Filed 9/25/15 P. v. McThrow CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069434
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF153351A)
                   v.

DEANDRE RAY McTHROW,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush and Colette M. Humphrey, Judges.†
         Tutti Hacking, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Kane, Acting P. J., Detjen, J. and Smith, J.
†      Judge Bush presided over appellant’s motion to suppress; Judge Humphrey
presided over appellant’s sentencing hearing.
                                    INTRODUCTION
       Appellant Deandre Ray McThrow was charged with vehicle theft (Veh. Code,
§ 10851, subd. (a), count 1), possession of a stolen vehicle (Pen. Code, § 496d, count 2),
and transportation of marijuana (Health & Saf. Code, § 11360, subd. (a), count 3). He
pleaded no contest to counts 1 and 2, admitted various enhancement allegations against
him, and count 3 was dismissed. Appellant was sentenced to 16 months in prison.
       Appellant contends the trial court erred by denying his motion to suppress because
the officer who initiated a traffic stop of the vehicle he was driving lacked an objectively
reasonable basis to do so. We disagree and affirm.
                    FACTUAL AND PROCEDURAL SUMMARY
       Appellant moved to suppress the evidence obtained against him pursuant to Penal
Code section 1538.5. The following statement of facts are derived from the reporter’s
transcript from the motion to suppress hearing.
       On February 15, 2014, at approximately 11:00 p.m., Officer Claude Brooks from
the Bakersfield Police Department was on duty with his partner in the area of the 400
block of East 19th Street in Bakersfield. Officer Brooks observed a gold Toyota Corolla
driving in the opposite direction and trained his spotlight on the vehicle as it passed. In
so doing, Officer Brooks saw numerous necklaces hanging from the rearview mirror of
the vehicle. Although he could not recall the exact size of the necklaces, his observation
was that it was sufficient to obstruct the driver’s view of the front window. Believing
this to be a violation of the Vehicle Code, he made a U-turn to initiate a traffic stop.
       Officer Brooks located the vehicle parked in a parking lot. When he approached
the vehicle and asked the driver, appellant, for his driver’s license, appellant responded
that he did not have a valid license. From his vantage point, Officer Brooks observed that
the necklaces appeared to obstruct the driver’s view through the front windshield.
       Officers discovered the vehicle was stolen from Pearl Ann Jimenez Morales.
Morales was called to the scene where she took possession of the vehicle. She testified

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only one object was hanging from her rearview mirror, which was like a string, but she
could not recall whether anything was attached to it. Although Morales initially testified
the necklace obstructed her view, she subsequently stated that her view was not
obstructed, but that it could be if she turned fast. She also testified that she knew she was
not supposed to have an object hanging on her rearview mirror.
       Following oral argument, the trial court denied appellant’s motion to suppress,
finding sufficient evidence to justify Officer Brooks’s detention1 of appellant based on
his suspicion that appellant was in violation of the Vehicle Code.
                                       DISCUSSION
       In ruling on a motion to suppress, the trial court finds the historical facts, selects
the rule of law, and applies the rule of law to the facts to determine if the law as applied
has been violated. (People v. Saunders (2006) 38 Cal.4th 1129, 1133–1134.) “[W]e
view the record in the light most favorable to the trial court’s ruling, deferring to those
express or implied findings of fact supported by substantial evidence.” (People v.
Jenkins (2000) 22 Cal.4th 900, 969.)
       “The Fourth Amendment protects against unreasonable searches and seizures.”
(People v. Hernandez (2008) 45 Cal.4th 295, 299, citing U.S. Const., 4th Amend.) Since
routine traffic stops are considered investigatory detentions, an officer must have specific
and articulable facts to justify the suspicion that an offense is occurring. (In re Raymond
C. (2008) 45 Cal.4th 303, 307; People v. Wells (2006) 38 Cal.4th 1078, 1082–1083.) It is
permissible for law enforcement officers to “draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an untrained person.’” (United
States v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu).) However, an investigative stop is


1     Respondent does not challenge the court’s finding that a detention occurred. Thus,
we do not address this argument, raised in appellant’s brief.


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unlawful if it is based on “mere curiosity, rumor, or hunch,” even though the officer may
be acting in good faith. (In re Tony C. (1978) 21 Cal.3d 888, 893.) Courts examine the
totality of the circumstances to determine if an officer’s investigative detention was
reasonable. (Arvizu, supra, at p. 273.)
       Appellant argues that the court improperly denied his motion to suppress because
Officer Brooks did not have an objectively reasonable basis to conduct a traffic stop of
the vehicle he was driving.2 Respondent asserts that Officer Brooks had specific and
articulable facts to reasonably believe that the object violated Vehicle Code section
26708, subdivision (a)(2)3 which provides that “[a] person shall not drive any motor
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.”
       The question before this court is not whether the object hanging from the rearview
mirror actually obstructed appellant’s view, but whether it was objectively reasonable for
Officer Brooks to believe it did. We find that it was.
       In People v. White (2003) 107 Cal.App.4th 636, 642 (White), Division Five of the
Court of Appeal, First Appellate District, held that the detention of the defendant had not
been supported by specific and articulable facts justifying the detaining officer’s belief
the driver’s view was obstructed pursuant to section 26708. The court reasoned that the
officer never testified that he believed the object at issue, an air freshener, obstructed the
driver’s view, and did not identify “other specific and articulable facts, like hesitant or
erratic driving, that might suggest the driver’s clear view was impeded.” (White, supra,
at p. 642.) The court also expressed reluctance accepting that the air freshener could

2      Although appellant also challenges his detention on the basis that Officer Brooks’s
spotlight was illegally trained on him, we agree with respondent that the issue is forfeited
on appeal as it was not raised in appellant’s motion to suppress.
3      All undesignated section citations are to the Vehicle Code unless otherwise stated.


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actually obstruct a driver’s view. (Ibid.) Conversely, the defense 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, as well as testimony from the defendant that the
object did not obstruct his view while driving. (Ibid.)
       In People v. Colbert (2007) 157 Cal.App.4th 1068, the Sixth Appellate District
upheld the trial court’s denial of the defendant’s motion to suppress. The court found that
specific and articulable facts justified the detaining officer’s conclusion that an air
freshener hanging from a rearview mirror violated section 26708, subdivision (a)(2).
(People v. Colbert, supra, at p. 1068.) The officer in Colbert testified the air freshener
was large enough to obstruct the driver’s view through the front windshield, he was able
to describe its precise dimensions, he explained that he had personally experienced an
obstructed view when he hung a similar-sized object in his personal vehicle, and that the
proximity of the object to the driver’s face would obstruct the view of larger objects,
including vehicles or pedestrians. (Id. at p. 1073.)
       This case is distinguishable from White and analogous to Colbert. The evidence
offered by the defense in White was substantial. In White, the defense presented
testimony from a civil engineer who testified that the air freshener covered only .05
percent of the entire windshield. (White, supra, 107 Cal.App.4th at p. 642.) Here,
defense counsel offered the testimony of Morales, who initially said the object obstructed
her view, before reversing her testimony and stating that while she knew she was not
supposed to have the object hanging, it did not obstruct her view. While Morales
testified the object was “like a string,” she also indicated it could interfere with her view
if she made a quick turn.
       Appellant places much emphasis on Morales’s testimony that there was only one
necklace, which was “like a string.” He contends that Officer Brooks’s testimony was
not credible in light of his observation that there were numerous necklaces, and because



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strings are likely to be extremely thin, he reasons the evidence cannot support a
reasonable suspicion that the string sufficiently obstructed the driver’s view.
       As a threshold matter, appellant’s reliance on Morales’s description of the item as
“like a string,” ignores Morales’s testimony which indicates the item was larger than a
typical string. Although Morales testified the item was like a string, she also testified that
she could see how the object could interfere with her view if she made a quick turn, and
she initially testified that the object did, in fact, obstruct her view. Furthermore, the
object was thick enough that it was visible from Officer Brooks’s police vehicle after he
trained his spotlight on the gold Toyota Corolla.
       Significantly, even something as thin as a crack in a windshield may provide
reasonable cause to stop a vehicle on the ground that a Vehicle Code violation was
occurring. (See § 26710 [“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”]; see also People v. Superior Court (1968) 266
Cal.App.2d 685, 689–690 [finding that a cracked windshield may impair visibility and
officer leaning into vehicle to inspect the crack was reasonable].)
       Additionally, the officer in White never testified that he believed the offending
object obstructed the driver’s view. Here, similar to the officer in Colbert, Officer
Brooks testified that the purpose for the stop was his observation that a Vehicle Code
violation had occurred. Officer Brooks also indicated that when he approached the
vehicle, it appeared from his vantage point that someone seated in the driver’s seat of the
vehicle would have an obstructed view given the size of the object. Appellant’s
argument that Officer Brooks detained him under the mistaken belief that any object
hanging from the vehicle’s rearview mirror violated the Vehicle Code is, therefore,
without merit. Further, because he observed the object for more than a brief fleeting
moment, it is unlikely Officer Brooks was mistaken as to the fact that the object obscured
appellant’s view, as appellant also asserts.

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       While Officer Brooks could not estimate what percentage of the windshield was
obstructed by the object, and did not testify that appellant was driving erratically,
suggesting his clear view was impeded, testimony to this effect is helpful, but not
dispositive. Nothing in either Colbert or White suggests that such a showing is necessary
before a traffic stop can be found lawful when the stop is made pursuant to section
26708, subdivision (a)(2).
       We note that the trial court placed great weight upon Morales’s testimony that she
knew she was not supposed to have the necklace hanging on her rearview mirror.
However, the record makes clear that in finding sufficient evidence supported the
detention, the court considered the credibility and testimony of both Officer Brooks and
Morales, finding that their testimony was reconcilable in that it established the object
potentially obstructed the driver’s clear view through the windshield.
       We find that substantial evidence supports the finding that Officer Brooks had
specific, articulable reasons for suspecting that appellant was in violation of section
26708, subdivision (a)(2). The trial court therefore properly denied his motion to
suppress evidence.
                                      DISPOSITION
       The judgment is affirmed.




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