Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF3757 Gary S. Paer, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant appeals from his conviction following the trial court’s denial of his motion to suppress evidence pursuant to California Penal Code section 1538.5. Defendant argues there was no probable cause to initiate a traffic stop of his vehicle and that the search of the airbag compartment exceeded the scope of consent. He further claims one of the jury instructions was constitutionally deficient. We find no error and affirm.
I FACTS
On November 30, 2006, Officer Jason Viramontes of the Santa Ana Police Department observed defendant driving towards a stop sign where the street ended in a “T” intersection. Defendant did not have his turn signal on within 100 feet of turning, so Viramontes initiated a traffic stop. When Viramontes asked defendant for his driver’s license, defendant said that he did not have one. Viramontes then asked defendant to get out of the car and if he could search his person and his vehicle. Defendant agreed, and the search revealed $436, a cell phone, and some rubber bands on his person. After he finished searching defendant, Viramontes handcuffed him and seated him in the backseat of the patrol car.
Viramontes and his partner searched defendant’s vehicle. While he was searching the car, Viramontes noticed that the airbag cover was misaligned with the rest of the dashboard by approximately a quarter of an inch. When Viramontes tapped on the airbag cover he heard a rattling sound inside. Viramontes pulled back the bottom right corner of the airbag cover so he could see inside the compartment. Instead of an airbag, the compartment held multiple bags of a powder-like substance, a crystal-like substance, and more cash.
Eventually, Viramontes and another officer were able to completely remove the airbag cover to expose the compartment. Inside the compartment the officers found $316, a sheet of paper believed to be a pay-owe sheet, and several bags of methamphetamine, cocaine powder, and cocaine base. Viramontes also discovered that the airbag cover was wired to a magnetic switch on the dashboard.
Viramontes arrested defendant, who agreed to talk to him after being advised of rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Defendant told Viramontes that the car belonged to someone else but defendant had been driving it for four months. Defendant admitted that he had been selling drugs for the last two months and valued the drugs he had in the car at approximately $2,000. Defendant also stated that he constructed the airbag compartment himself.
Defendant was charged with seven counts relating to the transportation and possession for sale of controlled substances, and for having a false compartment for the transportation of drugs. The information also included several quantity allegations. After the jury convicted defendant on all counts, the court sentenced defendant to a total of four years and eight months in state prison.
II DISCUSSION
Constitutionality of the Initial Traffic Stop
The first issue defendant raises on appeal is whether Viramontes conducted a legal traffic stop. The standard of review in this matter is well-settled. We defer to the lower court’s findings of fact as supported by substantial evidence, but exercise independent judgment in determining whether the Fourth Amendment was violated. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
A traffic stop is legal if the officer has a reasonable suspicion, based on specific facts, that a motorist has violated the law. (People v. Wells (2006) 38 Cal.4th 1078, 1082.) Viramontes testified that he made the initial stop because defendant did not have his turn signal on for 100 feet before turning. California Vehicle Code section 22108 states: “Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning.” The observation that defendant’s turn signal was not on until the last five feet before the intersection, or until defendant had actually stopped, would certainly give an officer reasonable suspicion that defendant violated the law requiring the signal to be on for 100 feet.
Subsequent statutory references are to the Vehicle Code.
Defendant, however, argues that section 22108 should be read in connection with section 22107, which states: “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” Defendant claims we should interpret section 22108 to require a signal only if another vehicle may be affected by the turn. We find this argument unpersuasive. There is no language in section 22108 that states or suggests that it should be read in connection with any other statute.
The goal of statutory interpretation is to determine what the enacting body intended the statute to mean. (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 817-818.) The court first examines the statutory language, because it is the most reliable indicator of legislative intent. (Ibid.) If the plain, commonsense meaning of the statutory language is unambiguous, the plain meaning controls. (Ibid.) The plain meaning of section 22108 is that it requires a motorist to signal continuously for 100 feet before turning without any other conditions, exceptions, or limitations. This meaning is clear and unambiguous. Additionally, if the Legislature had intended section 22107’s language about whether other vehicles may be affected to be included in the meaning of section 22108, the Legislature would have expressed that intent. The Legislature had the choice of either expressly adding such language to section 22108 or making reference to section 22107. The Legislature’s choice not to include or make reference to that language indicates that the Legislature did not intend section 22108 to be read in connection with section 22107. (See People v. Licas (2007) 41 Cal.4th 362, 367.)
Further, even if we were to accept defendant’s statutory construction argument, the stop would nonetheless be permissible. Another vehicle was indeed present — the police car. It is certainly reasonable to believe that the police car “may be affected” by the movement of defendant’s car. Thus, we find no error. The initial traffic stop was constitutional.
Scope of Consent
Voluntary consent to a search is a well-known exception to the Fourth Amendment’s warrant requirement. (People v. Bishop (1996) 44 Cal.App.4th 220, 237.) An officer’s authority to conduct a consensual search is limited to the scope of the consent authorizing the search. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) The standard for measuring the scope of consent to a search is objective reasonableness — that is, “what would the typical reasonable person understand based on the exchange between the officer and the suspect?” (Florida v. Jimeno (1991) 500 U.S. 248, 251.) We will uphold the trial court’s determination as to the scope of consent unless it is clearly erroneous. (People v. Crenshaw, supra, 9 Cal.App.4th at p. 1408.)
Defendant argues that removing the airbag cover exceeded the scope of consent given to search the car. However, if an officer obtains probable cause during the portion of a consensual search that is within the scope of consent, the officer may constitutionally search any part of the vehicle that may contain the object of the search, regardless of the initial scope of consent. (U.S. v. Strickland (11th Cir. 1990) 902 F.2d 937, 941 (Strickland).) In Strickland, the court held that although slashing a suspect’s spare tire exceeded the scope of consent to search the vehicle, it was still constitutional because the officer obtained independent probable cause to slash the tire during the consensual part of the search. (Id. at pp. 941-943.)
Here, there was no stated limit to the scope of the search at the outset. (Compare People v. Cantor (2007) 149 Cal.App.4th 961, 964 [“real quick” search].) Thus, Viramontes was certainly within the scope of the consent to look around the vehicle and make any relevant observations. One such observation was the misaligned state of the airbag cover. Based on this observation, it was reasonable for Viramontes to lift up the cover without removing it. Once he did, the illegal substances were in plain view, and he thus had independent probable cause to remove the airbag cover. (People v. Bittaker (1989) 48 Cal.3d 1046, 1077-1078.) We therefore find no error.
Constitutionality of CALCRIM No. 220
The court reviews jury instructions de novo. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1.) Defendant argues that CALCRIM No. 220 is constitutionally deficient because it did not inform the jury that lack of evidence is included in the definition of reasonable doubt.
The trial judge gave the following instructions to the jury: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the people prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the people must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the people have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty. [¶] You must decide what the facts are in this case. You must use only the evidence that was presented in the courtroom. [¶] Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.”
This court agrees with the other recent appellate cases which hold that CALCRIM No. 220 is constitutionally sound. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Rios (2007) 151 Cal.App.4th 1154, 1156-1157.) CALCRIM No. 220 does not instruct or imply to the jury that it is not permitted to consider the lack of evidence in determining whether the prosecution has proved defendant’s guilt beyond a reasonable doubt. (People v. Westbrooks, supra, 151 Cal.App.4th at p. 1509.)
Defendant argues that CALCRIM No. 220 shifts the burden of proof to the defendant by requiring defendant to “present evidence of the lack of evidence.” In People v. Rios, supra, 151 Cal.App.4th at pp. 1156-1157, the court rejected a similar argument. In that case, the defendant argued that CALCRIM No. 220 impermissibly shifted the burden of proof to the defendant. (Id. at p. 1156.) We reject defendant’s similar argument. CALCRIM No. 220 does not shift the burden to the defendant by requiring the defendant to “present evidence of the lack of evidence.” The trial judge specifically instructed the jury that the prosecution has the burden of proof and is required to prove each element of a crime beyond a reasonable doubt.
Defendant also contends that CALCRIM No. 220 requires reasonable doubt to be based on evidence presented and that this prevents the jury from relying on the lack of evidence. We find this argument unpersuasive. CALCRIM No. 220 states that proof beyond a reasonable doubt must be based on the evidence presented. This does not imply that reasonable doubt itself must also be based on the evidence presented. Further, the trial judge clearly instructed the jury that it should not convict defendant unless the evidence proved him guilty beyond a reasonable doubt. This instruction does not mean that the jury is not permitted to acquit if it finds a lack of evidence, but instead means that the jury is not permitted to convict unless there is evidence that affirmatively proves guilt beyond a reasonable doubt.
The court considers jury instructions as a whole. (People v. Campos, supra, 156 Cal.App.4th at p. 1237.) The relevant inquiry is whether there is a reasonable likelihood that the jury applied the instruction in a way that violated the constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) When considering the jury instructions in this case as a whole, there is no reasonable likelihood that the jury understood the instructions to mean that they should not consider the prosecution’s lack of evidence in determining whether or not the prosecution had proved each element of the crime beyond a reasonable doubt. We therefore no error with respect to the use of CALCRIM No. 220.
III DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.