Filed 12/21/15 P. v. Curenio CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041925
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS132594A)

         v.

CEFERINO ANASTACIO CURENIO,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         After his motion to suppress evidence was denied, defendant Ceferino Anastacio
Curenio pleaded no contest to possession of ammunition by a felon (Pen. Code, § 30305,
subd. (a)(1))1 and admitted that he had a prior conviction that qualified as a strike
(§ 1170.12, subd. (c)(1)) and that he had served a prior prison term (§ 667.5, subd. (b)).
The trial court imposed a 32-month sentence for defendant’s conviction of possession of
ammunition and a one-year consecutive sentence for the prior prison term allegation, for
an aggregate prison term of three years eight months.
         On appeal, defendant contends the trial court erred by denying his motion to
suppress. We conclude the trial court did not err, and we will affirm the judgment.


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             All further statutory references are to the Penal Code unless otherwise noted.
                                 II.    BACKGROUND
       On December 18, 2013, Monterey County Sheriff’s Deputy Dustin Hedberg was
on patrol. He stopped defendant’s vehicle, determined that defendant was on parole, and
conducted a search. The search revealed two unexpended 12-gauge shotgun shells in
defendant’s pants pocket. The search also revealed 56.7 grams of marijuana in the trunk
of defendant’s car.
       Defendant was charged with possession of ammunition by a felon (§ 30305,
subd. (a)(1); count 1) and transportation of marijuana (Health & Saf. Code, § 11360,
subd. (a); count 2). The information alleged that defendant had suffered a prior
conviction that qualified as a strike (§ 1170.12, subd. (c)(1)) and that he had served a
prior prison term (§ 667.5, subd. (b)). Defendant subsequently filed a motion to suppress
evidence (§ 1538.5), arguing that there was no reasonable suspicion or probable cause for
the vehicle stop.
       At the hearing on defendant’s motion to suppress, Deputy Hedberg testified that
he stopped defendant’s vehicle because the front passenger and driver’s side windows
were tinted, to such a degree that he could not see the inside of the vehicle or distinguish
how many occupants there were. He could not even see the driver. Because Deputy
Hedberg could not see inside the vehicle, he requested defendant roll down all the
windows before he approached the vehicle. As he approached defendant’s vehicle, he
could smell marijuana. Defendant admitted that he was on parole, and Deputy Hedberg
performed a parole search, which led to his discovery of the ammunition and marijuana.
       Deputy Hedberg first observed defendant’s vehicle at 9:21 p.m. He was sitting
about 50 or 60 feet from the vehicle at the time. There was no natural lighting, but the
artificial lighting from a nearby gas station was “pretty good.” Deputy Hedberg was
familiar with tinted safety glass as well as window tinting that is obtained by applying a
film to the inside of the window. He believed the window tinting on defendant’s vehicle
was “after factory installation,” because he had “never seen any factory tinting that dark.”

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       Deputy Hedberg had been enforcing Vehicle Code violations for about nine years.
He knew the Vehicle Code allowed window tinting as long as the light transmission was
70 percent or greater. He acknowledged he could not “just by eyeball,” determine the
specific light transmission measurement of a window.
       In his moving papers and during arguments concerning the motion to suppress,
defendant asserted that the vehicle stop was unlawful based on this court’s opinion in
People v. Butler (1988) 202 Cal.App.3d 602 (Butler). Defendant asserted that there can
be no reasonable suspicion for a vehicle stop based on window tinting if the officer is
unable to distinguish between unlawfully tinted windows and lawfully tinted safety glass,
and that in this case Deputy Hedberg had not been able to make that distinction. The
prosecutor argued that there was reasonable suspicion for the stop because the window
tinting was so dark that Deputy Hedberg could not see inside the vehicle.
       The trial court made the following findings in denying defendant’s motion to
suppress: “Officer Hedberg . . . testified that the vehicle that he stopped[,] he could not
see the driver or whether or not there were any passengers. He said he was looking
directly at the side of the vehicle and could not see in any of the windows. The only
window that was not tinted was the front windshield going out. As a result, looking at it
from the side, he could not see in it at all. That certainly also shows that the tinting was
extreme. He indicated it was darker than factory. He also indicated that he had, I think it
was, nine years of experience enforcing vehicle code violations. It was clear to him that
the tinting was illegal.”

                                   III.   DISCUSSION
       Defendant contends the trial court erred by denying his motion to suppress. As he
did below, defendant relies on this court’s opinion in Butler, arguing that the vehicle stop
was not supported by reasonable suspicion that the windows of defendant’s vehicle were




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unlawfully tinted because Deputy Hedberg did not “articulate any difference between a
legal and illegal tinting.”
       A.      Standard of Review
       “In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. [Citation.] We review the court’s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether the
applicable law applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.)
       B.      Analysis
       An investigatory detention of an individual in a vehicle is permissible under the
Fourth Amendment if supported by reasonable suspicion that the individual has violated
the Vehicle Code. (See People v. Saunders (2006) 38 Cal.4th 1129, 1135.) The
reasonable suspicion requirement is met “when the detaining officer can point to specific
articulable facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in criminal
activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)
       Some, but not all, window tinting is unlawful in California. Vehicle Code
section 26708 prohibits a person from driving a vehicle “with any object or material
placed, displayed, installed, affixed, or applied upon the windshield or side or rear
windows” (id., subd. (a)(1)) and from driving a vehicle “with any object or material
placed, displayed, installed, affixed, or applied in or upon the vehicle that obstructs
or reduces the driver’s clear view through the windshield or side windows” (id.,
subd. (a)(2)). However, under Vehicle Code section 26708, subdivision (d), “clear,
colorless, and transparent material may be installed, affixed, or applied to the front side
windows, located to the immediate left and right of the front seat if the following
conditions are met: [¶] (1) The material has a minimum visible light transmittance of

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88 percent. [¶] (2) The window glazing with the material applied meets all requirements
of Federal Motor Vehicle Safety Standard No. 205 (49 C.F.R. 571.205), including the
specified minimum light transmittance of 70 percent and the abrasion resistance of AS-14
glazing, as specified in that federal standard. [¶] (3) The material is designed and
manufactured to enhance the ability of the existing window glass to block the sun’s
harmful ultraviolet A rays. [¶] (4) The driver has in his or her possession, or within the
vehicle, a certificate signed by the installing company certifying that the windows with
the material installed meet the requirements of this subdivision . . . , or, if the material
was installed by the vehicle owner, a certificate signed by the material’s manufacturer
certifying that the windows with the material installed according to manufacturer’s
instructions meets the requirements of this subdivision . . . . [¶] (5) If the material
described in this subdivision tears or bubbles, or is otherwise worn to prohibit clear
vision, it shall be removed or replaced.”
       Vehicle Code section 26708.5 provides: “(a) No person shall place, install, affix,
or apply any transparent material upon the windshield, or side or rear windows, of any
motor vehicle if the material alters the color or reduces the light transmittance of the
windshield or side or rear windows, except as provided in subdivision (b), (c), or (d) of
Section 26708. [¶] (b) Tinted safety glass may be installed in a vehicle if (1) the glass
complies with motor vehicle safety standards of the United States Department of
Transportation for safety glazing materials, and (2) the glass is installed in a location
permitted by those standards for the particular type of glass used.”
       Since not all window tinting is unlawful, the mere fact that a vehicle has tinted
windows will not justify a traffic stop. A vehicle stop will, however, be justified if there
are “additional articulable facts” suggesting that the tinted windows are in violation of the
Vehicle Code. (Butler, supra, 202 Cal.App.3d at p. 607.) In Butler, an officer observed a
Cadillac being driven in a suspicious manner outside a liquor store just prior to 2:00 a.m.
The officer thought the occupants of the vehicle might have been setting up a robbery.

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He stopped the car because he believed the tinted windows were an “ ‘obvious Vehicle
Code violation.’ ” (Id. at pp. 604-605.) This court found no facts in the record indicating
that the officer had a “reasonable suspicion that the windows in the Cadillac were made
of illegally tinted, rather than legally tinted, safety glass.” (Id. at p. 606.) This court
disagreed “with the People’s suggestion that seeing someone lawfully driving with tinted
glass raises a reasonable suspicion of illegality such that a reasonable inquiry is justified.”
(Id. at p. 607.)
       In People v. Niebauer (1989) 214 Cal.App.3d 1278 (Niebauer), the defendant
challenged the sufficiency of the evidence to support his conviction of driving with
illegally tinted driver’s side windows. (Id. at p. 1291.) An officer had stopped the
defendant “because the windows were darker than normal and he could only see
Niebauer’s outline through the window.” (Id. at p. 1292.) The officer had “admitted he
had no training or expertise regarding light transmittance,” but he had “stated that looking
through the windows from where he stood outside the vehicle, his vision was obstructed.”
(Id. at pp. 1292-1293.) The court explained that in enacting Vehicle Code section 26708,
the Legislature envisioned “a commonsense approach to [its] enforcement” and upheld
the defendant’s conviction based upon the officer’s testimony. (Niebauer, supra, at
p. 1292.) In dicta, the Niebauer court stated that a vehicle stop would have been justified
on the facts of that case. (Id. at p. 1293, fn. 10.) The court explained that in contrast to
Butler, the officer in Niebauer had not just testified that the vehicle had tinted windows.
Rather, the officer had “testified to additional facts giving him reasonable suspicion
Niebauer was driving with illegally tinted windows.” (Ibid.)
       In People v. Hanes (1997) 60 Cal.App.4th Supp. 6 (Hanes), an officer stopped
the defendant’s vehicle at night after seeing it pass through a lighted intersection at a
speed of about 10 to 15 miles per hour. (Id. at p. 8.) The officer was “a three-year
veteran who had stopped vehicles on suspicion of illegally tinted windows approximately
four hundred times.” (Ibid.) The officer saw that the right front window of the

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defendant’s vehicle was “ ‘so black that it kind of matched the color of the car’ ” and that
he was unable to see the occupants of the vehicle. (Ibid.) The Hanes court found the
detention reasonable. (Id. at p. 10; see also People v. Roberts (2010) 184 Cal.App.4th
1149, 1190-1191 (Roberts) [upholding vehicle stop based on officer’s testimony that the
window tinting was so dark that the officer could not see inside the vehicle].)
       In the instant case, unlike in Butler, Deputy Hedberg did not stop defendant’s
vehicle based on the mere fact that the vehicle had tinted windows. Deputy Hedberg
testified to “additional articulable facts” suggesting that the tinted windows were in
violation of the Vehicle Code. (Butler, supra, 202 Cal.App.3d at p. 607.) Deputy
Hedberg testified that he stopped defendant’s vehicle because the front passenger and
driver’s side windows were tinted to such a degree that he could not see the inside of the
vehicle or distinguish how many occupants there were. He could not even see the driver.
       Deputy Hedberg made his observations from about 50 or 60 feet from the vehicle
at the time, in a site with “pretty good” lighting. Deputy Hedberg had “never seen any
factory tinting that dark.” He had been enforcing Vehicle Code violations for about nine
years, and he knew the Vehicle Code allowed window tinting as long as the light
transmission was 70 percent or greater. This testimony was similar to the testimony in
Niebauer, where the vehicle’s windows were darker than normal and the officer’s view
of the vehicle’s interior was obstructed; Hanes, where the vehicle’s window tinting
prevented the officer from seeing the occupants of the vehicle; and Roberts, where the
window tinting was so dark that the officer could not see inside the vehicle.
       Defendant asserts that the record here shows that Deputy Hedberg was “not
familiar with a method of distinguishing legal tinting from illegal tinting.” He relies on
the following exchange:
       “Q. And officer, as far as your training and experience, do you have any way to
distinguish between film tint, that plastic sheeting that’s applied to an automotive glass,
and tinted safety glass or glass that has the tint buil[t] into it?

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         “A. Are you talking about like patio table tinted glass? That style tinted safety
glass?
         “Q. Just automotive. Automotive safety glass.
         “A. I’m not familiar with that, so I couldn’t say.”
         At best, this exchange indicates that Deputy Hedberg was not able to distinguish
between film tint and tinted safety glass. This exchange does not indicate that Deputy
Hedberg was unable to distinguish between legal and illegal window tinting, however.
The record in fact shows that Deputy Hedberg was able to distinguish between legal and
illegal tinting. Deputy Hedberg had been enforcing Vehicle Code violations for about
nine years, and he knew the Vehicle Code allowed window tinting as long as the light
transmission was 70 percent or greater. He stopped defendant’s vehicle because the front
passenger and driver’s side windows were tinted to such a degree that he could not see in
the inside of the vehicle, distinguish how many occupants there were, or even see the
driver. He had “never seen any factory tinting that dark.” Under the case law discussed
above, this evidence was sufficient to support the trial court’s ruling that there was
reasonable suspicion for the stop of defendant’s vehicle. (Roberts, supra, 184
Cal.App.4th at pp. 1190-1191; Hanes, supra, 60 Cal.App.4th Supp. at p. 10; Niebauer,
supra, 214 Cal.App.3d at p. 1293, fn. 10.)

                                     IV.   DISPOSITION
         The judgment is affirmed.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.
