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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Dennis JOHNSON, Defendant and Appellant.

Cr. 5000.

Decided: April 12, 1982

George L. Schraer and Quin Denvir, State Public Defender, under appointments by the Court of Appeal, and George L. Schraer, Deputy State Public Defender, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally and Clayton Tanaka, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


Defendant and appellant, Dennis Johnson, appeals from a judgment after a jury trial finding him guilty of assault with a deadly weapon (Pen.Code, § 245, subd. (a) ) and receiving stolen property (Pen.Code, § 496).   His principal contention relates to an unlawful search issue.   Lesser issues have to do with alleged instructional and sentencing errors.

The facts are relatively simple and undisputed.

On February 10, 1980, Marrion Morgan was driving on Union Avenue.   A box caught under his car, and he stopped to remove the box.   As he was lying on the pavement removing the box, he was propositioned by a young woman who positioned herself close to him.   He told her that he was not interested, removed the box, and departed.   Shortly thereafter, he became conscious that his wallet was missing.   He returned to the area where he had removed the box, but found no sign of his wallet or the woman.   Later that day, he reported the wallet as missing to the police.

On February 19, 1980, William Mellendy was at his Texaco station on Highway 99 one mile north of Mettler.   At about 9 p. m., he and James Tull were repairing a tire on a tow truck.   Appellant drove in.   There was a female passenger in the car.   Appellant paid for $5 worth of gas, which Mellendy pumped.   Appellant then asked for the extra gas in the hose.   Mellendy denied his request, and explained that the gas was metered from the nozzle and not the hose.   Appellant insisted, and heated conversation ensued.   Appellant pulled a knife and charged at Mellendy.   Mellendy back-peddled as fast as he could.   Appellant's knife came as close as eight to twelve inches from Mellendy's chest.   Mellendy pulled a gun, whereupon appellant stopped his charge.   Mellendy ran to the lube bay of the station and yelled for James Tull to call the sheriff.   Appellant drove away.

James Tull witnessed appellant's lunge at Mellendy with the knife.   Tull was able to get the description and license number of appellant's car.

A few minutes after the assault, Officer Norman Simon stopped appellant's car at the intersection of Bear Mountain Boulevard and Highway 99.   Appellant was arrested, handcuffed and placed in the patrol car.

Officer Christopher Davis then arrived at the scene.   Davis went to the passenger side of appellant's vehicle, where a female (Candy Johnson) was sitting.   He asked her where the knife was, whereupon she reached in her jacket and handed him a knife.   Davis asked Johnson where the papers to the car were, and she opened the glove compartment.   Davis saw two clear vials containing a green leafy substance which he believed to be either marijuana or PCP.   Davis smelled the contents of the vials and caught a strong odor of mint, leading him to believe that the vials contained PCP.

Officer Davis ordered Johnson out of the car, and conducted a search of the vehicle.   He found a wallet under the front passenger's seat.   The wallet was closed, and its contents were not visible.   Davis searched the wallet for contraband and for identification of appellant.   Davis also desired to release the car to Ms. Johnson, but wanted to be sure that the car was properly in appellant's possession.   During his search of the wallet, Davis found credit cards belonging to Marrion Morgan, the victim of the wallet snatch on February 10.

In his own defense, appellant testified that he found the wallet outside of a pool hall.   He put it on the front seat of his car, but intended to return the wallet to its rightful owner.

Appellant admitted being at the gas station on the night in question.   He denied having possession of a knife, and testified that Mellendy called him a “damn nigger” and pulled a gun on him.   Appellant denied any knowledge of the presence of a knife in his car.


A search and seizure issue and the alleged instructional error concern only the conviction on the receiving charge.   The search and seizure issue is further narrowed to the search without a warrant of the wallet seized from beneath the car seat which contained items belonging to one Marrion Morgan, a victim of an earlier wallet snatch.   No attack is made upon the legality of the vehicle stop or appellant's arrest for assault with a deadly weapon, or the search of the vehicle itself.

Since the briefs were filed in this cause, the United States Supreme Court has decided New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768.   This case was referred to and argued by both counsel at oral argument.   In the Belton case, a state trooper stopped an automobile and its four occupants for a speeding violation.   The interior of the vehicle smelled of burnt marijuana, and he observed an envelope on the floor.   He ordered the men from the car and separated them.   Returning to the car, the officer searched the envelope, finding that it contained marijuana.   The officer then searched the passenger compartment.   On the back seat he found a leather jacket.   Unzipping one of the pockets, he found cocaine.

In upholding the search, the United States Supreme Court stated:

“Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases.   Yet, as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments ‘can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.’  LaFave, ‘Case-by-Case Adjudication’ versus ‘Standardized Procedures':  The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 142.   This is because ‘Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged.   A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be “literally impossible of application by the officer in the field.” ’  Id., at 141.   In short, ‘A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’  Dunaway v. New York, 442 U.S. 200, 213–214, 99 S.Ct. 2248, 2256–57, 60 L.Ed.2d 824.”   (New York v. Belton, supra, 453 U.S. at p. ––––, 101 S.Ct. at p. 2863.)

The court points out that no straightforward rule has emerged from the litigated cases respecting the question involved here—the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants.   The court then observed:

“When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.   While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.   Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary item.’   Chimel, [v. California] supra, [395 U.S. 752] at 763, 89 S.Ct. [2834] at 2040 [23 L.Ed.2d 685].   In order to establish the workable rule this category of cases requires, we read Chimel 's definition of the limits of the area that may be searched in light of that generalization.   Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

“It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.  United States v. Robinson, [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427] supra;  Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.   Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.”  (Id., 101 S.Ct. at p. 2864;  fns. omitted.)

Appellant properly conceded at oral argument that if the principle of Belton is applicable to this case, the search would be valid.   However, he argues that state law under article I, section 13 of the California Constitution imposes a stricter standard than does the Fourth Amendment under the United States Constitution and the application of state standards should invalidate the search.  (See People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099;  People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, cert. den. 444 U.S. 887 [100 S.Ct. 181, 62 L.Ed.2d 117];  People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467, cert. den. 445 U.S. 946 [100 S.Ct. 1345–1346, 63 L.Ed.2d 781].)

The issue, however, of whether the California Supreme Court will apply state or federal standards in this situation is far from clear as that court has broadcast conflicting signals.   Thus, People v. Clemmons (1981) 123 Cal.App.3d 365 (ordered depublished) involved the search of closed containers in the passenger compartment of a vehicle incident to an arrest, in which the search was upheld, relying in part on Belton.   More recently, in People v. Robles (1981) 125 Cal.App.3d 887 (ordered depublished), the court held directly to the contrary, refusing to follow Belton.   Robles related to the search of a closed container in the passenger compartment incident to an arrest in an automobile.

As mentioned, the Supreme Court compounded the confusion by depublishing both cases.   Each case articulates in detail the rationale for opposite results.1

 In light of the uncertainty that exists in this area and the conflicting Court of Appeal decisions which have been depublished, it would be pointless and serve no useful purpose to contribute further to the confusion by writing yet another magnum opus speculating about what the California Supreme Court may or may not do.  (See People v. Gasteiger (1982) 129 Cal.App.3d 152, 168–171, 180 Cal.Rptr. 704.)   Further, we believe that the issue of whether independent state grounds should be invoked is one primarily for the Supreme Court of California and not an intermediate appellate court.   Unless and until the Supreme Court of California chooses to speak to the applicability of the Belton rule to California searches, we opt to follow the rule of the United States Supreme Court as expounded in that case.   Accordingly, we uphold the search of the wallet found beneath the automobile seat.

In light of this determination, we need not face or decide whether the search can be sustained as a prebooking search.  (People v. Longwill (1975) 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753;  People v. Bundesen (1980) 106 Cal.App.3d 508, 165 Cal.Rptr. 174.)

Next appellant argues that the trial court gave an erroneous instruction defining stolen property.   The instruction given defines stolen property in language which substantially incorporates the definition of theft contained in Penal Code section 485.2

The court defined the crime of receiving stolen property in the language of CALJIC No. 14.65.3

 Appellant contends that Penal Code section 496 and CALJIC No. 14.65 limit the crime of receiving stolen property to property which is initially obtained by means constituting theft, and it does not extend to situations where the property may be initially innocently found and later appropriated with criminal intent.   Appellant argues that because the instruction defining theft (see fn. 2, infra) extends to thefts at any time prior to receipt of the stolen property by the defendant, the theft instruction is erroneous.   The point is meritless.

The crime of receiving stolen property (see fn. 3, infra) is not so limited.   The word “obtained” is modified by the phrase “in any manner.”   The elements of the crime of receiving are:  (1) that the particular property was stolen, (2) that the accused received, concealed or withheld it from the owner, and (3) that the accused knew the property was stolen.  (People v. Katz (1975) 47 Cal.App.3d 294, 299, 120 Cal.Rptr. 603.)   There is no requirement that the property be initially stolen with criminal intent, but only that it is found to be stolen at some point prior to the defendant's receiving it.   Accordingly, there was no error.


Appellant was sentenced to the upper base term of four years for assault with a deadly weapon (count one) and to a consecutive term of eight months for receiving stolen property (count two).

 He urges that in imposing the upper base term as to count one, the court improperly relied upon a factor pertaining to a non-transactionally related offense in count two.   The factor was premeditation, pertaining to count two only.   Respondent concedes that if in fact the court so relied, it would be error, but argues that a close reading of the record makes clear the court did not so rely.   We agree.

The parts of the judge's remarks germane to the issue are:

“THE COURT:  Well, the circumstances in aggravation then are that there was a threat of great bodily harm involved in the commission of the offense.   In regards to receiving stolen property charge, planning does indicate premeditation.   There was an indication that the defendant was practicing the signature of the actual owner of the credit cards.   And, of course, who knows what the plan was when the card was first received, but that's a continuing offense, receiving or possession of stolen property, it is a continuing offense.   And the fact that there was practice to use the stolen property would indicate that there was premeditation involved in its possession.

“Four, the defendant's prior convictions are numerous.

“Five, the defendant was on summary probation at the time of the commission of the offense.”

At the time the judge made these remarks he intended to sentence appellant to the upper base term on count two, the receiving charge, and make the full term run consecutive to count one.   Shortly after these remarks were made, the judge in fact sentenced appellant to the upper base term for the receiving charge.   The prosecutor pointed out that the court could only sentence defendant to one-third of the middle term if he intended to make it run consecutively.   The judge thereupon sentenced appellant to one-third of the middle base term on the receiving charge and made it run consecutively.

Thus, in this context it becomes clear why the judge was interested in relating a factor in aggravation of the receiving charge.   The transcript of the judge's remarks clearly separates the threat of great bodily harm as a factor in aggravation of the assault charge and the premeditation as it relates to the receiving charge.   While the judge could have been more precise in separating the two charges, there was no error.

Next appellant argues the court relied upon improper factors in sentencing him to a consecutive term on the receiving charge.   California Rules of Court, rule 425, subdivision (b), permits the court to consider any circumstance in aggravation in sentencing to a consecutive term.   Rule 421 lists the circumstances in aggravation.

The court stated:

“The consecutive sentences are given as a consecutive term because it does appear that the defendant has been a serious threat to the community.   His continuous activity and criminal conduct indicates that he is a serious threat to the well-being of the community and the property of the community.

“The defendant's prior performance on probation was poor.   The defendant has been incarcerated in the California Youth Authority in the past.   And these things call for the imposition of a consecutive term.”

Appellant contends that the judge improperly relied upon appellant's prior criminal conduct as posing a serious threat to the community.   Appellant's prior record shows:  (1) an arrest and conviction on burglary charges in 1974;  (2) an arrest for armed robbery and conviction of resisting arrest in 1974;  (3) an arrest for disturbing the peace and resisting arrest and conviction of disturbing the peace in 1977;  (4) an arrest for possession of a controlled substance for sale and conviction of resisting arrest in 1977;  and (5) an arrest for burglary and conviction of entering a noncommercial dwelling in 1977.

 While indeed it may be questionable that this record shows “a pattern of violent conduct which indicates a serious danger to society” (Cal.Rules of Court, rule 421(b)(1) ), the judge was authorized to rely upon this record in imposing a consecutive sentence under the authority of California Rules of Court, rule 408(a).   The latter rule permits a sentencing judge to rely on reasonable criteria other than those specifically enumerated in the statutes and rules.

Here, the trial court was relying on the entirely reasonable belief that the community would be best protected if appellant served a consecutive sentence.   Such a concern is proper in requiring a consecutive sentence.  (People v. Ginese (1981) 121 Cal.App.3d 468, 479, 175 Cal.Rptr. 383;  People v. Fowler (1980) 109 Cal.App.3d 557, 566, 167 Cal.Rptr. 235.)   Given the fact that appellant had committed several crimes over a period of time dating back to 1974, it was reasonable to believe that a consecutive sentence would best protect society.

 Appellant also contends that the court's reliance upon appellant's prior incarceration in CYA constituted a dual use of facts because the judge relied upon appellant's numerous prior convictions in sentencing him to the upper term on the assault charge (count one).   Dual use of the same fact to aggravate and to impose a consecutive term is prohibited.  (People v. Lawson (1980) 107 Cal.App.3d 748, 757, 165 Cal.Rptr. 764.)

 Initially, it must be noted that the trial judge did not specifically refer to the CYA incarceration in aggravating the sentence in count one.   He merely referred to numerous prior convictions.   This was a proper factor in aggravation under California Rules of Court, rule 421(b)(2), which states:

“Circumstances in aggravation include:


“(b) Facts relating to the defendant, including the fact that:


“(2) The defendant's prior convictions as an adult or adjudications of commission of crimes as a juvenile are numerous or of increasing seriousness.”

In imposing the consecutive sentence in count two, the judge did refer to appellant's past “incarceration” in CYA.  Rule 421, subdivision (b)(3), lists as a separate factor prior prison terms providing:  “The defendant has served prior prison terms whether or not charged or chargeable as an enhancement under section 667.5.”   If a CYA term may be considered to be within the tenor of this rule, there was no dual use of facts.   However, assuming that a CYA commitment may not technically fit within that section, rule 408 makes clear that the enumeration of certain aggravating circumstances is not intended to be inclusive.   Other criteria “reasonably related to the decision being made” may also be considered.   We believe a prior commitment to CYA comports with the spirit of rule 421.   In any event, the court could have considered it as a factor independent of rule 421 under the provisions of rule 408.   A CYA commitment is a reasonable concern for the court to have in justifying a consecutive sentence.   It is equally relevant as a prior prison term since it indicates the same lack of rehabilitation on the part of the appellant.

In any event, if there was error it was nonprejudicial.   In imposing the consecutive sentence, the judge considered three other factors:  (1) appellant's serious threat to the community;  (2) appellant's continuous criminal activity;  (3) appellant's poor probationary performance.   It is reasonably probable that a different result would not occur on remand.   (People v. Wright (1982) 30 Cal.3d 705, 714, 180 Cal.Rptr. 196, 639 P.2d 267—approving the Watson standard as applied by the Court of Appeal in the same case (see People v. Wright (1980) 107 Cal.App.3d 372, 382, 165 Cal.Rptr. 631 (aff'd., 30 Cal.3d 705, 180 Cal.Rptr. 196, 639 P.2d 267) ).

The judgment is affirmed.

I respectfully dissent and would reverse on the search and seizure issue.

I share the majority's view that the California Supreme Court has engendered confusion on the issue of whether California will follow New York v. Belton (1981) 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768].   Certainly, the decertification of conflicting Court of Appeal decisions has obscured rather than established any “bright line[s]” in this much-litigated area.   Nonetheless, I do not share the majority's view that until the California Supreme Court speaks we should necessarily defer to the United States Supreme Court.   I do not believe Belton was correctly decided.   I also see no point in writing yet another opinion on the subject.   Simply stated, I urge the California Supreme Court to settle the question once and for all.


1.   People v. Laiwa (1981) 122 Cal.App.3d 190, 175 Cal.Rptr. 840 (hg. granted) is presently before the Supreme Court.   In that case, however, the search was not of an automobile incident to the arrest of an occupant but was of a handbag incident to the arrest of the defendant, who was not an occupant of a vehicle.   The Court of Appeal upheld the search.  (See also Miller v. Superior Court (1981) 127 Cal.App.3d 494, 179 Cal.Rptr. 783.)Because the search was not of a driver's compartment incident to the arrest of an occupant of the vehicle, the Supreme Court may very well decide the Laiwa case without disposing of the issue in the case at bench.   This could be so because of the specifically established “automobile exception” to the warrantless search of automobiles, among other reasons.   (Chambers v. Maroney (1970) 399 U.S. 42, 48–51 [90 S.Ct. 1975, 1979–1981, 26 L.Ed.2d 419;  People v. Laursen (1972) 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145;  Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564, 128 Cal.Rptr. 641, 547 P.2d 417.)   The exception is predicated upon the mobility of vehicles and the diminished expectation of privacy which surrounds an automobile.  (Cardwell v. Lewis (1974) 417 U.S. 583, 590 [94 S.Ct. 2464, 2469, 41 L.Ed.2d 325];  Cady v. Dombrowski (1973) 413 U.S. 433, 441–442 [93 S.Ct. 2523, 2528, 37 L.Ed.2d 706].)

2.   “Every person who finds lost property under circumstances which give him knowledge of or means of enquiring as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled there to, with out first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.“Property found and appropriated in any manner contrary to law is stolen property.”

3.   “Defendant is charged in Count Two of the information, with the commission of the crime of receiving stolen property, a violation of Section 496 of the Penal Code.“Every person who buys or receives any property which has been stolen or which has been obtained in any manner constituting theft, knowing the property to be so stolen or obtained or who sells or aids in selling such property or who conceals or withholds or aids in concealing or withholding such property from the owner, knowing the property to have been so stolen or obtained, is guilty of the crime of receiving stolen property.“In order to prove the commission of such crime, each of the following elements must be proved:“1. That a person received, or withheld property which had been stolen or [¶]․“[t]hat a person concealed or aided in concealing property which had been stolen, and“2. That such person actually knew said property was stolen at the time he received, withheld, or concealed such property.”This instruction substantially paraphrases Penal Code section 496, subdivision (1).

GEO. A. BROWN, Presiding Justice.

LaRUE, J.,* concurs.

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