People v. Greer

• Decision Date: 15 September 1980
• Docket Number: Cr. 34063
• Citation: 110 Cal.App.3d 235,167 Cal.Rptr. 762
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Eugene GREER and Frederick W. Williams, Defendants and Appellants.

Page 762

167 Cal.Rptr. 762

110 Cal.App.3d 235

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Eugene GREER and Frederick W. Williams, Defendants and Appellants.

Cr. 34063.

Court of Appeal, Second District, Division 5, California.

Sept. 15, 1980.

Hearing Denied Nov. 12, 1980.

Herbert F. Blanck, Encino, under appointment by the Court of Appeal, for defendant and appellant Greer.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Jonathan B. Steiner, Deputy State Public Defender and Dale Taguchi, Certified Law Student, for defendant and appellant Williams.

George Deukemjian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen.-Crim.Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Gary R. Hahn, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

Defendants Greer and Williams were convicted of kidnapping (a violation of Pen.Code, § 207) and robbery (a violation of Pen.Code, § 211). In addition, gun use allegations under Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), were found true. Both defendants appeal.

The facts giving rise to defendants' involvement are as follows: At approximately 5 a. m. Mr. Booker Powell was asleep in his automobile. He had returned to his home around 2 a. m., parked his Chrysler at the curb and fallen asleep. Defendants awoke Powell and, after each had threatened him with a .38 pistol, commandeered his car, robbed him of six or seven dollars and drove the car with Powell in it some three blocks before letting him out. Powell returned to his home, and reported the incident to the Compton police.

As defendant Williams drove the Chrysler at approximately 5:45 a. m., the car was observed to be weaving and traveling slowly by Deputy Sheriff Harvey and his partner, who were on patrol in the area. The sheriff then ordered the car to stop. Defendant Williams did so. He got out of the car and walked to the sheriff's car. He was patted down for weapons, but none were found. Greer, the passenger in the Chrysler, also exited, approached the sheriffs and underwent a pat down with nothing being found. It was Deputy Sheriff Harvey's opinion that Williams was under the influence of marijuana, but that Greer was not.

Greer was observed to be dressed in khaki-colored clothes and was questioned as to his occupation. Greer stated that he was a security guard and had just gotten off work. Deputy Sheriff Harvey then asked Greer if he had a gun and was told that it was in the car and "believed to be" unloaded. Deputy Sheriff Harvey went to the car and seized two .38 pistols from inside a duffel bag which was on the front seat; one of the pistols was loaded and extra bullets were found in Williams' vest pocket. A wallet was found under the front seat of the Chrysler; it contained Powell's identification papers.

At some point after viewing the handguns, the deputy sheriff received a radio broadcast identifying the Chrysler as having been stolen. Communication was made with the Compton police and police officers arrived at the scene; they brought Mr. Powell with them. Powell identified both defendants as the perpetrators of the crimes involving him.

Both defendants contend that the search for the guns was illegal and that it should have been suppressed. While we conclude that the denial of the suppression motion was correct, we fail to see how a different result could be reached; hence, even assuming error, it would be harmless.

First: There is no question but that Powell was robbed at gunpoint by two robbers, each armed. There is no question but that Powell was forced to accompany the robbers for a distance of some three blocks before they released him.

Second: Powell identified the two defendants as the criminals. This identification was in the field and within approximately 45 minutes from the time he had been released.

Third: The defendants were the sole persons in control of Powell's car and Williams falsified his right to possession of the Chrysler.

As we have stated, however, there was no error in failing to suppress the weapons.

Penal Code section 12031 provides that everyone who carries a loaded firearm in a vehicle while on any public street is guilty of a misdemeanor. (The section is subject to certain exceptions not here applicable.) In addition, a portion of the section, i. e., subdivision (e) provides: "In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to the provisions of this section constitutes probable cause for arrest for violation of this section."

Here, Greer stated that he had a firearm in the car and he expressed a belief that the firearm was unloaded. The statute gave the officer the right to examine the firearm to determine whether it was loaded.

Since the officer had the right to arrest Greer, had Greer refused to authorize an inspection of the firearm, in that such refusal would constitute probable cause for such arrest, the officer had the right to search and seize the firearm as incident to the arrest had there been a refusal to permit inspection. Does the fact that no request was made make the search illegal and require suppression of the evidence? The answer is "No." ¹ When it becomes known (as here by admission and by observation as in People v. Kern, supra, 93 Cal.App.3d 779, 155 Cal.Rptr. 877 and People v. DeLong (1970) 11 Cal.App.3d 786, 90 Cal.Rptr. 193), that a firearm is in the car, its seizure due to the mobility of the automobile is permissible. A firearm, loaded or not, is such an instrument of potential danger that the section gives the officer authorization to examine it. People v. DeLong, supra, should have put the issue raised here and in Kern, supra, to rest long ago. DeLong properly held:

"On the other hand, if the officers had the right to make the inspection permitted by sections 171e and 12031, subdivision (c), of any firearm which had been brought on the college grounds or in a vehicle in a public place, appellant would not be entitled to prevent such inspection when it was known to the officers that the guns were in the vehicle, simply by closing the trunk. This does not mean that officers are entitled to open trunks...