People v. McCloskey

• Decision Date: 17 October 1990
• Docket Number: No. 901144-6,901144-6
• Citation: 277 Cal.Rptr. 509,226 Cal.App.3d Supp. 5
• Court: California Superior Court
• Parties: 226 Cal.App.3d Supp. 5 The PEOPLE, Plaintiff and Respondent, v. Ronald McCLOSKEY, Defendant and Appellant. Crim. A. Appellate Department, Superior Court, Contra Costa County, California

Page 509

277 Cal.Rptr. 509

226 Cal.App.3d Supp. 5

The PEOPLE, Plaintiff and Respondent, v. Ronald McCLOSKEY, Defendant and Appellant.

Crim. A. No. 901144-6.

Appellate Department, Superior Court, Contra Costa County, California.

Oct. 17, 1990.

[226 Cal.App.3d Supp. 7] David A. Brown for defendant and appellant.

Gary Yancey, Dist. Atty., for plaintiff and respondent.

OPINION

MARCHIANO, Judge.

Appellant was found guilty of a violation of Vehicle Code section 23223. Appellant contends that the evidence is insufficient to support his conviction.

SUMMARY OF FACTS

At 10:52 p.m. on Monday, August 21, 1990, Officer Seipert contacted appellant, and another person, regarding a disturbance on Redwood Road. Appellant was standing by his Chevrolet pickup truck with another person. Officer Seipert observed two half-full containers of what appeared to be beer on the console of the pickup truck and numerous empty cans on the floor of the pickup truck. The two half-full containers had condensation on the outside and there was a smell of beer. Officer Seipert cited appellant for violation of Vehicle Code section 23223.

The traffic commissioner found appellant guilty.

DISCUSSION OF LAW

Appellant contends that the evidence was insufficient for a conviction. The test for sufficiency of the evidence is whether substantial evidence supports the conclusion of the trier of fact. The court must review the whole record in the light most favorable to the judgment below to determine if there is substantial evidence such that a reasonable trier of fact could have found that the prosecution sustained its burden of proving beyond a reasonable doubt that defendant was guilty. (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110.)

Vehicle Code section 23223 states that "no person shall have in his or her possession on his or her person, while in a motor vehicle upon a highway, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed." Appellant contends that the plain language of the statute requires that the open container of alcoholic beverage be in his possession on his person. People v. Squadere (1978) 88 Cal.App.3d Supp. 1, 151 Cal.Rptr. 616, a decision from the Appellate Department of the Superior Court of Los Angeles County, agrees with appellant's interpretation of the statute. That court held that the section is not violated unless the evidence establishes that the open container of alcoholic beverage was literally connected to the person of the defendant.

The legislative history of Vehicle Code section 23223 also supports appellant's position. Vehicle Code section 23223 was originally introduced by Assemblyman McAllister as part of Assembly Bill No. 516, 1979-1980 Regular Session, a comprehensive bill to fine and punish owners, drivers, and occupants of motor vehicles having an open receptacle for alcoholic beverage or consuming alcohol in a vehicle. As originally introduced in Assembly Bill No. 516, Vehicle Code section 23122.5, the predecessor statute of section 23223, read: "No person shall have in his possession on his person, or immediately accessible to his person, while in a motor vehicle upon a highway, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed." (Italics added.) During committee hearings, section 23122.5 was amended to delete the phrase "or immediately accessible to his person." ¹ The bill continued through the Senate and was passed on July 19, 1979, and, as signed by the Governor, read: "No person shall have in his possession on his person, while in a motor vehicle upon a highway, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed." In 1981, Vehicle Code section 23122.5 was renumbered and became Vehicle Code section 23223 without any change in the language. The Legislature has never broadened the concept of "possession" in Vehicle Code section 23223.

At the same time that Vehicle Code section 23122.5 became section 23223, the companion Vehicle Code sections pertaining to possession of alcohol in a vehicle were reviewed and renumbered, and amendments were made thereto. For example, Vehicle Code section 23224, involving the possession of an alcoholic beverage in a vehicle by persons underage, specifically states that "no passenger in any motor vehicle who is under the age of 21 years shall knowingly possess or have under that person's control any alcoholic beverage unless the passenger is accompanied by a parent or legal guardian...." The Legislature broadened the concept of who may be punished in Vehicle Code section 23224 to include someone under the age of 21 who not only knowingly possessed an alcoholic beverage but also had an alcoholic beverage under his control.

The legislative history indicates that the Legislature narrowly defined the concept of possession in Vehicle Code section 23223. In order for an occupant of a motor vehicle to be found guilty of violation of Vehicle Code section 23223, the occupant must have the open receptacle "in his possession on his person while in the motor vehicle."

Division 11, chapter 12, article 2 of the Vehicle Code contains a comprehensive statutory scheme for offenses involving alcohol and drugs. For example, Vehicle Code section 23220 applies to drinking while driving a motor vehicle upon a highway; Vehicle Code section 23221, drinking in a motor vehicle upon a highway; Vehicle Code section 23222, possession on the person of an open container containing an alcoholic beverage or marijuana while driving a motor vehicle; Vehicle Code section 23223, possession on the person of an open container in a motor vehicle; Vehicle Code section 23224, possession of a alcoholic beverage in a vehicle by a person under age 21; Vehicle Code section 23225, storage of an open container in a vehicle; and Vehicle Code section 23226, keeping an open container in the passenger compartment of a motor vehicle, with certain exceptions. In other words, the Legislature has given to law enforcement a number of tools to enforce cases such as the one before us.

For example, Vehicle Code section 23225, in particular, would be applicable to the facts of this case. That code section prohibits the driver of a...