People v. Johnson

• Decision Date: 12 April 1982
• Docket Number: Cr. 5000
• Citation: 181 Cal.Rptr. 825,130 Cal.App.3d 553
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dennis JOHNSON, Defendant and Appellant.

Page 825

181 Cal.Rptr. 825

130 Cal.App.3d 553

The PEOPLE, Plaintiff and Respondent, v. Dennis JOHNSON, Defendant and Appellant.

Cr. 5000.

Court of Appeal, Fifth District, California.

April 12, 1982.

Hearing Granted June 16, 1982.

Caused Retransferred, see 207 Cal.Rptr. 74, 688 P.2d 160.

George L. Schraer and Quin Denvir, State Public Defender, under appointments by the Court of Appeal, and George L. Schraer, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T.

McNally and Clayton Tanaka, Deputy Attys. Gen., Sacramento, for plaintiff and respondent

OPINION

GEO. A. BROWN, Presiding Justice.

Defendant and appellant, Dennis Johnson, appeals from a judgment after a jury trial finding him guilty of assault with a deadly weapon (Pen.Code, § 245, subd. (a) ) and receiving stolen property (Pen.Code, § 496). His principal contention relates to an unlawful search issue. Lesser issues have to do with alleged instructional and sentencing errors.

The facts are relatively simple and undisputed.

On February 10, 1980, Marrion Morgan was driving on Union Avenue. A box caught under his car, and he stopped to remove the box. As he was lying on the pavement removing the box, he was propositioned by a young woman who positioned herself close to him. He told her that he was not interested, removed the box, and departed. Shortly thereafter, he became conscious that his wallet was missing. He returned to the area where he had removed the box, but found no sign of his wallet or the woman. Later that day, he reported the wallet as missing to the police.

On February 19, 1980, William Mellendy was at his Texaco station on Highway 99 one mile north of Mettler. At about 9 p. m., he and James Tull were repairing a tire on a tow truck. Appellant drove in. There was a female passenger in the car. Appellant paid for $5 worth of gas, which Mellendy pumped. Appellant then asked for the extra gas in the hose. Mellendy denied his request, and explained that the gas was metered from the nozzle and not the hose. Appellant insisted, and heated conversation ensued. Appellant pulled a knife and charged at Mellendy. Mellendy back-peddled as fast as he could. Appellant's knife came as close as eight to twelve inches from Mellendy's chest. Mellendy pulled a gun, whereupon appellant stopped his charge. Mellendy ran to the lube bay of the station and yelled for James Tull to call the sheriff. Appellant drove away.

James Tull witnessed appellant's lunge at Mellendy with the knife. Tull was able to get the description and license number of appellant's car.

A few minutes after the assault, Officer Norman Simon stopped appellant's car at the intersection of Bear Mountain Boulevard and Highway 99. Appellant was arrested, handcuffed and placed in the patrol car.

Officer Christopher Davis then arrived at the scene. Davis went to the passenger side of appellant's vehicle, where a female (Candy Johnson) was sitting. He asked her where the knife was, whereupon she reached in her jacket and handed him a knife. Davis asked Johnson where the papers to the car were, and she opened the glove compartment. Davis saw two clear vials containing a green leafy substance which he believed to be either marijuana or PCP. Davis smelled the contents of the vials and caught a strong odor of mint, leading him to believe that the vials contained PCP.

Officer Davis ordered Johnson out of the car, and conducted a search of the vehicle. He found a wallet under the front passenger's seat. The wallet was closed, and its contents were not visible. Davis searched the wallet for contraband and for identification of appellant. Davis also desired to release the car to Ms. Johnson, but wanted to be sure that the car was properly in appellant's possession. During his search of the wallet, Davis found credit cards belonging to Marrion Morgan, the victim of the wallet snatch on February 10.

In his own defense, appellant testified that he found the wallet outside of a pool hall. He put it on the front seat of his car, but intended to return the wallet to its rightful owner.

Appellant admitted being at the gas station on the night in question. He denied having possession of a knife, and testified that Mellendy called him a "damn nigger" and pulled a gun on him. Appellant denied any knowledge of the presence of a knife in his car.

DISCUSSION

A search and seizure issue and the alleged instructional error concern only the conviction on the receiving charge. The search and seizure issue is further narrowed to the search without a warrant of the wallet seized from beneath the car seat which contained items belonging to one Marrion Morgan, a victim of an earlier wallet snatch. No attack is made upon the legality of the vehicle stop or appellant's arrest for assault with a deadly weapon, or the search of the vehicle itself.

Since the briefs were filed in this cause, the United States Supreme Court has decided New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768. This case was referred to and argued by both counsel at oral argument. In the Belton case, a state trooper stopped an automobile and its four occupants for a speeding violation. The interior of the vehicle smelled of burnt marijuana, and he observed an envelope on the floor. He ordered the men from the car and separated them. Returning to the car, the officer searched the envelope, finding that it contained marijuana. The officer then searched the passenger compartment. On the back seat he found a leather jacket. Unzipping one of the pockets, he found cocaine.

In upholding the search, the United States Supreme Court stated:

"Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases. Yet, as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments 'can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.' LaFave, 'Case-by-Case Adjudication' versus 'Standardized Procedures': The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 142. This is because 'Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be "literally impossible of application by the officer in the field." ' Id., at 141. In short, 'A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.' Dunaway v. New York, 442 U.S. 200, 213-214, 99 S.Ct. 2248, 2256-57, 60 L.Ed.2d 824." (New York v. Belton, supra, 453 U.S. at p. ----, 101 S.Ct. at p. 2863.)

The court points out that no straightforward rule has emerged from the litigated cases respecting the question involved here--the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants. The court then observed:

"When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of 'the area within the immediate control of the arrestee' when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon or evidentiary item.' Chimel, [v. California] supra, [395 U.S. 752] at 763, 89 S.Ct. [2834] at 2040 . In order to establish the workable rule this category of cases requires, we read Chimel 's definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

"It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. United States v. Robinson, [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427] supra; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have." (Id., 101 S.Ct. at p. 2864; fns. omitted.)

Appellant properly conceded at oral argument that if the principle of Belton is applicable to this case, the search...