People v. Williams

• Decision Date: 14 July 1970
• Docket Number: Cr. 16949
• Citation: 88 Cal.Rptr. 349,9 Cal.App.3d 565
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Johnny Ray WILLIAMS, Defendant and Appellant.

Page 349

88 Cal.Rptr. 349

9 Cal.App.3d 565

The PEOPLE, Plaintiff and Respondent, v. Johnny Ray WILLIAMS, Defendant and Appellant.

Cr. 16949.

Court of Appeal, Second District, Division 4, California.

July 14, 1970.

David F. Aberson, Sherman Oaks, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Pierpont M. Laidley and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Defendant was charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. He moved under section 1538.5 to suppress the evidence but withdrew that motion on the stipulation that the issue could be presented at the trial. Trial by jury was waived, defendant stipulated that a commissioner could sit as judge pro tempore, and following the trial defendant was found guilty as charged.

Proceedings were suspended and defendant was granted probation for three years on condition that he spend the first 90 days in the county jail. The court determined that the time defendant had already served would count toward the 90 days and since he had already been in custody more than 90 days he was forthwith released.

Defendant appeals from 'the judgment and order granting probation.' The latter is the judgment for purposes of appeal.

At approximately 2:30 a.m. on November 7, 1967, officers of the Los Angeles Police Department observed the vehicle in which defendant was riding as a passenger fail to stop at a stop sign, and halted the car to issue a citation. One of the officers asked the driver for a registration, but none was presented. There was no identification in the vehicle. A record check disclosed that the license plate on the car had been issued to a vehicle which had been stolen. The officers then arrested both occupants and took them to the station.

While defendant was being booked he was 'skin searched,' a routine booking procedure requiring the arrestee to remove all of his clothing. As defendant unbuckled his trousers a wax paper bag containing a green leafy substance 'resembling marijuana' fell to the floor. The defendant was then booked on the charge of possession of marijuana instead of auto theft.

At the trial it was stipulated that a chemist would testify that the 'green leafy substance' was marijuana.

I

The admissibility in evidence of the marijuana which dropped from defendant's clothing during the course of his booking depends upon the legality of his arrest, since it is proper to search a lawfully arrested person for the purpose of keeping contraband out of the jail. (People v Reed (1962) 202 Cal.App.2d 575, 579--580, 20 Cal.Rptr. 911.)

The lawfulness of defendant's arrest depends upon whether the officer had reasonable cause to believe he had committed the felony of auto theft. (Pen.Code, § 836, subd. 3.)

The record contains no evidence of any conversation between the officers and either occupant of the car concerning their occupancy of the vehicle excepting the officer's request for the driver to present a registration of the vehicle. There is no evidence of any conversation whatever with defendant. There is no evidence the occupants of the car were even told why they were arrested. There is no evidence that the officer knew anything at all about the relationship between defendant and the driver of the car except that defendant was a passenger.

The Attorney General's brief argues that defendant 'failed to offer any explanation for his presence in the stolen vehicle. He gave no reason to the police which would justify their treating him differently from the driver.' The record does not support this argument. The record is silent as to whether the officers did or did not ask defendant for an explanation, or whether defendant did or did not give an explanation. Those questions were not asked at the trial. Moreover, the failure of the passenger to give an 'explanation' hardly could have much weight in this context. An innocent passenger could only say he didn't know the car was stolen, a self-serving statement not likely to be persuasive with an officer who thought he had grounds for an arrest.

The burden of proof was upon the prosecution to show justification for the arrest and search. (People v. Faris (1965) 63 Cal.2d 541, 545, 47 Cal.Rptr. 370, 407 P.2d 282.)

The Attorney General relies on People v. Littlejohn (1957) 148 Cal.App.2d 786, 790, 307 P.2d 405, and People v. Ragone (1948) 84 Cal.App.2d 476, 780, 191 P.2d 126, to support the theory that the officers had reasonable cause to believe defendant was guilty of auto theft. Neither is factually similar to the meager record which is before us. In the Littlejohn case the arresting officers had a great deal of information indicating that the occupants of the stolen car had been using it for some time for delivering narcotics. It was thus a reasonable inference that the passenger and driver were jointly responsible for the possession of the vehicle.

In Ragone, two men were caught while attempting a burglary. A stolen car with motor running, and containing a pistol, sledgehammer and crowbars, was parked nearby. The appellate court held the evidence sufficient to convict both men of using a motor vehicle without the consent of the owner in violation of former Vehicle Code section 503. Since the two men were jointly engaged in the burglary, it was a reasonable...