Opinion
H041275
10-19-2015
THE PEOPLE, Plaintiff and Respondent, v. JOHN JACK MACIAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1363344 & C1475144)
Defendant John Jack Macias appeals from a judgment of conviction following a jury trial wherein he was found guilty of vehicle theft and receiving stolen property, and a no contest plea to burglary, being a felon in possession of a firearm and possession of a short-barreled shotgun. Defendant challenges the denial of this motion to suppress evidence found during a warrantless search of his car.
STATEMENT OF THE FACTS AND CASE
There are two separate cases underlying this appeal. The first occurred in 2013, when defendant was charged with vehicle theft (Veh. Code, § 10851, subd. (a)) and receiving stolen property (Pen. Code, § 496, subd. (a)) (Case No. C1363344). Defendant failed to appear, and a warrant was issued for his arrest.
The second case arose in February 2014 when defendant was arrested for second degree burglary for theft at a Home Depot (Case No. C1475144). During the arrest for theft, officers learned that there was a warrant out for defendant's arrest for the vehicle theft case. The officers searched defendant's car, and found a sawed-off shotgun and shotgun ammunition between the two front seats.
In the first case, defendant was found guilty after jury trial of vehicle theft and receiving stolen property.
In the second case, defendant was charged with second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), possession of a short-barreled rifle or shotgun (Pen. Code, § 33210; count 3), and being on bail at the time of the offenses (Pen. Code, § 12022.1).
Defendant brought a motion to suppress evidence seized during the search of his car, which the court denied. Defendant pleaded no contest to the charges, and admitted the on bail enhancement in exchange for an agreed upon maximum term of two years in prison.
At a combined sentencing hearing, defendant was sentenced to 16 months in prison for the first case (Case No. C1363344), and two years in prison for the second case (Case No. C1475144).
Defendant filed a notice of appeal in both cases.
DISCUSSION
Defendant challenges the court's denial of this motion to suppress the evidence seized during the search of his car.
At the motion to suppress, San Jose Police Officer Paul Hickey testified that at about 4:13 p.m. on January 30, 2014, he was dispatched to the Home Depot on Blossom Hill Road to act as backup for the primary officer who was investigating a report of a theft at the store. When Officer Hickey arrived, defendant was in custody for trying to steal batteries. Defendant had a warrant out for his arrest for vehicle theft.
Officer Hickey testified that just before he was dispatched as back up for the Home Depot theft, there had been a call about a theft at the Kohl's located a block from the Home Depot on the same side of the street. Officer Hickey stated that the Kohl's theft involved "a Hispanic male and a Chrysler." The car was described as a Chrysler 300 sedan. No officer responded to the Kohl's incident.
When Officer Hickey arrived at the Home Depot, defendant was with the primary officer in the store's security office. There was a set of Chrysler keys that were found on defendant. Officer Hickey asked "where [the] keys came from." Defendant claimed that he did not drive a car to Home Depot. The two officers placed appellant in the primary officer's patrol car.
Officer Hickey took defendant's Chrysler keys and went through the Home Depot parking lot to see if the keys opened any of the cars parked there. The keys matched a Chrysler minivan parked in the Home Depot parking lot. The car was parked facing out of the stall, both front windows were rolled down, and the ignition was "missing." Officer Hickey also saw that the Chrysler's registration tag on the rear license plate had been expired for 10 months. Officer Hickey ran the license plates and found that the car had not been reported stolen.
Officer Hickey decided to impound the Chrysler because defendant had been arrested for theft, and there was a warrant out for defendant's arrest related to vehicle theft. Officer Hickey believed he was authorized to search the car incident to defendant's arrest under Vehicle Code section 22651, which provided the "general towing authority under that circumstance." The car was also subject to impoundment under Vehicle Code section 22651, because its registration had expired over six months earlier. Officer Hickey said that it was standard department policy and procedure to impound cars with expired registration. When impounding a car, Officer Hickey conducted an inventory search, which entailed "going through all the contents and trying to list as much as possible on the [CHP-180 inventory] form."
Officer Hickey searched the Chrysler and found one item with the name "Corina Amarillas." DMV records showed that the car had been sold to Ms. Amarillas several months before, but the transfer of registration had not been completed. Officer Hickey also found, between the car's two front seats, a bag containing shot-gun ammunition that was on top of a sawed-off shotgun.
In denying the motion, the trial court stated: "At this time, I am going to deny the motion to suppress. I do find different theories under which the search of this vehicle was appropriate. The first is, I disagree, respectfully with [defense counsel's] interpretation of [Vehicle Code section] 22651[, subdivision] (h)(1). The keys were next to [defendant] and the keys, in fact, unlocked this vehicle, and so I would find that [Vehicle Code section] 22651[, subdivision] (h)(1) does apply and that he was in control of the vehicle. At the time that the officer decided to enter the vehicle, [defendant] was under arrest. The second theory . . . would be an inventory search of the vehicle for purposes of impounding pursuant to arrest. The third theory is the fact that the registration was more than six months expired, which also gave impound authority, and then the inventory pursuant to that impound authority. So there are a number of different theories, and some perhaps I didn't even mention, where the Court believes that a denial of the motion is appropriate."
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. (People v. Ayala (2000) 24 Cal.4th 243, 279.) We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. (Ibid.) The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. (Ibid.)" (People v. Hoyos (2007) 41 Cal.4th 872, 891, abrogated by People v. McKinnon (2011) 52 Cal.4th 610; People v. Jenkins (2000) 22 Cal.4th 900, 969.)
Search Incident to Arrest
Defendant argues the search went beyond the scope of a constitutional search incident to an arrest, relying primarily on Arizona v. Gant (2009) 556 U.S. 332. In Gant, the defendant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. (Ibid.) The Supreme Court found the search was not reasonable. (Id. at p. 333.) The Gant court held that law enforcement may search a vehicle incident to an occupant's arrest in two circumstances: (1) when the arrestee is unsecured and has access to the passenger compartment or (2) when evidence relevant to the crime might reasonably be found in the vehicle. (Id. at p. 343; People v. Osborne (2009) 175 Cal.App.4th 1052, 1065.)
In People v. Nottoli (2011) 199 Cal.App.4th 531 (Nottoli), this court considered the legality of the search of a car driven by defendants who were arrested for being under the influence of a controlled substance, and for driving with an expired license. (Id. at p. 540.) The search revealed drug paraphernalia, a firearm and a cell phone that had a picture of the defendant posing with firearms. (Id. at p. 541.) In finding the search lawful as incident to an arrest, this court stated that in Gant, "the court explicitly held that a vehicular search incident to arrest is valid when 'it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle' [citation] or when 'it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle" [citations].' " (Id at p. 551.)
Here, when his car was searched, defendant was secured and did not have access to the passenger compartment of his car. However, the officer properly searched the car incident to defendant's arrest, because it was " ' "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle" [citations].' " (Nottoli, supra, 199 Cal.App.4th at p. 551.) Specifically, at the time of the search, defendant had been arrested for theft at Home Depot, and it was reasonable for the officer to believe that the car could possibly contain evidence of that theft.
In addition, there was a warrant out for defendant's arrest for car theft. When the officer looked into the car, he saw that it was missing an ignition. The registration of the car was expired. The officer stated that based on his training and experience, a missing ignition is a strong indicator of recent theft, even if the owner had not yet reported the car stolen.
We find that the search of the car was a valid search incident to defendant's arrest for theft.
Inventory Search
Defendant argues the search of his car was not a proper inventory search, because the car was not subject to lawful impoundment.
Here, defendant's car was impounded pursuant to two separate sections of the Vehicle Code. Vehicle Code section 22651 states in relevant part: "A peace officer . . . may remove a vehicle . . . under the following circumstances: [¶] . . . [¶] (h)(1) When an officer arrests a person driving or in control of a vehicle for an alleged offense and the officer is, by this code or other law, required or permitted to take, and does take, the person into custody. [¶] . . . [¶] (o)(1) When a vehicle is found or operated upon a highway, public land, or an offstreet parking facility under the following circumstances: [¶] (A) With a registration expiration date in excess of six months before the date it is found or operated on the highway, public lands, or the offstreet parking facility."
Here, Officer Hickey testified that the registration on defendant's car had been expired for 10 months. In addition, defendant was lawfully under arrest for theft at the Home Depot. While defendant was not in the car at the time of the arrest, he was in control of the car, because he had the keys with him, and there was no other person there who could drive the car away. Under Vehicle Code section 22651, defendant's car was subject to impound because defendant was subject to arrest, and the registration on the car had been expired for longer than six months. (Veh. Code, § 22651, subds. (h)(1) & (o)(1)(A).)
Moreover, as this court stated in Nottoli, "In South Dakota v. Opperman (1976) 428 U.S. 364, the Supreme Court held that 'a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking ordinances,' consistent with 'standard police procedures,' was reasonable under the Fourth Amendment to the U.S. Constitution. [Citations.] The court has made clear that 'reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.' [Citations.]" (Nottoli, supra, 199 Cal.App.4th at pp. 545-546.)
Vehicle Code section 22651 authorized impound of defendant's car, and the inventory search of the car pursuant to impound did not violate the Fourth Amendment.
DISPOSITION
The judgment is affirmed.
/s/_________
RUSHING, P.J.
WE CONCUR: /s/_________
ELIA, J.
/s/_________
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------