California Court of Appeal Mar 21, 2013 No. D061970Unpublished
Filed 3/21/13 P. v. Collins CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D061970
Plaintiff and Respondent,
v. (Super. Ct. No. JCF25089)
FRANCIS RONALD COLLINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Christopher
W. Yeager; Raymundo A. Cota, Judges. Affirmed as modified.
Francis Collins appeals from a judgment convicting him of transportation of
methamphetamine and related offenses. He argues the judgment must be reversed
because the trial court erred in denying his suppression motion. We find no error in this
ruling.
Collins also argues weight enhancements attached to his offenses must be reversed
because he was charged and convicted under the wrong subdivision of the Health and
Safety Code weight enhancement provision. We conclude this was a clerical or technical
error that did not violate his due process right to notice of the charges against him, and
we modify the judgment to correct the mistaken subdivision citation.
As to his sentence, Collins asserts, and the Attorney General concedes, that the
vehicle for " 'heavy tint' " that made it difficult to view occupants inside].)
Collins asserts the circumstances did not show a reasonable suspicion because
Officer Gonzalez only observed the view through the windows from the outside of the
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BMW, and he did not know what the driver's view was from the inside of the car. The
contention is unavailing because an officer observing a vehicle's windows prior to a stop
will typically only have a view from the outside of the car. The reasonable suspicion
standard for a traffic stop is satisfied by this outside observation, even if further
investigation ultimately determines the driver's clear view was not in fact reduced.
Collins also argues that because it was dark at the time of the stop, it was not
possible for Officer Gonzalez to view the interior of the car regardless of any window
tinting. When cross-examined about the darkness of the night, Officer Gonzalez testified
he was able to observe the dark tinted windows. The trial court was entitled to credit this
testimony, and to infer that even at night Officer Gonzalez was able to ascertain that the
view into the car was obstructed due to the window tinting. We defer to this factual
determination.
Collins further challenges the reasonable suspicion finding because the
prosecution did not present evidence of the actual measurement of the tint, nor a
photograph depicting the tinted windows. This evidence was not necessary to establish
Officer Gonzalez's reasonable suspicion at the time of the stop. Officer Gonzalez's
testimony describing the tint and his evaluation of the tint based on his training and
experience was sufficient to show the reasonableness of the traffic stop.
II. Erroneous Subdivision for Weight Enhancements
For the weight enhancements on counts 1 through 4, the information, jury verdict,
and sentencing decision all refer to Health and Safety Code section 11370.4, subdivision
(a)(3), which applies to heroin and cocaine. The correct subdivision for a weight
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enhancement for methamphetamine is Health and Safety Code section 11370.4,
subdivision (b)(3).1 Based on this error, Collins maintains that under due process
principles the weight enhancements must be reversed.
"Due process requires that an accused be advised of the specific charges against
him so he may adequately prepare his defense and not be taken by surprise by evidence
offered at trial. [Citations.] This means that except for lesser included offenses, an
accused cannot be convicted of an offense of which he has not been charged, regardless
of whether there was evidence at his trial to show he committed the offense. . . . The
same rules apply to enhancement allegations." (People v. Haskin (1992) 4 Cal.App.4th
1434, 1438; Cole v. Arkansas (1948) 333 U.S. 196, 201.) Thus, in some circumstances
when a defendant is charged and convicted under a particular code section, the judgment
may not be premised on another code section with different elements, even if these
elements are encompassed within the jury's verdict. (Cole, supra, 333 U.S. at pp. 197-
201; People v. Mancebo (2002) 27 Cal.4th 735, 738-739, 744, 752-753 [defendant could
not be sentenced under uncharged multiple-victim special circumstance rather than
charged gun-use special circumstance, even though it was apparent from information and
jury verdict that there were multiple victims]; Haskin, supra, 4 Cal.App.4th at pp. 1438-
1439.) This rule applies when the defendant was not put on notice that the prosecution
1 To illustrate, the information stated the allegations as follows: ". . . Collins . . . did commit a felony, namely: Possess Controlled Substance for Sale . . . to wit, methamphetamine. [¶] . . . [¶] . . . [T]he substance in the above charged offense exceeded 10 kilograms by weight within the meaning of [H]ealth and Safety code section 11370.4(a)(3)." (Boldface type and capitalization omitted.) 9
was seeking a conviction based on the uncharged statute. (Cole, supra, 333 U.S. at p.
201; Mancebo, supra, 27 Cal.4th at pp. 745, 747, 753; Haskin, supra, 4 Cal.App.4th at p.
1439.)
In contrast, when a defendant is fully aware of what charges are being brought
against him or her, a mere citation to the wrong code section is not fatal to the judgment.
(People v. Rivers (1961) 188 Cal.App.2d 189, 193-195; see People v. Camacho (2009)
171 Cal.App.4th 1269, 1272-1275; People v. Haskin, supra, 4 Cal.App.4th at p. 1439.)
In this circumstance, the defendant "was plainly informed of the nature of his offense,
and the designation of the wrong code section is immaterial. [Citations.] The defect was
merely one of artificiality rather than substance." (Rivers, supra, 188 Cal.App.2d at pp.
193-195 [defendant knew he was being charged with narcotics sale based on allegation in
information that he " 'did unlawfully sell' " and evidence presented at trial; inadvertent
citation in information (and ensuing judgment) to statute pertaining to narcotics
possession caused no prejudice]; see Russell v. United States (1962) 369 U.S. 749, 763
[" 'This Court has, in recent years, upheld many convictions in the face of questions
concerning the sufficiency of the charging papers. Convictions are no longer reversed
because of minor and technical deficiencies which did not prejudice the accused.' "];
People v. Camacho, supra, 171 Cal.App.4th at pp. 1272-1274 [reference to carjacking
rather than robbery in jury verdict form was mere clerical error that is properly
disregarded as surplusage].)
Here, Collins was charged and convicted only of methamphetamine-related
offenses; thus, he obviously knew the prosecution was not seeking to convict him of the
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heroin/cocaine weight enhancement. Further, in the weight enhancement allegations, the
information stated the methamphetamine exceeded 10 kilograms. Thus, notwithstanding
the citation to the wrong subdivision, Collins knew what facts were at issue with respect
to the weight enhancement allegations.2
The citation to subdivision (a)(3) instead of subdivision (b)(3) of the weight
enhancement statute was a clerical or technical error that created no due process notice
violation. Accordingly, we modify the judgment to reflect the correct subdivision. (See
People v. Mitchell (2001) 26 Cal.4th 181, 185-187; People v. Escarcega (1969) 273
Cal.App.2d 853, 858.)
III. Failure to Stay Sentences
For count 3 transportation of methamphetamine, the trial court sentenced Collins
to a principal term of three years, plus a consecutive 10-year term for the weight
enhancement and a consecutive three-year term for the prior conviction. The court
imposed concurrent terms on the remaining counts; i.e., for count 1 (possession of
methamphetamine for sale) and counts 2 and 4 (conspiracy to possess methamphetamine
for sale and conspiracy to transport methamphetamine, respectively).
The Attorney General concedes, and we agree, that the sentences on counts 1, 2,
and 4 should have been stayed under Penal Code section 654. For all four counts,
defendant had the single objective of transporting the methamphetamine for sale. (See
2 The weight enhancement statute for heroin/cocaine (Health & Saf. Code, § 11370.4, subd. (a)(3)) and the weight enhancement statute for methamphetamine (Health & Saf. Code, § 11370.4, subd. (b)(3)) refer to the same weight (more than 10 kilograms) and the same punishment (10 years). 11
People v. Lewis (2008) 43 Cal.4th 415, 539; People v. Avalos (1996) 47 Cal.App.4th
1569, 1583.) We modify the judgment accordingly.
DISPOSITION
The judgment is modified to (1) change the weight enhancements to a violation of
Health and Safety Code section 11370.4, subdivision (b)(3), and (2) stay the sentences on
counts 1, 2 and 4. As so modified, the judgment is affirmed.
HALLER, Acting P. J. WE CONCUR:
O'ROURKE, J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction, holding that the traffic stop was supported by reasonable suspicion and that the incorrect statutory citation for a weight enhancement was a harmless clerical error. The court also modified the judgment to stay sentences on multiple counts pursuant to Penal Code section 654.
Issues
Did the trial court err in denying the motion to suppress evidence based on an allegedly unlawful traffic stop?
Did the citation of the wrong subdivision for a weight enhancement violate the defendant's due process rights?
Did the trial court err by failing to stay sentences on multiple counts under Penal Code section 654?
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“The police may conduct a traffic stop if the circumstances show a reasonable suspicion that the driver has violated the Vehicle Code or some other law.”
“The citation to subdivision (a)(3) instead of subdivision (b)(3) of the weight enhancement statute was a clerical or technical error that created no due process notice violation.”
“For all four counts, defendant had the single objective of transporting the methamphetamine for sale.”