People v. Nice

Opinion

Codefendants Steven Andrew Nice and Carlo Antonio Delconte appeal their convictions on drug- and weapons-related charges following the

For the reasons set forth below, we find the trial court did not err in denying the motion to suppress. We agree with Nice that certain parts of the probation condition should be modified. We will affirm the judgment as to defendant Delconte, and we will affirm the judgment as modified as to defendant Nice.

A

. Warrantless Search and Seizure

Our summary of the facts is taken from the testimony at the preliminary hearing and suppression hearing. Between April and June 2012, San Jose police officers responded to approximately 10 calls complaining of generator noise, fumes, and parked cars on a lot in a residential neighborhood in the vicinity of Leigh Avenue and Rosswood Drive in San Jose. City of San Jose Police Officer Marc Beretta responded to two such calls on June 2, 2012. Officer Beretta spoke with Delconte, who answered the officer’s knock on the gate and said he was leasing the property and the parked cars belonged to him.

The next day, June 3, 2012, Officer Beretta returned to the area on patrol with his partner. The officers were in uniform, driving a marked patrol vehicle, and were stopped on the north curb line of Rosswood Drive, in the middle of the block between Leigh Avenue and Tilden Drive. Officer Beretta noticed a white Chevrolet car pass “fairly quickly,” heading west toward Tilden Drive. Officer Beretta recognized the car from the service call the day before. As the white Chevrolet passed the police vehicle, Officer Beretta saw the driver look in the rearview mirror at him; the car then made a “quick right turn” northward on Trent Drive, the first street after Tilden, without using its turn signal.

Officer Beretta pulled his vehicle off the curb and followed, intending to make a traffic stop. As Officer Beretta turned right on Trent Drive, the white car was somewhere between halfway down the block and the end of the block. At the preliminary hearing, Officer Beretta described the car at the point that he turned onto Trent Drive as “already northbound almost getting ready to make the turn around the cul-de-sac [at the end of Trent Drive].” At the hearing on the motion to suppress, several months later, Officer Beretta described the white car at that moment as “a little more probably than

A subsequent vehicle search revealed a black tool bag on the back passenger seat containing methamphetamine packed in individual baggies, individual baggies of cocaine, four glass vials of ketamine, ground dimethyl-tryptamine, blister packs of Viagra tablets, and Cialis, Adderall, and oxyco-done tablets. The tool bag also contained an Intratec TEC-9 assault weapon that was not registered to either defendant, a loaded nine-millimeter pistol, a collapsible police baton, two digital scales, 19 $100 bills, empty plastic baggies, paper cupcake cups, and a large glass pipe with methamphetamine residue on it.

Pursuant to a search warrant obtained later that day for the nearby lot leased by Delconte, Officer Beretta and other officers found a loaded .22-caliber handgun, two 12-guage shotgun rounds, ammunition, baggies with a white crystalline substance resembling methamphetamine, a box filled with glass smoking pipes, hypodermic needles, Viagra, .357-Magnum ammunition, .380-caliber ammunition, and a digital scale. Defendants’ blood samples taken after their arrest both tested positive for methamphetamine.

B. Procedural History

The Santa Clara County District Attorney filed a first amended information on June 4, 2014, charging Delconte and Nice as follows: possession for sale of methamphetamine (Health & Saf. Code, § 11378) in an amount of 57 grams or more (Pen. Code, § 1203.073, subd. (b)(2)) while personally armed with a firearm (Pen. Code, § 12022, subd. (c); count 1); transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) while personally armed with a firearm (Pen. Code, § 12022, subd. (c); count 2); possession for sale of cocaine (Health & Saf. Code, § 11351) while personally armed with a firearm (Pen. Code, § 12022, subd. (c); count 3); transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)) while personally armed with a firearm (Pen. Code, § 12022, subd. (c); count 4); possession of a controlled substance (Health & Saf. Code, § 11377, subd. (b); count 5); carrying a loaded firearm in which Nice and/or Delconte was not the registered owner (Pen. Code, § 25850, subd. (a); count 6); possession of a firearm while under the influence (Health & Saf. Code, § 11550, subd. (e); counts 7 [Delconte] & 8 [Nice]); transportation of an assault weapon (Pen. Code, § 30600, subd. (a); count 9); and possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1; count 10).

Delconte filed a motion to suppress the evidence on July 2, 2014, in which Nice joined. Delconte contended the traffic stop was without reasonable

The trial court conducted an evidentiary hearing on September 5, 2014. Counsel for both defendants indicated the suppression motion was limited to the reasons for the vehicle stop. The People relied solely on the alleged speeding violation to justify the stop and called Officer Beretta as their only witness. The defense introduced the testimony of Michael Yore, a private investigator and former police officer who measured the area and drove the route at different speeds. Yore testified that the measured distance from the northeast corner of Rosswood Drive to Troy Park Place, where the estimate of speed occurred, was 824 feet. During his speed tests, it took him approximately 20 seconds to cover that distance driving 25 miles per hour and approximately 15 seconds while driving 35 miles per hour. Yore also tested and found that it took him five seconds to pull away from the curb on Rosswood Drive midway between Tilden Drive and Trent Drive and get to the corner of Rosswood and Trent. Yore did not have another vehicle drive the route while he tried to visually estimate the speed.

The People argued that Yore’s calculations were consistent with their position because it would have taken Officer Beretta five to eight seconds to move from the curb line of Rosswood between Leigh and Tilden to the corner of Trent and Rosswood, such that when he got to the corner, he would see the white car about halfway down Trent if it was traveling at 35 miles per hour, as Officer Beretta had estimated. The defense countered that this did not account for the extra time it would have taken Officer Beretta to travel from his starting position between Tilden and Leigh on Rosswood, past Tilden, to the corner of Trent and Rosswood. Accounting for this additional time, the defense argued, would place defendants’ car about midway or close to the end of Trent Drive if traveling at the speed limit.

The trial court denied the suppression motion. In a written order on September 9, 2014, the court explained its findings: “Officer Beretta[] has extensive experience and expertise in performing speed estimations. His estimate here that defendants’ car was traveling 35M-0 miles per hour, based on first-hand observations of the driving, is sufficient to raise a reasonable articulable suspicion that the car was in violation of the 25 mile per hour speed limit for residential areas. Officer Beretta consequently had a valid basis to perform a car stop.”

A. Motion to Suppress as to Both Defendants

1. Legal Framework

A traffic stop is a seizure subject to the protections of the Fourth Amendment of the United States Constitution. (Berkemer v. McCarty (1984) 468 U.S. 420 , 436 [ 82 L.Ed.2d 317 , 104 S.Ct. 3138 ].) We evaluate the legality of the traffic stop under the rubric of federal constitutional law (People v. White (2003) 107 Cal.App.4th 636 , 642 [ 132 Cal.Rptr.2d 371 ]), which requires “only reasonable suspicion in the context of investigative traffic stops.” (U.S. v. Lopez-Soto (9th Cir. 2000) 205 F.3d 1101 , 1105.) “Reasonable suspicion a law has been violated can be based on less than probable cause to believe a violation has occurred but it cannot be based on mere speculation or hunch.” (People v. Rodriguez (2006) 143 Cal.App.4th 1137 , 1148 [ 49 Cal.Rptr.3d 811 ], citing People v. Wells (2006) 38 Cal.4th 1078 , 1083 [ 45 Cal.Rptr.3d 8 , 136 P.3d 810 ].) Reasonable suspicion “ ‘ “requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” ’ ” (People v. White, supra, at p. 641, quoting U.S. v. Twilley (9th Cir. 2000) 222 F.3d 1092 , 1095.) “An officer is entitled to rely on his training and experience in drawing inferences from the facts he observes, but those inferences must also ‘be grounded in objective facts and be capable of rational explanation.’ ” (U.S. v. Lopez-Soto, supra, at p. 1105 .) Accordingly, a lawful traffic stop occurs when the facts and circumstances known to

Our review of a trial court’s ruling on a motion to suppress the evidence from such a stop is well established. “A warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search. . . . ‘We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ ” (People v. Redd (2010) 48 Cal.4th 691 , 719 [ 108 Cal.Rptr.3d 192 , 229 P.3d 101 ], citation omitted.)

2. Analysis

Defendants contend the trial court erred in denying the suppression motion because the prosecution failed to establish that Officer Beretta had a legally sufficient basis to make the traffic stop. They argue that Officer Beretta’s observations did not raise a reasonable articulable suspicion that the car was traveling 35 to 40 miles per hour in violation of the 25-mile-per-hour speed limit. The People respond that Officer Beretta had extensive experience estimating car speeds, including while driving, and could credibly assess that the white Chevrolet was traveling faster than his patrol car when it was moving at speeds between 25 and 35 miles per hour.

We defer to the trial court’s factual finding that Officer Beretta had extensive experience and expertise in performing speed estimations, which defendants do not challenge and which we find was supported by substantial evidence. (People v. Redd, supra, 48 Cal.4th at p. 719.) Defendants argue that Officer Beretta’s training and experience was not enough, however, due to the poor conditions under which he made his estimate. Defendants point to several facts that arguably undermined the accuracy of Officer Beretta’s speed estimate and required some corroborating evidence or additional indicia of reliability to support a finding of reasonable suspicion. First, Officer Beretta estimated the speed of the white car when he had just caught sight of it (after turning the corner from Rosswood onto Trent Drive) and while he was accelerating out of the turn and possibly estimating his own speed. Second, he could not identify exactly how far the white car had traveled but only that it was between mid-block and the end of Trent Drive. Third, he did not use or remember the formula taught to visually estimate speed. Officer Beretta also acknowledged that estimating speed while moving was more difficult than at a standstill.

Other California cases are not on point or had additional evidence corroborating the visual speed estimate. For example, in People v. Dachino (2003) 111 Cal.App.4th 1429 , 1430-1431 [ 4 Cal.Rptr.3d 691 ], two police officers stopped the defendant after observing he was driving at an “ ‘unsafe speed’ ” estimated to be 35 miles per hour in a 25-mile-per-hour residential zone. The appellate court did not reach the issue of whether the officers’ visual estimate was reasonable, because the trial court had erroneously denied the suppression motion based on the defendant’s purported lack of standing. (Id. at pp. 1432-1433.) A panel of this court in People v. Hardacre (2004) 116 Cal.App.4th 1292 [ 11 Cal.Rptr.3d 214 ] affirmed a drunk driving conviction after finding, in relevant part, that the highway patrol officer had reasonable suspicion to stop the defendant based on his visual estimate that the defendant was driving 40 miles per hour in a 25-mile-per-hour zone. (Id. at pp. 1300-1301.) But in that case, the officer also employed his radar unit, which showed the defendant was driving between 44 and 50 miles per hour. (Ibid.) And in People v. Zunis (2005) 134 Cal.App.4th Supp. 1 , 3 [ 36 Cal.Rptr.3d 489 ], the appellate court affirmed a judgment for speeding based on an officer’s visual estimate from the air that the defendant was driving 105 miles per hour, which the officer then corroborated using a stopwatch and highway mile markers. The defendant challenged the sufficiency of the

This is not to suggest a purely formulaic approach to the trial court’s evaluation of whether an officer’s uncorroborated, visual speed estimate provides a reasonable suspicion to support an investigative stop. Whether the estimated speed is in slight or significant excess of the speed limit may set a baseline; it does not define the scope of the court’s inquiry. (See Sowards, supra, 690 F.3d at p. 591 [defining inquiry “in the first instance”].) Here, the trial court cited Officer Beretta’s experience and expertise in making visual speed estimates as well as his firsthand observation of the driving. Defendants challenge the reliability of the firsthand observation because Officer Beretta’s car also was moving, he was not able to state precisely how far down Trent Drive the white car had traveled by the time he turned right from Rosswood onto Trent, and he did not use or remember the formula he had been taught. Defendant Nice contends these facts form “the poorest of conditions” from which Officer Beretta operated at the time he estimated defendants’ speed and prevented any reasonable determination that the white car was speeding. The People respond that Officer Beretta’s estimate was supported by observable facts, including his own speed, which he knew was at or above the speed limit, the distance the white car had traveled by the time the officer turned onto Trent Drive, and whether Officer Beretta was falling behind, keeping up with, or gaining on defendants as he followed their car.

We find the conditions under which Officer Beretta made his estimate do not bar a finding of reasonable suspicion based on the sum of facts and circumstances known to the officer. It is evident from the ruling on the motion to suppress that the trial court credited Officer Beretta’s testimony, despite minor inconsistencies, which placed defendants’ car somewhere between the middle and end of Trent Drive by the time the officer turned the corner, estimated defendants’ speed at between 10 and 15 miles per hour over the residential speed limit, and estimated or viewed his own speed at 35 miles per hour or greater as he followed the car, and at greater than 25 miles per hour on the sharp turns from Trent Drive to Troy Park Place and again onto Tilden, where he effectuated the stop. Taken together, Officer Beretta’s firsthand observations of the white car as he pursued it, his pertinent training and experience, and the estimated speed differential, comprise sufficient objective and articulable facts to support the trial court’s finding of reasonable suspicion that defendants’ vehicle was traveling above the speed limit for the residential area. (See People v. Rodriguez, supra, 143 Cal.App.4th at p. 1149 [reasonableness of traffic stop is judged against an objective standard based on the facts then available to the officer].)

We conclude that Officer Beretta’s visual estimate of defendants’ speed as he also was moving was sufficiently grounded in objective facts to

B. Probation Condition as to Defendant Nice

Nice contends the probation condition concerning possession of illegal drugs or illegal controlled substances and not going anywhere he knows illegal drugs are being used or sold is unconstitutionally vague and over-broad. The trial court stated on the record: “You shall not possess or use any illegal drugs or illegal controlled substances or go anywhere you know illegal drugs are not prescribed or controlled substances are being used or sold.” The probation report proposed this same condition slightly differently: “[Nice] shall not possess or use illegal drugs or illegal controlled substances or go anywhere he[] knows illegal drugs or non-pre scribed controlled substances are used or sold.” Nice raises three issues with the probation condition. We address each issue separately.

1. Legal Framework

“ ‘In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety . . . .’ (People v. Carbajal (1995) 10 Cal.4th 1114 , 1120 [ 43 Cal.Rptr.2d 681 , 899 P.2d 67 ].) ‘The trial court’s discretion, although broad, nevertheless is not without limits.’ (Id. at p. 1121.)” (People v. Perez (2009) 176 Cal.App.4th 380 , 383 [ 97 Cal.Rptr.3d 632 ] (Perez).) The objections of vagueness and overbreadth are often raised together but are “conceptually quite distinct.” (In re E.O. (2010) 188 Cal.App.4th 1149 , 1153 [ 115 Cal.Rptr.3d 869 ].)

“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (In re Sheena K. (2007) 40 Cal.4th 875 , 890 [ 55 Cal.Rptr.3d 716 , 153 P.3d 282 ].) A probation condition so vague that men and women of common intelligence must guess at its meaning and differ as to its application violates “ ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice’ ” to the probationer. (Ibid.) “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness.” (Ibid.)

“The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it

We note as a threshold matter that Nice did not forfeit these constitutional claims by failing to challenge the constitutionality of the probation condition in the trial court because the issues presented can be resolved as a matter of law without reference to the sentencing record in the trial court. (In re Sheena K., supra, 40 Cal.4th at pp. 888-889.) Our review of a constitutional challenge to a probation condition is de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129 , 1143 [ 116 Cal.Rptr.3d 84 ].)

2. Analysis

a. Possession or use of illegal drugs or illegal controlled substances

Nice argues the condition prohibiting him from possessing or using illegal drugs is impermissibly vague because it fails to contain an express knowledge requirement and thereby fails to provide notice whether accidental conduct will violate the condition. He also argues the condition is overbroad because it can be interpreted to infringe on his right to possess property, i.e., to borrow a friend’s car because the friend might have illegal drugs in the car. The People agree the condition should be modified to add a knowledge requirement.

This court considered a similar probation condition in People v. Rodriguez (2013) 222 Cal.App.4th 578 [ 166 Cal.Rptr.3d 187 ] (Rodriguez) and concluded that an express knowledge requirement was not required. (Id. at p. 593.) The condition challenged in Rodriguez provided that the defendant “ ‘[n]ot use or possess alcohol, intoxicants, narcotics, or other controlled substances without the prescription of a physician . . . .’ ” (Id. at p. 592.) Applying the same reasoning as underscores other criminal offenses for which case law has established implicit scienter elements, we found that a knowledge requirement was ‘“reasonably implicit” in the probation condition pertaining to possession or use of controlled substances. (Id. at p. 593.) “Division 10 of the Health and Safety Code is the California Uniform Controlled Substances Act. (Health & Saf. Code, § 11000 et seq.) Case law has construed these statutes as including implicit knowledge elements. ‘[A]l-though criminal statutes prohibiting the possession, transportation, or sale of a

Next, Nice argues the trial court’s oral pronouncement that Nice shall not go anywhere he knows “illegal drugs are not prescribed or controlled substances are being used or sold” is vague and hard to understand. The People agree and propose this court modify the language to reflect the probation report, which recommended Nice “shall not possess or use illegal drugs or illegal controlled substances or go anywhere he[] knows illegal drugs or non-prescribed controlled substances are used or sold.”

We agree that the trial court’s admonishment as stated does not give Nice fair warning of where he can go because, by definition, illegal drugs are not prescribed, and hence taken literally, the condition could prohibit going anywhere. To the extent this part of the probation condition requires persons of common intelligence to guess at its meaning and intended application, we conclude it is vague and requires modification. (In re Sheena K., supra, 40 Cal.4th at p. 890.) We conclude that the probation condition should be modified to conform to the clearer phrasing in the probation report. This does not end our inquiry, however, because Nice also challenges the part of the probation condition barring him from going anywhere he knows illegal drugs or non-prescribed controlled substances are used or sold, as unconstitutionally vague and overbroad.

c. Presence where illegal drugs or non-prescribed controlled substances are used or sold

Nice argues the condition is vague because it fails to make clear what conduct is prohibited, specifically how far he must remain from places where illegal drugs are being used or sold, and whether he must avoid places where illegal drugs have ever been used or sold as opposed to where they are currently being used or sold. For example, can Nice walk through downtown Santa Cruz if he knows illegal drugs are used and sold on those streets? Must he leave the beach if he smells marijuana, and if so, at what point can he return? If he learns of a park cleanup in which volunteers found hypodermic needles and evidence of drug use, can Nice visit that park?

Nice also argues the condition is overbroad because it restricts his constitutional right to travel, requiring him to stay away from more places than needed to ensure the purpose of the condition. For example, Nice argues that without a specified distance or time frame, in order to comply he will need to avoid all places where he knows illegal drug activity takes place, such as public parks, beaches, and music concerts. Nice argues this part of the condition should be struck or remanded to the trial court for clarification. The

And in People v. Barajas (2011) 198 Cal.App.4th 748 [ 131 Cal.Rptr.3d 412 ] (Barajas), this court determined no modification was necessary to a similar probation condition that already included an express knowledge requirement. That condition stated: “ ‘You’re not to visit or remain in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity.’ ” (Id. at p. 754.) We found the condition was not impermissibly vague because “[t]he knowledge condition suffices to give defendant fair warning of what areas to avoid and ensures that he will not be found in violation due to a factual mistake, accident, or misfortune.” (Id. at p. 760.) The court thus rejected the defendant’s argument that in order to remedy the condition’s alleged vagueness and overbreadth, the trial court should have “ ‘delegated to the probation officer the responsibility of defining specific areas or places that appellant must not visit or remain in, under general guidelines approved by the court.’ ” (Id. at p. 757.) The court also disagreed with the defendant that Victor L., supra, 182 Cal.App.4th 902 , decided a year earlier by the First District Court of Appeal, supported a different outcome. The Barajas court explained: ‘“We see no essential difference between the modified condition in Victor and the challenged condition in this case. Both require the probationer to avoid what he knows to be areas of criminal-street-gang-related activity, and both provide that the probationer may (not must) gain this knowledge from the probation officer.” (Barajas, supra, at p. 759.)

The court in Victor L. considered challenges to several probation conditions, including in pertinent part a condition stating, “ ‘Minor shall not be in any . . . areas known by Minor for gang-related activity.’ ” (Victor L., supra, 182 Cal.App.4th at p. 913, fn. 7.) Despite the knowledge requirement, the court was ‘“troubled by the lack of specificity in the language of the condition.” (Id. at p. 914.) The court determined that ‘“even with a knowledge requirement, the gang-related activities condition is impermissibly vague in that it does not provide notice of what areas [Victor] may not frequent or what types of activities he must shun.” (Ibid., citing In re Sheena K., supra, 40 Cal.4th at p. 890.) But the court rejected as unreasonable the minor’s suggestion that the phrase “ ‘gang-related activity’ ” could be so broadly

Victor L. discussed alternative approaches to clarifying the condition, such as providing descriptive or mapped boundaries, restricting the ban to areas of activity of the particular gang involved, and “focus[ing] on the nature of the activity, rather than the geographic area in which it occurs, thereby forbidding Victor’s presence in the immediate vicinity of activities or events likely to attract gang members.” (Victor L., supra, 182 Cal.App.4th at p. 917.) Rather than remand to the trial court to clarify, the court modified the probation condition to allow the probation officer to nohfy the minor of areas he must avoid or of activity-specific limits. (Id. at p. 918.) The court concluded that “[sjuch specification ... not only reinforces the knowledge requirement, but also makes the condition of probation both clear enough to avoid a vagueness challenge and narrow enough to escape a claim of overbreadth.” (Ibid., fn. omitted.)

Applying the reasoning of these cases here, the knowledge requirement constrains a reasonable interpretation of the condition to reach only knowing presence in the prohibited location. “A probation condition should be given ‘the meaning that would appear to a reasonable, objective reader.’ ” (People v. Olguin (2008) 45 Cal.4th 375 , 382 [ 87 Cal.Rptr.3d 199 , 198 P.3d 1 ].) Unlike in In re H.C. and People v. Leon, there is no danger that Nice might violate the probation condition unwittingly, because he must know that illegal drugs or non-prescribed controlled substances are being used or sold. The phrase “are being used or sold” connotes a present or ongoing action and does not support an interpretation that knowledge of past use or past sales, without more, would trigger a violation. Inasmuch as Nice cannot violate the probation condition unless he “knows illegal drugs or non-prescribed controlled substances are used or sold” in that place, we find that like in Barajas, the knowledge condition ensures that Nice “will not be found in violation due to a factual mistake, accident, or misfortune.” (Barajas, supra, 198 Cal.App.4th at p. 760.)

But like in Victor L., we find the knowledge condition may not suffice to provide fair notice to Nice of “which ‘areas’ would come within the

As to defendant Delconte, the judgment is affirmed.

As to defendant Nice, the probahon condition is modified in part to state: “You shall not possess or use any illegal drugs or illegal controlled substances or visit or remain in any specific location where you know illegal drugs or non-prescribed controlled substances are used or sold.”

As modified, the judgment as to defendant Nice is affirmed.

Rushing, P. J., and Márquez, J., concurred.

Appellants’ petition for review by the Supreme Court was granted August 24, 2016, S235635. Werdegar, J., did not participate therein.