Filed 5/1/14 P. v. Aceves CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065993
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF142820A)
                   v.

ADRIAN ACEVES,                                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
         Francine R. Tone, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Cornell, J. and Detjen, J.
       After the trial court denied his motion to suppress evidence of a firearm, defendant
Adrian Aceves pled no contest to being a felon in possession of a firearm (Pen. Code,
§ 29800, subd. (a)(1)). The court sentenced him to 16 months in prison. On appeal, he
contends his car was improperly impounded and therefore the subsequent inventory
search of the car, which produced the firearm, was illegal. Thus, he argues, the trial court
erred in denying his motion to suppress. We disagree and will affirm.
                                         FACTS
       Bakersfield Police Officer Lewis testified that on July 1, 2012, at about
12:37 a.m., he was in uniform and driving a patrol vehicle with his partner, Officer
McAfee. Lewis observed a tan Cadillac that had come to a stop about five feet past the
first limit line at an intersection, a violation of Vehicle Code section 22450.1 Lewis
conducted a stop on the car. He contacted both defendant, who was driving, and his
passenger, and asked them for identification. Defendant provided a California
identification card. Lewis conducted a series of record checks based on this card, which
revealed that defendant’s driver’s license had been suspended or revoked and that he was
on probation. Lewis and McAfee directed both defendant and his passenger out of the
car, patted them down for weapons, and seated them on the curb next to the car. Lewis
then decided to impound the car and conduct an inventory search, based on the status of
defendant’s driver’s license and the area’s high crime, such as property crimes. It was his
community caretaking function to protect the vehicle for the owner and also to protect the
department from liability in the event of loss. The Bakersfield Police Department had
policies in place for impounding and inventorying vehicles, and Lewis followed those
policies in this case. Lewis also had discretion in deciding whether to inventory a vehicle
where the driver’s license was suspended or revoked, and he exercised that discretion in


1      All further statutory references are to the Vehicle Code unless otherwise noted.



                                             2.
this case. Lewis did not ask defendant for permission to allow the passenger to drive the
car.
       Lewis conducted an inventory search of the car, checking items in the car, on the
outside of the car, and under the hood. Lewis lifted the hood to see if a battery was
present. He observed a red rag by the air filter, which he discovered was holding a
.22-caliber revolver. At this point, Lewis decided to impound and tow the car.
       Lewis decided not to allow the passenger to drive the car away because the
passenger was also arrested as possibly possessing a weapon. There were no other
bystanders or family members present that could have driven the car away.
       On cross-examination, Lewis explained that when he checked defendant’s records,
he read the court minutes from a 2010 case for which defendant had served a prison term.
A database stated defendant was searchable at any time.
       Regarding Lewis’s decision that the passenger could not drive the car away,
defense counsel cross-examined Lewis as follows:

              “Q. You stated earlier that you did not take [into account] whether
       or not [the passenger] could drive the car before you decided to impound it?

              “A.    Yeah, he was under arrest as well.

              “Q.    Is it true that [the passenger] was arrested after a search of the
       vehicle?

              “A.    Yes.

              “Q. Before you conducted the inventory search, you did not take
       into account whether or not [the passenger] could drive the vehicle?

              “A.    No. It was at that point it wasn’t a thought in my mind.

              “Q.    Why not?

              “A. Well, I think it’s because I’ve been doing this job for quite
       awhile, and I know after completing all the necessary steps until the time of
       release, or until the detention is over with.



                                             3.
             “Q. Do you use your discretion in these situations, do you always
      impound the vehicle and you never ask whether or not the passenger can
      drive[] the vehicle?

             “A.    No, I do that as well.

             “Q.    In this case you decided not to ask the passenger?

             “A.    I haven’t gotten to that point yet during the time of the
      contact.

             “Q.    You never got to that point before the search?

             “A.    No. I’d be skipping a step if I did that.

             “Q.    What do you mean, you’d be skipping a step?

              “A. Well, if I had asked [the passenger] if he could drive the car
      prior to finishing my inventory search of the vehicle that would be skipping
      a step.

             “Q. Do you conduct an inventory search before or after you
      decide to impound the vehicle?

             “A. If I’m going to impound the vehicle, I will conduct an
      inventory search of it.

           “Q. At that point you had already decided you were going to
      impound the vehicle?

             “A.    Yes.

             “Q.    Before you searched the vehicle?

             “A.    Correct.

             “Q. Before you made the decision to impound the vehicle you did
      not check whether or not [the passenger] could drive [the] vehicle?

             “A.    No, I did not.”
      Lewis remembered testifying at the preliminary hearing that he searched the
vehicle both because he believed defendant was on probation and to conduct an inventory
search.



                                             4.
       Lewis explained the general policy regarding when to impound a vehicle: “You
should impound the vehicle if it’s in [a] high crime area or if there’s a possibility the
vehicle could be broken into or stolen. You should also impound the vehicle if there’s
nobody there to pick it up. However, if there is somebody there at the scene or somebody
close by, reasonable amount of time to take the vehicle, you could do that with the
permission of the owner of the vehicle.” Lewis said he would not impound every car
after making arrests for driving without a license.
       Lewis said his inventory search procedure included checking under the hood.
       After hearing this testimony, the court took judicial notice that defendant was no
longer on probation at the time of the traffic stop.
       Defense counsel argued that Lewis should have asked the passenger if he could
drive the car. If the passenger could have done so, Lewis would have had no reason to
impound the car. Counsel argued that the search was an investigative search, not an
impound search, and Lewis conducted it as a ruse to find criminal activity.
       The trial court ruled as follows:

              “I’ll indicate, based on the testimony I heard today, that I do not
       believe this was a pretext search. [¶] I believe the officer made a valid stop
       based on the Vehicle Code violation, and the investigation continued based
       on the defendant driving with a suspended license. [¶] I believe the officer
       followed the proper procedures and protocol of the Bakersfield Police
       Department in determining whether to conduct an impound and inventory
       search.

              “There was no evidence presented to the Court that the defendant
       requested that the officer release his vehicle to the passenger. I don’t think
       the officer’s obligated to request that; I think the defendant could have
       requested it and then the officer could have made a discretionary [decision]
       whether to agree to that request. In this case there was no evidence that that
       request was ever made.

              “I believe the officer was well within his discretion to impound the
       vehicle, due to defendant driving with a suspended license. It was during



                                              5.
       the course of an impound and inventory, which led to finding the firearm,
       which led to arrest of both suspects in the vehicle.

             “So there was no violation here that would require the Court to
       suppress the evidence, so the motion is denied.”
                                       DISCUSSION
I.     Law
       When we review a trial court’s ruling on a suppression motion, we defer to the
trial court’s factual findings that are supported by substantial evidence. (People v.
Hughes (2002) 27 Cal.4th 287, 327.) Whether a search is constitutionally reasonable,
however, is a legal question upon which we exercise our independent judgment. (Ibid.)
       The Fourth Amendment guarantees the right to be free of unreasonable searches
and seizures by law enforcement personnel. A warrantless search or seizure is presumed
to be unlawful. (U.S. Const., 4th Amend.; Mincey v. Arizona (1978) 437 U.S. 385, 390.)
“The prosecution always has the burden of justifying the search [or seizure] by proving
[it] fell within a recognized exception to the warrant requirement.” (People v. Williams
(2006) 145 Cal.App.4th 756, 761 (Williams).)
       Inventory searches of police-impounded cars are a well-recognized exception to
the warrant requirement because they serve “to protect an owner’s property while it is in
the custody of the police, to insure against claims of lost, stolen, or vandalized property,
and to guard the police from danger.” (Colorado v. Bertine (1987) 479 U.S. 367, 372
(Bertine).) Nonetheless, it is well established that inventory searches must not be a “ruse
for a general rummaging in order to discover incriminating evidence.” (Florida v. Wells
(1990) 495 U.S. 1, 4; People v. Williams (1999) 20 Cal.4th 119, 126.) “‘[A]n inventory
search conducted pursuant to an unreasonable impound is itself unreasonable.’
[Citation.]” (People v. Torres (2010) 188 Cal.App.4th 775, 786.) “The purpose behind
the decision to impound is crucial because of the reason for condoning inventory searches
of impounded cars,” which was to secure or protect the car and its contents. (Id. at
pp. 786-787.)

                                              6.
       “The decision to impound the vehicle must be justified by a community caretaking
function ‘other than suspicion of evidence of criminal activity’ [citation] because
inventory searches are ‘conducted in the absence of probable cause’ [citation].” (People
v. Torres, supra, 188 Cal.App.4th. at p. 787.) “Just as inventory searches are exceptions
to the probable cause requirement, they are also exceptions to the usual rule that the
police officers’ ‘[s]ubjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.’ [Citation.]” (Ibid.) “[C]ourts will explore police officers’
subjective motivations for impounding vehicles in inventory search cases, even when
some objectively reasonable basis exists for the impounding.” (Id. at pp. 787-788.)
       “As part of their ‘“community caretaking functions,”’ police officers may
constitutionally impound vehicles that ‘jeopardize … public safety and the efficient
movement of vehicular traffic.’ [Citation.] Whether ‘impoundment is warranted under
this community caretaking doctrine depends on the location of the vehicle and the police
officers’ duty to prevent it from creating a hazard to other drivers or being a target for
vandalism or theft.’ [Citation.]” (Williams, supra, 145 Cal.App.4th at p. 761.) “Nothing
… prohibits the exercise of police discretion [in deciding to impound a vehicle] so long
as that discretion is exercised according to standard criteria and on the basis of something
other than suspicion of evidence of criminal activity.” (Bertine, supra, 479 U.S. at
p. 375; see also South Dakota v. Opperman (1976) 428 U.S. 364, 375-376.) “[S]tatutory
authorization does not, in and of itself, determine the constitutional reasonableness of the
[impoundment].” (Williams, supra, at p. 762.)
II.    Analysis
       Defendant first argues that Lewis lacked statutory authority to impound
defendant’s car because he did not cite or arrest defendant for the Vehicle Code violation
before conducting the search; instead, he arrested him after finding the firearm during the
search.



                                              7.
       Section 14602.6, subdivision (a)(1) provides: “Whenever a peace officer
determines that a person was driving a vehicle while his or her driving privilege was
suspended or revoked, … the peace officer may either immediately arrest that person and
cause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic
collision, cause the removal and seizure of the vehicle without the necessity of arresting
the person ….” And section 22651, subdivision (p) provides: “A peace officer … may
remove a vehicle located within the territorial limits in which the officer or employee
may act, under the following circumstances: [¶] … [¶] (p) When the peace officer issues
the driver of a vehicle a notice to appear for a violation of Section 12500 [driving while
not holding a valid driver’s license], 14601, 14601.1, 14601.2, 14601.3, 14601.4,
14601.5, or 14604 and the vehicle is not impounded pursuant to Section 22655.5.…”
       Defendant relies on United States v. Cervantes (2012) 703 F.3d 1135, where the
court noted that it was not clear the officers complied with the relevant impound statutes
because they did not arrest the defendant until narcotics were discovered during the
inventory search. (Id. at pp. 1142-1143.)2
       We believe, however, that the trial court in this case was justified in drawing the
reasonable inference that Lewis intended to cite or arrest defendant for driving with a
suspended or revoked license and would have done so. Lewis testified that he decided to
impound defendant’s car because defendant was driving with a suspended or revoked
license. The reasonable inference was that Lewis would have cited or arrested defendant
for that violation either before or after the inventory search. The sequence of the two
events does not seem significant in this case. The inference that Lewis intended to cite or

2      We note that although California courts are bound by the decisions of the United
States Supreme Court interpreting the federal Constitution, they are not bound by the
decisions of lower federal courts, even on federal questions. Such decisions are
persuasive and entitled to great weight, but they do not bind California courts. (People v.
Bradley (1969) 1 Cal.3d 80, 86.)



                                              8.
arrest is further supported by the lack of any evidence that Lewis expected to uncover
evidence of a crime inside the car. (See People v. Burch (1986) 188 Cal.App.3d 172,
175, 180 [officer testified he intended to cite the defendant for the suspended license and
therefore conducted an inventory search of the car prior to impounding it; during the
inventory, the officer discovered methamphetamine, and the defendant was arrested for
possession of a controlled substance; court noted in upholding the inventory search that
there was no credible evidence the inventory search was simply a ruse to justify an
investigatory search for criminal evidence].)
       Defendant asserts there was no evidence Lewis actually inventoried the items he
found during the search. Defendant claims “no inventory was produced” and Lewis was
simply searching the car for evidence. But this claim is contrary to the record: Lewis
testified that he conducted an inventory, checking items inside and outside the car and
under the hood, and that he did not expect to find evidence of a crime.
       Next, defendant argues Lewis did not follow departmental policy, which,
according to defendant, “was to impound the car if the car was unsafe to remain where it
was and no one was available to drive it away.” Defendant places great weight on
Lewis’s failure to determine whether defendant’s passenger could have driven the car
away. But Lewis’s testimony, quoted above, demonstrates that the department’s policy
for impounding did not include a requirement that no one else could drive the car away.
Specifically, Lewis testified: “[I]f there is somebody there at the scene or somebody
close by, reasonable amount of time to take the vehicle, you could do that with the
permission of the owner of the vehicle.” (Italics added.) The obvious inference is that
the policy gives the officer discretion in making this determination.
       Furthermore, we are not persuaded by the cases defendant cites to support his
argument that Lewis’s decision to impound the car required that he first determine the
passenger could not drive the car away. In People v. Benites (1992) 9 Cal.App.4th 309
(Benites), the officer impounded a van after learning the driver and passenger both had

                                             9.
suspended licenses. (Id. at p. 315.) The court upheld the subsequent inventory search
because the officer’s decision to impound was reasonable under the circumstances: It
was “very late at night,” the van was on “a dark, lonely and isolated stretch of road”
where it “could be vandalized,” “the passenger also lacked a valid license,” and “there
was the possibility that [the defendant] would simply drive off once [the officer] left.”
(Id. at p. 326.) The court noted, “the officer’s discretion to impound [was] clearly based
on factors other than using it as a pretext to engage in a search for criminal activity.” (Id.
at p. 327.)
       In People v. Steeley (1989) 210 Cal.App.3d 887 (Steeley), the police officer cited
the defendant for driving with a revoked license and impounded the car. (Id. at pp. 889-
890.) The court upheld the subsequent inventory search: “It was not unreasonable for
[the officer] to conclude that the appropriate way to protect the vehicle was
impoundment,” as “there was no other licensed driver, the car was blocking a driveway
and [the defendant] was not the registered owner of the vehicle.” (Id. at p. 892.)
       The version of section 22651, subdivision (p) in effect at the time of the
impoundments in Benites and Steeley (and other cases like them) stated that an officer
was authorized to impound a vehicle “[w]hen the peace officer issues the driver of a
vehicle a notice to appear for a violation of Section 12500, 14601, 14601.1, 14601.2 and
there is no passenger in the vehicle who has a valid driver’s license and authorization to
operate the vehicle.” (Italics added.) In 1994, however, legislation eliminated the no-
passenger requirement (Stats. 1994, ch. 1221, §§ 16, 17) and since 1995, the statute has
authorized officers to impound a vehicle “[w]hen the peace officer issues the driver of a
vehicle a notice to appear for a violation of Section 12500, 14601, 14601.1, 14601.2,
14601.3, 14601.4, 14601.5, or 14604 and the vehicle is not impounded pursuant to
Section 22655.5 [impoundment of motor vehicle by peace officer with probable cause to
believe vehicle used as means to commit public offense or is evidence or contains
evidence of crime].…” (§ 22651, subd. (p), italics added.) In other words, a violation of

                                             10.
section 12500, for example, authorizes an officer to impound the vehicle pursuant to
section 22651, subdivision (p), regardless of whether the vehicle’s passengers are able to
legally drive the vehicle away.
       Lewis was not obligated by department policy, by statute, or by the Fourth
Amendment to determine whether defendant’s passenger could drive the car away. “The
fact that there may be less intrusive means of protecting a vehicle and its contents does
not render the decision to impound unreasonable.” (Steeley, supra, 210 Cal.App.3d at
p. 892.)3
       Finally, defendant states that the impoundment did not serve a community
caretaking function because “the decision to impound should be limited to situations
when no other reasonable alternative exists, such as a passenger able to drive the car
away.” As we have said, this is not correct. Moreover, Lewis testified that the car was in
a neighborhood of high property crime. For this reason, his removal of the car served a
community caretaking function.
       In sum, we cannot conclude the decision to impound the car was unreasonable.
Substantial evidence supported the findings that Lewis’s decision to impound followed
departmental procedure, served a community caretaking function, and was not merely a
ruse for conducting an improper investigatory search. Accordingly, the trial court did not
err in denying the motion to suppress evidence of the firearm.
                                     DISPOSITION
       The judgment is affirmed.




3     For the reasons we have discussed above, we need not address defendant’s
argument that Lewis misunderstood the appropriate sequence of determining whether the
passenger could drive the car away and whether the car should be impounded.



                                            11.
