People v. One 1959 Plymouth Sedan

• Decision Date: 30 November 1960
• Docket Number: No. M264103738,No. RST,L,M264103738,RST
• Citation: 9 Cal.Rptr. 104,186 Cal.App.2d 871
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. ONE 1959 PLYMOUTH SEDAN, Engineicense185, Joseph S. Galvin, and First Western Bank and Trust Company, Defendants and Appellants. Civ. 19307.

Page 104

9 Cal.Rptr. 104

186 Cal.App.2d 871

PEOPLE of the State of California, Plaintiff and Respondent, v. ONE 1959 PLYMOUTH SEDAN, Engine No. M264103738, License No. RST 185, Joseph S. Galvin, and First Western Bank and Trust Company, Defendants and Appellants.

Civ. 19307.

District Court of Appeal, First District, Division 1, California.

Nov. 30, 1960.

Orrick, Dahlquist, Herrington & Sutcliffe, San Francisco, for appellant First Western Bank & Trust co.

Albert E. Polonsky, San Francisco, for appellant Joseph S. Galvin.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Peter T. Kennedy, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

Appellant Galvin, the registered owner of the involved automobile, and appellant First Western Bank and Trust Company, the legal owner, appeal from a judgment declaring the automobile forfeited to the State of California because it 'was used to unlawfully keep, deposit, and transport narcotics' in violation of section 11610 of the Health and Safety Code. Appellants' contentions that (1) the respondent did not produce sufficient evidence of violation of section 11610 to support the judgment of forfeiture, and (2) the trial court, sitting without a jury, committed prejudicial error, cannot be sustained. Respondent produced sufficient evidence from which the trier of fact properly could infer that the registered owner, when riding in the car immediately prior to his arrest, possessed narcotics. Nor did the trial judge's remarks, though perhaps somewhat informal, constitute prejudicial error.

The testimony discloses that on May 31, 1959 at 11:00 p. m., Officers Bigarani and Cuneo, while walking east along Union Street in San Francisco, were informed that an accident had just occurred at the intersection of Union Street and Grant Avenue. They proceeded toward the intersection, met two men staggering down Union Street, stopped them, and took them to the scene of the accident. About five or ten minutes later appellant Galvin approached the officers and admitted that he owned, and had driven, the car. Although Galvin testified at the trial he so informed the officers, he denied that he had been the driver. Officer Bigarani testified that Galvin appeared to be 'under the influence of some type of intoxicant or stimulant' but '[a]t this time it was hard to determine.' He also testified that the other four occupants of the car, the two men the officers had apprehended leaving the scene, and a man and woman at the scene, also appeared to have 'either been drinking or using narcotics.' The officers found pills, believed to be barbituates, in the possession of two of the passengers.

The officers found further evidence of narcotics on the trip to, and arrival at, the station. Officer Bigarani transported apprivate Galvin to the police station in his private vehicle; Officer Cuneo took the other four people in the police wagon. On the way to the station in the police wagon another passenger threw down a cigarette package containing a 'crutch' (used as a holder to smoke marijuana cigarettes). At the station the officers searched Galvin and found a small butt of a marijuana cigarette, called a 'roach,' in the pocket of his jacket. Galvin denied knowledge of the roach. At the trial, Galvin likewise denied smoking marijuana or knowing that any of his apprehended companions did so, but he admitted the jacket belonged to him and that he had worn it in the car. The officers booked Galvin for driving while under the influence of an intoxicant.

Respondent filed notice of seizure and intended forfeiture proceedings against the vehicle alleging violation of section 11610 of the Health and Safety Code. Appellant Galvin answered, admitting that he was the registered owner, but denying that he violated section 11610. The answer of First Western Bank and Trust Company alleged that, before consummating the conditional sale contract, the bank reasonably investigated appellant Galvin's moral character. The bank sought release of the car or the sum of $3,550.88 in discharge of the contract.

The Superior Court of the City and County of San Fransciso, sitting without a jury, heard the case and rendered a judgment for respondent declaring the car forfeited to the state. The court found that appellant automobile 'was used to unlawfully keep, deposit, and transport narcotics, to wit, a quantity of marijuana, and said marijuana was unlawfully and knowingly possessed by Joseph S. Galvin, registered owner of the said defendant vehicle.' The court also found that appellant bank had not reasonably investigated appellant Galvin's moral character in order to be protected in the amount of its loan.

Appellants Galvin and First Western Bank appeal on the grounds of (1) insufficiency of the evidence, and (2) misconduct of the trial court. The bank does not challenge the court's finding regarding its investigation of Galvin's character.

As to the insufficiency of the evidence, Galvin admitted owning and wearing in the car a jacket in which officers found a cigarette butt containing marijuana. Even though Galvin denied knowledge of the butt's presence, the trier of fact properly could infer that he had possessed the marijuana in his pocket while in the car and that he knew of its presence.

The courts have held that, despite denial of an owner that he knew of the presence of a narcotic, the trial court may infer from the facts that the owner did possess such required knowledge. People v. One 1956 Porsche Convertible, 1959, 175 Cal.App.2d 251, 345 P.2d 986. Thus in People v. One 1952 Chevrolet, 1954, 128 Cal.App.2d 414, 275 P.2d 509, the evidence disclosed that two marijuana cigarettes were found on the floor of the car under the driver's seat and that the owner, although denying knowledge of their presence, made a movement toward them. The court held that the trier of fact could infer such knowledge from the presence of the narcotic in the car and from the action of the owner....