People v. Viramontes

1

THE PEOPLE, Plaintiff and Respondent, v. JASON VIRAMONTES, Defendant and Appellant.

E079992

California Court of Appeals, Fourth District, Second Division

August 23, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. RIF2202333 Timothy J. Hollenhorst, Charles Rogers, and Dwight W. Moore Judges. ^[*] Reversed and remanded with directions.

Charles Thomas Anderson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, and Eric A. Swenson and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

A police officer stopped the car that defendant Jason Viramontes was driving because it had illegally tinted windows. The officer then conducted a pat-down search of defendant. He found over 43 grams of methamphetamine. Next assertedly with defendant's consent, the officer and his partner searched the car. They found 3.5 grams of methamphetamine and two handguns.

At the preliminary hearing, the magistrate upheld both searches. The trial court, however, ruled that the pat-down search was unconstitutional, because there were no specific and articulable facts suggesting that defendant was armed and dangerous. Nevertheless, it upheld the search of the car, because defendant had claimed that he was "Eric Viramontes," and the police had learned that Eric Viramontes was on probation.

In this appeal, the People do not argue that either of the searches was valid. Instead, they argue that all of the contraband was admissible under the inevitable discovery doctrine. As the police learned after the searches, there was a warrant for defendant's arrest. In the People's view, it was inevitable that the police would demand defendant's driver's license, would learn that he was Jason Viramontes, would arrest him on the warrant, and would search both him and the car.

The People cannot show the requisite likelihood that the police would have obtained defendant's driver's license. The police did not, in fact, demand it (except belatedly, when he was being transported). Instead, they asked for his name; he gave the name of Eric, his brother; they did a records check, which produced a photo of Eric; and defendant looked so much like Eric that they did not notice that it was not a photo of him. Thus, it appears that, but for the unconstitutional searches, defendant could have passed as Eric and thus could have evaded arrest.

Defendant also contends that the trial court erred by imposing fines and fees without an ability-to-pay hearing. As we are reversing on other grounds, we do not reach this issue.

I STATEMENT OF FACTS

The evidence at the preliminary hearing included the testimony of the arresting officer, a video from his bodycam, and a video from his dashcam. No additional evidence was introduced at the special hearing in the trial court.

On the night of January 5, 2020, a police officer, who was on patrol with his partner, turned on his overhead lights to conduct a traffic stop of the car that defendant was driving. The officer testified that he did so because defendant's front side windows were tinted, which is illegal. (Veh. Code, § 26708, subd. (a).)^[1]

Defendant's car moved over slowly toward the curb but did not stop. It made a right turn from Tyler onto Hemet, another right turn into the parking lot of a Burger King, and a third right turn, as if "loop[ing]" back to Tyler. However, it stopped just short of Tyler, under a light. The partner, using a PA system, ordered defendant to turn off his car.

Tyler was a no-parking zone. However, there were parking spaces on Hemet.

As the officers walked toward his car, defendant opened his door, leaned out, held out both hands - one empty, and one holding the key^[2] - and looked back at them. According to the officer, this made him "uncomfortable," because "it's unusual for someone to open their door . . . and have their body be outside the vehicle already." In his experience (including over 500 traffic stops), this usually meant the driver was going to flee.

Defendant said the car belonged to a friend. He denied being on parole or probation.

The officer ordered defendant out of the car and immediately conducted a patdown search, which he testified was for officers' safety purposes. In defendant's right front pocket, he felt a bulge. He said, "What's in your pocket right here?" "Mind if I check?" Defendant said, "No problem." He removed the object. It was a baggie with over 43 grams of methamphetamine.

The officer then handcuffed defendant and had him sit on a curb. There was this exchange:

"[Officer]: It's not your vehicle?

"[Defendant]: It's - no, it's not.

"[Partner]: Mind if we check, right?

"[Defendant]: . . . Well, I - I mean, I'm not giving you permission, but if you guys wanna go you guys can check, yeah.

"[Officer]: All right, well, we gotta look for more stuff.

"[Defendant]: No problem."

The officers then searched the car. They found a baggie with 3.5 grams of methamphetamine somewhere in the back. They found one handgun under the passenger seat and a second handgun in a black backpack in the back seat.

Defendant gave his name as Eric Viramontes and gave a date of birth. The officer rifled through defendant's wallet, as if looking for a driver's license; the video shows various cards, but no driver's license.

A records check showed that Eric Viramontes, with that date of birth, was on probation and sometimes went by the name Bryan Viramontes. It also produced a photo of Eric Viramontes. The officer did not appear to notice that the photo was not a photo of defendant. Defendant said that Bryan was his twin brother and sometimes used his name.

While being transported, however, defendant spontaneously admitted his true name and true date of birth. He said Eric and Bryan were twins, and he was their younger brother. The officer remarked that defendant "look[ed] just like" Eric. Defendant pointed out that his brother had "colored eyes," but he did not; the officer said, "You don't?" (implying that he had not noticed the discrepancy).

At the officer's request, defendant provided his driver's license number. A new records check turned up the fact that he was on postrelease community supervision (PRCS) and had a felony arrest warrant.

II

STATEMENT OF THE CASE

Defendant was charged by complaint with:

Count 1: Possession of a controlled substance while armed with a loaded and operable firearm. (Health &Saf. Code, § 11370.1, subd. (a).)

Counts 2 &3: Unlawful possession of a firearm. (Pen. Code, § 29800, subd. (a)(1).)

Count 4: Possession of methamphetamine for sale (Health &Saf. Code, § 11378), with an enhancement for being personally armed with a firearm (Pen. Code, § 12022, subd. (c)).

Count 5: Transportation of methamphetamine (Health &Saf. Code, § 11379, subd. (a)), with an enhancement for being personally armed with a firearm (Pen. Code, § 12022, subd. (c)).

Count 6: Carrying a loaded firearm in a vehicle, after a prior felony conviction. (Pen. Code, § 25850, subds. (a), (c)(1).)

The complaint also alleged two strike priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and one prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)).

Defendant filed a motion to suppress. (Pen. Code, § 1538.5.) At the end of the preliminary hearing, the magistrate denied the motion and held defendant to answer on all charges.

The prosecution filed an information with the same charges. Defendant renewed his motion to suppress as part of a motion to set aside the information. (§ 995.) The trial court granted the motion with respect to the drugs found on defendant's person and set aside all counts based on those drugs; otherwise, it denied the motion.

The prosecution filed an amended information, eliminating counts 4 and 5 and renumbering count 6 as count 4; it also eliminated the prior serious felony allegation. Defendant pleaded no contest and admitted the strike priors. He was sentenced to a total of two years in prison.

III THE RULINGS BELOW

A. The Magistrate's Ruling.

The magistrate ruled that the traffic stop was valid because defendant had illegally tinted windows.

The pat-down was valid because "on the totality of the circumstances, an officer could believe his safety was in danger." "[I]t is quite unusual for suspects to get out of a vehicle during a traffic stop....[T]he [car] did not stop immediately. A PA system . . . had to be used to direct the [car] to stop. ^[3] Once the vehicle did stop, the car door opened, an individual was seen with keys in a hand, and [the officer] believed, again based on his experience, that the suspect would run."

Defendant consented to the search of the car. "He initially said he did not give permission and then he gave permission." The magistrate also noted that defendant was subject to search terms: "Had officers known [defendant's] true identity . . ., they would have a full right to search that entire vehicle." "Additionally, [defendant] said that the vehicle was not his. So . . . there was no right to privacy in that vehicle."

B. The Trial Court's Ruling.

The trial court ruled that the traffic stop was valid because defendant had illegally tinted windows.

However the pat-down search was invalid because there were no specific and articulable facts suggesting that defendant was armed and dangerous. Although he could have stopped sooner, he was not evasive or uncooperative. There were "two officers and one suspect." "[I]mmediately upon approaching the officers tell the defendant to get out of the car. He gets out of the car and...