PEOPLE v. NAVA

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Appellant, v. Enrique Guizar NAVA, Defendant and Respondent.

No. H010115.

Decided: August 24, 1993

George W. Kennedy, Dist. Atty., and Marilyn Masciarelli, Deputy Dist. Atty., for plaintiff and appellant. Stuart R. Rappaport, Public Defender and Stephen B. Elrick, Deputy Public Defender, Santa Clara County, for defendant and respondent.

Defendant Enrique Guizar Nava successfully moved to suppress three bindles of marijuana and the trial court dismissed the case which charged him with possession for sale of marijuana.  (Health & Saf.Code, § 11359.)   The People appeal, contending that the trial court erred in refusing to take judicial notice of court records and in making findings contrary to those made by the magistrate at the motion to suppress at preliminary hearing.   After a request for additional briefing on the issue of custodial arrest, Nava declares that the ordinance was preempted by the California Constitution and statutes.   We affirm.

FACTS

At 4:15 p.m. on March 26, 1992, Park Rangers Carol Fredrickson (in uniform) and Carlos Duenas (in plain clothes) were on duty at Roosevelt Park in San Jose.   Fredrickson observed two men walking down to the lower section by the creek where there are picnic tables.   One was carrying a brown paper sack.   The park was posted with signs that alcoholic beverages were not allowed, and because the bag was big enough to hold a quart bottle of beer, Fredrickson was suspicious.   By the time she and Duenas reached the men, the second one had the bag.

Fredrickson spoke first, asking “How you doin'?”   The men nodded.   She then asked what they had in the bag.   One of the men spoke English and said it was beer.   Although it is unclear when, Fredrickson saw a quart of beer.

Fredrickson then asked for identification, planning to cite the men for possession of alcohol in the park.   Duenas translated for Fredrickson, and reported that defendant, who spoke only Spanish, stated:  “I don't have any.”

Nevertheless, to Fredrickson “it appeared he might have identification, the way he had his hands in his pockets, but he just didn't want to let us know who he was.”   Therefore, “we asked if we could see in his pockets and he went, you know, ‘okay’ and he pulled out his hands.”   Defendant had a piece of kite string, a 6– by 4–inch piece of paper torn from a paper bag, and change.   Duenas asked, “Is that all?”   Defendant then pulled out three small bindles containing marijuana.

Defendant filed a motion to suppress evidence (Pen.Code, § 1538.5) 1 which, although denied in the municipal court, was granted when renewed in the superior court.   There the prosecution for the first time raised the claim that defendant lacked standing to bring the motion.   The People contended that because at the time of the incident defendant was on probation in two felony cases in which he was subject to a search condition, he had waived his Fourth Amendment rights against search and seizure.

The trial court refused to allow the certified copies of the dockets of defendant's previous felonies into evidence, stating that section “1538.5(i) says that evidence at this special hearing ․ shall be limited to the transcript of the preliminary hearing and to evidence which could not reasonably have been presented at the preliminary hearing except that the People may recall witnesses who testified at the preliminary hearing.”   The court then found that the district attorney knew of the evidence at the original hearing on the motion but did not elect to present it, and concluded that the certified copies of the dockets would constitute new evidence.

The trial court also refused to take judicial notice of records from the superior court files of the cases in which probation had been imposed or to allow the prosecution to place into evidence certified copies of the dockets of the previous sentencing hearings.   The court stated that the proffered evidence was “new evidence” which was precluded under section 1538.5, subdivision (i).

The court refused on hearsay grounds to allow the officer who testified at the preliminary examination to testify that after the preliminary hearing he checked defendant's criminal history and found that he was on probation with a search condition.   The court granted the motion to suppress evidence and when the prosecutor agreed there was “no evidence to proceed with at this time in light of the suppression,” dismissed the case.

CONTENTIONS ON APPEAL

On the People's appeal (§ 1238, subd. (a)(7)), the district attorney contends that the trial court “improperly refused to take judicial notice of the court's own records, improperly made factual findings contrary to those of the preliminary examination magistrate before whom the suppression motion was initially brought, and improperly granted the motion to suppress.”

 Respondent raises the issue whether the municipal ordinance prohibiting possession of intoxicating beverages in a city park is preempted by the constitution and statutes of the state of California.   He concludes that it is and, therefore, that neither a detention nor an arrest based upon this ordinance can be valid.   Since this issue is not dispositive of the case because, arguably, the contact was a consensual encounter and the search a consent search, we need not consider it.

STANDING

 When a section 1538.5 motion is made, the defendant has the burden of proving that he has standing to bring the motion.  (People v. Dees (1990) 221 Cal.App.3d 588, 593, 270 Cal.Rptr. 554.)   Standing is a personal right, and is defined as a defendant's reasonable expectation of privacy in the place invaded.  (Id. at p. 595, 270 Cal.Rptr. 554.)   Standing may be shown by evidence presented by the defendant or by the prosecution.   (Ibid.)

In the instant case, prosecution testimony established that the subject of the search was defendant's pants pocket.   No one has suggested that an individual does not have a reasonable expectation of privacy in the clothing he is wearing.   No evidence was presented at the preliminary hearing to rebut defendant's reasonable expectation of privacy.   Consequently, in challenging defendant's standing, the prosecution had to introduce facts to support its position at the special hearing in the superior court.

JUDICIAL NOTICE

 Toward this end, the prosecutor requested but the court refused to take judicial notice of court records of defendant's two prior felony cases.   The trial court has discretion to take notice of such records under Evidence Code, section 452 which states that “[j]udicial notice may be taken of ․ [¶] [ ] (d) Records of (1) any court of this state․”

Appellant claims that section 1538.5, subdivision (i),2 did not preclude the trial court from taking judicial notice of the court records because “judicial notice is not ‘evidence.’ [3 ]  [¶] [ ] ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.  [Evid.Code, § 140.]  ․ Judicial notice is a substitute for evidence and is conclusive on the issue.”

“Consequently, it was error for the motions judge ․ to classify judicial notice of its own records as the taking of new ‘evidence.’  ․ Further, there was no impediment under 1538.5(i) to the taking of judicial notice because the section only prevents introduction of new ‘evidence’ at the superior court suppression motion.   The [L]egislature is presumed to take into account other California statutes when writing new legislation.  [Citation.]   Therefore, it is reasonable to conclude that the [L]egislature intended the word ‘evidence’ to be as defined in section 140 of the Evidence Code.”

 The Evidence Code creates a generally applicable body of evidence law which applies in every evidentiary hearing in the state courts including criminal proceedings.  (Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927, 85 Cal.Rptr. 493;  Evid.Code, §§ 300, 130.)   In the context of evidentiary hearings pursuant to section 1538.5, subdivision (i), “[t]he term ‘evidence’ means ․ admissible evidence.”  (Hewitt v. Superior Court, supra, 5 Cal.App.3d at p. 927, 85 Cal.Rptr. 493.)   In 1970, section 1538.5, subdivision (i), read, in part:  “The defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing.”  (See Stats.1967, ch. 1537, § 1, at p. 3654.)

Section 1538.5 contains several references to “evidence” in the context of evidence presented to the trier of fact at the hearing.   Subdivision (c) provides:  “Whenever a search or seizure motion is made in the municipal, justice, or superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion.”   The word “evidence” occurs again in subdivisions (f), (i), and (j).  We see no reference in any of these sections indicating a legislative intent to change the meaning of the word “evidence” to be more restrictive than it was in subdivision (c).

Section 1538.5, subdivision (i), provides:  “․ unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to ․ evidence which could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing.”   Our Supreme Court has interpreted the exception (“the people may recall witnesses who testified at the preliminary hearing”) to give “the prosecution an unequivocal right to recall witnesses at the special hearing” (People v. Hansel (1992) 1 Cal.4th 1211, 1216, 4 Cal.Rptr.2d 888, 824 P.2d 694), without the prosecution's being limited to responding to newly presented defense evidence (id. at p. 1218, 4 Cal.Rptr.2d 888, 824 P.2d 694).

The Supreme Court followed the principle that “[s]tandard rules of construction require us to give the words in a statute ‘the meaning they bear in ordinary use.  [Citations.]   If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the legislature․  [Citations.]’  [Citations.]”  (People v. Hansel, supra, 1 Cal.4th at p. 1217, 4 Cal.Rptr.2d 888, 824 P.2d 694.)

Nevertheless, the Supreme Court did discuss the legislative history of the 1986 amendments of subdivision (i).  (People v. Hansel, supra, 1 Cal.4th at pp. 1217–1218, 4 Cal.Rptr.2d 888, 824 P.2d 694.)   Consequently, we, too, look to the reports prepared for the Senate and Assembly committees in regard to this legislation.   Therefore, respondent's request that this court take judicial notice of the reports of the Assembly Committee on Public Safety (Assem.Com. on Public Safety, Rep. on the 1987 Amends., Assem. Bill No. 2328 (1985–1986 Reg.Sess.) Jan 27, 1986) and of the Senate Committee on the Judiciary (Sen.Com. on the Judiciary, Rep. on Assembly Bill No. 2325 (1985–1986 Reg.Sess.)) is granted.4

Both reports state that the purpose of the amendment is to limit defendants to one hearing on a motion to suppress evidence.   According to the Assembly analysis, the bill limits defendants to presenting at the special hearing evidence that “could not reasonably have been presented at the preliminary hearing,” while the prosecutor could recall prosecution preliminary hearing witnesses only for the purpose of rebutting the defendant's new evidence.   As we have seen, the Supreme Court rejected the latter limitation.  (People v. Hansel, supra, 1 Cal.4th at pp. 1217–1218, 4 Cal.Rptr.2d 888, 824 P.2d 694.)

The Senate report stated that “the special hearing would be limited to the transcript of the preliminary hearing and to that evidence which could not reasonably have been presented at the preliminary hearing.”  (Sen.Com. on Judiciary, Analysis of Assem. Bill No. 2328 (1985–1986 Reg. Sess.).)   They also declared that:  “The bill would not limit the testimony of the recalled prosecution witnesses to newly presented evidence.”  (Ibid.)

Neither analysis, however, apparently contemplated the prosecution's calling new witnesses in the absence of new defense evidence at the special hearing.

Turning to the statute, the Legislature clearly described three sources of information the court may consider at a special hearing.   Two of them, the preliminary hearing transcript and testimony presented by a prosecution-recalled preliminary hearing witness, are not in issue in this case.   The third, which is in issue, is admissible evidence (Hewitt v. Superior Court, supra, 5 Cal.App.3d at p. 927, 85 Cal.Rptr. 493) limited to that “which could not reasonably have been presented at the preliminary hearing.”  (§ 1538.5, subd. (i).)

Interpreting the latter provision as precluding even the prosecution from introducing evidence that could have been presented at the preliminary hearing by calling new witnesses or, as in this case, by introducing a substitute for proof, may seem anomalous;  nevertheless, the Supreme Court noted that “the two hearings on the suppression motion should be seen as part of a continuous process, rather than as isolated incidents.   Within that process, defendants are able to call any witnesses they need․   The prosecution's only procedural advantage is that it may recall witnesses to meet a renewed, and perhaps better articulated and argued, attack in the superior court.   As stated earlier, if these recalled witnesses present new evidence, then the statute permits the defendants to call rebuttal witnesses, since their rebuttal ‘could not reasonably have been presented at the preliminary hearing.’  (§ 1538.5, subd. (i).)”  (People v. Hansel, supra, 1 Cal.4th at p. 1223, 4 Cal.Rptr.2d 888, 824 P.2d 694.)

Clearly, in the context of a motion raised at the preliminary hearing, the preliminary hearing is expected to be the primary occasion for evidence taking.   With that expectation in mind, the limitations the statute places on the opportunities for presenting new evidence in the special hearing are consistent with the Legislature's intent to limit the number of full hearings on a motion to suppress evidence to one.

Consequently, we find no error in the trial court's interpretation of the statute.   The record supports the finding that the proffered court records were evidence which could reasonably have been presented at the preliminary hearing.   The court correctly denied the motion for judicial notice.

DEFERENCE TO THE MAGISTRATE'S “FINDINGS”

 Next, appellant complains that the trial court erred in failing to give due deference to the magistrate's findings.   At the preliminary hearing, the magistrate denied the motion because it found the detention “reasonable.”   Appellant characterizes this as a “finding” and declares that the trial court erred in reaching a “contrary” conclusion.

Appellant confuses findings of fact and conclusions of law.   The magistrate's conclusion that the “detention was reasonable” was a legal conclusion.

 In ruling on a motion to suppress, the court makes three determinations:  first, it determines the facts;  next, it selects the applicable rule of law;  and finally, it applies the latter to the former to determine whether or not the rule was violated.  (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)

 Findings of fact result when the court judges the credibility of witnesses, resolves factual conflicts, weighs the evidence, and draws factual inferences.   These findings, whether express or implied, must be upheld if they are supported by substantial evidence.  (People v. Jones (1979) 96 Cal.App.3d 820, 824, 158 Cal.Rptr. 415.)

 However, selection of the applicable rule of law (a pure question of law), and application of the law to the facts (a mixed question of law and fact that is predominantly a question of law), are scrutinized under the standard of independent review.  (People v. Williams, supra, 45 Cal.3d at p. 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)

 While the superior court is “bound by the factual findings of the magistrate and, in effect, becomes a reviewing court drawing all inferences in favor of the magistrate's findings, where they are supported by substantial evidence” (People v. Ramsey (1988) 203 Cal.App.3d 671, 679, 250 Cal.Rptr. 309), the superior court is not bound by the magistrate's conclusions of law.

Consequently, we conclude that the trial court did not fail to give due deference to the findings of the magistrate.

ARREST AND SEARCH

We now consider whether defendant and Fredrickson were engaged in a consensual encounter, which does not fall within the purview of the Fourth Amendment, or whether the contact escalated into a detention or arrest.

The preliminary hearing transcript establishes that Fredrickson saw both defendant and his companion in a public park at one time or another in possession of a brown paper bag large enough to conceal a quart size bottle of beer.   She did not see either drink from a bottle.   She approached them and asked first, how they were doing, and second, what they had in the bag.   Defendant's companion freely answered, “beer.”   Whether or not Fredrickson was merely speculating that the bag contained beer or whether she entertained a reasonable suspicion that it did, her initial contact with defendant was not a seizure of his person, and therefore was not a detention, but was a consensual encounter.

“ ‘[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.  [Citations.]   Nor would the fact that the officer identified himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.  [Citation.]   The person approached, however, need not answer any question put to him;  indeed, he may decline to listen to the questions at all and may go on his own way.  [Citations.]’ ”  (Wilson v. Superior Court (1983) 34 Cal.3d 777, 789, 195 Cal.Rptr. 671, 670 P.2d 325, quoting Florida v. Royer (1983) 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229.)

Even in a consensual encounter, “police may inquire into the contents of pockets [citation];  ask for identification [citation];  or request the citizen to submit to a search [citation].   It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.”  (People v. Franklin (1987) 192 Cal.App.3d 935, 941, 237 Cal.Rptr. 840;  see also In re Frank V. (1991) 233 Cal.App.3d 1232, 1237, 285 Cal.Rptr. 16 [disagreeing that an order to a consensually encountered citizen to remove his hands from his pockets transforms the contact into a detention].)

It is not until the officer in some way makes “a show of official authority such that ‘a reasonable person would have believed that he was not free to leave.’  ․” that a person is effectively seized for the purposes of the Fourth Amendment.  (Wilson v. Superior Court, supra, 34 Cal.3d at pp. 789–790, 195 Cal.Rptr. 671, 670 P.2d 325, quoting United States v. Mendenhall 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (Opinion of Stewart, J.).)  “ ‘[A] person is “seized” only when, by means of physical force or show of authority, his freedom of movement is restrained․’  [Citation.]”   (People v. Galindo (1991) 229 Cal.App.3d 1529, 1535, 281 Cal.Rptr. 155.)

 Fredrickson testified that she believed that defendant was in violation of an ordinance.5  Consequently, her request for identification was in furtherance of her plan to issue a citation.6  Therefore, when she asked for identification and then requested a search of his pocket, defendant and his companion were under a “cite and release” type of arrest.7  (See also U.S. v. Jaramillo (7th Cir.1989) 891 F.2d 620 [consensual encounter ended and seizure began when defendant was asked to consent to patdown search];  U.S. v. Wilson (4th Cir.1991) 953 F.2d 116 [consensual encounter ended when officer requested permission for a second time to search some coats.   Police persistence may be the functional equivalent of physical restraint.].)

Our Supreme Court has stated in connection with the cite and release procedure, “when the officer determines there is probable cause to believe that [a traffic] offense has been committed and begins the process of citing the violator to appear in court [citation], an ‘arrest’ takes place at least in the technical sense:  ‘The detention which results [during the citation process] is ordinarily brief, and the conditions of restraint are minimal.   Nevertheless the violator is, during the period immediately preceding his execution of the promise to appear, under arrest.  [Citations.]   Some courts have been reluctant to use the term ‘arrest’ to describe the status of the traffic violator on the public street waiting for the officer to write out the citation [citations].   The Vehicle Code, however, [as does the Penal Code] refers to the person awaiting citation as “the arrested person.”   Viewing the situation functionally, the violator is being detained against his will by a peace officer, for the purpose of obtaining his appearance in connection with a forthcoming prosecution.   The violator is not free to depart until he has satisfactorily identified himself and has signed the written promise to appear.'  (Fns. omitted.)  [Citation.]”  (People v. Superior Court (1972) 7 Cal.3d 186, 200, 101 Cal.Rptr. 837, 496 P.2d 1205.)

The general purpose of the cite and release arrest statutes is to avoid custodial arrest of most violators, reserving custody for serious offenders and those who are unlikely to comply with the citation procedure.  (People v. Monroe (1993) 12 Cal.App.4th 1174, 1185, 16 Cal.Rptr.2d 267.)   Under these statutes, the defendant must be released unless one of the nonrelease conditions applies.8

 In the instant case, from our reading of the record, the only nonrelease condition that appears possibly apropos is section 853.6, subdivision (i)(5):  “The person could not provide satisfactory evidence of personal identification.”

Fredrickson began by requesting identification.   Defendant said he had none.   The record does not show that Fredrickson or Duenas asked defendant his name or if he could identify himself.   Instead, Fredrickson immediately required defendant to allow a look into his pockets or to “empty [his] pockets, please” “[b]ecause it appeared he might have identification, the way he had his hands in his pockets, but he just didn't want to let us know who he was.”

 We are satisfied that at that point, there was no justification for the search.   While the consensual encounter had ripened into a cite and release arrest, a cite and release arrest is not a full custodial arrest which would have allowed defendant to be searched for contraband in the field because he could be thoroughly searched when booked to prevent contraband from being introduced into the jail.  (People v. Superior Court, supra, 7 Cal.3d at p. 208, 101 Cal.Rptr. 837, 496 P.2d 1205;  see also United States v. Robinson (1973) 414 U.S. 218, 236, fn. 6, 94 S.Ct. 467, 477, fn. 6, 38 L.Ed.2d 427.)

“Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law.  [Citations.]”  (Michigan v. DeFillippo (1978) 443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343.)  “Under the Fourth and Fourteenth Amendments, an arresting officer may, without a warrant, search a person validly arrested.  [Citations.]”  (Id. at p. 35, 99 S.Ct. at p. 2631.)

Nevertheless, California has restricted the level of restraint and the degree of intrusion on the persons of offenders who are arrested for minor crimes.  (§ 853.5 et seq.;  Veh.Code, § 40300 et seq.)   Unless one or more of the reasons for nonrelease listed in the statute is present, the offender must be allowed to sign a written promise to appear.  (§ 853.5.)

What constitutes evidence of identity other than a driver's license is not specified in section 853.5 nor is the type of evidence mentioned at all in section 853.6, subdivision (i)(5).   Section 853.6 mentions only “satisfactory evidence of identity.”

The language of section 853.5 is identical to that of Vehicle Code section 40302.   In construing the latter section, People v. Monroe, supra, 12 Cal.App.4th at pages 1186–1187, 16 Cal.Rptr.2d 267, concluded that Vehicle Code section 40302 was satisfied by the production of a California driver's license or the California identification card of a nondriver.   If an offender lacked either of these, an officer must “accept as presumptively satisfactory any reliable documentary evidence of identity which bears the minimum amount of data required by the Vehicle Code licensing and citation statutes.   The form of identification must bear a photograph and description of the person, their [sic ] signature, a current mailing address, and must be current and serially or otherwise numbered.  [Citations.]   Such documentary evidence is the functional equivalent of a driver's license because it is of equivalent reliability, and because it bears the information necessary to the citation process.”  (Id. at p. 1187, 16 Cal.Rptr.2d 267.)   However, the court added the caveat that circumstances might cause an officer to determine that the identification is “false, altered, or for some other reason suspicious,” in which case he or she might “act accordingly.  [Citation.]”  (Id. at p. 1187, fn. 9, 16 Cal.Rptr.2d 267.)

There is an arguable statutory basis for interpreting Vehicle Code section 40302, subdivision (a), to require written identification because at least insofar as offenses involving the operation of a motor vehicle are concerned, drivers in California are required to hold licenses which must be in their possession “at all times when driving a motor vehicle on a highway.”  (Veh.Code, §§ 12500, 12951, subd. (a).)

On the other hand, we know of no similar licensing or identification requirement for pedestrians.   As the United States Supreme Court put it, “[p]olice powers in many countries are exercised in ways that we would find intolerable and indeed violative of constitutional rights.   To take only one example, a large number of nations do not share our belief in the freedom of movement and travel, requiring persons to carry identification cards at all times.”  (Foley v. Connelie (1978) 435 U.S. 291, 300, fn. 9, 98 S.Ct. 1067, 1073, fn. 9, 55 L.Ed.2d 287.)   Consequently, we do not perceive a statutory basis for interpreting the Penal Code provisions as an expression of legislative intent to create a category of evidence of identification that is “presumptively satisfactory” and that is limited to the documentary.

We also do not perceive it to be consistent with the legislative purpose of section 853.5 et seq., to interpret the statute so that only the production of documentary evidence of identification will allow a minor offender to escape “arrest and all that goes with it:  new acquaintances among jailers, lawyers, prisoners, and bail bondsmen, firsthand knowledge of local jail conditions, [and] a ‘search incident to arrest,’ ․” (Kolender v. Lawson (1983) 461 U.S. 352, 368, 103 S.Ct. 1855, 1864, 75 L.Ed.2d 903, fn. omitted (conc. opn. of Brennan, J.).)

The majority in People v. Monroe found its “conclusion that only documentary evidence of identity should be found to be presumptively satisfactory is reinforced by the language of the statute itself, which requires evidence of identity to be ‘presented’ for ‘examination’ by the officer.  (§ 40302.)   A reasonable reading of the words implies that the evidence is capable of presentation and examination, acts which are ordinarily associated with tangible rather than oral evidence.   The use of such language is an additional indication that the Legislature contemplated that documentary evidence would be the primary means by which a citee should establish his or her identity.”  (12 Cal.App.4th at p. 1187, 16 Cal.Rptr.2d 267.)

We disagree.   First, the Legislature did not specify “driver's license or other satisfactory documentary evidence of identity,” it stated “driver's license or other satisfactory evidence of his identity.”  (§ 853.5.)   Compare this broad language with, for example, the definition of “bona fide evidence of majority and identity” in Business and Professions Code section 25660:  “Bona fide evidence of majority and identity of the person” as “a document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operator's license or an identification card issued to a member of the Armed Forces, which contains the name, date of birth, description, and picture of the person․”

In addition, as discussed above, the Legislature has defined “evidence.”  “ ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.”  (Evid.Code, § 140.)   While we do not mean to suggest that the only satisfactory evidence of identity which could spare its owner a full custodial arrest is evidence which would be admissible in a judicial proceeding, we do mean to suggest that the Legislature was aware that things presented to senses other than sight are also proof of facts.

Given the purpose of the statute, namely, to avoid custodial arrest of most violators, given the fact that there is no statutory requirement that the citizenry carry identification cards at all times, and given the fact that the penalty for an infraction is a fine not exceeding $250 (§ 19.8), it would be “anomalous” indeed, “that a person who cannot be deprived of his liberty for a traffic infraction even were he to be found guilty, may nevertheless be subjected to custodial arrest at the option of the officer writing the ticket merely because he does not happen to have written evidence of identity in his possession.”  (People v. Monroe, supra, 12 Cal.App.4th at p. 1203, 16 Cal.Rptr.2d 267 (dis. opn. of Smith, Acting P.J.).)

As to the officer's duty to inquire for identification, the Monroe court stated that Vehicle Code section 40302, subdivision (a), is satisfied if the officer merely requests “identification.”  (People v. Monroe, supra, 12 Cal.App.4th at p. 1188, 16 Cal.Rptr.2d 267.)  “[O]nce the officer has established that a citee has no presumptively satisfactory evidence of identity, it is within the officer's discretion to determine that under the circumstances, no other evidence of identity will be satisfactory.   When that occurs, the officer may take the citee before a magistrate without further inquiry.”  (Ibid.)  Once that decision is reached, the offender is under full custodial arrest and may be searched.  (Id. at p. 1182, 16 Cal.Rptr.2d 267.)

 Although our case is factually different in that at the point of the search Fredrickson had not decided that defendant could not provide satisfactory evidence of his identity, we nevertheless disagree.9  A bare request for “identification” is insufficient since under circumstances indicating reliability, we feel that verbal identification can also satisfy sections 853.5 and 853.6.   Therefore, since defendant had not demonstrated that he “could not produce satisfactory evidence of personal identification,” a full custodial arrest was not authorized and search incident to arrest was improper.

 Other rationales for the search are also unpersuasive.   The search of defendant's pocket could not be justified on the basis of officer safety.   Fredrickson did not testify that either she or Duenas thought that defendant or his companion was armed and a threat to their safety, which would justify a pat search.  (People v. Superior Court, supra, 7 Cal.3d at p. 206, 101 Cal.Rptr. 837, 496 P.2d 1205.)

In addition, Fredrickson did not testify that she suspected defendant of a crime other than the minor alcohol violation or that she suspected him of possessing other contraband related to the alcohol offense.  (See People v. Superior Court, supra, 7 Cal.3d at p. 204, 101 Cal.Rptr. 837, 496 P.2d 1205.)

 Finally, we reject the notion that defendant consented to the search of his pockets.  “ ‘ “[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”  [Citations.]   The trier of fact's resolution of this question will not be disturbed on appeal if there is substantial evidence to support it.  [Citations.]'  [Citation.]”  (People v. Gurtenstein (1977) 69 Cal.App.3d 441, 450, 138 Cal.Rptr. 161.)   However, “[i]t is true that a voluntary consent to search may be withdrawn at any time before the search is completed.  [Citation.]   Actions inconsistent with consent may act as a withdrawal if those actions are positive in nature.  [Citation.]”  (Id. at p. 451, 138 Cal.Rptr. 161.)

Assuming, arguendo, that the answer “okay” and the removal of non-contraband items constituted consent to the initial request to empty his pockets, the production of the bindles of marijuana in response to the follow-up question “is that all?” occurred only in submission to authority:  although defendant apparently acquiesced, his failure to produce the items initially was a positive act manifesting a lack of consent.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Further statutory references are to the Penal Code unless otherwise stated.

2.   Section 1538.5, subdivision (i), provides:  “If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, ․ the defendant shall have the right to renew or make the motion in the superior court at a special hearing relating to the validity of the search or seizure․   If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence which could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing․   The superior court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the superior court as to evidence or property not affected by evidence presented at the special hearing․”

3.   To support this assertion, appellant refers us to 1 Witkin, California Evidence (3d ed. 1986) section 18, pages 20–21 and sections 80 and 82, pages 74–76.   Witkin states:  “The classification [of judicial notice as a type of evidence] was unsound, for the judge does not proceed in accordance with the rules of competency of witnesses and authentication of writings, nor is he restricted by the exclusionary rules (opinion rule, hearsay rule, best evidence rule, etc.).   A more important distinction, however, is its conclusive effect․   Judicial notice is, therefore, better described as a substitute for proof, ‘a judicial shortcut, a doing away with the formal necessity for evidence because there is no real necessity for it.’  [Citation.]”  (Id. at § 82, pp. 75–76, emphasis original.)

4.   The request to take judicial notice of “1538.5 A New Look” by Maury Oppenheim is denied.

5.   Respondent asserts and appellant does not dispute that Fredrickson was enforcing San Jose Municipal Code section 13.44.140 which authorizes the parks director to designate parks or park facilities wherein the possession of alcoholic beverages is prohibited, which requires the area to be posted, and which forbids any person to possess alcoholic beverages therein.   Violation of this section is an infraction.  (San Jose Mun.Code, § 1.08.020.)   Respondent's request to this court to take judicial notice of the relevant ordinances is granted.  (Evid.Code, §§ 451, subd. (a), 452, subd. (b), 459.)

6.   After denying that she had placed defendant under arrest before he was searched by the San Jose police officer called to the scene, she stated:  “I didn't place him under arrest.   I detained him․”“Q Well, you said you were considering giving [defendant] a citation, correct?  [¶] I was considering, yes.  [¶] Q Okay.  [¶] A I hadn't told him that yet because I didn't get any identification.  [¶] Q Well, isn't it safe to say that he wasn't free to leave until you had gotten his identification and decided whether or not to cite him?  [¶] A Well, that's—well, it's hard for me to say because ․ under our direction from our director we're not allowed to put our hands on anybody or detain them physically.   We can only detain them to—for field interviews, to write them tickets, so if he physically wanted to leave, he could have walked away and all I could have done, had San Jose come, San Jose police officer come and bring him back so I could finish my ticket because I am under direction from my department not to physically handcuff or physically detain anyone, okay?”

7.   “An arrest is taking a person into custody, in a case and in the manner authorized by law.   An arrest may be made by a peace officer or by a private person.”  (§ 834.)  “An arrest is made by an actual restraint of the person, or by submission to the custody of an officer.   The person arrested may be subjected to such restraint as is reasonable for his arrest and detention.”  (§ 835.)  “Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein.”  (§ 839.)   A peace officer who has arrested a person for an infraction may cite and release the offender, subject to certain reasons for nonrelease set forth in section 853.6, subdivision (i).  (§ 853.5.)

8.   Unlike Monroe, defendant in this case was arrested under section 853.5.   That section states:  “Except as otherwise provided by law, in any case in which a person is arrested for an offense declared to be an infraction, the person may be released according to the procedures set forth by this chapter for the release of persons arrested for an offense declared to be a misdemeanor.   In all cases, except as specified in Sections 40302, 40303, 40305, and 40305.5 of the Vehicle Code, in which a person is arrested for an infraction, a peace officer shall only require the arrestee to present his driver's license or other satisfactory evidence of his identity for examination and to sign a written promise to appear.   Only if the arrestee refuses to present such identification or, refuses to sign such a written promise may the arrestee be taken into custody.”  (Emphasis added.)Section 853.6, subdivision (i) authorizes nonrelease if the person arrested was so intoxicated as to be a danger to himself or herself or to others (subd. (1)), required medical examination or care (subd. (2)), was arrested under circumstances listed in Vehicle Code sections 40302 and 40303 which require either an optional or a mandatory appearance before a magistrate (subd. (3)), had outstanding arrest warrants (subd. (4)), or “could not provide satisfactory evidence of personal identification” (subd. (5)).Nonrelease is also indicated if the prosecution of any offenses would be jeopardized by immediate release (§ 853.6, subd. (6)), if there was a reasonable likelihood that the offense would continue or that the safety of persons or property would be imminently endangered (subd. (7)), if the person demanded to be taken before a magistrate or refused to sign the notice to appear (subd. (8)), or if there is reason to believe that the person would not appear at the time and place stated (subd. (9)).

9.   Frederickson disbelieved defendant's statement he had no identification.   She caused him to remove the contents of his pockets before she decided that defendant could not provide identification or that she was going to summon a San Jose police officer to take defendant before a magistrate.

PREMO, Acting Presiding Justice.

ELIA and MIHARA, JJ., concur.