People v. Zonver
| Decision Date | 21 April 1982 |
| Docket Number | Cr. A |
| Citation | 183 Cal.Rptr. 214,132 Cal.App.3d Supp. 1 |
| Court | California Superior Court |
| Parties | 132 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Respondent, v. Victor George ZONVER, Defendant and Appellant. 19209. Appellate Department, Superior Court, Los Angeles County, California |
Victor George Zonver was convicted of violating Penal Code section 12031, subdivision (a). 1 On this appeal from the judgment, we must decide whether a request must first be made of the owner of a firearm carried in a vehicle in a prohibited public place before a peace officer may enter the vehicle to examine the firearm pursuant to subdivision (e) of section 12031. We follow People v. DeLong (1970) 11 Cal.App.3d 786, 90 Cal.Rptr. 193 and People v. Greer (1980) 110 Cal.App.3d 235, 167 Cal.Rptr. 762 in holding that such a request is not an essential prerequisite to an entry and examination.
About midnight Officer Edward Kreins of the Beverly Hills Police Department, while on patrol, observed a white Cadillac sedan illegally parked in a loading zone in front of a restaurant. He was going to issue a citation but decided first to ask the restaurant parking lot attendant, Carlos Lopez, if he knew the owner. Lopez told him that it belonged to a police chief, because it had a telephone inside, antennas on the trunk, and a gun between the front seats.
By illuminating the interior of the Cadillac with his flashlight, Kreins could see the handle and trigger of a gun protruding from between the front seats. He could not see the chamber to determine whether it was loaded. He asked Lopez if he had a key, and when Lopez unlocked the door, Kreins went in and obtained the gun. When he examined it, he found it to be a revolver with five bullets in the cyclinder, one being under the hammer. He took the serial number, replaced the gun where he had found it and locked the car.
Kreins checked by car radio with the records bureau and found both the gun and the automobile registered to defendant. There was no report of the gun having been stolen. Kreins did not know, however, whether Zonver had a permit to carry it.
As Kreins was completing his records check, Zonver and a female companion emerged from the restaurant, got into the Cadillac, and drove away. Following, Kreins called for assistance and stopped the Cadillac. After asking Zonver to alight, Kreins went to the Cadillac and observed the gun in the same location. He retrieved it and asked Zonver if he was in law enforcement or had a permit to carry a gun. When Zonver replied in the negative, he was placed under arrest.
Pursuant to Penal Code section 1538.5, Zonver moved to suppress evidence of Kreins' examination of the gun, and his later statements to Kreins, as products of an illegal search. Relying upon People v. Kern (1979) 93 Cal.App.3d 779, 155 Cal.Rptr. 877, he urged that before Kreins could enter the Cadillac to examine the firearm he was obligated to seek out the owner of the firearm and request to examine it. There is no dispute that Kreins made no such request and that Lopez did not have Zonver's permission to open the Cadillac for such an examination.
After reviewing People v. Kern, supra, and People v. Greer, supra, the trial judge denied the motion. Zonver then pleaded guilty, and judgment and this appeal followed. His sole contention on appeal is that as a legal requirement under subdivision (e) of section 12031 of the Penal Code, Kreins was obligated first to make a request of Zonver to inspect the gun before examining it. Absent such a request, he maintains, a peace officer must have independent probable cause to believe the gun loaded or there must exist exigent circumstances justifying a search before entering the vehicle.
On appeal, the People have suggested theories for upholding Kreins' entry into the Cadillac alternative to subdivision (e) of section 12031 of the Penal Code. Defendant responds that these are theories not urged in the trial court but raised for the first time on appeal. Upon our examination of the record, we are unable to find any basis for the People's alternative theories, or any evidence that they were urged or considered in the trial court. The only basis for an affirmance is subdivision (e) of section 12031 of the Penal Code.
Subdivision (e) of section 12031 provides:
Section 12031 of the Penal Code was enacted in 1967 as one section of a statute declared by the Legislature to be emergency legislation arising from a growing concern over an increase in the carrying of loaded firearms. The facts constituting the emergency were stated to be:
As part of the legislative scheme, section 12031 was enacted, prohibiting the carrying of a loaded firearm on the person or in a vehicle "while in any public place or on any public street ...." (Subd. (a).) Subdivision (e) 2 was included "for the purpose of enforcing this section" and authorizes peace officers, "[i]n order to determine whether a firearm is loaded" to conduct an examination of a firearm carried on the person or in a vehicle.
In the same statute, sections 171c and 171d of the Penal Code were enacted, prohibiting the carrying of loaded firearms in certain public buildings, in state universities and colleges, and in the residences or on the residential grounds of certain state officials. Section 171e was also enacted and made applicable to the enforcement of sections 171c and 171d. It contains language almost identical with that of subdivision (e) of section 12031, authorizing peace officers to examine any firearm carried on the person or in a vehicle, in the locations prohibited by sections 171c and 171d, to determine whether it is loaded. It may therefore be seen that authority to examine any firearm carried by anyone in a prohibited location on his person or in a vehicle, in order to determine whether it is loaded, was deemed by the Legislature integral to the enforcement of all three sections.
People v. DeLong (1970) 11 Cal.App.3d 786, 90 Cal.Rptr. 193, upheld the constitutionality of subdivision (e) of section 12031 and section 171e. 3 In that case, a campus police officer observed what appeared to be rifles in the trunk of an automobile and called a deputy sheriff to the scene. The deputy approached DeLong, who was seated behind the wheel of the automobile, and told him of the information he had received. DeLong denied the presence of guns in the trunk, and when requested to open it, denied having a key. He was ordered to alight and as he did so, he dropped a key with which the deputy opened the trunk. Inside were two rifles, which upon examination proved to be unloaded. But also in plain sight in the trunk was a quantity of marijuana. The appeal challenged an order of the trial court denying DeLong's motion to suppress the marijuana.
After reviewing their statutory background, the Court of Appeal observed that under section 12031, subdivision (e), and section 171e, for the purpose of enforcing the respective statutes "peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle and ... refusal to allow a peace officer to inspect a firearm pursuant to statute constitutes probable cause for arrest for violation of the statute." (11 Cal.App.3d at p. 790, 90 Cal.Rptr. 193.) Despite the urging of the People in that case, the court found no independent probable cause for examining the gun 4 apart from the authority given peace officers by the sections under review to examine firearms to determine whether they are loaded, but it found no necessity for the existence of such independent probable cause. It rejected appellant's suggestion that there must be other circumstances which of themselves would justify a search of the automobile, such as specific indicia that the gun was loaded, or evidence of a riot in progress, or facts implicating defendant in the commission of a crime or an outstanding warrant for his arrest, or a weapon in plain sight in the passenger compartment, pointing out that "if conditions such as those suggested were necessary, the statutes would be rendered nugatory." (11 Cal.App.3d p. 791, 90 Cal.Rptr. 193.)
In upholding the constitutionality of subdivision (e) and section 171e, the Court of Appeal noted the minimal intrustion into the privacy of the owner of a gun, which the statutes permitted, in an examination to see if it is loaded. It is barely equivalent to a search, but if it is a search, it is not an unreasonable one. Continuing, it stated:
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...authorities in this area are thoroughly reviewed and debated by the majority and dissenting opinions in People v. Zonver (1982) 132 Cal.App.3d Supp. 1, 183 Cal.Rptr. 214. No purpose would be served by repeating that discussion. We agree with Zonver's holding that section 12031, subdivision ......
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