People v. Keding CA1/1 ( 2013 )


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  • Filed 12/26/13 P. v. Keding CA1/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION ONE
    THE PEOPLE,
    Plaintiff and Respondent,
    A136147
    v.
    BRYAN ERNEST KEDING,                                                 (Sonoma County
    Super. Ct. No. SCR-600252)
    Defendant and Appellant.
    INTRODUCTION
    In 2011, a Sonoma County Sheriff’s deputy stopped defendant Bryan Ernest
    Keding for speeding on the highway. Upon contacting Keding, the officer smelled an
    odor of marijuana emanating from the car. Defendant denied having any marijuana in the
    vehicle, but suggested the odor might be coming from his person, since he had smoked
    marijuana earlier (he had a medical marijuana recommendation). The deputy testified he
    can distinguish between the smell of burned marijuana and the smell of unburned
    marijuana, and it was the smell of unburned marijuana emanating from the car. A
    subsequent search of the vehicle yielded, among other things, a duffle bag containing 24
    pounds of marijuana. Defendant was convicted by his plea of possessing of more than
    28.5 grams of marijuana, an offense that carries a maximum punishment of six months in
    the county jail and/or a $500 fine. (Health & Saf. Code,1 § 11357, subd. (c).)
    1
    All further statutory references are to the Health and Safety Code unless
    otherwise indicated.
    On appeal, defendant contends the search of his car was illegal. He maintains
    (1) there were no articulable facts to lead a reasonable officer to believe that he possessed
    more than an ounce of marijuana; (2) under California law, the possession and
    transportation of one ounce or less of marijuana is an infraction; and (3) the search for
    evidence of an infraction violates the Fourth Amendment because (a) an infraction is a
    civil matter, (b) defendant is a qualified medical marijuana patient, and (c) the
    automobile exception to the Fourth Amendment does not apply to searches for evidence
    of petty offenses. We disagree and affirm the judgment of conviction.
    STATEMENT OF THE CASE
    A felony complaint charged defendant with possession of marijuana for sale,
    transportation of marijuana, driving on a suspended license, and speeding. (§§ 11359,
    11360, subd. (a); Veh. Code, §§ 14601, subd. (a), 22349, subd. (a).) The preliminary
    hearing and defendant’s motion to suppress evidence (Pen. Code, § 1538.5) were heard at
    the same time. The motion was denied and defendant was held to answer on both
    felonies and the speeding infraction. Following the filing of an information alleging the
    same charges, defendant renewed his motion to suppress in combination with a motion to
    set aside the information. (Pen. Code, §§ 1538.5, 995.) Both motions were denied. The
    information was amended to add a fourth count, possession of more than one ounce of
    marijuana (§ 11357, subd. (c)), to which defendant pleaded guilty in exchange for
    dismissal of the first three counts on the prosecution’s motion. Imposition of sentence
    was suspended and defendant was placed on probation for 36 months. He timely appeals
    the superior court’s order denying the motion to suppress. (Pen. Code, § 1538.5, subd.
    (m).)
    2
    STATEMENT OF THE FACTS2
    On the evening of April 10, 2011, Sonoma County Sheriff’s Deputy Terry White
    observed a silver Honda on the freeway going 75 miles per hour in a 65-mile-per-hour
    zone. Deputy White initiated a traffic stop and contacted the driver, defendant Keding.
    Deputy White approached the vehicle on the passenger’s side and talked to defendant
    through the opened window. He “could smell the odor of marijuana coming from the
    vehicle,” so he asked if defendant had a medical marijuana recommendation for the use
    of marijuana. Defendant said yes. Asked if he had any marijuana with him, defendant
    said no, but offered that the odor detected by the deputy might be coming from his
    person, since he had smoked marijuana earlier. However, according to Deputy White,
    “burnt marijuana has a different odor than nonburnt marijuana. It wasn’t what I was
    smelling.”3
    After defendant stepped out of the car at White’s request, White searched it. In
    the cargo area of the vehicle White found, among other things, a duffle bag containing 24
    one-pound bags of marijuana and one smaller bag of marijuana; and a black garbage bag
    containing three one-pound bags of marijuana and one smaller bag of marijuana.
    DISCUSSION
    Defendant argues that the trial court erred in denying his motion to suppress
    because there was no articulable basis for a reasonable belief that defendant was in
    2
    The statement of facts is drawn from the testimony adduced at the joint
    preliminary hearing/motion to suppress evidence. (See Pen. Code § 1538.5, subd. (i) [“If
    the motion was made at the preliminary hearing, unless otherwise agreed to by all parties,
    evidence presented at the special hearing shall be limited to the transcript of the
    preliminary hearing and to evidence that could not reasonably have been presented at the
    preliminary hearing, except that the people may recall witnesses who testified at the
    preliminary hearing.”].)
    3
    Deputy White, an 18-year law enforcement veteran, testified about his extensive
    training and experience related to the investigation of narcotics cases, including his
    attendance at various law enforcement training seminars dealing specifically with
    medical marijuana, and “hundreds of occasions” on which he had “seen, handled and
    smelled marijuana in different stages [of growth].” He also testified that his expertise in
    knowing burned marijuana from unburned marijuana came from his experience.
    3
    possession of more than one ounce of marijuana. He hypothesizes that such a belief is
    critical to the legality of the search here because he is a “qualified patient” within the
    meaning of the Compassion Use Act of 1996 (CUA) (§ 11362.5) and the Medical
    Marijuana Program (MMP) (§ 11362.7 et seq.). Boiled down to its essential parts,
    defendant’s argument is that there was a “complete lack of articulable facts . . . to
    establish a reasonable suspicion” defendant possessed more than one ounce of marijuana
    during the traffic stop. Since possession of less than one ounce of marijuana is not a
    crime but a civil matter in California, the search for evidence of an infraction is per se
    unreasonable under the Fourth Amendment, and the automobile exception to the Fourth
    Amendment’s warrant requirement does not permit the warrantless search for evidence of
    a petty offense. We disagree. Before explaining our reasons for doing so, we set forth
    the standard of review which governs our analysis.
    A. Standard of Review
    In this case the magistrate who presided at the preliminary hearing is the finder of
    fact, and his or her factual resolutions are binding on this court as well as the trial court.
    (People v. Trujillo (1990) 
    217 Cal. App. 3d 1219
    , 1223; § 1538.5, subd. (i).) In reviewing
    the denial of defendant’s motion to suppress evidence under Penal Code section 1538.5,
    we defer to the magistrate’s express and implied factual findings if they are supported by
    substantial evidence (People v. Woods (1999) 
    21 Cal. 4th 668
    , 673), and indulge all
    inferences in favor of the lower court’s order. (People v. Brown (1990) 
    216 Cal. App. 3d 1442
    , 1447.) We exercise independent judgment to determine whether, on the facts
    found by the fact finder, the search was lawful. (People v. Woods, at pp. 673–674.)
    B. The CUA and MMP
    We first address defendant’s underlying contention that defendant’s status as a
    medical marijuana patient should have immunized him from Deputy White’s
    investigatory scrutiny. The CUA, enacted in 1996 by the initiative process as part of
    Proposition 215, provides in relevant part: “Section 11357, relating to the possession of
    marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a
    patient . . . who possesses or cultivates marijuana for the personal medical purposes of the
    4
    patient upon the written or oral recommendation or approval of a physician.”4
    (§ 11362.5, subd. (d).)
    As our supreme court explained in People v. Kelly (2010) 
    47 Cal. 4th 1008
    (Kelly),
    “the CUA provides an affirmative defense to prosecution for the crimes of possession
    and cultivation. [Citations.] The CUA does not grant immunity from arrest for those
    crimes, however. So long as the authorities have probable cause to believe that
    possession or cultivation has occurred, law enforcement officers may arrest a person for
    either crime regardless of the arrestee’s having a physician’s recommendation or
    approval.” (Id. at p. 1013; see also People v. Mower (2002) 
    28 Cal. 4th 457
    , 467; People
    v. Strasburg (2007) 
    148 Cal. App. 4th 1052
    , 1058; Littlefield v. County of Humboldt
    (2013) 
    218 Cal. App. 4th 243
    , 250.)
    In 2003, the Legislature enacted article 2.5 of division 10, chapter 6 of the Health
    and Safety Code, known as the Medical Marijuana Program. (§ 11362.7 et seq.) “At the
    heart of the MMP is a voluntary ‘identification card’ scheme that, unlike the CUA—
    which, as noted, provides only an affirmative defense to a charge of possession or
    cultivation—provides protection against arrest for those and related crimes. Under the
    MMP, a person who suffers from a ‘serious medical condition,’ . . . may register and
    receive an annually renewable identification card that, in turn, can be shown to a law
    enforcement officer who otherwise might arrest the program participant or his or her
    primary caregiver.” 
    (Kelly, supra
    , 47 Cal.4th at p. 1014, fns. omitted; § 11362.71.)
    4
    Section 11362.5 also provides in relevant part that the purpose of the CUA is
    “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for
    medical purposes where that medical use is deemed appropriate and has been
    recommended by a physician who has determined that the person’s health would benefit
    from the use of marijuana” and “[t]o ensure that patients . . . who obtain and use
    marijuana for medical purposes upon the recommendation of a physician are not subject
    to criminal prosecution or sanction. [¶] . . . [¶] . . . Nothing in this section shall be
    construed to supersede legislation prohibiting persons from engaging in conduct that
    endangers others, nor to condone the diversion of marijuana for nonmedical purposes.”
    (Id., subds. (b)(1)(A), (B) & (b)(2).)
    5
    Defendant maintains he comes within the “safe harbor provision” of the MMP
    because he has a medical marijuana recommendation and, as such, is a “qualified patient”
    within the meaning of the CUA and MMP.5 However, so far as this record shows, he did
    not possess an identification card. Thus, his status as a “qualified patient” under the
    CUA and MMP did not immunize him from reasonable police investigations or searches.
    (People v. 
    Strasburg, supra
    , 148 Cal.App.4th at p. 1058.) “[T]he [CUA] provides a
    5
    “A ‘qualified patient’ is defined by the MMP as ‘a person who is entitled to the
    protections of Section 11362.5 [the CUA], but who does not have an identification card
    issued pursuant to this article.’ (§ 11362.7, subd. (f).)” 
    (Kelly, supra
    , 47 Cal.4th at
    p. 1016, fn. 7.)
    The MMP’s “safe harbor provision”—section 11362.77, subdivision (f)—
    authorizes possession of certain amounts of medical marijuana. “It provides that a
    ‘qualified patient or a person holding a valid identification card . . . may possess amounts
    of marijuana consistent with this article [that is, as provided in subdivisions (a)–(c) of
    section 11362.77.]’ ” 
    (Kelly, supra
    , 47 Cal.4th at p. 1016.) Qualified patients may
    possess “no more than eight ounces of dried marijuana.” (§ 11362.77, subd. (a).)
    However, the CUA does not “specify an amount of marijuana that a patient may
    possess or cultivate; it states instead that the marijuana possessed or cultivated must be
    for the patient’s ‘personal medical purposes.’ [Citation.] An early decision construed
    this provision of the CUA as establishing ‘that the quantity possessed by the patient or
    the primary caregiver, and the form and manner in which it is possessed, should be
    reasonably related to the patient’s current medical needs.’ ” 
    (Kelly, supra
    , 47 Cal.4th at
    p. 1013, italics added by Kelly.) Kelly found that in enacting quantitative limits on the
    amounts of marijuana qualified patients could possess or cultivate in section 11362.77,
    the Legislature impermissibly amended the CUA without voter approval. (Kelly, at
    p. 1012.) “By extending the reach of section 11362.77’s quantity limitations beyond
    those persons who voluntarily register under the MMP and obtain an identification card
    that provides protection against arrest—and by additionally restricting the rights of all
    ‘qualified patients’ and ‘primary caregivers’ who fall under the CUA—the challenged
    language of section 11362.77 effectuates a change in the CUA that takes away from
    rights granted by the initiative statute.” (Id. at p. 1043.)
    Nevertheless, the court invalidated the statute only insofar as it prevented a
    qualified patient from asserting, “as a defense in court, that he or she possessed or
    cultivated an amount of marijuana reasonably related to meet his or her current medical
    needs [citation] without reference to the specific quantitative limitations specified by the
    MMP.” 
    (Kelly, supra
    , 47 Cal.4th at p. 1049.) The court declined to sever
    section 11362.77 from the MMP or otherwise declare it void. (Kelly, at p. 1049.)
    6
    limited immunity—not a shield from reasonable investigation. An officer with probable
    cause to search is not prevented from doing so by someone presenting a medical
    marijuana card or a marijuana prescription.” (Id. at p. 1060.)
    C. An Infraction Is Not a Civil Matter
    Defendant’s next contention—that possession of less than one ounce of marijuana
    is not a criminal offense, because it is an infraction—is also incorrect. Pursuant to Penal
    Code section 16, an infraction is a crime or public offense. A violation of section 11357,
    subdivision (c)—possession of less than one ounce of marijuana—is an infraction.
    Therefore, it is a crime or public offense, albeit a minor one. (See also Pen. Code §§ 17,
    19.8.) As defendant acknowledges, Penal Code section 1524, subdivision (a)(3)
    authorizes the issuance of a warrant upon a showing of probable cause “[w]hen the
    property or things are in the possession of any person with the intent to use it as a means
    of committing a public offense.” Defendant relies on cases describing infractions as
    noncriminal because “[p]roceedings on infractions are not attended by the same
    constitutional safeguards attending felony or misdemeanor prosecutions.” (People v.
    Sava (1987) 
    190 Cal. App. 3d 935
    , 939 [rule forbidding successive prosecutions]; People
    v. Battle (1975) 50 Cal.App.3d Supp.1, 6 [rights to jury trial, appointed counsel].)
    However, “ ‘cases are not authority for propositions not considered.’ ” (Sonic-Calabasas
    A, Inc. v. Moreno (2013) 
    57 Cal. 4th 1109
    , 1160.) Neither Sava nor Battle is authority for
    defendant’s assertion that Penal Code section 1524, subdivision (a)(3) “does not apply to
    infractions because an infraction is neither a crime nor a public offense.”
    Nor is there any basis for defendant’s assertion that an infraction, for the purposes
    of the Fourth Amendment, is a “civil matter.” “If an officer has probable cause to
    believe that an individual has committed even a very minor criminal offense in his
    presence, he may, without violating the Fourth Amendment, arrest the offender.”
    (Atwater v. Lago Vista (2001) 
    532 U.S. 318
    , 354 [mandatory seat belt law].) “Under
    Atwater, all that is needed to justify a custodial arrest is a showing of probable cause. . . .
    We must therefore conclude that there is nothing inherently unconstitutional about
    effecting a custodial arrest for a fine-only offense.” (People v. McKay (2002) 
    27 Cal. 4th 7
    601, 607 [riding a bicycle the wrong way on a residential street].) Likewise, under the
    Fourth Amendment, all that is needed to justify the search of an automobile properly
    stopped on a highway is probable cause to believe the automobile “contains contraband,
    evidence of a crime, or was itself an instrumentality of the commission of one.” (People
    v. Laursen (1972) 
    8 Cal. 3d 192
    , 201.) “In this class of cases, a search is not unreasonable
    if based on facts that would justify the issuance of a warrant, even though a warrant has
    not actually been obtained.” (United States v. Ross (1982) 
    456 U.S. 798
    , 809, fn.
    omitted.)
    We concluded that neither defendant’s status as a qualified patient under the CUA
    and MMP, or section 11357, subdivision (c)’s status as an infraction, provided any
    impediment to Deputy White’s investigation into the origin of the unburned marijuana
    smell emanating from defendant’s car. We therefore now turn to the question whether
    Deputy White had probable cause to search defendant’s car for evidence of the unlawful
    possession of marijuana.
    D. Probable Cause: Defendant’s Evasive Reply and the Odor of Unburned Marijuana
    Defendant argues probable cause was lacking here because Deputy White could
    not determine the quantity of marijuana from smell alone, and had no articulable basis for
    inferring that defendant was being untruthful when he denied possessing any marijuana.
    We disagree. Probable cause posits “a fair probability that contraband or evidence of a
    crime will be found in a particular place.” (Illinois v. Gates (1983) 
    462 U.S. 213
    , 238.)
    “[P]robable cause requires only a probability or substantial chance of criminal activity,
    not an actual showing of such activity.” (Id. at p. 243, fn. 13.) Deputy White testified
    that he smelled the odor of unburned marijuana through the opened car window. It was
    an odor with which he was very familiar, based on his extensive training and experience.
    Defendant’s explanation for the odor—that he had been smoking marijuana earlier—
    contradicted the evidence under the deputy’s nose. Under these circumstances the officer
    was entitled to infer that defendant’s denial of marijuana possession was probably untrue,
    and that his admission to smoking marijuana earlier, even if true, was designed to deflect
    the deputy from searching for the source of the unburned marijuana smell coming from
    8
    the car. The magistrate expressly credited Deputy White’s testimony, and substantial
    evidence supports the inference that defendant’s responses to White’s inquiries were
    evasive. Under the appropriate standard of review, we must defer to the magistrate’s
    express and implied factual findings if they are supported by substantial evidence, and
    indulge all inferences in favor of the lower court’s order. (People v. 
    Woods, supra
    ,
    21 Cal.4th at p. 673; People v. 
    Brown, supra
    , 216 Cal.App.3d at p. 1447.)
    The magistrate’s findings support the conclusion that Deputy White had probable
    cause to search defendant’s vehicle. Case law establishes that the odor of unburned
    marijuana, alone or in combination with other circumstances, may justify the search of a
    car for marijuana. (People v. Cook (1975) 
    13 Cal. 3d 663
    , 667–669, overruled on other
    grounds in People v. Doolin (2009) 
    45 Cal. 4th 390
    , 421; United States v. Johns (1985)
    
    469 U.S. 478
    , 482; People v. 
    Strasburg, supra
    , 148 Cal.App.4th at p. 1055.) Here, the
    odor of unburned marijuana, coupled with defendant’s evasive responses to the deputy’s
    inquiries, provided probable cause for the search of the car for the source of the odor.
    The motion to suppress was properly denied.
    DISPOSITION
    The judgment is affirmed.
    9
    _________________________
    Dondero, Acting P.J.
    We concur:
    _________________________
    Banke, J.
    _________________________
    Becton, J.*
    *
    Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
    pursuant to article VI, section 6 of the California Constitution.
    10
    

Document Info

Docket Number: A136147

Filed Date: 12/26/2013

Precedential Status: Non-Precedential

Modified Date: 4/18/2021