Filed 1/4/21 P. v. Thomas CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC ANGEL THOMAS,

Defendant and Appellant.

 D076981

 (Super. Ct. No. SCD282431)

APPEAL from a judgment of the Superior Court of San Diego County, 

Jeffrey B. Barton and David M. Gill, Judges. Affirmed.

William Paul Melcher, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Daniel 

Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

I

INTRODUCTION

After stopping Eric Angel Thomas for a traffic violation, police officers 

found methamphetamine and items indicative of drug sales during a search 

of Thomas and his vehicle pursuant to a Fourth Amendment waiver, which 

was a condition of his postrelease community supervision (PRCS). The trial 

court denied Thomas’s motion to suppress in which he challenged the validity 

of the stop and asked the court to suppress the evidence obtained during the 

search. Thereafter, a jury convicted Thomas of one count of transportation of

controlled substances (Health & Saf. Code, § 11379, subd. (a); count 1) and 

one count of possession of a controlled substance for sale (Health & Saf. Code, 

§ 11378; count 2). Thomas admitted one prior strike conviction. The court 

sentenced him to eight years in state prison. 

Thomas contends in this appeal that the trial court erred in denying his 

motion to suppress because the police officers did not have a reasonable 

suspicion to justify the traffic stop and, therefore, they violated his federal 

and state constitutional rights. He also contends the court violated his due 

process rights by imposing fines and fees without determining his ability to 

pay. We conclude the traffic stop was based on reasonable suspicion and the

court properly denied the motion to suppress. We further conclude Thomas 

forfeited his claims regarding the court’s imposition of fines and fees. We, 

therefore, affirm the judgment.
3

II

BACKGROUND1

On the afternoon of July 9, 2019, a police officer observed a vehicle 

driving northbound on 14th Street in the East Village of San Diego. The 

vehicle accelerated from a stop sign at a high rate of speed, stopped at a 

second stop sign, accelerated again, and drove at a high rate of speed through 

a third intersection. The vehicle swerved into another lane to avoid a 

pedestrian standing in a crosswalk, then continued down the street and 

turned onto another street. 

The area was very congested with pedestrian and vehicle traffic. The 

officer believed the driver violated the Vehicle Code’s basic speed law because 

driving with rapid acceleration at high speeds was unsafe for the prevailing 

conditions of the area where a lot of pedestrians, bicycles, scooters, and 

pedicabs were moving around the urban area. The police officer and his 

partner followed the vehicle and conducted a traffic stop. They drove in 

excess of the posted 25-mile-per-hour speed limit to catch up to the vehicle. 

Thomas was the driver and the sole occupant of the vehicle.

Before approaching the vehicle, the officer conducted a records check

and discovered Thomas was the registered owner and he was on PRCS, which 

meant he likely had a Fourth Amendment waiver. After Thomas confirmed 

he was subject to supervision, the officers conducted a search based upon his 

Fourth Amendment waiver condition. 

Officers found $340 in small bills and a plastic bindle containing 2.3 

grams of methamphetamine in Thomas’s pants pocket. In a backpack, they 

1 Because the motion to suppress hearing is the subject of this appeal, we 

summarize the facts related to the traffic stop from the evidence presented at 

that hearing. We draw the facts regarding what was found in the search 

from evidence presented at trial for context.
4

found two additional bindles holding 7.14 grams of methamphetamine along 

with plastic baggies and a working digital scale. In another backpack, 

officers located a glass container along with more baggies containing 

crystalline material. In the center console of the vehicle, officers located 100 

unused small zippered baggies with yellow biohazard logos. 

Thomas did not appear to be under the influence of methamphetamine 

during the traffic stop and he did not exhibit physical characteristics of a 

heavy methamphetamine user. A detective opined Thomas possessed the

methamphetamine for sale rather than personal use.

III

DISCUSSION

A

Motion to Suppress

1

General Principles

“Both the federal and state Constitutions prohibit unreasonable 

searches and seizures. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.) ‘In 

California, issues relating to the suppression of evidence derived from 

governmental searches and seizures are reviewed under federal 

constitutional standards.’ [Citation.] ‘ “[T]he ultimate touchstone of the 

Fourth Amendment is ‘reasonableness.’ ” ’ ” (People v. Ovieda (2019) 7 

Cal.5th 1034, 1041.)

“A defendant may move to suppress evidence under [Penal Code] 

section 1538.5 on grounds that a search without a warrant was unreasonable. 

A warrantless search is presumptively unreasonable, and the prosecution 

bears the burden of demonstrating a legal justification for the search.” 

(People v. Simon (2016) 1 Cal.5th 98, 120 (Simon).) 
5

An officer may detain an individual if the officer can point to specific 

and articulable facts which, taken together with rational inferences from 

those facts, warrant the intrusion. (Terry v. Ohio (1968) 392 U.S. 1, 21 

(Terry).) Traffic stops “are treated as investigatory detentions for which the 

officer must be able to articulate specific facts justifying the suspicion that a 

crime is being committed.” (People v. Hernandez (2008) 45 Cal.4th 295, 299.) 

“[T]he reasonable suspicion standard of Terry[, supra, 392 U.S. 1] is not

a particularly demanding one, but is, instead, ‘considerably less than proof of 

wrongdoing by a preponderance of the evidence.’ [Citation.] ‘In reviewing 

the propriety of an officer’s conduct, courts do not have available empirical 

studies dealing with inferences drawn from suspicious behavior, and we 

cannot reasonably demand scientific certainty from judges or law 

enforcement officers where none exists. Thus, the determination of 

reasonable suspicion must be based on commonsense judgments and 

inferences about human behavior.’ ” (People v. Letner and Tobin (2010) 50 

Cal.4th 99, 146.) “[T]he possibility of innocent explanations for the factors 

relied upon by a police officer does not necessarily preclude the possibility of a 

reasonable suspicion of criminal activity. [Citations.] In determining 

whether a search or seizure was supported by a reasonable suspicion of 

criminal activity, ‘ “the relevant inquiry is not whether particular conduct is 

‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular 

types of noncriminal acts.” ’ ” (Id. at p. 147.)

In ruling on a motion to suppress, “[t]he trial court ‘ “find[s] the 

historical facts, select[s] the rule of law, and appl[ies] it to the facts in order 

to determine whether the law as applied has been violated.” ’ [Citation.] We 

review de novo a trial court’s resolution of the legal questions resolved in a 

suppression motion, and we review the trial court’s resolution of factual 
6

issues under the more deferential substantial evidence standard.” (People v. 

Vargas (2020) 9 Cal.5th 793, 814; Simon, supra, 1 Cal.5th at p. 120 [based on 

the facts found by the trial court, we exercise independent judgment to 

determine if the search was reasonable].) We “view the evidence in a light 

most favorable to the order denying the motion to suppress” and “ ‘ “must 

accept the trial court’s resolution of disputed facts and its assessment of 

credibility.” ’ ” (People v. Frederickson (2020) 8 Cal.5th 963, 1010.)

2

Procedural Background

Thomas’s motion to suppress challenged only the basis for the stop. 

Defense counsel argued there was no reasonable suspicion to pull Thomas 

over because there was no evidence of how fast he was driving, the officers 

did not initially stop him when they observed him accelerate through two 

intersections, and Thomas took evasive action to avoid a pedestrian illegally 

in a crosswalk even though Thomas had the right of way. 

Because the defense satisfied its prima facie burden of showing a 

search without a warrant, the burden shifted to the People to show a 

justification for the warrantless search. The trial court summarized the 

evidence presented by the People as follows: “The testimony showed that the 

officer was experienced in the area, observed the defendant for several blocks, 

that he sped out from the stop sign at two stops prior to swerving around a 

pedestrian. The observations ... appeared to be from ... a basis of experience 

in the area and the traffic and congestion. The officer appeared credible and 

was not impeached.” 

Discussing the legal basis for the stop offered by the officer, the court 

said, “Basic speed law indicates that no person shall drive a vehicle upon a 

highway at a speed greater than is reasonable or prudent having due regard 
7

for weather, visibility, or traffic and in no event at a speed which endangers 

the safety of persons or property.” After applying the facts to the law, the 

court denied the motion based on the totality of the evidence. The court said, 

“I do think the testimony established a reasonable basis for the stop.”2

3

Analysis

As he did below, Thomas contends the officer did not establish he drove 

above the speed limit and his speed adjustments along with avoiding a 

pedestrian illegally in a crosswalk were innocent behaviors that cannot form 

reasonable suspicion to justify an investigatory stop. He also contends the 

totality of the circumstances gave rise to nothing more than a hunch Thomas 

was involved in criminal behavior, which was insufficient to justify the stop.

We disagree.

There is no evidence the officers stopped Thomas based on a hunch he 

was involved in criminal activity, such as drug sales. This was not a 

situation where an officer suspected illegal activity because a driver appeared 

to moderate his speed when he observed an officer (People v. Loewen (1983) 

35 Cal.3d 117, 127) or because he did not know the area (United States v. 

Diaz-Juarez (9th Cir. 2002) 299 F.3d 1138, 1147–1148). Even if Thomas 

drove below the posted speed limit and even if he had the right of way when 

he encountered the pedestrian, the officer testified he and his partner 

stopped the vehicle because they observed driving behavior that was unsafe 

for the conditions, which violated the basic speed law. 

2 Thereafter, Thomas undertook his own representation and refiled the 

motion to suppress before trial. The trial judge denied the motion finding no 

new or different evidence to justify rehearing the motion. Thomas does not 

challenge this ruling on appeal.
8

The basic speed law set forth in Vehicle Code section 22350 states: “No 

person shall drive a vehicle upon a highway at a speed greater than is 

reasonable or prudent having due regard for weather, visibility, the traffic on, 

and the surface and width of, the highway, and in no event at a speed which 

endangers the safety of persons or property.” Read as a whole, the basic 

speed law “regulates speed based on the totality of circumstances, including 

the way a person is driving.” (People v. Farleigh (2017) 13 Cal.App.5th 

Supp. 12, 15.) “The first portion of the statute prohibits driving over the 

speed appropriate for external conditions, and the second portion of the 

statute prohibits driving at any excessive speed. Read together, both 

portions of the statute have effect and protect the public from any sort of 

dangerous speed.” (Id. at p. 16.) 

The trial court found credible the officer’s testimony that the officers

believed Thomas’s driving behavior was unsafe for the conditions of the 

congested downtown area at the time. This gave rise to a reasonable 

suspicion of criminal behavior justifying the stop. Once they initiated the 

stop, the officers learned Thomas was subject to a Fourth Amendment waiver 

and conducted a search consistent with that condition. Under these 

circumstances, the court properly denied the motion to suppress.

B

Fines, Fees, and Assessments

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, Thomas 

contends the court violated his constitutional rights of due process and 

protection against excessive fines by imposing fines and fees without 

determining he has the ability to pay them. Thomas asks us to remand the 

matter for the court to conduct an ability to pay hearing. The People contend 

Thomas forfeited this claim and, alternatively, the restitution fine was 
9

constitutional and any due process violation in imposing the non-punitive 

fees without a determination of Thomas’s ability to pay was harmless beyond 

a reasonable doubt. We conclude Thomas forfeited the claim.

“At the core of the Dueñas opinion is its holding that imposition of 

fines, fees or assessments without a hearing on ability to pay denies due 

process. It was that court’s view it was the trial court’s duty to hold a 

hearing and thus failure to seek a hearing did not result in forfeiture. 

Further, the court found that the burden to prove ‘present’ ability to pay was 

on the prosecution. Other courts, including this court, have disagreed with 

Dueñas on these key principles.” (People v. Keene (2019) 43 Cal.App.5th 861, 

863; see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 327, review granted 

Nov. 26, 2019, S258946 [rejecting the Dueñas due process analysis for fines 

and fees]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [applying 

excessive fine analysis for restitution fines]; and People v. Kopp (2019) 

38 Cal.App.5th 47, 95–96 (Kopp), review granted Nov. 13, 2019, S257844 

[concluding a defendant who requested ability to pay hearing bears burden of 

proof and applying due process analysis to court assessments and excessive 

fines analysis to restitution fines].)

It is not necessary for us to reach these broader issues in this case 

because we conclude Thomas forfeited his claim. Thomas’s probation report 

recommended a restitution fine of $4,800 (Pen. Code, § 1202.4) with an 

additional restitution fine of $4,800 (Pen. Code, § 1202.45), to be stayed 

unless his supervision is revoked. Without objection, the court reduced the 

restitution fines to $2,400 each. It imposed recommended fees and 

assessments totaling an additional $1,044.3

3 The fees and assessments included $40 in court security fees (Pen. 

Code, § 1465.8); $30 as an immediate critical needs assessment (Gov. Code, 
10

Penal Code section 1202.4 authorizes a restitution fine of up to $10,000 

in felony cases, and requires a sentencing court to impose a minimum fine of 

$300 notwithstanding a defendant’s inability to pay that amount. Dueñas

considered whether a minimum fine imposed under the statute was 

constitutional. But even before the Dueñas decision, a defendant’s ability to 

pay was a relevant consideration in determining whether to impose a 

restitution fine greater than the statutory minimum. (Pen. Code, § 1202.4, 

subds. (c) and (d).) 

Notwithstanding some broad language in Dueñas, cases since then

have concluded that even when challenging a minimum fine, defendants bear 

the initial burden of (1) advising the court that they are unable to pay the 

fines and/or fees that the court proposes to assess, and (2) introducing 

minimal evidence to support that assertion. (E.g., People v. Castellano (2019) 

33 Cal.App.5th 485, 490 [“a defendant must in the first instance contest in 

the trial court his or her ability to pay the fines, fees and assessments to be 

imposed”]; Kopp, supra, 38 Cal.App.5th at p. 96 [“it is Appellants’ burden to 

make a record below as to their ability to pay these assessments”].) 

The court here questioned the probation officer regarding the 

recommended restitution fine of $4,800 and, on its own, chose to impose a 

fine of $2,400. It was defendant’s burden to explain why the court should 

impose a lesser amount than was proposed. (Pen. Code, § 1202.4, subd. (d); 

People v. Avila (2009) 46 Cal.4th 680, 729 (Avila).) The failure to do so means 

an appellate challenge based on ability to pay is forfeited. (Id. at p. 729.)

§ 70373); a $154 criminal justice administration fee (Gov. Code, § 29550.1); a 

$615 drug program fee (Health & Saf. Code, § 11372.7); and a $205 lab 

analysis fee (Health & Saf. Code, § 11372.5). 
11

Having failed to object, the argument regarding Thomas’s inability to 

pay the assessed restitution fine is forfeited. (People v. Gutierrez (2019) 35 

Cal.App.5th 1027, 1033.) Moreover, because he did not object to the $2,400 

restitution fine, Thomas has similarly forfeited any challenge to the fees and 

assessments. (Ibid.)

IV

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

DATO, J.