain whether or not the crack actually does impair his vision.
Defendant and the Attorney General each offer their own dangling air freshener case in support of their divergent views as to the justification for the stop. People v. White (2003) 107 Cal.App.4th 636 (White), advanced by defendant, and Colbert, supra, 157 Cal.App.4th 1068, supported by the Attorney General, each presented the question whether it was objectively reasonable for the police officer to believe that the air freshener obstructed the driver’s view.
In White, the police officer never testified that he believed the air freshener obstructed the driver’s view. (White, supra, 107 Cal.App.4th at p. 642.) The defendant, capitalizing on such a blatant gap in the prosecution’s case, introduced the expert testimony of a civil engineer who had performed an experiment and opined that the tiny air freshener would not obstruct the vision of a six-foot-tall driver. (Ibid.) The defendant also testified the air freshener had not obstructed his vision. (Ibid.) On this evidence, the Court of Appeal in White concluded there were no specific and articulable facts presented to support the officer’s purported belief that the driver’s view had been obstructed. (Ibid.)
By contrast, the evidence presented in Colbert was “precisely what was missing in White.” (Colbert, supra, 157 Cal.App.4th at p. 1073.) Furthermore, there was no evidence of the type supporting the defense theory as there was in White. In Colbert, the officer testified “that the air freshener obstructed defendant’s view through the windshield, and he explained how he had personally experienced that an object of similar size obstructed a driver’s view of vehicles and pedestrians through the windshield.” (Colbert, at p. 1073.) The officer’s testimony, the court concluded, “provided specific and articulable facts that supported an objectively reasonable conclusion that the hanging air freshener in defendant’s vehicle violated Vehicle Code section 26708, subdivision (a)(2).” (Ibid.)
Here, as in Colbert, Deputy McQuillan testified at length on the specific facts upon which he based his judgment that the crack could obstruct the driver’s vision. He, like the officer in Colbert, testified that he had personal experience observing how a crack in the windshield obstructs a driver’s vision, particularly where, as here, the sun is shining and may be reflected by the crack. His testimony, like the testimony in Colbert, provided specific and articulable facts to support an objectively reasonable conclusion that the windshield crack obstructed the driver’s vision in violation of section 26710 of the Vehicle Code.
That is not to say there are no meaningful differences between the facts in Colbert and those before us. Defendant adds force to his argument that the officer lacked an objectively reasonable justification for the stop by focusing our attention on the testimony of the towing company operator and the proferred testimony of the new owner of the truck, both of whom stated the crack did not obstruct their vision while driving the truck. But this argument brings us full circle and focuses our attention again on the dispositive fact in this case: all three witnesses described a crack running from the top to the bottom of the windshield, right in the middle. The deputy, unlike the other two witnesses who drove the car, did not have the opportunity before stopping the vehicle to look through the windshield from the driver’s vantage point. Since all three provided a consistent description of the length and location of the crack, the deputy had an objectively valid basis for a brief detention to determine, as the other drivers did, whether that crack actually obstructed the driver’s vision. As the court concluded in Colbert, there was no error in denying the suppression motion.
To make matters worse from defendant’s point of view, the prosecution failed to preserve the truck and the evidence of the cracked windshield. Defendant holds the prosecution responsible for the towing company’s sale of the truck without giving him proper notice. And he faults the trial court for refusing his second suppression motion after the truck was located several years later and the owner was available to testify there was a crack from the top to the bottom of the windshield when he bought it. The cracks had worsened, but the windshield had not been fixed.
Defendant contends his defense was thus sabotaged by his inability to present evidence of the crack itself. We disagree. Defendant presents no evidence that the windshield was not cracked at all. Indeed, he insists he should have been allowed the opportunity to introduce the new owner’s testimony that corroborated the description of the crack offered both by Deputy McQuillan and the towing company operator. All three witnesses stated the vertical crack ran from the top to the bottom of the windshield and was located in the middle of the windshield. Yet defendant reiterates the argument that the crack did not obscure the driver’s vision and he needed the windshield itself to prove that. Because the issue was not whether the windshield obscured defendant’s vision, in which case evidence of the precise condition of the windshield would be necessary, but whether the deputy had a reasonable suspicion that it did, evidence of the exact size and location of the crack would not have eliminated the deputy’s reasonable suspicion.
II INSTRUCTIONAL ERROR
In People v. Russo (2001) 25 Cal.4th 1124 (Russo), our Supreme Court held that “the jury need not agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy.” (Id. at p. 1128.) Despite the Supreme Court’s rejection of defendant’s argument that the trial court committed reversible error by failing to instruct the jury to make a unanimous finding as to which overt act supported a guilty verdict on conspiracy, he attempts to import the constitutional principles announced earlier by the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), a sentencing case, to undermine the binding principle in Russo.
Apprendi has no application to a jury’s determination of the overt acts to sustain a conspiracy or to whether that decision needs to be unanimous. The United States Supreme Court, in Apprendi, determined “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) Apprendi, as mentioned above, was decided before Russo. Defendant contends that Russo was wrongly decided. We, of course, are bound by the holding of the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nothing in the holding or rationale of a preexisting sentencing case cracks the efficacy of that rule or the holding of the California Supreme Court in Russo.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, J., ROBIE, J.