People v. Musante

California Court of Appeal

People v. Musante

102 Cal. App. 3d 156, 162 Cal. Rptr. 158, 1980 Cal. App. LEXIS 1473

CourtCalifornia Court of Appeal

DecidedFebruary 14, 1980

DocketCrim. 10041

StatusPublished

Cited by17 cases

This text of 102 Cal. App. 3d 156 (People v. Musante) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Musante, 102 Cal. App. 3d 156, 162 Cal. Rptr. 158, 1980 Cal. App. LEXIS 1473 (Cal. Ct. App. 1980).

Pincite

Opinions

Opinion

GARDNER, P. J.

Defendant pled guilty to burglary. Insofar as this count is concerned, he contends (1) that the trial court failed to advise [158]*158him of the direct consequences of his guilty plea, and (2) that the degree of burglary was not specifically designated although he was sentenced for first degree burglary.

The lack of a certificate of probable cause precludes consideration of these contentions. We agree completely with the stand taken by the court in People v. Pinon (1979) 96 Cal.App.3d 904 [158 Cal.Rptr. 425] that if Penal Code section 1237.5 is to retain any viability in the statutory scheme, appellate courts cannot engage in a wholesale disregard of its procedural requirements. Judicial economy, the usual excuse for circumventing this section, is a sorry excuse for ignoring a statute which was enacted for that very consideration.

However, just to avoid an inevitable collateral attack on the basis of inadequacy of counsel for not securing a certificate of probable cause, we would observe that the defendant’s contentions insofar as the burglary charge are without merit. This was a plea bargain. The defendant was advised of the direct consequences of his guilty plea and that advisement made it clear that he was pleading guilty to first degree burglary. The advisement was that he was to receive a two-, three- or four-year state prison term. That is the penalty attached to first degree burglary. Second degree burglary is punishable by either county jail or state prison (Pen. Code, § 461). The state prison term for second degree burglary is sixteen months or two or three years (Pen. Code, § 18). Therefore, no question can arise as to the fact that defendant pled guilty to first degree burglary with the possible penalty specified. Thus, defendant’s contentions if considered in spite of the failure to secure a certificate of probable cause would be held to be meritless.

The judgment of conviction of burglary will be affirmed.

At the same time the defendant pled guilty to the burglary, he pled guilty to possession of marijuana for sale after an unsuccessful motion to suppress. We review the motion to suppress.

Stripped to their essentials the facts are really quite simple. Officers stopped a car which, was being operated in an erratic manner. Defendant was the passenger; his wife the driver. Prompt investigation revealed that the car was stolen. Defendant and his wife were arrested. On the back seat was a large box described as an electric blanket box. This box was opened and in it was a large amount of marijuana. It is the opening of this box which is the bone of contention.

[159]*159At the time of this hearing, the issue seemed fairly clear. In People v. Upton (1968) 257 Cal.App.2d 677 [65 Cal.Rptr. 103], it was held that it was reasonable for officers to search a stolen car and in so doing to open suitcases or boxes found in that car for the purpose of ascertaining ownership or whether they contained any stolen material. (See Witkin, Cal. Evidence (2d ed., 1977 supp.) § 120A.) Applying Upton to the facts of this case, when the officers found themselves in possession of a stolen car, it would appear reasonable for them to open the box which from its markings contained an electric blanket. It became necessary to ascertain either ownership of the blanket or whether it had been stolen.

Of course, Upton was decided before the current spate of footlocker/ brief case/package/closed container cases. (United States v. Chadwick (1977) 433 U.S. 1 [53 L.Ed.2d 538, 97 S.Ct. 2476]; Arkansas v. Sanders (1979) 442 U.S. 735 [61 L.Ed.2d 235, 99 S.Ct. 2586]; People v. Minjares (1979) 24 Cal.3d 410 [153 Cal.Rptr. 224, 591 P.2d 514]; People v. Dalton (1979) 24 Cal.3d 850 [157 Cal.Rptr. 497, 598 P.2d 467].) Upton might have had continued vitality under Chadwick, Sanders and Minjares. However, Dalton shot Upton down in flames. Under circumstances almost identical to those in the instant case, the Supreme Court held that closed boxes or containers in a stolen vehicle cannot be opened without a search warrant. Under the compulsion of Dalton, we reverse the conviction of possession of marijuana for sale.

Affirmed in part; reversed in part.

Kaufman, J., and McDaniel, J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion

GARDNER, P. J.

Defendant pled guilty to burglary. Insofar as this count is concerned, he contends (1) that the trial court failed to advise [158]*158him of the direct consequences of his guilty plea, and (2) that the degree of burglary was not specifically designated although he was sentenced for first degree burglary.

The lack of a certificate of probable cause precludes consideration of these contentions. We agree completely with the stand taken by the court in People v. Pinon (1979) 96 Cal.App.3d 904 [158 Cal.Rptr. 425] that if Penal Code section 1237.5 is to retain any viability in the statutory scheme, appellate courts cannot engage in a wholesale disregard of its procedural requirements. Judicial economy, the usual excuse for circumventing this section, is a sorry excuse for ignoring a statute which was enacted for that very consideration.

However, just to avoid an inevitable collateral attack on the basis of inadequacy of counsel for not securing a certificate of probable cause, we would observe that the defendant’s contentions insofar as the burglary charge are without merit. This was a plea bargain. The defendant was advised of the direct consequences of his guilty plea and that advisement made it clear that he was pleading guilty to first degree burglary. The advisement was that he was to receive a two-, three- or four-year state prison term. That is the penalty attached to first degree burglary. Second degree burglary is punishable by either county jail or state prison (Pen. Code, § 461). The state prison term for second degree burglary is sixteen months or two or three years (Pen. Code, § 18). Therefore, no question can arise as to the fact that defendant pled guilty to first degree burglary with the possible penalty specified. Thus, defendant’s contentions if considered in spite of the failure to secure a certificate of probable cause would be held to be meritless.

The judgment of conviction of burglary will be affirmed.

At the same time the defendant pled guilty to the burglary, he pled guilty to possession of marijuana for sale after an unsuccessful motion to suppress. We review the motion to suppress.

Stripped to their essentials the facts are really quite simple. Officers stopped a car which, was being operated in an erratic manner. Defendant was the passenger; his wife the driver. Prompt investigation revealed that the car was stolen. Defendant and his wife were arrested. On the back seat was a large box described as an electric blanket box. This box was opened and in it was a large amount of marijuana. It is the opening of this box which is the bone of contention.

[159]*159At the time of this hearing, the issue seemed fairly clear. In People v. Upton (1968) 257 Cal.App.2d 677 [65 Cal.Rptr. 103], it was held that it was reasonable for officers to search a stolen car and in so doing to open suitcases or boxes found in that car for the purpose of ascertaining ownership or whether they contained any stolen material. (See Witkin, Cal. Evidence (2d ed., 1977 supp.) § 120A.) Applying Upton to the facts of this case, when the officers found themselves in possession of a stolen car, it would appear reasonable for them to open the box which from its markings contained an electric blanket. It became necessary to ascertain either ownership of the blanket or whether it had been stolen.

Of course, Upton was decided before the current spate of footlocker/ brief case/package/closed container cases. (United States v. Chadwick (1977) 433 U.S. 1 [53 L.Ed.2d 538, 97 S.Ct. 2476]; Arkansas v. Sanders (1979) 442 U.S. 735 [61 L.Ed.2d 235, 99 S.Ct. 2586]; People v. Minjares (1979) 24 Cal.3d 410 [153 Cal.Rptr. 224, 591 P.2d 514]; People v. Dalton (1979) 24 Cal.3d 850 [157 Cal.Rptr. 497, 598 P.2d 467].) Upton might have had continued vitality under Chadwick, Sanders and Minjares. However, Dalton shot Upton down in flames. Under circumstances almost identical to those in the instant case, the Supreme Court held that closed boxes or containers in a stolen vehicle cannot be opened without a search warrant. Under the compulsion of Dalton, we reverse the conviction of possession of marijuana for sale.

Affirmed in part; reversed in part.

Kaufman, J., and McDaniel, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

102 Cal. App. 3d 156, 162 Cal. Rptr. 158, 1980 Cal. App. LEXIS 1473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-musante-calctapp-1980.

Opinions

Related

Cite This Page — Counsel Stack