PEOPLE v. DE LEON (1968)

OPINION

Jose Valdez De Leon, convicted of possession marijuana (Health & Saf.Code, § 11530), appeals from a probation order deemed a final judgment (Pen.Code, § 1237) imposing a $100 fine plus $10 penalty assessment and other conditions of probation.

About 4:00 a.m., December 25, 1966, Chula Vista Police Patrolman Haskins caught 19–year–old De Leon with three 16 year olds unlawfully possessing liquor in a car parked in Otay, adjoining Chula Vista.   Deputy Sheriff Staninger arrived and asked driver De Leon “Do you mind if I search the car?”  “Go ahead,” De Leon answered.   Staninger found four marijuana cigarettes in the car's trunk.   De Leon's right front jacket pocket contained marijuana debris.

 De Leon contends that in requesting permission to search the car Staninger should have told him he had a right to refuse permission.   A request for permission to search implies a choice of granting or refusing the request, and does not require a warning that consent might be refused (People v. Roberts, 246 Cal.App.2d 715, 729, 55 Cal.Rptr. 62;  People v. Chaddock, 249 Cal.App.2d 483, 485–486, 57 Cal.Rptr. 582;  see also People v. Campuzano, 254 A.C.A. 60, 65, 61 Cal.Rptr. 695;  People v. Dahlke, 257 A.C.A. 95, 100, 64 Cal.Rptr. 599;  People v. Richardson, 258 A.C.A. 23, 31, 65 Cal.Rptr. 487;  People v. Lyles, 260 A.C.A. 62, 67–68, 66 Cal.Rptr. 799).

In his defense, De Leon testified:  he bought the marijuana cigarettes four weeks earlier in Los Angeles because he was ashamed to say no to a fellow employee at a restaurant where all the employees smoked marijuana;  he drove from Los Angeles County to San Diego County on December 24, 1966;  he had forgotten the cigarettes were in the trunk;  the jacket belonged to one of the 16 year olds.

About 4:00 a.m., December 25, 1966, in nearby Otay, Chula Vista Police Patrolman Haskins saw 19–year–old De Leon with three 16 year olds in a parked car with all its windows rolled up.   Haskins approached the vehicle.   As the driver rolled down his window Haskins smelled a strong odor of alcohol coming from inside the car.   Deputy Sheriff Staninger arrived and asked driver De Leon “Do you mind if I search the car?”  “Go ahead”, De Leon answerd.   Staninger found four marijuana cigarettes in the car's trunk.   De Leon's right front jacket pocket contained marijuana debris.

Judgment affirmed.

GERALD BROWN, Presiding Justice.

COUGHLIN and WHELAN, JJ., concur. Hearing denied;  PETERS, J., dissenting.