274 Cal.App.2d 720, 33435, People v. One 1964 Chevrolet Corvette Convertible

Docket Nº:33435
Citation:274 Cal.App.2d 720, 79 Cal.Rptr. 447
Opinion Judge:[10] Lillie
Party Name:People v. One 1964 Chevrolet Corvette Convertible
Attorney:[7] Cantillon & Cantillon and James P. Cantillon for Defendant and Appellant. [8] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Suzanne E. Graber, Deputy Attorney General, for Plaintiff and Respondent.
Case Date:July 10, 1969
Court:California Court of Appeals
 
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Page 720

274 Cal.App.2d 720

79 Cal.Rptr. 447

The PEOPLE of the State of California, Plaintiff and Respondent,

v.

ONE 1964 CHEVROLET CORVETTE CONVERTIBLE, New York License No. 3C1483, Serial No. 40867S 114966, Defendant and Appellant.

Civ. 33435.

California Court of Appeal, Second District, First Division

July 10, 1969.

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COUNSEL

Cantillon & Cantillon and James P. Cantillon, Beverly Hills, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Suzanne E. Graber, Deputy Atty. Gen., for respondent.

OPINION

LILLIE, Associate Justice.

The within forfeiture proceeding had its genesis in the arrest of Frederick Benton Busch. Charged with unlawful possession of a billy club, possession of marijuana for sale and possession of marijuana (§ 11530, Health & Saf. Code) on October 13, 1964, he was acquitted by a jury on the first two counts but found 'guilty of a violation of section 11530 of the Health and Safety Code, possession of a narcotic, to wit, marijuana, a felony, as charged in Count III of the information.' (People v. Frederick Benton Busch, No. 295692. 1 No appeal was taken from the judgment and the same became final.

On October 19, 1964, these proceedings were brought against the 1964 Chevrolet Corvette Convertible in the possession of Frederick on October 13, 1964, alleging that the vehicle was unlawfully used for possession of marijuana, in violation of section 11610, Health and Safety Code. 2 Irving

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Busch, Frederick's father and the registered owner, was served with Notice of Seizure and Intended Forfeiture (§ 11612 et seq., Health & Saf. Code) and filed an answer admitting ownership of the vehicle but denying that either he or Frederick had knowledge that the same was used for an unlawful purpose. The People's motion for summary judgment was denied. In August 1965 a jury returned a verdict in favor of the owner denying forfeiture, but a new trial was ordered 'on the ground of insufficiency of the evidence.' The order was affirmed by this court (People v. One 1964 Chevrolet Corvetee Convertible, 251 Cal.App.2d 424, 430, 59 Cal.Rptr. 594); petitions for rehearing and for hearing by the Supreme Court were denied and remittitur issued. Thereafter the People filed notice of motion for summary judgment and in support thereof declaration of Officer Higgins and judgment roll in People v. Busch, No. 295692. The motion was granted; the owner appeals from judgment in favor of the People entered under section 437c, Code of Civil Procedure.

The sole question is whether in the forfeiture proceedings Frederick's judgment of conviction of possession of marijuana conclusively determines the issue of whether he had knowledge of the presence and narcotic nature of the marijuana found in the vehicle.

Section 11610, Health and Safety Code, requires the forfeiture of the interest of any registered owner of a vehicle unlawfully used for the possession of narcotics. The People have the burden of showing that the vehicle was in fact unlawfully used and the registered owner had knowledge thereof. On the motion for summary judgment it was conceded that (1) Irving Busch, Frederick's father, is the registered owner of the 1964 Chevrolet Corvette Convertible (Answer to Notice of Seizure and Intended Forfeiture Proceedings); and (2) on October 13, 1964, Frederick had the vehicle in his possession and drove the same with the owner's consent. While it is a defense that the owner did not consent to the use or taking of the vehicle (People v. One 1941 Ford 8 Stake Truck, Engine No. 99T370053, License No. P 8410, 26 Cal.2d 503, 507; People v. One 1961 Ford Falcon, License No. VJD265, 215 Cal.App.2d 149, 153, 30 Cal.Rptr. 110;

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People v. One 1957 Ford 2-Door, License No. MLS 842, Serial No. D7FH165947, 180 Cal.App.2d 545, 551--552, 4 Cal.Rptr. 793), it is an affirmative one which must be pleaded and proved. (People v. One 1957 Ford 2-Door, License No. MLS 842, Serial No. D7FH165947, 180 Cal.App.2d 545, 550, 4 Cal.Rptr. 793.) The owner's answer failed to set up such defense, thus consent was not a triable issue; moreover, he concedes in his opening brief that he 'filed an answer in which he admitted * * * that at the time of the events in question his son, Frederick Benton Busch, was in possession of said automobile with (his) consent.'

Additionally, the People established on the motion that (1) on October 13, 1964, the 1964 Corvette was unlawfully used in that it contained substantial amounts of marijuana--the only marijuana received in evidence and used to convict Frederick in the criminal case; on October 13 Officers McGuire and Higgins searched the vehicle, found therein packages containing marijuana and numerous marijuana cigarettes and seized the vehicle for forfeiture proceedings (Declaration of James H. Higgins); and (2) Frederick, who had been driving the vehicle on October 13, 1964, with the owner's consent, knew of the presence of the marijuana therein and its narcotic nature--a jury returned a verdict of guilty of possession of marijuana in violation of section 11530, Health and Safety Code on October 13, 1964 (Minutes, January 8, 1965) and thereby impliedly found that the marijuana belonged to Frederick, he knew it was in the Corvette and knew of its narcotic nature (People v. Groom, 60 Cal.2d 694, 696, 36 Cal.Rptr. 327), on January 20, 1965, criminal proceedings were suspended and he was granted probation for three years (Minutes, January 29, 1965), and no appeal was taken and the judgment of conviction became a final judgment on the merits (§ 1237, Pen. Code) prior to the commencement of the forfeiture proceedings herein. (People v. One 1964 Chevrolet Corvette Convertible, 251 Cal.App.2d 424, 426, 59 Cal.Rptr. 594.)

Since the People on the motion for summary judgment relied upon the effect of Frederick's criminal conviction which is asserted on grounds of collateral estoppel, we first turn to a consideration of the consequences of that judgment. The remedy of summary judgment is appropriate when the doctrine of res judicata in its subsidiary form of collateral estoppel can be used to refute all triable issues of fact suggested by the pleadings. (Swaffield v. Universal Ecsco Corp.,

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271 Cal.App.2d 147, 158, 76 Cal.Rptr. 680; Wells Fargo Bank v. Kincaid, 260 Cal.App.2d 120, 123, 66 Cal.Rptr. 832; Dryer v. Dryer, 231 Cal.App.2d 441, 446, 41 Cal.Rptr. 839; Saunders v. New Capital for Small Businesses, Inc., 231 Cal.App.2d 324, 331, 41 Cal.Rptr. 703; Smith v. City of Los Angeles, 190 Cal.App.2d 112, 128, 11 Cal.Rptr. 898; Olmstead v. Riley, 135 Cal.App.2d 117, 121--122.) Collateral estoppel...

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