PEOPLE v. GASTEIGER (1982)

INTRODUCTION

Defendant Joseph Dean Gasteiger (hereinafter defendant and/or Gasteiger) appeals from a judgment of conviction, following a court trial, of the possession of phencyclidine (PCP) for the purpose of sale in violation of Health and Safety Code section 11378.5 (count I);  possession of marijuana for the purpose of sale in violation of Health and Safety Code section 11359 (count II);  and possession of amphetamines in violation of Health and Safety Code section 11377, subdivision (a) (count III).

PROCEDURAL HISTORY

On June 23, 1980, a three count information was filed charging defendant with having violated Health and Safety Code sections 11378.5, 11359 and 11377, subdivision (a), on or about July 7, 1979.

On the same date the information was filed (June 23, 1980) defendant was arraigned, pled not guilty and was released on bail.

On July 7, 1980, when the matter was set for trial, it was continued on defendant's motion to August 21, 1980, with the defendant remaining on bail.

On August 15, 1980, on the court's motion, the hearings on defense pretrial motions were continued to the date of trial on August 21, 1980.   The defendant was continued on bail.

On August 21, 1980, defense motion to dismiss for failure to proceed to speedy trial commenced and continued to August 22, 1980.

On August 22, 1980, testimony was taken on the defense motion to dismiss for failure to proceed to speedy trial and all motions and trial were continued or trailed to August 25, 1980.

On August 25, 1980, following the taking of additional evidence by the court, defendant's motion to dismiss for lack of speedy trial was denied.   Defendant's motion pursuant to Penal Code section 1538.5 to suppress evidence was then made, heard and denied.   Following a conference between court and counsel (and on understanding that defendant would not be sentenced to state prison if found guilty) defendant entered into a “slow plea”.   Defendant waived a jury and was found guilty on all counts as charged following a stipulation (1) that the matter be submitted on the testimony taken at the 1538.5 motion, (2) that the contraband found consisted of 1 pound of marijuana, .5 grams of amphetamines and a total of 14 grams of phencyclidine, and (3) that if Officer Gary LaCroix was called as a witness that he would testify that the phencyclidine was packaged and the marijuana was of such a quantity to be possessed for the purposes of sale.

On October 10, 1980, at time of sentencing, proceedings were suspended and defendant granted probation for a period of 2 years on condition, amongst others, that he serve 180 days in the county jail which was stayed until March 10, 1981, and that he not possess or use narcotics, submit to periodic anti-narcotic tests and cooperate with the probation officer in a plan for psychiatric or psychological counselling.

FACTS

SUMMARY OF TESTIMONY AT DEFENDANT'S HEARING ON HIS MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL BEFORE JUDGE FREDERICKS ON AUGUST 21 and 22, 1980:

Defense counsel on appeal requested that this court augment the record on appeal with a reporter's transcript of the hearing on defendant's motion to dismiss for lack of speedy trial and also moved this court that “the written motion be augmented to the existing record on appeal by simply transferring the superior court file to this court,” and that “the written motion, and the attachment of the police report, should be considered in conjunction with Augment I of Appellant's Opening Brief, being filed concurrently with this request.”

This court granted both motions to augment the record referred to above and on its own motion pursuant to Rules of Court, rule 12(a), has reviewed and considered the entire superior court file (case No. A195365) for all purposes on appeal.

The written “Notice of Motion and Motion to Dismiss for Failure to Provide Speedy Trial” filed in the superior court in addition to declaration and points and authorities contained Torrance Police Department reports (exhibit A) and an order dated August 7, 1979, showing defendant Gasteiger had the $4,348 found in the rear of the pickup truck returned to him on motion of his trial attorney, Stanley R. Siegel.

At the hearing on defendant's motion to dismiss for lack of speedy trial, four witnesses testified, namely Officers Kevin Berman and Bill Athan, the defendant, and his father, Lawrence Dale Gasteiger, Sr.

Officer Berman's testimony was substantially as follows:  that he was the investigating officer with the Torrance Police Department and first became involved in the case in the latter part of 1979 (between Thanksgiving and Christmas) when advised that there was a warrant outstanding for defendant's arrest when he (defendant) had been allegedly involved in some form of transaction involving other individuals.   A confidential reliable informant had indicated that Gasteiger was out of the area apparently aware that he was wanted in this jurisdiction for commission of a crime.

Officer Berman verified this information and determined there was an outstanding warrant for Gasteiger.   On April 14, 1980, the confidential reliable informant supplied Officer Berman with a telephone number in the 714 area code indicating it was the present residence of defendant Gasteiger.   The officer called the number and a male voice answered.   When Officer Berman asked “Who it this?”, the male answered, “Dean”.   Officer Berman determined the telephone number was listed to a Judith Tamborski in Morongo Valley and again verified through the computer there was an outstanding warrant for the defendant and that there was a missing persons report filed on August 6, 1979, with authorities in San Bernardino County.   On April 14, 1980, Officer Berman advised the authorities handling Morongo Valley of the outstanding warrant and supplied them the address and telephone number of defendant and he (defendant Gasteiger) was arrested shortly thereafter.   The computer printouts of the same date show outstanding warrant No. A195365 and to consider a special search, such as, of driver history and outstanding traffic warrants, missing persons, gun registration and driver license.

Police Officer Bill Athan, a detective with the Torrance Police Department, testified that he was the investigating officer on the instant case.   He “directed that the evidence that was obatained [sic ] during the time of the arrest of the defendant be transported to Los Angeles County Sheriff's Department Crime Lab for analysis,” since phencyclidine cases are not filed on until the analysis is complete.

Defendant was released from custody as of July 10, 1979 (3 days later) and during the interim period awaiting the crime lab analysis Officer Athan had numerous telephonic contacts with defendant Gasteiger and his attorney.   The defendant, whom Officer Athan assumed was in the Torrance area, called about once a day if not once every other day inquiring basically about getting back the $4,345 which was seized along with the contraband.   Officer Athan stated that “I told him that a determination had not been made yet, the analysis was coming back very slow, the crime lab was backed up on evidence, and as soon as I got the analysis back, the determination would be made at that time as to filing the charges, to stay in touch with me, the money question was still up in the air as to whether it was going to be released through the courts.”

The analysis from the Los Angeles County Criminalistic Laboratory was not received in Torrance until July 31, 1979, at which time Officer Athan attempted to find defendant Gasteiger.   He called the telephone number he had been furnished and received no answer.   He called defendant's father's place of business but was never put in contact with his father.   He talked to defendant's mother and brother and advised them the analysis had come back positive as to contraband and “Due to his situation and the family situation, his father being a long-standing businessman in the City of Torrance and other general conversation, that it would be in Dean's best interest if he would surrender himself on the case;  that I would be filing the case at the district attorney's office due to the fact that the evidence did come back as contraband.”

Defendant's mother told Officer Athan that she would get defendant in contact with him and since she did not call back that day or the following day, he called the drive-in theater where defendant's brother worked and was told that a missing persons report had been filed in either Riverside or San Bernardino County and his father was down there trying to find the defendant.   Officer Athan then went to the district attorney's office with the case and the analysis in order to file a complaint and obtain a warrant and then followed the policy of the district attorney to make additional attempts to locate the defendant before filing the case.¹  The officer used normal departmental sources and made several contacts with the Riverside County Sheriffs' Department, Indio Station and Palm Springs, advising them of the defendant's description, the nature of the charges and the last known vehicle he was in.   It was also verified that a missing persons report was filed on the defendant and Officer Athan maintained periodic contact with the law enforcement agencies in that area.

After August 1979 Officer Athan was advised that the missing persons report had been cancelled and the defendant “was hiding out in a motel down in the Palm Springs area (address unknown),” ² so notified Riverside County Sheriffs' Department and was in liaison with them “every other day” for “over two, three, four week period” but was advised they were unsuccessful in finding defendant.   Thereafter Officer Athan filed the case with the district attorney's office and a warrant was placed into the system.   The police had received information that defendant was in and around the North Torrance area and periodic checks were made at previous residences and at the father's place of business and the word was put out to the black and white patrol cars.

Officer Athan also testified that about two days after defendant Gasteiger was released in July 1979 he talked with defendant's attorney, Mr. Siegel, in respect to how long it would take to have the evidence tested by the crime laboratory.   The defendant's attorney said:  “Well, if you get it back, I'll bring him in and we'll talk about the money [presumably the $4,345 seized along with the contraband].” ³

Defense witness Lawrence Dale Gasteiger, Sr., the defendant's father, testified that since July 7, 1979, he knew the defendant's residence address and telephone number but no one from the Torrance Police Department asked him for that information.   However, on cross-examination the father admitted that he was not aware that an officer from the Torrance Police Department had been calling his place of business but “understood that they've called [his] wife [defendant's mother] frequently” asking for his son's whereabouts.   He stated that the defendant's mother knew where the defendant was at various times toward the end of 1979.   Mr. Gasteiger, Sr., also admitted that a missing persons report had been filed on the defendant by a friend of the defendant.

Defendant Gasteiger testified that he was released from jail on July 10, 1979, and did not return to his local residence on advice of Officer Athan because the people who had attacked him would come back and get him.   Defendant told Officer Athan that his father could get ahold of him any time.   Defendant stated that he was lost in the desert for three days in August 1979;  that he talked to Officer Athan on the telephone on September 14, 1979, because he (Officer Athan) was calling his (defendant's) father's house and continuously calling his mother and told him (Officer Athan) he was in Morongo Valley;  that he told the officer that he was in the Palm Springs area and arrangements were made to meet the officer in “Sambo's” on September 17, 1979, but because the officer sounded “too secretive” he did not keep the appointment.

Thereafter, the court stated to defense counsel:  “I have read your points and authorities.”   Following argument the court found the police acted reasonably and diligently and denied defendant's motion to dismiss for lack of a speedy trial.   The 1538.5 motion was trailed to August 25, 1980.

SUMMARY OF TESTIMONY AT DEFENDANT'S MOTION TO SUPPRESS HEARING BEFORE JUDGE FREDERICKS ON AUGUST 25, 1980:

Officer Richard Augenstein with the City of Torrance Police Department at about 8:20 p. m. on July 7, 1979, responded to an “A.D.W.” call at a parking lot in the 2200 block of Redondo Beach Boulevard.   When Officer Augenstein arrived at the scene, he observed several persons in the lot and defendant Gasteiger first “sitting behind the driver's wheel” of a 1977 white Datsun pickup truck with a camper shell and then “appear to fall from the driver's seat across the front seat.”   When Officer Augenstein approached close, it appeared the defendant needed medical aid which was summoned.   The officer observed in an open shelf-type glove tray on the dashboard of the passenger side of the vehicle a clear plastic baggie containing four foil bindles.   Officer Augenstein formed the opinion, based on 15 years experience as a police officer, 3 years assigned to narcotics and having qualified as an expert in court, that the foil bindles contained narcotics contraband.   The driver's window had been smashed out and Officer Senger, who was on the passenger side of the vehicle, indicated that he also observed the bindles and requested Officer Augenstein to withdraw them and hand them to him which he did.

Officer Augenstein then returned to other officers who were holding some suspects at bay and Officer Senger stayed with the vehicle.   Defendant Gasteiger who appeared to be semi-conscious was transported by ambulance to Gardena Memorial Hospital and was placed in custody after medical treatment was given him.   There was a female (Judith Tamborski) about 50 to 60 feet away from the vehicle who allegedly had been in the vehicle earlier who was contacted by Officer Mackinnon for a statement.

Officer John Senger of the City of Torrance Police Department with 31/212 years experience in undercover narcotics and qualified to testify as an expert in over 100 cases saw Officer Augenstein retrieve the clear plastic baggies containing four tinfoil bindles and was of the opinion they “possibly contained phencyclidine, commonly referred to as angel dust or PCP.”   He (Officer Senger) unwrapped the tinfoil and observed a green mint-leaf-like substance which emitted a strong ether odor.   Officer Senger searched the vehicle and found another clear plastic baggie under some foam padding covered with a shag carpet in the bed of the pickup containing 12 tinfoil bindles similar to those previously found in plain view in the cab.   Also found over the left wheel well inside the camper shell under loose boards was a white trash bag containing approximately 1 to 11/212 pounds of marijuana and about .5 grams of powder resembling amphetamines along with some hypodermic syringes and a document.⁴

Officer Senger testified that the keys of the pickup were in the ignition when they arrived at the scene and were later turned over to a girl who was at the scene.   Officer Senger further stated, after refreshing his memory from a Torrance Police Department report, that the license on the 1977 Datsun pickup truck was 1F98261.

The reporter's transcript reflects that following a conference in chambers between the trial judge and both counsel that a negotiated “slow plea” was entered into with the understanding that defendant Gasteiger would not be sentenced to state prison but “could receive up to one year in the county jail as a condition of felony probation.”   Thereafter in open court a stipulation was entered into whereby the testimony taken at the time of the 1538.5 motion would be considered for the trial.   It was also stipulated that the contraband found by Officers Augenstein and Senger was as charged in the information and that if Officer LaCroix was called, sworn and testified as previously that he would testify that the PCP and marijuana were possessed for purposes of sale.⁵

In waiving his right to trial by jury and his right against self-incrimination, the following colloquy occurred:

“MR. SOKOLOV [deputy district attorney]:  And do you also understand that in all likelihood—or the odds are probably 99 percent that you're going to be found guilty?

“Do you understand that?

“THE DEFENDANT:  Yes, sir.

“MR. SOKOLOV:  And is this procedure personally agreeable with you?

“THE DEFENDANT:  Yes.

“THE COURT:  You better take the waiver on the self-incrimination, specifically, in that respect, so there's no misunderstanding.

“MR. SOKOLOV:  Do you understand as far as this court is concerned that by agreeing to this procedure, you're waiving and giving up your right against self-incrimination?

“Do you understand that?

“THE DEFENDANT:  Yes, sir.

“MR. SOKOLOV:  Because you're going to be found guilty in all likelihood.

“THE DEFENDANT:  Yes, sir.

“MR. SOKOLOV:  Not in all likelihood, you will be found guilty.

“Do you understand that?

“THE COURT:  If you weren't found guilty, Mr. Sokolov would fall over in a dead faint in this court.

“Go ahead.

“MR. SOKOLOV:  You understand what we're doing?

THE DEFENDANT:  Yes.

“MR. SOKOLOV:  Is this procedure personally agreeable to you?

“THE DEFENDANT:  Yes.”

Thereafter defendant Gasteiger was found guilty as charged and sentencing was set for October 10, 1980, at which time defendant was sentenced, following consideration of the probation report, as previously indicated.

ISSUES

On appeal defendant Gasteiger contends (1) that the trial court erred in denying his motion for a dismissal for lack of a speedy trial;  (2) that the trial court erroneously denied his motion to suppress the contraband found in the Datsun pickup truck;  and (3) that the evidence was insufficient to sustain the conviction.

DISCUSSION

I

Defendant first contends that the trial court erred in denying his motion for a dismissal for lack of a speedy trial.   We disagree.

 Where the issue raised by a defendant seeking a dismissal of a criminal complaint is based on delay occurring after the complaint was filed but before he was arrested, the determination as to whether or not his right to a speedy trial has been denied by such pre-arrest delay is based on the test of weighing the prejudicial effect of the delay on him against any justification for the delay.   Delays necessary for reasonable law enforcement operations do not violate the right to a speedy trial.   The conduct of law enforcement officials would be affected only if they unreasonably delayed initiating a prosecution.   (Jones v. Superior Court (1970) 3 Cal.3d 734, 91 Cal.Rptr. 578, 478 P.2d 10.)

 Where the defendant claims as grounds for a dismissal of the complaint a delay between the time a crime is committed and he is charged or arrested, the test is not by rules applicable to speedy trials, but by whether the defendant has been denied due process of law.  (People v. Archerd (1970) 3 Cal.3d 615, 91 Cal.Rptr. 397, 477 P.2d 421.)

However, “[r]egardless of whether defendant's claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.”  (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505, 149 Cal.Rptr. 597, 585 P.2d 219, fn. omitted.)

 The testimony of prosecution witnesses, Officers Berman and Athan, at the hearing on defendant's motion to dismiss for lack of a speedy trial amply support a finding that the delay was not caused by unreasonable conduct on their part and was further justified in view of the defendant's conduct.

It can reasonably be inferred from both the prosecution witnesses and the admissions of the defendant and his father that defendant knew he was wanted by the Torrance Police Department but departed the jurisdiction to evade arrest and prosecution.   The Torrance Police Department acted reasonably in attempting to apprehend the defendant by employing all normal resources available to them and obtaining the assistance of law enforcement authorities in the Riverside-Palmdale area.   Defendant's mother and brother also apparently knew for most of the delay period where defendant could be reached as discovered independently by the police but did not assist the police in contacting defendant.

In attempting to show prejudice to defendant by reason of the delay trial defense counsel attached a declaration of Daniel Lee Dye (an independent witness who was in the area when defendant was assaulted on July 7, 1979, and who called the police) to his written motion to dismiss for failure to provide a speedy trial.   The declaration (dated July 29, 1980) states that in November or December 1979 he could not identify the men accused of assaulting defendant Gasteiger.   Mr. Dye also stated that because of the passage of time he could not be reasonably certain of the action of some off-duty Torrance police officers who were at the scene of the assault.   He further stated that “I did see the initial discovery of what was alleged to be the contraband, but I cannot identify the officer who did so, nor can I recall all of the details of the discovery.”   Mr. Dye stated that he thought his memory would have been better within two or three months of the event.

The total record discloses that the circumstances surrounding the discovery of the contraband were related in great detail by Officers Augenstein and Senger at defendant's motion to suppress the contraband as evidence and that defendant's female companion at the scene, Judith Tamborski, a percipient witness to the events of July 7, 1979, was not called to contradict the officers' testimony.   Nor did Tamborski file a declaration with defendant's motion to dismiss for lack of a speedy trial to establish prejudice to the defendant by reason of any delay.   Nor was Tamborski called as a defense witness at the hearing on the motion to dismiss for lack of a speedy trial and neither the defendant nor Judith Tamborski testified at the hearing on the motion to suppress the evidence.   In short, any prejudice to the defense by the delay resulting in witness Dye's failing memory relating to defendant's motion is so highly speculative to be practically non-existent.

Accordingly, we reject defendant's claim that he was deprived of a speedy trial or denied due process of law.   We cannot say as a matter of law that the trial court abused its discretion or otherwise erred in its implied finding that defendant was not prejudiced by the delay or that the delay was justified and outweighed the prejudice, if any, to defendant.

II

Defendant secondly contends that the trial court erred in denying his motion to suppress the contraband, arguing (1) that the police officers had no right to open the clear plastic baggie and the foil bindles therein observed on the shelf of the driver's compartment and (2) that in the absence of a search warrant the officers had no right to search in the area of the left rear wheel well or to open the containers of contraband found at that location.

 Observation of the clear plastic baggie containing the tinfoil bindles in plain view on the shelf in the driver's compartment by officers from outside the vehicle when responding to the “A.D.W.” report did not constitute a search.  (People v. Lozano (1976) 57 Cal.App.3d 490, 127 Cal.Rptr. 604;  People v. Hale (1974) 43 Cal.App.3d 353, 117 Cal.Rptr. 697;  People v. Superior Court (Silver) (1970) 8 Cal.App.3d 398, 87 Cal.Rptr. 283;  People v. Vallee (1970) 7 Cal.App.3d 167, 86 Cal.Rptr. 475;  People v. Martinez (1970) 6 Cal.App.3d 373, 86 Cal.Rptr. 49;  People v. Childs (1970) 4 Cal.App.3d 702, 84 Cal.Rptr. 378.)

Officers Augenstein and Senger, based upon their training, education, each with about three years of experience working narcotics, and each having qualified as a narcotic expert in numerous criminal trials in Los Angeles County, were clearly justified in their belief from the appearance of the tinfoil bindles that they contained contraband.  “Reasonable grounds for believing a package contains contraband may be adequately afforded by the package's shape, design, and the manner in which it is carried.”  (People v. Lilienthal (1978) 22 Cal.3d 891, 899, 150 Cal.Rptr. 910, 587 P.2d 706.)

Officer Senger's reasonable belief that the tinfoil bindles observed from outside the vehicle contained contraband justified the opening of the clear plastic baggie and the tinfoil bindles contained therein.   The odor of ether emitted from one of the bindles which he unwrapped confirmed his reasonable belief as to the nature of the contents of the tinfoil bindles, later confirmed to be accurate by laboratory tests.

Here, Officers Augenstein and Senger, responding to a reported “A.D.W.” in the parking lot, observed through the smashed out window on the driver's side of the vehicle defendant Gasteiger in the driver's seat but collapsed over the passenger's seat in a semi-conscious condition apparently in need of medical attention.   Since the first order of business was reasonably to obtain medical aid for defendant he was transported to the hospital where he was given medical attention and then formally arrested.   We conclude that because of the condition of defendant at the time the officers arrived at the scene that the warrantless search of the interior of the vehicle was contemporaneous with the lawful custodial arrest within the ambit of New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768.

 In respect to the other contraband found in the camper area of the vehicle, defense counsel on appeal by a supplemental letter brief cites Robbins v. California (1981) 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, which was handed down by the United States Supreme Court on the same day that it decided Belton.   Defense counsel argues that Robbins stands for the proposition that a warrantless opening of packages wrapped in opaque containers discovered in the luggage compartment during the course of a lawful warrantless search of an automobile is violative of the Fourth Amendment.

We conclude that Robbins is factually distinguishable and does not control for the following reasons:

FIRST:  The new “bright line” rule which was sought to be established by Justice Stewart in Robbins was signed only by a plurality of four justices (Stewart, Brennan, White and Marshall) and has little, if any, precedential value.  (See Eaton v. Price (1960) 364 U.S. 263, 264, 80 S.Ct. 1463, 1464, 4 L.Ed.2d 1708;  North v. Superior Court (1972) 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305;  People v. McKinnon (1972) 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097.)

Moreover, even if the plurality holding should not be completely disregarded because of the language of Justice Powell's separate opinion, such a plurality holding should not operate retroactively in the instant case since it would be grossly unreasonable to charge Officer Senger with either the power of clairvoyancy or the power of judicial construction as to Robbins, the legal effect of which even lawyers and judges cannot agree upon.

SECOND:  In Robbins, one of the arresting officers testified that he had never seen such packages before but had heard marijuana was packaged that way.   The plurality in Robbins pointed out that such vague testimony certainly did not establish that marijuana was ordinarily “packaged this way”.   Here, the testimony of Officers Augenstein and Senger was in no way vague or obscure.   Both officers had about three years experience in narcotics investigations and had qualified on numerous occasions to testify as a narcotic expert in court.

We conclude that not Robbins, but New York v. Belton, supra, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, and People v. Cook (1975) 13 Cal.3d 663, 119 Cal.Rptr. 500, 532 P.2d 148, are more factually analogous to the instant case as to the contraband found in the camper area of defendant's vehicle and dispositive of this contention.

Belton holds that the warrantless search of containers found in the passenger compartment of an automobile are valid as contemporaneous incident of a lawful custodial arrest of the occupant.   We have previously discussed the contemporaneous nature of the custodial arrest of defendant Gasteiger with the discovery of the contraband in the clear plastic baggie on the dashboard glove tray.   The record on appeal, as augmented by the superior court file, discloses that the vehicle had a crawl hole between the front compartment and the truck bed over which was affixed a camper shell allowing free access from front to rear without the necessity of exiting the vehicle.⁶  We conclude that because of the inside free access from front to rear of the pickup truck that the area in which the other contraband was found was in the “passenger compartment” within the ambit of Belton.

In Cook, the officers detected an odor of fresh unburnt marijuana stronger than that which could be attributed to the materials already discovered in the passenger compartment.   The court held that this gave the officers sufficient justification to continue their search in order to ascertain the source of the odor.   In this case the officers had already discovered narcotics on the dashboard in an amount in excess of that required for personal use.   Furthermore, the contraband was packaged for sale, which reasonably would lead the officers to believe that defendant was actively engaged in the business of sales of narcotics and drugs.   The quantity and method of packaging gave the officers independent probable cause for extending their search for additional contraband.   As the court stated in Cook, “reason and good police procedure dictated that if the officers were to preserve the evidence of illegal activity which their investigations had uncovered, an on-the-scene search of the vehicle was mandated.”  (People v. Cook, supra, 13 Cal.3d 663, 669, 119 Cal.Rptr. 500, 532 P.2d 148.)

Defendant's reliance on People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, is misplaced as it was not adjudicated under the state Constitution but under the federal Constitution.   The United States Supreme Court Belton decision controls since it post-dates Minjares and is based upon the federal Constitution.   In the instant case we refuse to guess or speculate how the state Supreme Court might hold if a petition for hearing before that court is granted.   We decline to employ the independent state grounds doctrine in order to further restrict reasonable and legitimate law enforcement activities which, under Belton, includes searching containers found within a vehicle following probable cause to arrest without first obtaining a search warrant.

III

Defendant's final contention that the evidence was insufficient to sustain the conviction is not supported by the total record on appeal.

 The elements necessary to establish the crime of possession of narcotics or dangerous drugs for sale or use are (1) physical or constructive possession, and (2) knowledge of the presence and character of the drug.   (People v. Williams (1971) 5 Cal.3d 211, 215, 95 Cal.Rptr. 530, 485 P.2d 1146.)   Constructive possession may be inferred “when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.”  (Ibid.)

 In the case at bench a review of the record on appeal augmented by the superior court file shows unquestionably that defendant Gasteiger had at least constructive, if not physicial, possession of the contraband and had full knowledge of the presence and character of the narcotics.

The reporter's transcript of the August 25, 1980, hearing shows that the parties and their counsel engaged in a “slow plea” by stipulating that the guilt or innocence of defendant be submitted on the testimony taken at the 1538.5 motion along with the stipulated expert testimony of the narcotic and dangerous drug character of the contraband.   The record reflects that all parties as well as the court understood that the defendant “in all likelihood ․ or the odds are probably 99 percent” that he would be found guilty as charged.   The court told defendant, “If you weren't found guilty, Mr. Sokolov [deputy district attorney] would fall over in a dead faint in this Court.”

The transcript of the hearing to suppress the evidence pursuant to section 1538.5 of the Penal Code disclosed that when Officer Augenstein arrived at the parking lot in response to an “A.D.W.” call he saw defendant sitting behind the driver's wheel of the Datsun pickup truck and appear to fall toward the passenger's seat.   Officer Senger testified that the license number on the 1977 Datsun pickup truck was 1F98261.

On appeal defendant urges this court to exalt form over substance and completely ignore the full facts known to the trial judge as presented to him by the defense in his motion to dismiss for lack of speedy trial ⁷ which was heard by the same judge a few days previously.   The police report was attached to defendant's written motion to dismiss for lack of a speedy trial.   The trial judge stated on the record that he read the points and authorities.

The police report attached as Exhibit A to written motion to dismiss for failure to provide a speedy trial shows that the “registered owner” of the 1977 Datsun pickup truck with “license number 1F98261” was “Joseph Gasteiger”.   The police report also contains a statement attributed to Tamborski (defendant's female companion) concerning the events of July 7, 1979, in which she refers to “Gasteiger's '77 Datsun pickup, license 1F98261”.⁸

Finally, Exhibit C attached to defendant's written motion to dismiss for failure to provide a speedy trial, which was heard by the same trial judge who took the “slow plea” (Judge Fredericks), contains an order returning to defendant Gasteiger the $4,345 booked into evidence at the time of his arrest.  (See fn. 3, ante.)   The superior court file further discloses that defendant Gasteiger made a declaration under penalty of perjury that on August 10, 1979, he secured the release of the $4,345 booked as evidence at the time of his arrest.   The $4,345 was found along with the marijuana, amphetamine powder, hypodermic syringes and a letter addressed to defendant Gasteiger at his home address.  (See fn. 4, ante.)

The foregoing constitutes overwhelming circumstantial evidence that defendant Gasteiger had constructive, if not actual physical, possession of the contraband and knowledge of the presence and character of the drugs seized in the 1977 Datsun pickup truck.

A brief comment on the dissenting opinion directed at this issue appears in order.   The cases of People v. Conkling (1896) 111 Cal. 616, 44 P. 314, People v. Tedesco (1934) 1 Cal.2d 211, 34 P.2d 467, People v. Lambright (1964) 61 Cal.2d 482, 39 Cal.Rptr. 209, 393 P.2d 409, Day v. Sharp (1975) 50 Cal.App.3d 904, 123 Cal.Rptr. 918, and People v. Long (1970) 7 Cal.App.3d 586, 86 Cal.Rptr. 590, cited in the dissenting opinion are all factually distinguishable and inapplicable.⁹

The case of Noble v. Kertz & Sons Feed etc. Co. (1946) 72 Cal.App.2d 153, 158, 164 P.2d 257, cited in the dissenting opinion, while also factually distinguishable, when read in proper context in its entirety is supportive of the holding in this majority opinion.

In Noble the court was “[d]irectly presented with the question as to whether, in a case not properly the subject of judicial notice, a trial judge may lawfully base his findings on what he observes during an inspection of the locus in quo, where such inspection is made without the presence of the parties or their counsel or without their consent to such inspection, and where the uncontradicted evidence in the record is contrary to the finding based on such observation․”  (72 Cal.App.2d at p. 158.)

We have no quarrel with the Noble court's statement “[T]o sanction such a rule would be to permit a trial judge to take evidence outside of court, without the parties or their counsel being present, and would effectively deprive a litigant of his constitutional right of an appeal.   Such a rule would amount to a denial of due process, and certainly would deny to a litigant the fair and impartial trial to which he is entitled.”  (Ibid.)

In reviewing the judgment, the Noble court made it clear that “Nothing here said is intended to limit the trial court's power of inspection where he is empowered to take judicial notice of the facts․”  (72 Cal.App.2d at p. 160, 164 P.2d 257.)

In the case at bench Judge Fredericks did not go out and view the scene without the parties or their counsel or consider any evidence not properly presented to the court in-court for his consideration.   Nor did the trial court, as in Day and Long, take judicial notice of hearsay evidence in some other court file.   Nor is there uncontradicted evidence in this record contrary to the trial court's findings.   Nor was defendant in any way denied due process or a fair and impartial hearing by the court.

 Here, to the contrary, the trial judge is entitled to take judicial notice of the entire record in the superior court file before him and the evidence before him on all issues presented in court by counsel with the parties present during the entire proceedings.   Moreover, this court under rule 12(a) of the California Rules of Court is empowered to augment the record on appeal with the total official superior court file to assist in the pursuit of truth and justice.

We repeat that the uncontradicted evidence in the total record known to the trial judge shows that defendant Gasteiger (1) was observed by the officers behind the wheel of the vehicle containing the contraband;  (2) was the owner of the vehicle;  and (3) had claimed and received return of over $4,000 in hard cash found along with a letter addressed to him at his home address next to the contraband discovered in his vehicle.   The foregoing constitutes overwhelming evidence that the defendant had physical and constructive possession of the contraband seized from his vehicle and unquestionably had knowledge of its presence and narcotic character.

As previously noted, the trial judge while taking the waivers for defendant's “slow [guilty] plea” stated that “If you [defendant] weren't found guilty, Mr. Sokolov [deputy district attorney] would fall over in a dead faint in this court.”

Similarly, if this court exalted form over substance by exorcising from the mind of the trial judge any of the above evidence bearing on the issues of possession and knowledge of the presence and character of the contraband, the judge would probably join trial counsel by falling off his bench in a dead faint.

DISPOSITION

The judgment of conviction is affirmed.

I respectfully dissent on the ground that there is no substantial evidence that defendant had knowledge of the presence and character of the drugs, an essential element of the crime.  (People v. Williams (1971) 5 Cal.3d 211, 215, 95 Cal.Rptr. 530, 485 P.2d 1146.)

As support for the missing element, the majority looks to the contents of the police report and other documents attached as exhibits to the defense motion to dismiss for lack of speedy trial.   To be sure, these documents establish defendant's ownership of the truck and the $4,345 seized with the contraband, thus supporting the inference that defendant exercised exclusive control over the truck.   A defendant's knowledge of the presence of a narcotic substance may be proven by such circumstantial evidence.  (See People v. Poehner (1971) 16 Cal.App.3d 481, 489–490, 94 Cal.Rptr. 94.)   However, the exhibits attached to the motion were not offered or received in evidence either at the hearing on the speedy trial motion or at any other time.   Accordingly, while the exhibits may contain facts known to the trial judge, they contain no evidentiary facts presented to the judge in his capacity as trier of fact.   Moreover, contrary to the position adopted by the majority, the trial court was not authorized to take judicial notice of the factual contents of the superior court file.   While a court may take judicial notice of the file, it cannot take judicial notice of the truth of facts asserted therein except in the instance of documents such as orders, findings of fact and conclusions of law, and judgments.  (Day v. Sharp (1975) 50 Cal.App.3d 904, 914, 123 Cal.Rptr. 918;  People v. Long (1970) 7 Cal.App.3d 586, 590, 86 Cal.Rptr. 590.)

It is serious misconduct for jurors to apprise themselves of pertinent facts not received in evidence.  (People v. Lambright (1964) 61 Cal.2d 482, 39 Cal.Rptr. 209, 393 P.2d 409;  People v. Tedesco (1934) 1 Cal.2d 211, 34 P.2d 467;  People v. Conkling (1896) 111 Cal. 616, 44 P. 314.)   And a judge, sitting as trier of fact, may not lawfully base his findings on facts not received in evidence.  (See Noble v. Kertz & Sons Feed & Fuel Co. (1946) 72 Cal.App.2d 153, 158, 164 P.2d 257.)   To follow any other rule “would amount to a denial of due process, and certainly would deny to a litigant the fair and impartial trial to which he is entitled.”  (Ibid.)  Defendant's constitutional rights to due process and a fair trial are not diminished by the coincidence that the judge sitting as trier of fact earlier heard an unrelated pretrial motion.   By agreement, defendant's guilt or innocence was determined on the basis of the evidence adduced at the hearing on the motion to suppress evidence as well as certain stipulations.   Inasmuch as the agreed-upon evidentiary record contains no facts from which defendant's knowledge of the presence and character of the drugs can be inferred, the judgment should be reversed.

FOOTNOTES

1.   Officer Athan stated:  “The policy of the district attorney's office at the time of this case, especially in these narcotics cases, was if the defendant had been released pending analysis of the evidence, they wished the investigators to go out and physically rearrest the defendant, bring him in, and file the case.”The record shows that defense counsel, Mr. Siegel, was afforded the opportunity and time to interview Mr. Provenzano, head of the district attorney's office, in respect to their office policy during the period in question.   Mr. Provenzano was made available at the court and defense counsel Siegel stated on the record that he had spoken to him “but I elected not to call him.”

2.   Officer Athan said it was either defendant's mother or brother who told him that defendant's father had put him in a motel in the Palm Springs area “to dry him out, get him squared away, then he was going to bring him back to the Torrance area.”

3.   The papers attached to defendant's written motion to dismiss for lack of speedy trial contained “Order for Return of Evidence” (exhibit C) prepared by Stanley R. Siegel, defendant Gasteiger's attorney, and signed by Judge William R. Hollingsworth, Jr. dated August 7, 1979, ordering the “return to defendant, Joseph Dean Gasteiger, the sum of $4345.00 booked as evidence on July 7, 1979 and related to booking number 13173–79, forthwith.”

4.   The superior court file contains the transcript of the preliminary hearing in which Officer Senger testified that also in the left wheel area was found a small scale, bundle of small plastic baggies, a brass smoking pipe, two hypodermic syringes, over $4,300 in United States currency and a document, a letter addressed to Mr. Joseph Gasteiger, bearing the address of 2244 Redondo Beach Boulevard, which was all booked into evidence.   Officer Senger also testified that he had made over 500 narcotic arrests involving similar bindles of contraband.

5.   Officer LaCroix testified at the preliminary hearing conducted on June 9, 1980, that in his opinion the possession of the phencyclidine (PCP) and marijuana was for sale “Based on the totality of the circumstances, the money [over $4,000 was also found in the pickup], the circumstances surrounding the ADW, and the quantity of the contraband and the packaging.”

6.   This evidence is contained in the testimony of Officer Senger in the reporter's transcript of the preliminary hearing conducted on June 9, 1980, a copy of which is contained in the superior court file.

7.   Defense counsel on appeal also moved to augment the record on appeal with the written motion to dismiss for lack of a speedy trial which was granted.

8.   The copy of the Torrance Police Department report in the superior court file shows that a “77 Datsun Whi p/u” bearing license number “1F98261” was “left at scene” but was later impounded.  (The impound report shows the “77 Datsun P/U” with license number 1F98261 was registered to “Joseph Gasteiger”.)   The report also contains the following:  “Victim Tamborski stated that on 07Jul79 at approx 2020 hours she and vict Gasteiger were parking victim Gasteiger's '77 Datsun pickup, license 1F98261, in the parking lot ․ when they observed the above susps drive the above susp vehicles into the parking lot and place the [two] vehicles [a Cadillac and a Chevrolet] in such a position as to block the victims' vehicles movement.”The suspects referred to above were 3 black males ranging in age from 23 to 29, namely Henry Eugene Corner, Johnny Brown, Jr., and James Bernard Bragg.The record shows the driver's window of defendant's vehicle was smashed out with a tire iron.   The police found a handgun in the Chevrolet and a shotgun in the trunk of the Cadillac.Officer J. MacKinnon filed a report dated July 8, 1979, stating:“Due to witness statements and evidence seized, it is the A/O's opinion that the aforementioned assault w/deadly weapon was connected with possible transaction in the trafficking of drugs.”“Suspect Corner voluntarily asked a question, ‘Did he have the five thousand,’ possibly referring to GASTEIGER since over $4,000 was removed from his veh, also possibly indicating that he knew that GASTEIGER had a large amount of cash.”The superior court file contains a report showing that defendant Gasteiger did not wish to prosecute his attackers, giving as a reason “I don't want to go to court.”

9.   In Conkling two jurors sitting on a murder case conducted out-of-court experiments to ascertain at what distance powder marks upon clothing would be caused by the firing of a rifle.In Tedesco a juror during the trial of a murder case made an unauthorized visit to the scene of the crime.   The state Supreme Court nevertheless affirmed the judgment of murder in the first degree stating that “such visit was an irregularity, but does not constitute misconduct warranting the granting of a new trial, unless prejudice is shown to have followed therefrom.  [Citation.]”  (People v. Tedesco, supra, 1 Cal.2d 211, 221, 34 P.2d 467.)In Lambright a juror read newspaper accounts of a case on which he was sitting.In Day the California court was faced with hearsay evidence contained in an Arizona court file.In Long a defendant was found guilty of passing a forged check where the trial court took judicial notice of another juvenile court file in which a third person had admitted the forgery.

L. THAXTON HANSON, Associate Justice.

LILLIE, J., concurs.