3 Cal.3d 595, 14453, People v. West

Docket Nº:14453
Citation:3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409
Opinion Judge:[10] Tobriner
Party Name:People v. West
Attorney:[7] Myers, Hawley, Morley & Moore and John W. Moore for Defendant and Appellant. [8] Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and Timothy A. Reardon, Deputy Attorneys General, for Plaintiff and Respondent.
Case Date:December 03, 1970
Court:Supreme Court of California
 
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Page 595

3 Cal.3d 595

91 Cal.Rptr. 385, 477 P.2d 409

The PEOPLE, Plaintiff and Respondent,

v.

Dale Irven WEST, Defendant and Appellant.

Cr. 14453.

Supreme Court of California

Dec. 3, 1970.

In Bank

As Modified Dec. 30, 1970.

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Myers, Hawley, Morley & Moore and John M. Moore, Los Altos, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci and Timothy A. Reardon, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

We undertake here to confirm the legality of the plea bargain and to set up procedures for its acceptance or rejection in the strong light of full disclosure. In a day when courts strive to simplify trial procedures and to achieve speedier dispatch of litigation, we believe that the recognition of the legal status of the plea bargain will serve as a salutary time-saver as well as a means to dispel the procedural obscurantism that now enshrouds it. The grant of legal status to the plea bargain should enable the court in each case to reach a frank, open and realistic appraisal of its propriety.

Turning to the specific facts of this case, we note that defendant, charged with a violation of Health and Safety Code section 11530 (possession of marijuana), moved to suppress the incriminating evidence under Penal

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Code section 1538.5. After the superior court denied that motion, defendant, with the consent of the district attorney, pleaded nolo contendere to a violation of Health and Safety Code section 11557 (opening or maintaining a place for the selling, giving away, or using of a narcotic), and the court accepted the plea.

Defendant now appeals under Penal Code section 1538.5, subdivision (m). We shall point out that this section permits a defendant, whose motion to suppress evidence has been denied, to plead guilty and then appeal, asserting the alleged unlawful seizure of evidence; he need not preliminarily seek a certificate of probable cause under Penal Code section 1237.5. We shall explain that although defendant pleaded nolo contendere rather than guilty, he may file an appeal under section 1538.5, subdivision (m). We point out, however, that the appeal must fail because defendant's charge as to the illegality of the search presents a direct conflict between his testimony and that of the police officer; the superior court resolved that issue against the defendant, and on appeal we must accept its determination.

As we shall explain more fully, the next question that arises is whether the Court of Appeal properly set aside defendant's conviction of a violation of Health and Safety Code section 11557, which was based upon his plea bargain. That court, on its own motion, reversed the conviction on the ground that a violation of that section did not constitute a lesser included offense within section 11530, and that defendant, accused only of a violation of section 11530, could not plead to section 11557. We do not accept the position of the Court of Appeal; we uphold the validity of defendant's plea and the superior court's judgment based upon it.

We shall point out why we sustain the conviction: (1) a plea of guilty or nolo contendere does not become 'involuntary' on the ground that defendant entered into it pursuant to an understanding with the district attorney that another and more serious charge would not be pressed; (2) a plea bargain, such as that in the present case, should be fully disclosed to the trial court and included in the record of the case; (3) a court may accept a plea of nolo contendere to a lesser offense reasonably related to the offense charged. The record here shows that defendant voluntarily entered a plea to section 11557, a drug offense reasonably related to section 11530; consequently, the court properly exercised its jurisdiction in accepting that plea.

1. Defendant may appeal under Penal Code section 1538.5, subdivision (m), from a judgment of conviction entered upon a plea of nolo contendere.

Although the Attorney General contends that defendant's appeal cannot withstand defendant's failure to request a certificate of probable cause under

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Penal Code section 1237.5, 1 we do not regard such certificate as a precedent condition to a review of the search and seizure issue. Section 1538.5, subdivision (m), specifically provides that 'A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty.' The Attorney General concedes that this language permits a defendant who has pleaded guilty to seek appellate review of the validity of a search or seizure under section 1538.5 without first obtaining a certificate of probable cause; 2 he contends, however, that the section does not apply to a defendant who is convicted after a plea of nolo contendere.

Although section 1538.5, subdivision (m) does not mention pleas of nolo contendere, Penal Code section 1016 expressly provides as to 'nolo contendere' that 'The legal effect of such plea shall be the same as that of a plea of guilty, but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.' The clear language of this provision gives a plea of nolo contendere the same force and effect under section 1538.5, subdivision (m), as a plea of guilty. We conclude that since, under that section, defendant could, after a plea of guilty, appeal without a certificate of probable cause, defendant may so appeal following his plea of nolo contendere. (People v. Warburton (1970) 7 Cal.App.3d 815, 820--821, 86 Cal.Rptr. 894.)

We turn now to the merits of defendant's appeal under section 1538,5, subdivision (m) and point out that defendant failed to show the claimed illegality of the search which produced the marijuana.

2. Defendant consented to the search in which the officer discovered marijuana in defendant's automobile.

On October 18, 1967, about 8:40 a.m., Officer Pruden of the Mountain View Police Department noticed an automobile parked by a vacant field with 'something bunched up in the front seat.' He went to the car and rapped on the window, waking defendant. Defendant explained that he had

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been out late the previous night and had slept in the car to avoid disturbing the person with whom he was staying. Defendant said that he had borrowed the car from a friend; the officer then checked whether the car had been reported stolen, finding that it had not been so reported. When the officer asked defendant for identification, he replied that he had lost his wallet, producing, instead, a California Employment Office card bearing his name. The officer asked for further identification; defendant asserted that letters bearing his name were in the trunk of the car. Defendant and the officer then went to the rear of the car, and defendant opened the trunk.

According to Officer Pruden, defendant removed an article that resembled a shoe box without a lid, handed it to him, and said, 'The papers are in here. You can take whatever you want.' The officer removed some envelopes carrying defendant's name; within the box he saw a brown paper bag. Taking out the bag he began to open it, asking defendant, 'What is in here?' Defendant answered, 'Just some personal things. Nothing that will have my name on it.' Simultaneously, however, the officer had opened the bag sufficiently to observe two clear plastic packets containing marijuana.

Defendant's testimony, not surprisingly, differed from that of the officer. Defendant testified that the officer ordered him to open the trunk and threatened to arrest him if he failed to produce further identification. Defendant attested that he then did open the trunk, removed a letter from the box, and handed the letter to the officer, who thereupon examined it. The officer then took other letters from the box and began searching through its contents. He picked up the paper bag and asked, 'What's in this?' Defendant replied, 'Some of my shaving gear.' The officer then opened the bag and saw the marijuana.

The resolution of this conflict between the testimony of defendant and that of Officer Pruden must rest with the superior court. (Pen.Code, § 1538.5, subd. (c).) 'A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact.' (People v. Heard (1968) 266 Cal.App.2d 747, 749, 72 Cal.Rptr. 374, 375.) As the trier of fact, the superior court adjudges the credibility of the witnesses. (See Witkin, Cal. Criminal Procedure (1963) § 683.) Officer Pruden's testimony indicates that defendant consented to the search of the box and all of its contents, and that defendant did not withdraw this consent until the officer discovered the marijuana. By denying the motion to suppress, the superior court impliedly found this testimony to be true (Evid.Code, § 402, subd. (c)). Concluding that the seizure of the marijuana by Officer Pruden did not violate defendant's right to protection from unreasonable search and seizure, we must next determine the validity of defendant's conviction, which rested upon a plea bargain.

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3. Defendant's plea of nolo contendere to Health and Safety Code section 11557 is valid, and the superior court had jurisdiction to accept that plea and pronounce judgment.

When the instant case came before the court for trial on May 7, 1968, defendant's counsel announced that the district attorney would...

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