Filed 3/28/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION SEVEN


THE PEOPLE,                         B282810

       Plaintiff and Respondent,    (Los Angeles County
                                    Super. Ct. No. TA141221)
       v.

COREY JOHNSON,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Patrick Connolly, Judge. Affirmed.
      Melissa L. Camacho-Cheung, under appointment by the
Court of Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Zee Rodriguez and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
                 _____________________________
      Following the denial of a motion to suppress evidence found
during a search of his car, Corey Johnson pleaded no contest to
one count of sale of a controlled substance (cocaine base) and
admitted that the crime had been committed to benefit a criminal
street gang and that he had previously been convicted of a
serious felony within the meaning of the three strikes law. On
appeal Johnson contends the motion to suppress should have
been granted because the warrantless search of his car was
neither a valid search incident to his arrest nor supported by
probable cause to believe the car contained contraband or
evidence of criminal activity. We affirm.
      FACTUAL AND PROCEDURAL BACKGROUND
     1. Johnson’s Arrest and the Search of His Car
     While monitoring the Nickerson Garden Housing
Development on closed circuit television on May 5, 2016,
Los Angeles Police Officer Darryl Danaher saw a woman
                                                      1
approach a man as he was walking by a baseball field. The man
produced a knotted clear plastic bag and poured off-white, rock-
like substances into his left hand. He then extended his left
     2
hand. The woman picked out one of the off-white solids with her
right hand and handed what appeared to be a $5 bill to the man.
The two individuals then walked away from each other.



1
      The description of the events leading to Johnson’s arrest
and the search of his car is based on testimony from his
preliminary hearing.
2
      Danaher had still photographs printed from the video feed
that captured this scene.



                                2
       As the transaction was taking place, Officer Danaher called
three narcotics officers into the surveillance room to watch with
him. When the exchange was completed, the narcotics officers
left to try to apprehend the man. Danaher continued watching
the closed circuit feed and observed the man walk a short
distance, enter a car and drive away. He relayed a description of
the car and its license plate number to the narcotics officers.
       A short time later the man returned, parked the car inside
the housing development and got out from the driver’s side.
Officer Danaher watched him walk away from the parking area
and again transmitted information about the man’s location to
the other officers.
       Two officers, Detective Michael Owens and Officer Joshua
Fluty, made contact and arrested Johnson. Owens searched
Johnson’s pockets and found car keys. He did not find any money
or drugs. Owens and Fluty then drove to the parking lot where
Johnson’s car had been parked, approximately two blocks from
the site of the arrest.
       The two officers parked their car and approached the
vehicle Johnson had been driving. A young woman was in the
driver’s seat. Officer Fluty walked to the passenger side of the
car and saw a small bag containing what appeared to be
marijuana in the middle of the front passenger seat. Fluty
reported this to Detective Owens, who asked the young woman to
step outside the car. When she did, Owens smelled marijuana
                                                       3
and saw the bag with marijuana on the passenger seat. The



3
    Neither Detective Owens nor Officer Fluty estimated the
amount of marijuana he saw in the bag on the passenger seat.



                                3
woman told Owens she was watching the car for her uncle. Fluty
asked her uncle’s name; she replied, “Corey.”
      Detective Owens searched the car. In the armrest of the
rear passenger door he found a clear plastic bag containing
several off-white solids that appeared to be rock cocaine. He also
found a $5 bill and an electronic benefits transfer (EBT) card
with the name “Corey Johnson.” The substance in the baggie was
subsequently tested and found to contain 1.37 grams of cocaine
base.
      2. The Motion To Suppress
       After being charged with possession of cocaine base for sale
(Health & Saf. Code, § 11351.5) and sale of a controlled substance
(cocaine base) (Health & Saf. Code, § 11352), Johnson waived his
right to counsel, pleaded not guilty and moved to suppress the
evidence discovered in the warrantless search of his car. (Pen.
Code, § 1538.5.) Several weeks later Johnson withdrew his
waiver of counsel. Appointed counsel filed a supplemental
motion to suppress.
       Johnson’s motion was considered by the court in
conjunction with the preliminary hearing. After hearing
testimony and argument from counsel, the court denied the
motion.
       The court first found there was probable cause to arrest
Johnson after the officers witnessed him selling what appeared to
be a controlled substance. (The court pointed out that, although
Johnson’s face was not identifiable on the video, his shirt and
hat—a red and gray/black baseball cap and a shirt with “23” on
it—were “unbelievably unique.”) The court then ruled under
Arizona v. Gant (2009) 556 U.S. 332 [129 S.Ct. 1710, 173 L.Ed.2d
485] (Gant) the officers were entitled to search Johnson’s car “if



                                 4
the police have reason to believe that the vehicle contained
evidence relevant to the crime of the arrest . . . . Doesn’t matter
where it is necessarily. Doesn’t matter that it’s two blocks away.
And under these particular facts, it was pretty clear that they
had reasonable belief and probable cause to believe that the
narcotics that he had just witnessed in the defendant’s hand and
the money that was exchanged was kept in a safe place, the safe
place being the car that he just exited.”
       As a second basis to uphold the search the court ruled,
because Johnson’s car had just been driven, the officers had
ample evidence to believe he had transported marijuana in
violation of Health and Safety Code section 11360,
               4
subdivision (a).
      3. Johnson’s Plea Agreement
      Johnson was originally charged in a felony complaint with
one count of possessing cocaine base for sale and one count of
selling, furnishing or transporting a controlled substance (cocaine
base). The information filed following denial of the motion to
suppress evidence added special allegations that the crimes had
been committed for the benefit of a criminal street gang (Pen.
Code, § 186.22, subd. (b)) and Johnson had suffered one prior
drug offense (Health & Saf. Code, § 11370.2, subd. (a)) and three
prior serious felony convictions within the meaning of the three
strikes law (Pen. Code, §§ 667, subds. (b)-(j), 1170.12) and had
served five prior prison terms for felonies (Pen. Code, § 667.5,
subd. (b)).


4
      The court noted the offense had occurred in May 2016,
“nearly four months before the change in law that legalized
marijuana.”



                                 5
      Pursuant to a negotiated agreement, Johnson pleaded no
contest to selling cocaine base and admitted the offense had been
committed to benefit a criminal street gang allegation and he had
one prior strike conviction. The second charge and additional
special allegations were dismissed. Johnson was sentenced to an
                                5
eight-year state prison term.
                          DISCUSSION
       1. Standard of Review
       “‘A defendant may move to suppress evidence on the
ground that “[t]he search or seizure without a warrant was
unreasonable.” ([Pen. Code,] § 1538.5, subd. (a)(1)(A).) A
warrantless search is presumed to be unreasonable, and the
prosecution bears the burden of demonstrating a legal
justification for the search. [Citation.] “The standard of appellate
review of a trial court’s ruling on a motion to suppress is well


5
       An appeal of the denial of a motion to suppress evidence
following a plea of guilty or no contest is authorized by Penal
Code section 1538.5, subdivision (m), and California Rules of
Court, rule 8.304(b)(4)(A). As the Attorney General explains in
his brief in this court, the failure of Johnson’s attorney to renew
the motion to suppress following the filing of the information
ordinarily forfeits the issue for appellate review. (People v.
Lilienthal (1978) 22 Cal.3d 891, 896.) However, the trial court
assured Johnson before he entered his plea that he would be able
to appeal the ruling on the suppression motion. Given that
representation, the Attorney General does not assert the issue
has been forfeited. (See generally People v. Hart (1999)
74 Cal.App.4th 479, 486-487 [to determine whether defense
counsel was constitutionally ineffective in failing to preserve the
legality of the search as an issue for appeal, appellate court must
determine the legality of the search].)



                                    6
established. We defer to the trial court’s factual findings, express
or implied, where supported by substantial evidence. In
determining whether, on the facts so found, the search or seizure
was reasonable under the Fourth Amendment, we exercise our
independent judgment.”’” (People v. Suff (2014) 58 Cal.4th 1013,
1053; accord, People v. Macabeo (2016) 1 Cal.5th 1206, 1212;
Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223; see People
v. Ayala (2000) 24 Cal.4th 243, 279.)
         Although it is a settled principle of appellate review that a
correct decision of the trial court will be affirmed even if based on
erroneous reasons, the Supreme Court has cautioned that
“appellate courts should not consider a Fourth Amendment
theory for the first time on appeal when ‘the People’s new theory
was not supported by the record made at the first hearing and
would have necessitated the taking of considerably more evidence
. . .’ or when ‘the defendant had no notice of the new theory and
thus no opportunity to present evidence in opposition.’” (Robey v.
Superior Court, supra, 56 Cal.4th at p. 1242.) However, when
“the record fully establishes another basis for affirming the trial
court’s ruling and there does not appear to be any further
evidence that could have been introduced to defeat the theory,” a
ruling denying a motion to suppress will be upheld on appeal.
(Green v. Superior Court (1985) 40 Cal.3d 126, 138-139; see
People v. Walker (2012) 210 Cal.App.4th 1372, 1383; People v.
Loudermilk (1987) 195 Cal.App.3d 996, 1004-1005.)
         The question whether relevant evidence obtained by
assertedly unlawful means—that is, in violation of the Fourth
Amendment—must be excluded is determined by deciding
whether its suppression is mandated by the federal Constitution.
(Cal. Const., art. I, § 24; People v. Macabeo, supra, 1 Cal.5th at




                                  7
p. 1212; see People v. Schmitz (2012) 55 Cal.4th 909, 916; People
v. Lomax (2010) 49 Cal.4th 530, 564, fn. 11.)
       2. Governing Law
           a. Search of an automobile incident to arrest
       A search incident to a lawful arrest is a well-established
exception to the general rule prohibiting warrantless searches.
(Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 2482-
2483, 189 L.Ed.2d 430]; United States v. Robinson (1973)
414 U.S. 218, 224 [94 S.Ct. 467, 38 L.Ed.2d 427]; People v.
Macabeo, supra, 1 Cal.5th at p. 1213.)
       In Chimel v. California (1969) 395 U.S. 752, 763 [89 S.Ct.
2034, 23 L.Ed.2d 685] the Supreme Court “laid the groundwork
for most of the existing search incident to arrest doctrine.” (Riley,
supra, 573 U.S. at p. ___.) As the rule for assessing the
reasonableness of a search incident to arrest, the Chimel Court
held, “When an arrest is made, it is reasonable for the arresting
officer to search the person arrested in order to remove any
weapons that the latter might seek to use in order to resist arrest
or effect his escape. Otherwise, the officer’s safety might well be
endangered, and the arrest itself frustrated. In addition, it is
entirely reasonable for the arresting officer to search for and
seize any evidence on the arrestee’s person in order to prevent its
concealment or destruction. . . . There is ample justification,
therefore, for a search of the arrestee’s person and the area
‘within his immediate control’—construing that phrase to mean
the area from within which he might gain possession of a weapon
or destructible evidence.” (Chimel, at pp. 762-763.)
       The Supreme Court considered the application of the
Chimel rule in the context of a vehicle search in New York v.
Belton (1981) 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768]



                                 8
(Belton). The Court held, “when a policeman has made a lawful
custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger
compartment of that automobile,” as well as “any containers
found within the passenger compartment.” (Id. at p. 460.)
Thornton v. United States (2004) 541 U.S. 615 [124 S.Ct. 2127,
158 L.Ed.2d 905] extended Belton to allow vehicle searches
incident to the arrest of individuals who were “recent occupants”
of a vehicle. (Id. at pp. 622-623.) “For years, Belton was widely
understood to have set down a simple, bright-line rule.
Numerous courts read the decision to authorize automobile
searches incident to arrests of recent occupants, regardless of
whether the arrestee in any particular case was within reaching
distance of the vehicle at the time of the search. [Citation.] Even
after the arrestee had stepped out of the vehicle and had been
subdued by police, the prevailing understanding was that Belton
still authorized a substantially contemporaneous search of the
automobile’s passenger compartment.” (Davis v. United States
(2011) 564 U.S. 229, 233 [131 S.Ct. 2419, 180 L.Ed.2d 285].)
       Gant rejected this broad interpretation of Belton: “To read
Belton as authorizing a vehicle search incident to every recent
occupant’s arrest,” even when the arrestee was out of reach of the
passenger compartment, would “untether the rule from the
justifications underlying the Chimel exception.” (Gant, supra,
556 U.S. at p. 343.) Such a broad reading of the search incident
to arrest exception, the Court explained, would “seriously
undervalue[] the privacy interests at stake.” (Id. at pp. 344-345.)
Accordingly, the Court in Gant adopted a “new, two-part rule
under which an automobile search incident to a recent occupant’s
arrest is constitutional (1) if the arrestee is within reaching




                                 9
distance of the vehicle during the search, or (2) if the police have
reason to believe that the vehicle contains ‘evidence relevant to
the crime of arrest.’” (Davis v. United States, supra, 564 U.S. at
pp. 234-235, citing Gant, at p. 343.) Gant noted that the second
prong of the test flowed not from Chimel, but from
Justice Scalia’s concurrence in Thornton v. United States, supra,
541 U.S. at page 632, and was justified by “circumstances unique
to the vehicle context.” (Gant, at pp. 335, 343; see also People v.
Evans (2011) 200 Cal.App.4th 735, 745; People v. Nottoli (2011)
199 Cal.App.4th 531, 549.) Where neither justification is present,
“a search of an arrestee’s vehicle will be unreasonable unless
police obtain a warrant or show that another exception to the
warrant requirement applies.” (Gant, at p. 351.)
          b. The automobile exception to the warrant requirement
       While limiting the justifications for the search of a vehicle
incident to the arrest of one of its recent occupants, the Supreme
Court in Gant recognized that “[o]ther established exceptions to
the warrant requirement authorize a vehicle search under
additional circumstances when safety or evidentiary concerns
demand.” (Gant, supra, 556 U.S. at p. 346.) In particular, the
Court emphasized, “If there is probable cause to believe a vehicle
contains evidence of criminal activity, United States v. Ross
[(1982)] 456 U.S. 798, 820-821 . . . authorizes a search of any area
of the vehicle in which the evidence might be found. . . . Ross
allows searches for evidence relevant to offenses other than the
offense of the arrest, and the scope of the search authorized is
broader.” (Gant, at p. 347; see Missouri v. McNeely (2013)
569 U.S. 141, 150, fn. 3 [133 S.Ct. 1552, 185 L.Ed.2d 696] [the
automobile exception is one of a “limited class of tradition
exceptions to the warrant requirement that apply categorically



                                10
and thus do not require an assessment of whether the policy
justifications underlying the exception, which may include
exigency-based considerations, are implicated in a particular
case”].)
       Under the so-called automobile exception officers may
search a vehicle without a warrant if it “is readily mobile and
probable cause exists to believe it contains contraband” or
evidence of criminal activity. (Pennsylvania v. Labron (1996)
518 U.S. 938, 940 [116 S.Ct. 2485, 135 L.Ed.2d 1031]; see Robey
v. Superior Court, supra, 56 Cal.4th at p. 1234 [“[i]n Ross, the
high court held that when police have probable cause to believe a
vehicle is carrying evidence or contraband, the scope of a search
may extend to ‘every part of the vehicle that might contain the
object of the search,’ including the glove compartment, the trunk,
and even the upholstery”].) Probable cause exists when,
considering the totality of the circumstances, the “known facts
and circumstances are sufficient to warrant a [person] of
reasonable prudence in the belief that contraband or evidence of
a crime will be found. . . .” (Ornelas v. United States (1996)
517 U.S. 690, 696 [116 S.Ct. 1657, 134 L.Ed.2d 911]; see People v.
Farley (2009) 46 Cal.4th 1053, 1098 [probable cause to search
exists when, based upon the totality of the circumstances, there
is a fair probability that contraband or evidence of a crime will be
found in a particular place]; see also People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 369-370 [probable cause requires
a showing that makes it substantially probable there is specific
property lawfully subject to seizure presently located in the
particular place to be searched; “‘[t]he showing required in order
to establish probable cause is less than a preponderance of the
evidence or even a prima facie case’”].)




                                11
      3. The Search of Johnson’s Automobile Was Not a Valid
         Search Incident to His Arrest
       Johnson concedes his arrest after Officer Danaher and
other officers observed him engage in what appeared to be a
hand-to-hand drug transaction was supported by probable cause.
Nonetheless, he contends the trial court erred in ruling the
search of his car was a valid search incident to arrest under Gant,
supra, 556 U.S. 332 because the car was two blocks away from
the site of his arrest. We agree.
       As discussed, Gant established a two-part rule for a valid
automobile search incident to a recent occupant’s arrest: Either
the arrestee is within reaching distance of the vehicle during the
search (thereby justifying the search to protect officer safety or
prevent the destruction of evidence), or the police have reason to
believe the car contains evidence relevant to the crime of arrest.
(Gant, supra, 556 U.S. at p. 343.) Thus, the Attorney General is
correct in observing that the arrestee’s inability to access the car
does not preclude a search under Gant if the police reasonably
believe it contains evidence of the offense for which the individual
has been arrested. (See, e.g., People v. Evans, supra,
200 Cal.App.4th at pp. 745-746; People v. Nottoli, supra,
199 Cal.App.4th at p. 551.) But that Gant permits an automobile
search as a contemporaneous incident to arrest even though the
arrestee no longer has access to the car (for example, because he
was tased and lying on the ground as in Evans or handcuffed and
sitting in a patrol car as in Nottoli) does not mean that proximity
of the search to the time and place of arrest is irrelevant to an
evaluation of its validity.
       In his opinion for the Court in Gant, Justice Stevens twice
noted that the second aspect of the two-part rule announced in




                                12
that case was based on Justice Scalia’s suggestion in his
concurring opinion in Thornton v. United States, supra, 541 U.S.
615. (Gant, supra, 556 U.S. at pp. 335 [“following the suggestion
in Justice Scalia’s opinion concurring in the judgment in that
case [citation], we also conclude that circumstances unique to the
automobile context justify a search incident to arrest when it is
reasonable to believe that evidence of the offense might be found
in the vehicle”], 343 [“[a]lthough it does not follow from Chimel,
we also conclude that circumstances unique to the vehicle context
justify a search incident to arrest when it is ‘reasonable to believe
evidence relevant to the crime of arrest might be found in the
vehicle,’” citing Justice Scalia’s concurring opinion in Thornton].)
It thus becomes crucial to determine exactly what Justice Scalia
suggested.
       In Thornton v. United States, supra, 541 U.S. 615, the
Supreme Court upheld the search of the passenger compartment
of a car as a contemporaneous incident of arrest under Belton
even though the officer had initiated contact with the arrestee
after he had stepped out of his vehicle. (Thornton, at p. 617.)
The Court explained, “In all relevant aspects, the arrest of a
suspect who is next to a vehicle presents identical concerns
regarding officer safety and the destruction of evidence as the
arrest of one who is inside the vehicle. . . . A custodial arrest is
fluid and ‘[t]he danger to the police officer flows from the fact of
the arrest, and its attendant proximity, stress and uncertainty’
[citation].” (Id. at p. 621.)
       Justice Scalia (joined by Justice Ginsburg) concurred in the
judgment. (Thornton v. United States, supra, 541 U.S. at p. 625




                                 13
                          6
(conc. opn. of Scalia, J.).) Justice Scalia noted that Thornton was
handcuffed and secured in the back of a patrol car when the
passenger compartment of his car was searched; “[t]he risk that
he would nevertheless ‘grab a weapon or evidentiary ite[m]’ from
his car was remote in the extreme.” (Ibid.) “If Belton searches
are justifiable,” Justice Scalia reasoned, “it is not because the
arrestee might grab a weapon or evidentiary item from his car,
but simply because the car might contain evidence relevant to the
crime for which he was arrested.” (Id. at p. 629.) The Justice
continued, “There is nothing irrational about broader police
authority to search for evidence when and where the perpetrator
of a crime is lawfully arrested. The fact of prior lawful arrest
distinguishes the arrestee from society at large, and
distinguishes a search for evidence of his crime from general
rummaging. Moreover, it is not illogical to assume that evidence
of a crime is most likely to be found where the suspect was
apprehended.” (Id. at p. 630.) Thus, Justice Scalia concluded, he
would “limit Belton searches to cases where it is reasonable to
believe evidence relevant to the crime of arrest might be found in
                                 7
the vehicle.” (Id. at p. 632.)


6
      In her opinion concurring with the majority in part,
Justice O’Connor also expressed tentative agreement with
Justice Scalia’s approach to the issue of an automobile search
incident to arrest, but declined to adopt it because the parties
had not had an opportunity to speak to its merit. (Thornton v.
United States, supra, 541 U.S. at pp. 624-625 (conc. opn. of
O’Connor, J.).)
7
      In a separate concurring opinion in Gant, Justice Scalia
explained his preference, as he had indicated in Thornton, was to
abandon entirely the application of the officer-safety rationale of


                                     14
      Significantly for the argument advanced by Johnson in the
case at bar, Justice Scalia’s suggested approach in Thornton,
expressly adopted by the Court in Gant, was predicated on the
reasonableness of a search for evidence “when and where the
perpetrator of a crime is lawfully arrested.” (Thornton v. United
States, supra, 541 U.S. at p. 630 (conc. opn. of Scalia, J.).) It was
those searches, “permitted by Justice Scalia’s opinion” when
based on a reasonable belief the vehicle contained evidence
relevant to the crime of arrest, that the Gant majority concluded
“are reasonable for purposes of the Fourth Amendment” as
incident to a lawful arrest. (Gant, supra, 556 U.S. at p. 347.) In
other circumstances, legitimate law enforcement evidentiary
interests were adequately safeguarded by the ability of officers to
search any area of a vehicle in which evidence might be found
when there is probable cause to believe the vehicle contains
evidence of criminal activity. (Id. at pp. 346-347.)
      Here, the search of Johnson’s car, parked two blocks away
from the site of his arrest, did not occur “when and where” he was


Chimel in the context of an automobile search incident to arrest
(that is, the first part of Justice Stevens’s two-part rule) and hold,
“a vehicle search incident to arrest is ipso facto ‘reasonable’ only
when the object of the search is evidence of the crime for which
the arrest was made, or of another crime that the officer has
probable cause to believe occurred.” (Gant, supra, 556 U.S. at
p. 353 (conc. opn. of Scalia, J.).) However, because there were
four dissenting votes to maintain Belton’s bright-line rule
permitting a warrantless search of the passenger compartment of
an automobile incident to any lawful arrest of the occupant,
Justice Scalia joined Justice Stevens’s opinion to avoid a four-
one-four decision that would leave the governing rule uncertain.
(Gant, at p. 354.)



                                 15
lawfully arrested. Because it did not take place “where the
suspect was apprehended,” as posited by Justice Scalia (Thornton
v. United States, supra, 541 U.S. at p. 630 (conc. opn. of
Scalia, J.)), it was not a valid search incident to Johnson’s arrest.
      4. The Search of Johnson’s Automobile Was Supported by
          Probable Cause
       Johnson also contends the trial court’s alternate ground for
denying his motion to suppress—that Officer Fluty’s observation
of a bag containing marijuana in plain view on the passenger seat
of the car established probable cause to believe the vehicle, which
had been recently driven, contained evidence of criminal activity
(transportation of marijuana in violation of Health and Safety
Code section 11360, subdivision (a))—was erroneous. Johnson is
only partially correct. Although the court’s reasoning was flawed,
its conclusion the search was supported by probable cause was
not.
       Effective January 1, 2016—four months prior to Johnson’s
arrest—the Legislature amended Health and Safety Code
section 11360, which makes it unlawful to transport, import into
the state, sell, furnish, administer or give away marijuana, to
define “transport” to mean “transport for sale.” (Health & Saf.
Code, § 11360, subd. (c); Stats. 2015, ch. 77, § 1.) The practical
effect of this amendment is that transportation of marijuana for
sale, as opposed to personal use, is now an element of the offense.
(See People v. Ramos (2016) 244 Cal.App.4th 102, 102-103
[discussing similar “transportation for sale” amendment relating
to other controlled substances].) In addition, at the time of
Johnson’s arrest the Compassionate Use Act of 1996 (Health &
Saf. Code, § 11362.5) provided that the law making possession of
not more than 28.5 grams of marijuana an infraction (former




                                 16
Health & Saf. Code, § 11357) “shall not apply to a patient, or a
patient’s primary caregiver, who possesses . . . marijuana for the
personal medical purposes of the patient upon the written or oral
recommendation or approval of a physician.” Because possession
of small amounts of marijuana could be lawful and transportation
of marijuana intended for personal use was not illegal, Johnson
argues observing an unspecified amount of marijuana in a plastic
bag did not give the officers probable cause to believe his vehicle
contained contraband or evidence of a crime.
       Johnson recognizes the Court of Appeal in People v. Waxler
(2014) 224 Cal.App.4th 712 upheld a warrantless automobile
search, notwithstanding the Compassionate Use Act of 1996
(CUA), ruling the observation of any amount of marijuana in a
vehicle established probable cause to search the car. The Waxler
court held, “That California has decriminalized medicinal
marijuana in some situations and has reduced the punishment
associated with possession of up to an ounce of marijuana does
not bar a law enforcement officer from conducting a search
pursuant to the automobile exception. Here, Deputy Griffin was
entitled to investigate to determine whether appellant possessed
marijuana for personal medical needs and to determine whether
he adhered to the CUA’s limits on possession.” (Waxler, at p. 723;
see People v. Strasburg (2007) 148 Cal.App.4th 1052, 1055
[affirming denial of a motion to suppress because “the
Compassionate Use Act provides a limited defense against
prosecution, but does not provide a shield against reasonable
investigations and searches”].)
       We need not address Johnson’s argument Waxler was
wrongly decided. While watching the hand-to-hand transaction
on the closed circuit television, the officers saw Johnson in




                                17
possession of a clear plastic bag with multiple off-white, rock-like
substances. The customer took only one of them. Yet when
Detective Owens searched Johnson following his arrest, he found
no other drugs on Johnson’s person. He also did not find the
$5 bill that had been given to Johnson during the exchange.
Because Johnson had entered his car immediately after the
transaction with the woman, Owens had a substantial basis to
believe that Johnson left the plastic bag with the remaining rock-
like objects and the money he had been paid in the car and that a
search of the vehicle would, therefore, disclose contraband or
evidence of criminal activity. In short, Owens had probable cause
to search the car under the automobile exception to the general
prohibition on warrantless searches. (See Pennsylvania v.
Labron, supra, 518 U.S. at p. 940; Robey v. Superior Court, supra,
56 Cal.4th at p. 1234.) The motion to suppress was properly
denied.
                         DISPOSITION
      The judgment is affirmed.


                                           PERLUSS, P. J.

      We concur:


                   ZELON, J.


                   SEGAL, J.




                                18
