The PEOPLE, Plaintiff and Respondent, v. Edward J. CATUTO II, et al., Defendants and Appellants.
Following denial of their motions to suppress evidence made pursuant to Penal Code section 1538.5, defendants Edward J. Catuto II and Steven William Read entered nolo contendere pleas to transportation of methamphetamine (count I; Health & Saf.Code, § 11379). In return for the pleas, the following additional charges were dismissed on the prosecution's motion: as to both defendants, possession of methamphetamine for sale (count II; Health & Saf.Code, § 11378), unlawful taking of a motor vehicle (count III; Veh.Code, § 10851, subd. (a)), possession of stolen property (count IV; Pen.Code, § 496.1), transportation of less than 28.5 grams of marijuana, a misdemeanor (count V; Health & Saf.Code, § 11360, subd. (b)), possession of less than 28.5 grams of marijuana, a misdemeanor (count VI; Health & Saf.Code, § 11357, subd. (b)), and possession of narcotics paraphernalia, a misdemeanor (count VII; Health & Saf.Code, § 11364). As to defendant Read only, driving with a suspended license (count VIII; Veh.Code, § 14601.1, subd. (a)) and driving without a license (count IX; Veh.Code, § 12500, subd. (a)).
Read was sentenced to two years in prison and ordered to pay restitution of $5,000. Catuto was sentenced to two years in prison and ordered to pay restitution of $100, although the trial court's minutes erroneously indicate a sum of $1,000.
On appeal both defendants challenge the denial of the motion to suppress evidence. We direct amendment of the minutes to reflect Catuto's correct restitution fine of $100 and affirm the judgments.
STATEMENT OF RELEVANT FACTS
The parties stipulated that the detention and search were accomplished without a warrant. The matter was submitted upon Officer Shear's testimony as set forth in the preliminary hearing transcript and the additional testimony of Officers Shear and Larsen at the suppression hearing.
At approximately 4:30 p.m. on May 30, 1988, Bakersfield Police Officers Larsen and Shear were on routine patrol in a marked police vehicle and in uniform. As they were driving west on Golden State, they noticed a white, four-door Volkswagen Quantum passenger vehicle in front of them. The vehicle had a commercial vehicle license plate displayed on the rear. In the officers' opinion the license plate was being displayed improperly because usually commercial plates are found only on pickup trucks, delivery vehicles, and trucks with camper units, not on private passenger cars.
Officer Shear believed the owner may have made an honest mistake when he put the rear license plate on the car, or someone might have been trying to avoid paying a registration fee for an unlicensed vehicle, or the car may have been stolen. On several occasions both Officer Shear and Officer Larsen had discovered people displaying a vehicle license plate from another car in order to avoid payment of registration fees. For these reasons, the officers decided to stop the car. They activated the red lights and notified the Bakersfield Police Department Communication Center of the location of the vehicle stop and of the rear license plate number on the vehicle. Officer Shear got out of the patrol car, approached the driver, defendant Read, and asked if he had a driver's license. Read replied that he did not. Officer Shear asked Read to get out and go with him to the rear of the vehicle. As Read complied, the door opened and Officer Shear saw a small yellow plastic and chrome marijuana pipe on the vehicle floorboard. Officer Shear again asked Read if he had a driver's license. Read again said he did not. Officer Shear asked Read if he had any other type of identification and Read produced a check-cashing card.
Read asked why he had been stopped and Officer Shear explained why and asked Read if the Volkswagen was his. Read said it was not. The officer did not recall whether or not he asked for the vehicle registration. Officer Shear asked Read who the passenger was. Read replied that he was a friend of his.
Officer Shear had Officer Larsen keep an eye on Read while Officer Shear went to the front of the vehicle. Officer Shear found that the front license plate was for a noncommercial vehicle, and he conveyed that fact to Officer Larsen. Shear wrote down the license plate number and the vehicle identification number (V.I.N.).
Officer Shear returned to his patrol car, asked Read if he would sit inside the patrol car until he could verify that the vehicle was not stolen and radioed for information regarding the two vehicle license plate numbers and the V.I.N. He received a radio reply that the rear license plate was for a Datsun pickup truck registered to a business in Vista, California. The front license plate also was issued to a totally different vehicle, although it is unclear from the record at what point this information was received. Read immediately said he borrowed the vehicle. He also said he and the passenger were friends and they were going to a friend's house in the area.
Officer Larsen asked defendant Catuto to get out of the vehicle for purposes of officer safety and also to conduct a search of the vehicle for illicit drugs and for the vehicle registration papers. Officer Shear asked Catuto if he knew Read. Catuto replied that he did not know Read, he just had been picked up by Read and that he was hitchhiking. Officer Larsen asked Catuto if he had any identification, and Catuto reached quickly for one of his pockets. Officer Larsen told Catuto he would rather do a patdown search. He then patted Catuto's clothing looking for weapons. Officer Larsen observed a bulge in Catuto's right front pocket but was unsure whether it appeared to be a weapon. When Officer Larsen patted the bulge in Catuto's right front pocket, he felt what he thought was a leather pouch containing what he thought was a vial and square object he thought was a mirror. From his experience, he believed it to be a cocaine or methamphetamine use kit. Officer Larsen recalled two prior occasions where he had felt that type of kit during a pat search.
Officer Larsen removed the pouch from Catuto's pocket. Inside it he found a mirror and a glass vial. The vial contained what appeared to be a half gram of methamphetamine.
Officer Shear then commenced a search of the vehicle. The marijuana pipe, which had what appeared to be burnt marijuana in its bowl, was found on the floorboard in front of the driver's seat. As he started to search the vehicle, Officer Shear received a radio message that the V.I.N. was for a car that had been stolen in San Diego County.
Officer Shear found two nylon gym-type bags in the trunk. He unzipped the larger bag and discovered numerous articles of narcotic paraphernalia including quantities of suspected marijuana and methamphetamine. In the smaller bag, the officer found six large Baggies containing what appeared to be methamphetamine.
I. DID THE TRIAL COURT ERRONEOUSLY DENY DEFENDANTS' MOTIONS TO SUPPRESS EVIDENCE?
Defendants contend the trial court erroneously denied their motions to suppress evidence. In denying their motions, the court ruled as follows:
“The motions to suppress evidence of each defendant are denied. Both defendant's [sic] lacked standing to challenge the trunck [sic] search, since they occupied the vehicle without the owner's permission. A pat down of defendant Catuto was justified by the concern for officer safety, and the Lee case justifies the action of Office [sic] Larsen in retrieving the narcotics from Catuto after he felt objects he suspected were of a controlled nature.”
Appellate review of a trial court's ruling on a motion to suppress is governed by well-settled principles.
“In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.]
“The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, viz., the reasonableness of the challenged police conduct, is also subject to independent review [Citations.] The reason is plain: ‘it is “the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.” ’ [Citations.] (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)
In People v. Glick (1988) 203 Cal.App.3d 796, at pages 799–800, 250 Cal.Rptr. 315, the court held as follows:
“At the outset, we observe that defendant has standing to challenge the detention as unreasonable. All drivers on public highways, even those who are subsequently determined to be driving stolen vehicles, have a protected privacy interest to be free from unreasonable seizures. [Citations.] This right is separate from any expectation of privacy the driver has in the car or its contents [citations], and is personal to the defendant the same as if he were walking along a public street. We conclude that any driver may question the legality of the initial police detention.”
Thus, we conclude that defendants have standing to raise the issue of the validity of the initial detention. (See also People v. Lionberger (1986) 185 Cal.App.3d Supp. 1, 5, 230 Cal.Rptr. 358.) Before discussing the second part of the standing issue, we first address the question of whether the initial detention (vehicle stop) was valid.
B. The detention.
“[I)n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.” (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957, fn. omitted.)
“Consistent with the Fourth Amendment, police may briefly stop a moving vehicle to investigate a ‘reasonable suspicion’ that its occupants have been, are, or are about to be engaged in criminal activity. [Citations.]” (People v. Butler (1988) 202 Cal.App.3d 602, 606, 248 Cal.Rptr. 887.)
Both defendants contend that the detention was illegal because it was based on a mistake of law. Plaintiff contends that the police officers had a reasonable belief that the vehicle was improperly displaying a commercial license plate and, therefore, the detention was lawful. We agree with plaintiff.
At the time that the officers initially observed the four-door Volkswagen sedan it had a commercial license plate displayed at the rear. The officers believed at the time that only pickup trucks, vans, trucks with camper units and delivery vehicles were ever issued such plates. At the suppression hearing, Officer Larsen indicated that he had recently learned that commercial plates could be issued to a passenger vehicle in certain circumstances, but he was not certain under what circumstances that would be.
Both defendants contend that the officers were mistaken as to the law because under Vehicle Code section 260, passenger vehicles may be used as commercial vehicles. Vehicle Code section 260 provides in pertinent part:
“(a) A ‘commercial vehicle’ is a vehicle of a type required to be registered under this code used or maintained for the transportation of persons for hire, compensation, or profit or designed, used, or maintained primarily for the transportation of property.
“(b) Passenger vehicles which are not used for the transportation of persons for hire, compensation, or profit and housecars are not commercial vehicles․”
Contrary to Catuto's contention in his reply brief, it appears clear that the plain meaning of the language used indicates that to be a commercial vehicle, a passenger vehicle must be used for the purpose of transporting passengers and does not include all passenger vehicles that are used simply for compensation or profit. As pointed out by plaintiff, when the vehicle is used to transport persons for hire, profit, or compensation and is designed to carry not more than eight passengers, including the driver, and is operated by a charter-party carrier of passengers,1 a decal issued by the Public Utilities Commission is required to be displayed on the lower right-hand corner of the windshield. (Pub.Util.Code, § 5385.5.) Apparently the only other provisions for licensing passenger vehicles as commercial vehicles is in the case of taxicabs, which must display specified signs on the outside on both sides of the vehicle as well as identification information inside the vehicle (Veh.Code, §§ 27900, 27908), and station wagons used for business purposes (Veh.Code, § 9404).
The question is not simply whether the officers made a mistake of law in believing that no passenger vehicles could carry commercial license plates. Rather, it is whether, given the appearance of the vehicle, it was reasonable for the officers to believe that the vehicle in question was improperly displaying a commercial plate. (People v. Howard (1984) 162 Cal.App.3d 8, 15, 208 Cal.Rptr. 353.)
In People v. Teresinski (1982) 30 Cal.3d 822, 180 Cal.Rptr. 617, 640 P.2d 753, involving an officer's alleged mistaken belief as to the terms of a curfew ordinance, the court stated at pages 831–832, 180 Cal.Rptr. 617, 640 P.2d 753:
“Courts on strong policy grounds have generally refused to excuse a police officer's mistake of law. [Citation.] We need not decide, however, whether under exceptional circumstances an officer's reasonable mistake of law might validate police conduct because in this case the officer's mistake cannot be found reasonable.
“The curfew ordinance did not present an obscure or unfamiliar enactment to Officer Rocha, but one that he had enforced on numerous occasions. The plain language of the ordinance clearly does not prohibit a minor from simply being present on the streets of Dixon after 10 p.m., but only prohibits such behavior as ‘loitering’ or ‘idling’ on the streets; the officer's belief that Dixon had enacted a blanket curfew ordinance should have been dispelled by a simple reading of the terms of the enactment. Moreover, several years before the detention in the present case, the Court of Appeal in construing a similar ordinance explicitly held that driving a car at a normal rate of speed down a public street did not violate the ordinance. [Citation.] If we were to find Officer Rocha's mistake of law reasonable under these circumstances, we would provide a strong incentive to police officers to remain ignorant of the language of the laws that they enforce and of the teachings of judicial opinions whose principal function frequently is to construe such laws and to chart the proper limits of police conduct.” (Fn. omitted.)
Although in Teresinski it was noted that the United States Supreme Court had not yet endorsed a good-faith exception to the exclusionary rule (People v. Teresinski, supra, 30 Cal.3d at p. 831, fn. 6., 180 Cal.Rptr. 617, 640 P.2d 753), the court then stated, “We need not decide, however, whether under exceptional circumstances an officer's reasonable mistake of law might validate police conduct because in this case the officer's mistake cannot be found reasonable.” (Id. at pp. 831–832, 180 Cal.Rptr. 617, 640 P.2d 753.)
Not only did the Teresinski court leave open the reasonable mistake of law concept, but two years later in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, the United States Supreme Court adopted a good-faith exception to the exclusionary rule. Some California Courts of Appeal have recognized the existence of a reasonable mistake of law concept and at least two courts have applied a reasonable mistake of law rule to validate police conduct.
In In re Arthur J. (1987) 193 Cal.App.3d 781, 238 Cal.Rptr. 523, an officer mistakenly believed the juvenile was violating a curfew ordinance and arrested him. The court first distinguished the following cases because they involved reasonable mistakes:
“United States v. Allen (D.C.Cir.1980) 629 F.2d 51, 53–54, which approved an arrest for drinking in a public place, despite later evidence that the area where the defendant was standing was covered by a liquor license, because the officer could not have reasonably known about the license; Michigan v. DeFillippo (1979) 443 U.S. 31 [99 S.Ct. 2627, 61 L.Ed.2d 343] ․, which upheld an arrest made in good faith reliance upon a presumptively valid ordinance which was later held unconstitutional; Hill v. California (1971) 401 U.S. 797, 802–805 [91 S.Ct. 1106, 1110–1111, 28 L.Ed.2d 484] ․, which held that when the police have probable cause to arrest one person, but arrest a second person in the reasonably mistaken belief that he is the first person, a search incident to the arrest of the second person is valid; and People v. Smith (1984) 151 Cal.App.3d 89, 98–99 [198 Cal.Rptr. 623] ․, which held that an officer was engaged in the lawful performance of his duties when he had an objectively reasonable belief that he had grounds for a detention, although he had a mistaken belief as to what provision of law applied.” (Id. at pp. 785–786, 238 Cal.Rptr. 523.)
The court then declined to apply Leon's “good faith exception” because the officer's conduct was not objectively reasonable in that he lacked reasonable knowledge of the terms of the curfew ordinance. (Id. at p. 787, 238 Cal.Rptr. 523.)
In People v. Lopez (1987) 197 Cal.App.3d 93, 242 Cal.Rptr. 668, the arresting officers detained defendant, who was sitting in a parked car in the parking lot of a public park, on the ground she was violating Vehicle Code section 23223, prohibiting possession of an opened alcoholic beverage container in a motor vehicle upon a highway. The court held the officers were not justified in detaining defendant since she was using the parking lot for parking, not for traveling. In rejecting plaintiff's contention that the police actions were based on a reasonable mistake of law, the court stated:
“[W]e find any mistake of law by the police here was not objectively reasonable. Vehicle Code section 23223 is not an obscure or unfamiliar statute. The statute's plain language prohibits possession of an opened alcoholic beverage container in a vehicle on a highway. The word ‘highway’ is not a technically difficult term. The usual, natural, and ordinary meaning of ‘highway’ does not include ‘public parking lot.’ Further, this case presents no exceptional circumstances where an officer's reasonable mistake of law might perhaps validate police conduct.” (People v. Lopez, supra, 197 Cal.App.3d at pp. 101–102, 242 Cal.Rptr. 668.)
In People v. Smith (1984) 151 Cal.App.3d 89, 198 Cal.Rptr. 623, the detention was based on the officer's mistaken belief that Smith, a pedestrian, in jumping off a bridge when a posted sign prohibited such conduct, violated a Vehicle Code section which applied only to drivers of vehicles. In distinguishing Teresinski, the Smith court stated:
“The detention here was based on Stanley's knowledge that a posted sign prohibited jumping from the bridge and that appellant nevertheless had jumped. These facts provided an objectively reasonable basis for Stanley to suspect that appellant had engaged in criminal behavior. Stanley's mistake as to the provision of law appellant violated did not of itself render his suspicion unreasonable.” (People v. Smith, supra, 151 Cal.App.3d 89, 98, 198 Cal.Rptr. 623.)
In People v. Glick, supra, 203 Cal.App.3d 796, 250 Cal.Rptr. 315, a police officer stopped the vehicle defendant was driving in the mistaken belief that the vehicle's New Jersey license plate was required to have a registration sticker. The trial court granted defendant's suppression motion and entered a judgment of dismissal. The Court of Appeal reversed, holding that the officer had acted reasonably in stopping the vehicle. The court held that “the New Jersey Vehicle Code is not something the officer is reasonably expected to know or has an opportunity to routinely enforce.” (Id. at p. 803, 250 Cal.Rptr. 315, fn. omitted.) The court noted, however, that the outcome might be different if the vehicle had been from a contiguous sister state. (Ibid.) 2
Unlike in Teresinski, In re Arthur J. and Lopez, the law involved here would appear to be somewhat more obscure and unfamiliar than open container and curfew laws. In our view, the circumstances of the present case are more akin to those in Smith and Glick.
Here, it is not unreasonable that Officers Shear and Larsen as city police officers would not be intimately familiar with the intricacies of the law relating to commercial license plates on passenger vehicles. The fact that the officers were not aware of certain obscure exceptions in the Vehicle Code under which certain passenger vehicles could be licensed as commercial vehicles does not render their suspicions unreasonable.
We conclude that under the particular facts and circumstances of this case, the officers' subjective suspicion that the Volkswagen was in violation of the Vehicle Code by displaying a commercial license plate on the rear was objectively reasonable under the Fourth Amendment to the United States Constitution. Accordingly, the officers had a right to stop the Volkswagen and detain defendants. (See People v. Brown (1985) 169 Cal.App.3d 159, 165, 215 Cal.Rptr. 101.)
People v. Butler, supra, 202 Cal.App.3d 602, 248 Cal.Rptr. 887 is not contrary to our holding because there the court found the officer's suspicion was not reasonable. (Id. at p. 606, 248 Cal.Rptr. 887.) In Butler, the officer stopped defendant's vehicle because it had tinted windows, which he believed was a violation of the Vehicle Code. As in this case, the plaintiffconceded on appeal that tinted windows are not necessarily unlawful and that if the windows were made of the type of tinted glass meeting the requirements of Vehicle Code section 26708.5, subdivision (b), there would have been no basis for stopping the car. The court held the detention was invalid, stating:
“We find no facts in this record to suggest that Officer Smith had a reasonable suspicion that the windows in the Cadillac were made of illegally tinted, rather than legally tinted, safety glass. He observed the Cadillac from a distance late at night as he drove by the Highway Liquor Store and again as the car sped past him. In the context of the suspicious conduct that he had observed, Officer Smith simply admitted that he ‘didn't like the idea of the tinted windows.’
“We disagree with the People's suggestion that seeing someone lawfully driving with tinted glass raises a reasonable suspicion of illegality such that a reasonable inquiry is justified. Without additional articulable facts suggesting that the tinted glass is illegal, the detention rests upon the type of speculation which may not properly support an investigative stop. [Citations.]” (People v. Butler, supra, 202 Cal.App.3d at pp. 606–607, 248 Cal.Rptr. 887.)
Here, as we have pointed out, the officers believed it was unlawful for passenger vehicles to have commercial license plates. We have found that belief to be based upon a reasonable mistake of law. Accordingly, the initial detention (vehicle stop) was legally justified.
C. Standing revisited.
Having determined that the detention was lawful, we agree with the trial court's ruling that defendants had no standing to object to the warrantless search of the vehicle and its contents.
“Since this case is governed by federal law (In re Lance W., supra, 37 Cal.3d 873, 886–887 [210 Cal.Rptr. 631, 694 P.2d 744] ), which fails to recognize the so-called ‘vicarious exclusionary rule’ and holds instead that ‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted’ (Alderman v. United States (1969) 394 U.S. 165, 174 [89 S.Ct. 961, 966–967, 22 L.Ed.2d 176] ․), appellant cannot complain—an illegal search violates only the rights of those who have ‘a legitimate expectation of privacy in the invaded place.’ (Rakas v. Illinois (1978) 439 U.S. 128, 143 [99 S.Ct. 421, 430, 58 L.Ed.2d 387]․)” (People v. Stanislawski (1986) 180 Cal.App.3d 748, 757, 225 Cal.Rptr. 770.)
In the instant case, the evidence is undisputed that the vehicle was stolen, i.e., it did not belong to either defendant in this case and neither had a possessory interest in the automobile. Additionally, neither defendant took the stand or indicated in their suppression motions that either one of them had a proprietary or possessory interest in the bags that were found in the trunk. Absent such evidence, neither defendant established the requisite legitimate expectation of privacy in the items searched to enable them to contest the validity of the search of the vehicle or of the bags.
Defendant Read's attempt to distinguish People v. Stanislawski, supra, is unavailing. Similarly, his reliance on United States v. Johns (9th Cir.1988) 851 F.2d 1131 is misplaced. Contrary to defendant's contention, Stanislawski does not require that an actual disclaimer of ownership of the property searched must be made. The fact that defendants were charged with joint control of the narcotics did not thereby eliminate the need for defendants to establish standing. Since no evidence was introduced that either defendant, in fact, exerted such control or had a joint arrangement to transport the narcotics, there was no evidence that either defendant had standing. (Rakas v. Illinois (1978) 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387.) As stated in Stanislawski:
“Appellant's insistence that his legitimate expectation of privacy over the campsite and tent was established because ‘a defendant who enters into an arrangement that indicates joint control and supervision of the place searched, may challenge a search of the place where contraband is concealed’ (United States v. Pollock (9th Cir.1984) 726 F.2d 1456, 1465) is devoid of merit. While appellant was charged with joint control, no evidence was introduced that appellant, in fact, exerted such joint control or had a joint arrangement concerning the cultivation of the hillside crop. In the absence of such evidence, appellant failed to sustain his burden of showing a reasonable expectation of privacy in the campsite area. (Ibid.) Appellant's alternative assertion that he should not have been forced to give up his Fifth Amendment privilege against self-incrimination in order to assert his right under the Fourth Amendment aids him not. For, in Simmons v. United States (1968) 390 U.S. 377, 394 [88 S.Ct. 967, 976, 19 L.Ed.2d 1247] ․, the United States Supreme Court held that ‘when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt․’ Therefore, appellant certainly could have asserted (by testifying) his Fourth Amendment rights with respect to the hillside campsite without waiving his privilege against self-incrimination.” (People v. Stanislawski, supra, 180 Cal.App.3d 748, 757, 225 Cal.Rptr. 770.)
Since defendants here failed to sustain their burden of showing a reasonable expectation of privacy in the Volkswagen or in the bags located in the trunk of that vehicle, the ruling of the trial court was correct. Because neither defendant had standing to contest the validity of the search of the trunk and its contents, we need not determine the lawfulness of the officers' conduct in that regard.
D. The patdown search.
Before pat searching defendant Catuto, the officers had not yet received word that the vehicle defendants were in was stolen, and they had not yet discovered the drugs in the bags in the trunk of the car. Normally in this situation it would be necessary to justify the patdown search and the search of the leather pouch that was found in order to uphold admissibility of this evidence. However, here it is unnecessary to reach this issue because we conclude the evidence would have inevitably been discovered as a search incident to a lawful arrest. (People v. Loudermilk (1987) 195 Cal.App.3d 996, 1004, 241 Cal.Rptr. 208.) Catuto would inevitably have been arrested on at least one of two possible grounds—(1) being in a stolen automobile and giving a story inconsistent with that of defendant Read as to how he had come to be a passenger in the vehicle (consciousness of guilt),3 and (2) being in joint possession of the drugs in the trunk of the car.
While the inevitable discovery theory was not raised at trial, common sense dictates that under the circumstances here, there is no question that defendant Catuto would have been arrested along with defendant Read. Contrary to defendants' assertion, there is no impediment to relying on this theory on appeal.
“Even though this issue was not raised at the suppression hearing, we may properly address this for the first time on appeal. (See Green v. Superior Court (1985) 40 Cal.3d 126, 138 [219 Cal.Rptr. 186, 707 P.2d 248]․) In reviewing the denial of a suppression motion, the Green court allowed the People to assert for the first time that the seizure of incriminating evidence was lawful under the inevitable discovery doctrine. (Id., at pp. 137–138 [219 Cal.Rptr. 186, 707 P.2d 248].) In doing so, the court distinguished the long line of cases which barred the prosecution from raising a new theory on appeal to support or defeat the trial court's suppression ruling. It held that considerations in those cases for the rule were not present in the case before it; i.e., the evidence supporting the new theory was fully developed below; defendant had a full opportunity to cross-examine the investigating officers; defendant was not prejudiced by lack of notice of the new theory; and it did not appear that any further evidence could have been introduced to support the defendant's argument. (Id., at p. 138 [219 Cal.Rptr. 186, 707 P.2d 248].)” (People v. Loudermilk, supra, 195 Cal.App.3d at p. 1004, 241 Cal.Rptr. 208, fn. omitted.)
Here, as in Green and Loudermilk, the evidence leading up to and surrounding the search was fully developed at the suppression hearing; the facts were undisputed and it is highly unlikely that defendants could have introduced any further evidence to support their suppression motion that the search was unlawful. Therefore, it does not appear that defendants were prejudiced by the failure to raise this theory below and it was asserted in plaintiff's brief on appeal.
Our conclusion that defendant Catuto would inevitably have been lawfully arrested and his person searched makes it unnecessary to dispose of his contention that the pat search and the search of the leather pouch were without probable cause. Assuming, without deciding, the correctness of this contention, the evidence would still be admissible since a search incident to arrest would not have been a product of any illegality.
II. THE RESTITUTION FINE IMPOSED ON DEFENDANT CATUTO.
Defendant Catuto correctly indicates that the probation officer's report recommends and the reporter's transcript of the sentencing proceedings shows that a restitution fine of $100 was imposed on Catuto. However, the superior court minutes of October 6, 1988, indicate that the fine was $1,000. Catuto contends the clerk's minutes are in error and should be corrected to show that the fine was $100. Plaintiff properly concedes the error and that the minutes should be corrected, although plaintiff incorrectly attributes the contention to defendant Read.
The judgments are affirmed. The trial court is directed to amend its minutes to show that the fine imposed on defendant Edward James Catuto II pursuant to Government Code section 13967 was $100 instead of $1000.
1. Subject to certain exclusions, “charter-party carrier of passengers” means every person engaged in transporting persons by motor vehicle for compensation over any public highway in California. (Pub.Util.Code, § 5360.)
2. Relying on this statement, Catuto argues that “the Glick exception could not apply to a California officer's mistake as to local law.” First we note that the court's statement was mere dictum, not a holding in that case. Second, by this single hypothetical statement, we do not read the entire Glick decision to limit application of the reasonable mistake of law doctrine only to enforce foreign statutes and inapplicable to the enforcement of California law. To the extent the court's statement can be so construed, we disagree that the reasonable mistake of law doctrine should be limited to such circumstances.
3. The circumstances here are distinguishable from People v. Williams (1970) 9 Cal.App.3d 565, 88 Cal.Rptr. 349, cited by Catuto, because in Williams there was no evidence of any conversation between the officers and defendant and no evidence that the officers knew anything about the relationship between defendant and the driver of the stolen car, except that defendant was a passenger. Additionally, there was no evidence that the occupants of the car were jointly engaged in some criminal activity such as using the stolen vehicle for delivering narcotics. (Id. at pp. 568–569, 88 Cal.Rptr. 349.)
BEST, Acting Presiding Justice.
BAXTER and VARTABEDIAN, JJ., concur.