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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CEFERINO ANASTACIO CURENIO,

Defendant and Appellant.

 H041925

 (Monterey County

 Super. Ct. No. SS132594A)

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))1and 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.

 

1 All further statutory references are to the Penal Code unless otherwise noted.
2

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?
8

“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.
___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MIHARA, J.