Filed 1/4/21 P. v. Thomas CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Thi s opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

ERIC AN GEL THOMAS,

Defend ant 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, Judge s . Affirmed. William Paul Melcher, under appointment by the C ourt 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 Plaint iff 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

wa s a condition of his postrelease community supervision (PR C S). Th e 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 substance s (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 str ike 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 st op and, therefore, t hey 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 reasonab le 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
BACKGROUND 1
O n the afternoon of July 9, 2019, a police officer obse rved 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 th rough
a third inters ection

. The vehicle swerved into another lane to avoid a pedestrian standing in a crosswalk , then continued down t he street and
turned onto another street

. The area was very congested with pedestrian and vehicle traffic

. The offic er believed the driv er violated the Vehicle Code’s basic speed law because driving with rapid acceleration at high speeds wa s unsafe for the prevailing
conditions of the area where a lot of pedestrians, bicycles, scooters, and pedicabs were moving around t he urban area. The police officer and his partner followed the vehicle and conduct ed 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 T homas 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 , t he offic ers conducted a sear ch 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 app eal, we summarize th e 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 methamp hetamine 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 1 00 unused small zipp ered 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.) ‘I n 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 ‘re asonableness.’ ” ’ ” ( 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 unreason able, and the prosec ution 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 justify ing the suspicion th at 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 p reponderance 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 sci entific certainty fr om 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 possib ility 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 s upported by a reason able 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 ruli ng on a motion to su ppress, “ [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 le gal questions resolved in a suppression motion, and we review the trial court’s resolution of factual6

issues under the more deferential substantial evidence standard.” ( People v. Vargas (2020) 9 Cal.5th 793, 814; S imon , supra , 1 Cal.5t h at p. 120 [based o n the facts found by the trial court, we exercise independent judgment to
determine i f the search was reasonable].) W e “view the evidence in a light most favorable to the order denying the motion to suppress” and “ ‘ “must accept the t rial court’s resolut ion 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 the re 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 pede strian illegally
in a crosswalk even though Thomas had the right of way.
Because t he d efense s atisfied its prima facie burden of showing a search without a warrant, the burden shifted to the People to show a justificat ion for the warrantless search. Th e trial court summar ized 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 aro und a pedestrian. T he 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 cour t 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 regard7

for weather, visibility, or traffic and in no event at a speed which endangers the safety of persons o r property.” After applying the facts to the law , the

court denied the motio n 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
A s he did below, Thomas contends t he officer did not e stablish he drove
above th e speed limit and his speed adju stments along with avoiding a pedestrian illegally in a crosswalk were innocent behaviors that cannot form reasonable suspicion to justify an investigatory stop. He also contend s the totality of th e circumstances gave rise to nothing more than a hunch Thomas
was involved in criminal behavior , which was insufficient to justify the stop.
We disagree

. T here is no evidence the officers stopped Thomas based on a hunch he
was involv ed in criminal activ ity, 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 no t know the area ( Uni ted 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, t he officer testified he and his partner

sto pped the vehicle bec ause they observed driving behavior that was unsafe for the conditions, which violated t he basic speed law

.

2 Thereafter, Thomas undertook his own representat ion 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 spe ed greater than is

r easonable 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 cond itions, and the seco nd 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 th e officer’s testimon y that the officers
believed Thomas’s driving behavior was unsafe for the conditions of the

cong ested downtown area at the time. This gave rise to a reasonable suspicion of criminal behavior justifying the stop. Once they initiated th e 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 Peo

ple v. Due ñ as (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 r emand the matter for the court to conduct an ability to pay hearing. The People contend Thomas forfei ted this claim and, alternatively, the restitution fine was9

constitutional and any due process violation in imposing the non

- punitive fees without a deter mination of Thomas’s ability to pay was harmless beyond
a reasonable doubt. We conclude Thomas forfeited the claim

. “At the core of the Due ñ as opinion is its holding that imposition of fines, fees or assessments without a hearing on ability to pay denies due process. It wa s 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. Ot her courts, includin g this court, have disagreed with
Due ñ as 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 Due ñ as 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 [concludi ng a defendant who r equested 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
be cause we conclude Th omas 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. W ithout objection, t h e court reduced the restitution fine s to $2,400 each. It imposed recommended fees and

assessments totaling an additional $ 1,044

. 3

3 The fees and assessments included $ 4 0 in cour t securi ty fees (Pen

. Code, § 1465.8); $ 3 0 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 t o 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 abil ity to pay was a rel evant 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 th at even when challen ging 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. Castell ano (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’ b urden to
make a reco rd 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 bur den to explain why t he 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 f

ee (Health & Saf. Co de, § 11372.5)

.11

Hav ing 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, 4 00 restitution f

ine, Thomas has simi larly forfeited any challenge to the fees and

assessments. ( Ibid .)
IV DISPOSITION The judgment is affirmed

.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

DATO, J.