People v. Mermuys

• Decision Date: 23 December 1969
• Docket Number: Cr. 15641
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Harold MERMUYS, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 902

82 Cal.Rptr. 902

2 Cal.App.3d 1083

PEOPLE of the State of California, Plaintiff and Respondent, v. Harold MERMUYS, Jr., Defendant and Appellant.

Cr. 15641.

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

Dec. 23, 1969.

Herbert M. Porter, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

REPPY, Associate Justice.

Defendant and two other codefendants, Ackerman and Gouthier, were charged in an information with possession of marijuana in violation of section 11530 of the Health and Safety Code (count I) and with possession of marijuana for sale in violation of section 11530.5 of the Health and Safety Code (count II). Motions under Penal Code sections 995 and 1538.5 were made and denied. Each defendant properly waived a trial by jury and stipulated that the cause be submitted on the testimony contained in the preliminary hearing transcript ¹ and some additional evidence to be offered in behalf of Ackerman and Gouthier. Defendant was found guilty of count I and not guilty of count II. Codefendants were found not guilty of both counts. ² As to defendant, proceedings were suspended and probation was granted for three years, conditioned upon defendant serving the first 90 days in the county jail. Defendant appeals from the judgment (order granting probation).

On February 12, 1968, at 10:00 p.m. Los Angeles County Deputy Sheriffs Yturralde and Misch were traveling north on Topanga Canyon Road. At the corner of Topanga Canyon and Arteique Roads they observed a tan Corvette with Michigan license plates stopped at the intersection and facing south. As another car approached the Corvette from the rear, defendant, the driver of the Corvette, backed up. This forced the approaching car to swerve and pass the Corvette by pulling off on the right shoulder of the road. The Corvette then turned left and proceeded up Arteique Road. The deputies followed the Corvette up Arteique Road and turned on their flashing red lights intending to give defendant a traffic ticket for violating Vehicle Code section 22106 (unsafe backing along a public highway).

After both cars had stopped, Deputy Sheriff Misch, who was driving the patrol vehicle, alighted and began walking toward the Corvette. Defendant quickly exited from the driver's seat of the Corvette and met the deputy halfway between the two automobiles. Ackerman and Gouthier exited from the passenger side of the Corvette. Deputy Sheriff Misch asked defendant to exhibit his driver's license. Defendant could not produce it nor any personal identification. Deputy Sheriff Misch then asked defendant to produce the vehicle registration. Defendant replied that he could not because the car was not his but was owned by 'a friend.' Asked where the friend lived, defendant replied, 'It's just a friend.'

Based on the lack of personal and vehicular identification, ³ the three men were placed under arrest for grand theft (auto) and were immediately informed of their constitutional rights. Defendant indicated that he understood those rights. Then defendant stated to Deputy Sheriff Misch, 'The car is stolen. I want you to know that.'

Meanwhile, Deputy Sheriff Yturralde entered the Corvette from the passenger side to look for a registration certificate. He first looked at the steering wheel area but did not find it there. Then he noticed five wrapped packages, about brick size, in the compartment space behind the passenger's seat. Deputy Sheriff Yturralde noted that the wrapping of one of the bricks was partially opened at the corner, revealing a green leafy substance which appeared to him from his past experience to be marijuana. Defendant and both Ackerman and Gouthier were then arrested for possession of marijuana.

Defendant contends that the marijuana was found as the result of an illegal search (Fourth Amendment violation) and should have been excluded as evidence. More specifically, defendant argues that the deputies did not have probable cause to arrest him for grand theft (auto) and thus there could have been no search incidental to such an invalid arrest. However, we find sufficient evidence in the record to indicate that the deputies did have probable cause to believe defendant had stolen the car.

First the deputies were justified in stopping the Corvette after they had observed its driver violate a provision of the Vehicle Code. (People v. Odegard, 203 Cal.App.2d 427, 431, 21 Cal.Rptr. 515; People v. Myles, 189 Cal.App.2d 42, 46, 10 Cal.Rptr. 733; People v. Galceran, 178 Cal.App.2d 312, 315, 2 Cal.Rptr. 901.) After stopping the Corvette, Deputy Sheriff Misch was justified in asking defendant to produce his driver's license and registration certificate (People v. Odegard, Supra, 203 Cal.App.2d at p. 431, 21 Cal.Rptr. 515). When he could produce neither and could not identify the registered owner by name, the trier of fact could conclude that the deputies had probable cause to believe that defendant had stolen the vehicle. (People v. Odegard, Supra, p. 431, 21 Cal.Rptr. 515; People v. Myles, Supra, 189 Cal.App.2d at pp. 46--47, 10 Cal.Rptr. 733.) The situation which confronted the officers in People v. Upton, 257 Cal.App.2d 677, 683, 65 Cal.Rptr. 103, is quite similar to the setting in the instant case. In Upton, defendant's registration was nowhere in evidence, and the arresting officer knew that the last registered owner of the car was not the person who defendant claimed had loaned him the car. ⁴ Here there was also no evidence of registration and defendant told a similarly suspicious and evasive story about the true registrant. Before the search defendant had stated that the car was stolen. This did not take away the right to search for indicia of the true ownership and for stolen personal property.

Defendant nevertheless alternatively maintains that, even if there was probable cause to arrest for grand theft (auto), the subsequent search conducted by Deputy Sheriff Yturralde was general and exploratory in nature, and was not specifically related to the offense for which the three occupants of the car had been arrested. Deputy Sheriff Yturralde testified that the purpose of his search was to discover some indicia of ownership within the vehicle. While Deputy Yturralde clearly stated the objective of his search, the transcript is not so revealing as to the means he used. However, the trial judge reasonably could have inferred that because of the relatively small spatial interior of defendant's car, the openness to view and access of the rear storage area, and the easily identifiable nature of the contraband therein, Deputy Yturralde, with a legitimate reason for being in the car, could see the contraband in plain view without beginning an exploratory search. (People v. Superior Court, 266 Cal.App.2d 685, 690, 72 Cal.Rptr. 261; cf. People v. Roberts, 47 Cal.2d 374, 379, 303 P.2d 721.)

But, even if the trial judge had believed that Deputy Sheriff Yturralde had searched the entire car in order to locate indicia of ownership, and he had sustained the validity of the search on that basis, we could not overturn such a ruling. Such a search incidental and explicitly related to a grand theft (auto) arrest is permissible. As was stated by the court in People v. Upton, Supra, 257 Cal.App.2d 677, 684, 65 Cal.Rptr. 103, 108; 'Since * * * (the arresting officer) had reasonable cause to suspect that defendant had stolen the vehicle, the officer had the right to search the vehicle and to open the suitcases therein in an attempt to ascertain the identity of the owner of the vehicle and to ascertain whether any valuables might have been stolen along with the car.' (Cf. People v. Webb 66 Cal.2d 107, 111--112, 56 Cal.Rptr. 902, 424 P.2d 342, 19 A.L.R.3d 708; People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Burke, 61 Cal.2d 575, 580, 39 Cal.Rptr. 531, 394 P.2d 67.)

Finally defendant contends that the prosecution as a matter...