Filed 3/21/13 P. v. Collins CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061970

          Plaintiff and Respondent,

          v.                                                        (Super. Ct. No. JCF25089)

FRANCIS RONALD COLLINS,

          Defendant and Appellant.


          APPEAL from a judgment of the Superior Court of Imperial County, Christopher

W. Yeager; Raymundo A. Cota, Judges. Affirmed as modified.


          Francis Collins appeals from a judgment convicting him of transportation of

methamphetamine and related offenses. He argues the judgment must be reversed

because the trial court erred in denying his suppression motion. We find no error in this

ruling.

          Collins also argues weight enhancements attached to his offenses must be reversed

because he was charged and convicted under the wrong subdivision of the Health and

Safety Code weight enhancement provision. We conclude this was a clerical or technical
error that did not violate his due process right to notice of the charges against him, and

we modify the judgment to correct the mistaken subdivision citation.

       As to his sentence, Collins asserts, and the Attorney General concedes, that the

court erred in failing to stay the sentences on all but the principal count (count 3) under

Penal Code section 654. We agree and modify the judgment to stay the sentences on

counts 1, 2, and 4.

       As so modified, we affirm the judgment.

                      FACTUAL AND PROCEDURAL BACKGROUND

       While driving on the highway on the night of March 12, 2010, Officer Robert

Gonzalez pulled over a BMW vehicle being driven by Collins because the car had darkly

tinted windows. Officer Gonzalez advised Collins that he was being stopped for the

tinted windows; asked for his driver's license, registration, and proof of insurance; and

made general inquiries about the car. During their interaction, Officer Gonzalez noticed

several unusual aspects of Collins's behavior, including his hand was trembling when he

handed his license to the officer; he was "overly friendly"; and he could not remember the

name nor provide other details about the auto repair shop in Calexico where he said he

had just taken the BMW. When Officer Gonzalez asked him if he had any drugs in the

car, Collins looked startled, broke eye contact and stopped looking at Gonzalez, and said,

"oh, no."

       After determining that Collins's license was suspended, Officer Gonzalez informed

Collins that his vehicle would be impounded. Collins pleaded with him "to cut him a

break and not impound the vehicle." During an ensuing conversation, Collins said he

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was returning from Mexicali, whereas he had earlier said he was returning from Calexico.

Based on Collins's nervousness and the totality of circumstances, Officer Gonzalez

suspected there was some kind of illegal activity occurring with the vehicle. He retrieved

his police dog from his patrol unit to sniff the BMW, and the dog alerted him to several

areas of potential drug presence. When Officer Gonzalez unfastened the base of the back

seat and pulled up the cushion, he noticed smudges in an area that suggested someone

had accessed the gas tank where drugs could be hidden.

       When the vehicle was subsequently towed and searched in full, the authorities

found a total of 26.7 pounds (12.114 kilograms) of methamphetamine in packages hidden

in the car. During an interview with a Narcotics Task Force agent, Collins admitted that

he had been hired to drive the vehicle containing the narcotics across the border and then

to a casino.

       Collins was charged and convicted of possession of methamphetamine for sale

(count 1), conspiracy to possess methamphetamine for sale (count 2), transportation of

methamphetamine (count 3), and conspiracy to transport methamphetamine (count 4).

The jury also found true weight enhancements (more than 10 kilograms) for each count.

Collins admitted allegations of a prior drug-related conviction.

       The trial court sentenced Collins to a 16-year term. The court selected count 3

(transportation of methamphetamine) as the principal term, and imposed a three-year

sentence on this count, plus 10 years for the weight enhancement and three years for the

prior conviction. The sentences on the remaining counts were ordered to be served

concurrently.

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                                      DISCUSSION

                             I. Denial of Suppression Motion

       Collins argues the trial court erred in denying his motion to suppress the narcotics

found in the vehicle based on his claim that the officer lacked a reasonable suspicion to

stop the vehicle.

                                       Background

       In his pretrial suppression motion, Collins argued Officer Gonzalez did not have a

sufficient basis to believe he had violated the laws regarding tinted windows, and hence

there was no reasonable suspicion for the stop.

       At the hearing on the suppression motion, Officer Gonzales testified he has been a

California Highway Patrol officer for 12 years, and has conducted about 1,000 traffic

stops for illegally tinted windows. At about 9:30 p.m., he stopped the BMW being driven

by Collins because he assessed that it had illegally tinted windows. He made this

determination as he was driving in the slow lane next to the BMW in the fast lane, and

when his driver's window was aligned with the BMW's passenger window. He noticed

the BMW had an "extremely dark tint" on the windows.

       Officer Gonzalez stated that window tint is rated by the percentage of light that

can go through the window; the legal percent of window tinting in California is 70

percent; and he estimated the BMW's tint allowed in only about 20 percent light. Officer

Gonzalez elaborated that at 70 percent the window is "pretty much clear," and a person

can "see through both windows all the way through"; can see the driver's face; and can

see objects inside the vehicle. The BMW's tint was "extremely dark to the point where

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[he was not] able to see inside the vehicle at all." He opined that the tint prevented

Collins from seeing outside of the car "clearly the way windows were intended."

        On cross-examination, Officer Gonzalez acknowledged that it was dark outside

when he was driving next to Collins on the highway; he was driving 65 miles per hour;

and he was alongside the BMW for about three to five seconds. Nevertheless, he testified

he was able to observe that the BMW had extremely dark windows. Officer Gonzalez

also acknowledged that he made his determination by looking from the outside of the

vehicle to the inside, and he did not know what the driver's view was from inside the

vehicle. Further, he did not use an available measurement tool to verify whether the

tinting was impermissible, and he had on a "handful" of occasions been mistaken about

the illegality of a tint for a vehicle that he had stopped. However, he claimed that "when

the windows are as dark as Mr. Collins' windows were, it's very easy to determine" the

illegality.

        After hearing Officer Gonzalez's testimony, the trial court found he made a lawful

stop based on his determination that the windows were tinted beyond what the law

allows.

                                          Analysis

        The police may conduct a traffic stop if the circumstances show a reasonable

suspicion that the driver has violated the Vehicle Code or some other law. (People v.

Durazo (2004) 124 Cal.App.4th 728, 734-735.) A reasonable suspicion requires a

showing of specific and articulable facts that would cause a reasonable officer in a like

position, drawing on the officer's training and experience, to believe a violation has

                                              5
occurred or is about to occur. (In re Tony C. (1978) 21 Cal.3d 888, 893.) Reasonable

suspicion is something more than an inchoate and unparticularized suspicion or hunch,

but something less than the fair probability required for probable cause. (People v.

Bennett (1998) 17 Cal.4th 373, 387.) The courts look at the totality of the circumstances

to determine whether there was a particularized and objective basis for the officer's

suspicion. (People v. Butler (2003) 111 Cal.App.4th 150, 160.) If an officer reasonably

suspected a violation of a traffic law, the stop is lawful even if later investigation dispels

that suspicion. (People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1149.)

       The Vehicle Code prohibits the placement of material on a window that "obstructs

or reduces the driver's clear view" through the window. (Veh. Code, § 26708, subd.

(a)(2).) Further, the code states that "clear, colorless, and transparent material[,]"

designed "to block the sun's harmful ultraviolet A rays[,]" may be affixed to the front side

windows if the "material has a minimum visible light transmittance of 88 percent" and

the "window glazing with the material applied meets [the federal] . . . specified minimum

light transmittance of 70 percent . . . ." (Veh. Code, § 26708, subds. (d)(1)-(3); see also

Veh. Code, § 26708.5.) With respect to traffic stops for tinted windows, the mere fact of

tinting cannot alone support a reasonable suspicion; rather, there must be "additional

articulable facts suggesting that the tinted glass is illegal . . . ." (People v. Butler (1988)

202 Cal.App.3d 602, 607; People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 9-10.)

However, the courts also recognize that when enforcing the tinted window statute,

officers need not be "scientists or carry around and use burdensome equipment to

measure light transmittance"; rather, "based upon their training and experience with

                                               6
vehicles in general, [they] will be able to examine a suspect vehicle, look through the

windows if possible, and form an opinion as to whether or not the tinting" violates the

statute. (People v. Niebauer (1989) 214 Cal.App.3d 1278, 1292.)

       On appeal from a ruling on a suppression motion, we defer to the trial court's

express and implied factual findings that are supported by substantial evidence, and we

independently determine whether, on the facts so found, the search and seizure was

reasonable under the Fourth Amendment. (People v. Durazo, supra, 124 Cal.App.4th at

p. 734.)

       The record shows specific, articulable facts that support a reasonable suspicion

that the BMW windows were illegally tinted. Officer Gonzalez testified the tint was

"extremely dark"; he could not see inside the vehicle "at all" due to the tint; and based on

his training and experience he assessed the tint allowed in only about 20 percent light and

the driver would not be able to see clearly out the window. These circumstances showed

more than the mere existence of tinting, and justified a stop based on a reasonable

suspicion that the tint failed to comply with the clear view and light transmittance

standards defined in the Vehicle Code. (People v. Hanes, supra, 60 Cal.App.4th Supp. at

p. 10 [officer reasonably stopped vehicle for tint that "was so dark as to appear black and

prevent the officer from seeing the occupants of the front seats"]; United States v.

Wallace (9th Cir. 2000) 213 F.3d 1216, 1217, 1220-1221 [officer reasonably stopped

vehicle for " 'heavy tint' " that made it difficult to view occupants inside].)

       Collins asserts the circumstances did not show a reasonable suspicion because

Officer Gonzalez only observed the view through the windows from the outside of the

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BMW, and he did not know what the driver's view was from the inside of the car. The

contention is unavailing because an officer observing a vehicle's windows prior to a stop

will typically only have a view from the outside of the car. The reasonable suspicion

standard for a traffic stop is satisfied by this outside observation, even if further

investigation ultimately determines the driver's clear view was not in fact reduced.

       Collins also argues that because it was dark at the time of the stop, it was not

possible for Officer Gonzalez to view the interior of the car regardless of any window

tinting. When cross-examined about the darkness of the night, Officer Gonzalez testified

he was able to observe the dark tinted windows. The trial court was entitled to credit this

testimony, and to infer that even at night Officer Gonzalez was able to ascertain that the

view into the car was obstructed due to the window tinting. We defer to this factual

determination.

       Collins further challenges the reasonable suspicion finding because the

prosecution did not present evidence of the actual measurement of the tint, nor a

photograph depicting the tinted windows. This evidence was not necessary to establish

Officer Gonzalez's reasonable suspicion at the time of the stop. Officer Gonzalez's

testimony describing the tint and his evaluation of the tint based on his training and

experience was sufficient to show the reasonableness of the traffic stop.

                   II. Erroneous Subdivision for Weight Enhancements

       For the weight enhancements on counts 1 through 4, the information, jury verdict,

and sentencing decision all refer to Health and Safety Code section 11370.4, subdivision

(a)(3), which applies to heroin and cocaine. The correct subdivision for a weight

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enhancement for methamphetamine is Health and Safety Code section 11370.4,

subdivision (b)(3).1 Based on this error, Collins maintains that under due process

principles the weight enhancements must be reversed.

       "Due process requires that an accused be advised of the specific charges against

him so he may adequately prepare his defense and not be taken by surprise by evidence

offered at trial. [Citations.] This means that except for lesser included offenses, an

accused cannot be convicted of an offense of which he has not been charged, regardless

of whether there was evidence at his trial to show he committed the offense. . . . The

same rules apply to enhancement allegations." (People v. Haskin (1992) 4 Cal.App.4th

1434, 1438; Cole v. Arkansas (1948) 333 U.S. 196, 201.) Thus, in some circumstances

when a defendant is charged and convicted under a particular code section, the judgment

may not be premised on another code section with different elements, even if these

elements are encompassed within the jury's verdict. (Cole, supra, 333 U.S. at pp. 197-

201; People v. Mancebo (2002) 27 Cal.4th 735, 738-739, 744, 752-753 [defendant could

not be sentenced under uncharged multiple-victim special circumstance rather than

charged gun-use special circumstance, even though it was apparent from information and

jury verdict that there were multiple victims]; Haskin, supra, 4 Cal.App.4th at pp. 1438-

1439.) This rule applies when the defendant was not put on notice that the prosecution



1      To illustrate, the information stated the allegations as follows: ". . . Collins . . . did
commit a felony, namely: Possess Controlled Substance for Sale . . . to wit,
methamphetamine. [¶] . . . [¶] . . . [T]he substance in the above charged offense exceeded
10 kilograms by weight within the meaning of [H]ealth and Safety code section
11370.4(a)(3)." (Boldface type and capitalization omitted.)
                                               9
was seeking a conviction based on the uncharged statute. (Cole, supra, 333 U.S. at p.

201; Mancebo, supra, 27 Cal.4th at pp. 745, 747, 753; Haskin, supra, 4 Cal.App.4th at p.

1439.)

         In contrast, when a defendant is fully aware of what charges are being brought

against him or her, a mere citation to the wrong code section is not fatal to the judgment.

(People v. Rivers (1961) 188 Cal.App.2d 189, 193-195; see People v. Camacho (2009)

171 Cal.App.4th 1269, 1272-1275; People v. Haskin, supra, 4 Cal.App.4th at p. 1439.)

In this circumstance, the defendant "was plainly informed of the nature of his offense,

and the designation of the wrong code section is immaterial. [Citations.] The defect was

merely one of artificiality rather than substance." (Rivers, supra, 188 Cal.App.2d at pp.

193-195 [defendant knew he was being charged with narcotics sale based on allegation in

information that he " 'did unlawfully sell' " and evidence presented at trial; inadvertent

citation in information (and ensuing judgment) to statute pertaining to narcotics

possession caused no prejudice]; see Russell v. United States (1962) 369 U.S. 749, 763

[" 'This Court has, in recent years, upheld many convictions in the face of questions

concerning the sufficiency of the charging papers. Convictions are no longer reversed

because of minor and technical deficiencies which did not prejudice the accused.' "];

People v. Camacho, supra, 171 Cal.App.4th at pp. 1272-1274 [reference to carjacking

rather than robbery in jury verdict form was mere clerical error that is properly

disregarded as surplusage].)

         Here, Collins was charged and convicted only of methamphetamine-related

offenses; thus, he obviously knew the prosecution was not seeking to convict him of the

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heroin/cocaine weight enhancement. Further, in the weight enhancement allegations, the

information stated the methamphetamine exceeded 10 kilograms. Thus, notwithstanding

the citation to the wrong subdivision, Collins knew what facts were at issue with respect

to the weight enhancement allegations.2

       The citation to subdivision (a)(3) instead of subdivision (b)(3) of the weight

enhancement statute was a clerical or technical error that created no due process notice

violation. Accordingly, we modify the judgment to reflect the correct subdivision. (See

People v. Mitchell (2001) 26 Cal.4th 181, 185-187; People v. Escarcega (1969) 273

Cal.App.2d 853, 858.)

                              III. Failure to Stay Sentences

       For count 3 transportation of methamphetamine, the trial court sentenced Collins

to a principal term of three years, plus a consecutive 10-year term for the weight

enhancement and a consecutive three-year term for the prior conviction. The court

imposed concurrent terms on the remaining counts; i.e., for count 1 (possession of

methamphetamine for sale) and counts 2 and 4 (conspiracy to possess methamphetamine

for sale and conspiracy to transport methamphetamine, respectively).

       The Attorney General concedes, and we agree, that the sentences on counts 1, 2,

and 4 should have been stayed under Penal Code section 654. For all four counts,

defendant had the single objective of transporting the methamphetamine for sale. (See


2      The weight enhancement statute for heroin/cocaine (Health & Saf. Code,
§ 11370.4, subd. (a)(3)) and the weight enhancement statute for methamphetamine
(Health & Saf. Code, § 11370.4, subd. (b)(3)) refer to the same weight (more than 10
kilograms) and the same punishment (10 years).
                                            11
People v. Lewis (2008) 43 Cal.4th 415, 539; People v. Avalos (1996) 47 Cal.App.4th

1569, 1583.) We modify the judgment accordingly.

                                     DISPOSITION

      The judgment is modified to (1) change the weight enhancements to a violation of

Health and Safety Code section 11370.4, subdivision (b)(3), and (2) stay the sentences on

counts 1, 2 and 4. As so modified, the judgment is affirmed.


                                                                  HALLER, Acting P. J.
WE CONCUR:



O'ROURKE, J.



IRION, J.




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