PEOPLE v. ONE 1941 BUICK SPORT COUPE SERIAL NO 24131397 (1946)

District Court of Appeal, Second District, Division 3, California.

PEOPLE v. ONE 1941 BUICK SPORT COUPE, SERIAL NO. 24131397, et al.

Civ. 15025.

Decided: February 20, 1946

Sprague & Sparks and Philip S. Schutz, all of Los Angeles, for appellants. Robert W. Kenny, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for respondent.

The registered and legal owners of the forfeited vehicle appeal from an order which vacated and set aside a judgment rendered in their favor and which ordered instead a judgment of forfeiture pursuant to the provisions of the Health and Safety Code (secs. 11610–11629). The appeal comes to us on the judgment roll, under Rule 5, subdivision (f), Rules of Appeal.

The ‘Notice of Seizure and Intended Forfeiture Proceedings' was served upon Ignacio N. Marquez and the Kelley Kar Company, the registered and legal owners, respectively, of the seized vehicle, and alleged that on or about October 20, 1944, the vehicle was used to ‘unlawfully conceal, convey, carry or transport marihuana, and marihuana was in the possession of an occupant thereof,’ contrary to the force and effect of section 11610 of the Health and Safety Code of the State of California. Both owners filed answers, the registered owner disclaiming any knowledge of the possession of the marihuana by the occupant of the vehicle and the use of the vehicle for any unlawful transportation, and the legal owner setting up the defense of reasonable investigation of the moral responsibility, character and reputation of the registered owner and, further, that narcotics were not unlawfully possessed by any occupant of the vehicle and that the vehicle was not used for any unlawful purpose.

Since the appeal comes to us only upon the judgment roll we are restricted to a case made by the findings of fact, which, for purposes of the appeal, are deemed supported by the evidence. The findings set up the following facts: That the vehicle was seized while in the possession of the registered owner; that in the car with him at that time were James Taylor, an acquaintance of his, and another passenger whose name does not appear in the record; that the three occupants ‘were enroute to attend a theatre at the time of the seizure of said vehicle and the arrest of said James Taylor and said registered owner; that at said time while an occupant of said car the same James Taylor had in his possession marihuana cigarettes; that said possession was without the knowledge of said registered owner. * * * At the time of said seizure Kelley Kar Company had a right, title and interest in said vehicle equivalent to the sum of $1336.19 which was secured by contract of conditional sale; that the right, title and interest of said Kelley Kar Company was bona fide and was made without any knowledge that said vehicle was being or was to be used in violation of the law relating to narcotics; that said Kelley Kar Company did not make any investigation relating to the moral responsibility, character and reputation of the said Ignacio N. Marquez before said contract of conditional sale was consummated and said vehicle delivered to said Ignacio N. Marquez; that at the time of said seizure said vehicle had a value in excess of the right, title and interest of the legal owner.’

From these findings the court concluded that ‘the vehicle * * * was not used with the knowledge of either the registered or legal owner to unlawfully conceal, convey, carry or transport marihuana, or that marihuana was in possession of an occupant thereof, contrary to the force and effect of section 11610 of the Health and Safety Code * * * [and] should be released to the registered and legal owners thereof.’ Accordingly, on February 2, 1944, judgment was rendered in favor of the owners and the vehicle was ordered returned to them.

Thereafter, On February 7, 1944, plaintiff served and filed a notice of intention to move for a new trial and for the vacation of the judgment and the entry of a new and different judgment. The motion was based upon the following grounds, namely, that it was agent the law; that error in law occurred at the trial and was excepted to by the plaintiff; that there was ‘an incorrect or erroneous conclusion of law not consistent with and not supported by the Findings of Fact.’ The trial court granted this motion and ordered the previous judgment vacated and set aside, and a new judgment forfeiting the vehicle to the State of California was entered.

The question, therefore, presented to us concerns the propriety of the trial court's action in vacating the first judgment and entering a different judgment based upon the same findings. This, in turn, raises the query as to whether or not the original conclusions of law and the judgment based thereon were in conflict with the findings of fact.

Section 11610 of the Health and Safety Code, under which the vehicle was forfeited, reads as follows: ‘A vehicle used to unlawfully transport any narcotic, or in which any narcotic is unlawfully kept, deposited or concealed, or in which any narcotic is unlawfully possessed by an occupant thereof, shall be forfeited to the State.’ [Italics ours.] To avoid the severe penalty of forfeiture, which is mandatory upon the courts (Health and Safety Code, sec. 16), the statute permits an owner who has filed a verified answer to show ‘that the vehicle was not used to transport narcotics, or that narcotics were not unlawfully possessed by an occupant of the vehicle’ (sec. 11619). Likewise, a lien claimant of a vehicle is permitted to escape the penalty of forfeiture, even where there has been a violation of the statute, by proof that his interest was a bona fide one, without knowledge that the vehicle was used or intended to be used in violation of the narcotic act, after a reasonable investigation of the moral responsibility, character and reputation of the purchaser (sec. 11620). The burden of sustaining these defenses rests upon the parties asserting them.

Appellants argue that there was no finding of ‘unlawful transportation’ or any ‘unlawful possession of marihuana by an occupant of the automobile,’ and that with respect to the latter contention ‘the inference would be that the possession must have been legal.’ With respect to the ‘inference’ we believe that since the court found that the occupant ‘James Taylor had in his possession marihuana cigarettes,’ there being no specific finding that the possession was ‘lawful,’ which, in our opinion is essential if the burden of the defense permitted by section 11619, supra, has been sustained, it must necessarily follow that the cigarettes were not lawfully in the possession of the occupant.

Appellants, in urging that the findings support the original conclusions, argue that the portion of section 11610, supra, reading ‘or in which any narcotic is unlawfully possessed by an occupant thereof’ is ‘unreasonable, arbitrary and capricious * * * and is therefore unconstitutional as depriving a person of his property without due process of law, contrary to the provisions of our state and federal constitutions.’ They suggest that in order to save the constitutionality of the statute the ‘court * * * make an exception and read into the statute a requirement of some knowledge or participation on the part of the owner.’

The respondent argues that ‘proof of knowledge of the owner of the illegal use or possession of narcotics is not necessary’ and asserts that this question of constitutionality ‘has been raised many times previously and the matter determined adversely to the appellants' contention by numerous decisions of the Supreme Court of California and the Supreme Court of the U. S. in the following cases: People v. One 1941 Ford 8 Stake Truck, [26 Cal.2d 503, 159 P.2d 641]; People v. One 1933 Plymouth Sedan, 13 Cal.2d 565 [90 P.2d 799]; People v. One Ford V8 Tudor Sedan, 12 Cal.App.2d 517 [55 P.2d 908]; Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376; Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354, 47 A.L.R. 1044.’

We have carefully examined the foregoing cases but in none of them do we find presented a situation similar to the one involved on this appeal. They merely hold that where an owner consents to the use of the vehicle by another, he is not deprived of any constitutional right by forfeiture of his property because of the operator's violation of a statute, even though the owner was without knowledge of or failed to acquiesce in its illegal use.

In People v. One 1941 Ford 8 Stake Truck, supra, 26 Cal.2d 503, 159 P.2d 641, the owner gave possession of the truck involved to an employee, who, in using the car to go to a place where he obtained the marihuana, violated his employer's instructions. In upholding the forfeiture, the Supreme Court, speaking through Mr. Justice Edmonds, said (26 Cal.2d at page 506, 159 P.2d at page 642): ‘It is true that the Health and Safety Code does not expressly exempt from confiscation an automobile taken in the first instance without the owner's consent and used to transport narcotics but it has been construed as not authorizing forfeiture under such circumstances. The reasoning leading to this conclusion is that a contrary determination would amount to an unconstitutional deprivation of property without due process of law (People v. One 1937 Plymouth 6, supra [37 Cal.App.2d 65, 98 P.2d 750]), and where a statute is susceptible of two interpretations, one of which would satisfy constitutional guarantees, if possible the courts will uphold the legislation. [Citing case.] But there are no constitutional impediments to a forfeiture where the owner entrusts his vehicle to another who uses it illegally, even though the owner does not know of or acquiesce in such use. The distinction between such a situation and the plight of an automobile owner who failed to give possession of his car or consent to its operation is based upon the means by which the one found transporting the contraband obtained the vehicle. An owner who entrusts the possession of his vehicle to another thereby accepts the risk that it will be used contrary to law, but, in the operation of an automobile without the owner's consent to do so in any manner or at all, there is no element of choice or volition and a complete lack of permission, express or implied, on the part of the owner.’

People v. One 1933 Plymouth Sedan, supra, 13 Cal.2d 565, 90 P.2d 799, likewise involved a situation where the owner of the car entrusted it to another, her son, the owner alleging, however, that she did not give him permission to use the automobile for the unlawful purpose of transporting narcotics. The court held that the owner of the vehicle, having consented to its operation by another, was not deprived of any constitutional right by the forfeiture of her property, even though she was without knowledge of or had failed to acquiesce in its illegal use.

The State appealed from a judgment in favor of the legal owner in People v. One Ford V8 Tudor Sedan, supra, 12 Cal.App.2d 517, 55 P.2d 908, 909. On appeal the judgment was reversed and the vehicle ordered forfeited. The ground of appeal was that the record did not disclose any evidence showing compliance by the claimant or its assignor with the provisions of section 15(e), which declared, in substance, that in order to establish priority of lien against the state in cases such as this, the claimant must prove, among other things, that his right, title or interest in the vehicle ‘was created after a reasonable investigation of the responsibility, character and reputation of the offender * * *.’ Respondent owner contended that section 15(e) contained unreasonable requirements. The court stated (12 Cal.App.2d at page 521, 55 P.2d at page 910) that this contention was ‘fully disposed of by the decision in the Harley-Davidson Motorcycle case, supra [People v. One Harley Davidson Motorcycle, 5 Cal.2d 188, 53 P.2d 970], which holds in effect that before a claimant is entitled to the release of a vehicle seized for violation of the Narcotic Act he must prove compliance with the provisions thereof; and the point is answered also by that group of decisions of the United States Supreme Court which hold that no constitutional guaranties are invaded by a statute which provides for the forfeiture of automobiles or other vehicles used for the unlawful transportation of narcotics, and that it is well within the power of a state, if it chooses so to do, to forfeit entirely all interests in a vehicle actually used in such unlawful enterprises, despite the fact that the owner or owners of such interests may have no knowledge of the unlawful purpose for which it is being used. Dobbins' Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637; Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376; Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354, 47 A.L.R. 1044; Various Items of Personal Property v. United States, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558.’

The California courts have approved the doctrine that where one entrusts his car to another he accepts the risk that it may be used contrary to the law, but, so far as we are aware, they have not ruled that a vehicle which has been taken without the consent or permission of the owner and has been used by the taker for an unlawful purpose can be forfeited. On the contrary, although the Health and Safety Code does not expressly exempt from forfeiture an automobile taken without the owner's consent it has been held that to permit a forfeiture under those circumstances would amount to an unconstitutional deprivation of property without due process of law. See People v. One 1937 Plymouth 6, 37 Cal.App.2d 65, 98 P.2d 750, wherein a hearing in the Supreme Court was denied.

The registered owner in that case alleged that the taking of the automobile by her son, who used it in violation of the State Narcotic Act, was without her permission or consent. The State appealed from a judgment denying forfeiture. The court said (37 Cal.App.2d at page 70, 98 P.2d at page 753):

‘In support of the position we have here taken, namely that property of an owner taken from him without his permission or consent and used by the taker for an unlawful purpose proscribed by the act cannot be declared forfeited to the state, we may rely upon the following cases. In United States v. One Buick Roadster, D.C., 280 F. 517, the court said at page 519: ‘The fiction that the thing is guilty is but a convenience of procedure, to visit justice by way of forfeiture upon those, perhaps unknown, whose conduct contributed to the thing's unlawful use. Otherwise, outlawry, the superstitions of deodand and trial and punishment of inanimate things, have disappeared, and it is doubtful if any modern law purports to confiscate lawful property because unlawfully used by trespasser or thief. If section 3450 does, how can it be maintained in view of the due process clause of the Constitution? What is it but a mere arbitrary act of government in violation of that fundamental right to own property, for the security of which society is organized and government maintained? What immemorial practice of government justifies this legislative power? Wherein are public welfare, and rights common to all, served by this invasion of individual right of property? What principle of justice permits it? To support the proponent no answer comes to mind, and until successfully answered it must be held that the literal import aforesaid of section 3450 contravenes the due process clause, to avoid which, its general terms permitting, again it will be presumed that Congress intended exceptions of trespasser and thief.’ [Citing cases.] The line of demarcation established in these cases is whether or not the owner has consented to the use of his property. If he has not, his property is not subject to forfeiture. If he has, the property may be forfeited regardless of his lack of knowledge of or consent to the unlawful use. * * * We are unable to appreciate how appellant is able to draw any distinction, which he indicates should be drawn, between use by a thief, and use by a person without the consent or permission of the owner. The latter use is unlawful, constituting a trespass or conversion, and the act of driving an automobile without the owner's consent is now a crime. Vehicle Code, § 503 * * *. The difference is one only of degree and is too slight to justify any distinction.

‘Appellant strongly argues that if the owner may defend against a forfeiture by proof that the vehicle was used without his consent or permission, the way is opened for collusion and perjury in an attempt to defeat forfeiture. Such a consideration is one to be met by the careful scrutiny of the trial judge, who has at the trial an opportunity to view the witnesses and weigh the credibility of the evidence offered. It is not a sufficient consideration to justify an apparent arbitrary invasion by the legislature of property rights protected by both the state and federal Constitutions.’ Cf. People v. One Lincoln Eight, 12 Cal.App.2d 622, 55 P.2d 925.

On the facts presented by the findings in the instant case, we feel that an innocent owner, in possession of his vehicle, should not be made to suffer the drastic penalty of forfeiture where he has no knowledge, actual or implied, of the unlawful possession of narcotics by one who is riding with him. Although the legislature has not expressly exempted an owner, under such circumstances we feel that a forfeiture should not be permitted for a ‘contrary determination would amount to an unconstitutional deprivation of property without due process of law.’ People v. One 1941 Ford 8 Stake Truck, supra. The same principle, i.e. deprivation of property without due process, is as truly involved here as in the case of an owner whose car is stolen from him or who has not consented to the taking or use of his automobile. The findings of fact in this case support the conclusions of law and the original judgment. The fact that the court further found that the Kelley Kar Company had not made any investigation relating to the moral responsibility, character and reputation of the registered owner is immaterial and surplusage, for the ‘interest of an owner who bases his claim upon lien, mortgage, or conditional sales contract, is not subject to forfeiture in the absence of a proper forfeiture of the purchaser's interest.’ People v. One 1937 Plymouth 6, supra, 37 Cal.App.2d 65, 73, 74, 98 P.2d 750, 755.

The order appealed from is reversed and the superior court instructed to enter an order denying the forfeiture claimed by plaintiff and directing that the automobile in question be released to the registered and legal owners thereof.

DESMOND, Presiding Justice.

SHINN and WOOD, JJ., concur.