People v. Melnyk , 6 Cal. Rptr. 2d 570 ( 1992 )

Opinion

CROSBY, J.

Does a car thief have standing to attack an allegedly illegal search and seizure of the vehicle? No.

A Fountain Valley patrol officer found Richard Robert Melnyk sleeping in an automobile in a restaurant parking lot about 1:45 a.m. on December 22, 1989. A mother and her baby were also sleeping inside. After an acrimonious detention and the arrival of backup officers, police searched the interior of the vehicle. Purloined property was found within, and the automobile itself was subsequently discovered to be stolen.

Despite some authority to the contrary (see People v. Glick (1988) 203 Cal.App.3d 796, 799 [250 Cal.Rptr. 315]), we believe the law is clear that an auto thief, like a second-story man apprehended in the victimized premises, has no standing to assert a reasonable expectation of privacy in the stolen car. In Rakas v. Illinois (1978) 439 U.S. 128 [58 L.Ed.2d 387, 99 S.Ct. 421], the United States Supreme Court discussed that very point: “The Court in Jones [v. United States (1960) 362 U.S. 257 (4 L.Ed.2d 697, 80 S.Ct. 725, 78 A.L.R.2d 233)] was quite careful to note that ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search. [Citation.] The Court stated: ‘No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.' [Citation.] ([E]mphasis added.) Despite this clear statement in Jones, several lower courts inexplicably have held that a person present in a stolen automobile at the time of a search may object to the lawfulness of the search of the automobile. [Citations.]” (Id. at p. 141, fn. 9 [58 L.Ed.2d at pp. 399-400].) Consequently, we disagree with the Glick decision to the extent it holds otherwise and determine Melnyk lacked standing to contest the search and seizure of the car.¹ (See 4 LaFave, Search and Seizure (2d ed. 1987) § 11.3(e), pp. 322-341.)

Judgment affirmed.²

Sills, P. J., concurred.

1 The parties agree the court decided the motion to suppress on the merits, although the district attorney did object to defendant’s standing. They also agree that the judge never ruled on that issue. This failure to obtain a ruling below, the defense argues, forecloses the question of standing on appeal.

We disagree. Where a pure question of law is presented and it is clear no other evidence could be offered on the point, a reviewing court may consider a new theory even though it was never raised in the trial court. (Green v. Superior Court (1985) 40 Cal.3d 126, 138 [219 Cal.Rptr. 186, 707 P.2d 248]; People v. Neer (1986) 177 Cal.App.3d 991, 1006 [223 Cal.Rptr. 555] (dis. opn. of Crosby, J.).)

2 Defendant does raise another issue, but it is so frivolous we decline to address it in the body of the opinion. Certain allegedly coerced statements made by the female arrested with Melnyk found their way into his trial, to his prejudice we are told. But in both opening statement and closing argument, defense counsel conceded his client was guilty of either taking the automobile without the owner’s consent or receiving stolen property and told the jury to select one or the other. The jury elected the former, a violation of Vehicle Code section 10851 (the range of punishment for receiving stolen property is essentially the same).

The trial was about a companion burglary charge, but the jurors could not reach a verdict on that one. It was eventually dismissed when Melnyk, who appears to have decided on a career, admitted three prior convictions. Now, we are seriously urged to find his fellow arrestee’s allegedly coerced statements prejudiced him because an acquittal on the burglary count might have meant a better arrangement with the prosecution. If Rube Goldberg had chosen law school over cartooning, that sort of reasoning might have caught on. Fortunately, he did not.