Filed 11/18/22 P. v. Castro CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

PHILLIP CASTRO,

Defendant and Appellant.

 B318174

 (Los Angeles County

 Super. Ct. No. PA094950)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, David Walgren, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Stefanie Yee, Deputy 

Attorneys General, for Plaintiff and Respondent.

__________________________________
2

Phillip Castro appeals from a judgment entered after he 

pleaded no contest to carrying a loaded, unregistered handgun in 

a vehicle. He contends a warrantless search of his vehicle, during 

which a police officer discovered the handgun, did not fall within 

the automobile exception to the Fourth Amendment’s warrant 

requirement, and the trial court should have suppressed the 

evidence from the vehicle search on his motion under Penal Code 

section 1538.5.

1 For the reasons explained below, we reject his 

contention and affirm the judgment.

BACKGROUND

I. Castro’s Detention and the Vehicle Search

Castro’s various motions to suppress evidence from the 

vehicle search were based on Los Angeles Police Department 

Officer Miguel Zendejas’s testimony at Castro’s April 23, 2021 

preliminary hearing, which we summarize here.

On June 22, 2020, when the vehicle search occurred, Officer 

Zendejas was assigned to the Foothill Gang Enforcement Detail, 

and he had been a sworn peace officer for nine and a half years. 

Around 10:20 p.m., Officer Zendejas and his partner, Officer 

Organista, were riding in a marked patrol car when they 

observed two males sitting in a car parked on a public street. 

Officer Organista “was able to run the registration on the vehicle 

which came back expired.” As the patrol car approached the 

parked car, both cars with windows rolled down, Officer Zendejas 

“noticed there was a strong odor of marijuana coming from inside 

the vehicle.” He further described it as “the smell of burnt 

marijuana.” Based on the “expired registration, and pending a 

narcotics investigation,” the officers initiated a traffic stop. 

1 Undesignated statutory references are to the Penal Code.
3

Officer Zendejas exited the patrol car and made contact 

with Castro, who was sitting in the driver seat of the parked car. 

Officer Zendejas recognized the male sitting in the front 

passenger seat and another male lying in the backseat (who 

appeared to be hiding) from prior encounters with them, and he 

knew they were minors. Officer Zendejas asked Castro if they

had been smoking, and Castro responded affirmatively. Castro 

said he had smoked marijuana two hours earlier. Castro also 

said he was 20 years old, and the car was his. Officer Zendejas 

testified, because the three males were “not allowed to possess or 

smoke marijuana under the age of 21,” the officers ordered them

to exit the car and handcuffed them for officer safety (due to the 

area where the stop occurred and Officer Zendejas’s knowledge 

that Castro’s passengers were gang members). 

The officers “conducted a narcotics investigation search” of 

Castro’s car. Officer Zendejas explained he “had reason to believe 

that there was still marijuana in the car based on the current 

smell of marijuana coming from inside the car,” and Castro’s 

admission he had smoked marijuana. Officer Zendejas found a 

Xanax pill and one round of nine-millimeter ammunition in the 

closed center console of the car. Thereafter, Officer Zendejas 

opened the trunk and found an open duffle bag that contained an 

operational and loaded nine-millimeter handgun with no serial 

number on it. After Officer Organista advised Castro of his 

Miranda rights, Castro admitted the handgun was his. There is 

no indication in the record that the officers found marijuana. 

II. Motions to Suppress Evidence From the Vehicle 

Search

Castro made a motion to suppress evidence from the 

vehicle search (§ 1538, subd. (a)(1)(A)), and the motion was heard 
4

after Officer Zendejas testified at the preliminary hearing.

Defense counsel argued the warrantless search of Castro’s car did 

not fall within the automobile exception to the Fourth 

Amendment’s warrant requirement. After hearing opposing 

argument from the deputy district attorney, the magistrate 

granted Castro’s motion to suppress, relying on In re D.W. (2017) 

13 Cal.App.5th 1249, a case which examined whether a search of 

a minor’s “person was invalid under the Fourth Amendment 

because it did not properly fall within the exception to the 

warrant requirement for a search incident to an arrest.” (Id. at p. 

1251, italics added.)2 The magistrate also granted Castro’s 

motion to dismiss the case, which the deputy district attorney

agreed she had no ground to oppose after the magistrate’s 

suppression of the evidence. 

On May 7, 2021, the district attorney filed a motion for an 

order compelling the magistrate to reinstate the complaint under 

section 871.5, arguing the magistrate’s dismissal of the case after 

improper suppression of evidence was erroneous as a matter of 

law. Castro filed an opposition to the motion. On June 8, 2021, 

after hearing oral argument from the parties, the trial court 

(Judge David Walgren) granted the district attorney’s motion, 

concluding the magistrate erred as a matter of law in granting 

Castro’s motion to suppress evidence and subsequently 

dismissing the complaint. The court explained it found D.W.—

the case the magistrate relied on in suppressing the evidence—to 

be inapplicable because it concerned a warrantless search 

2 The question on appeal here is whether the warrantless 

search of Castro’s vehicle falls within the automobile exception, 

an issue not addressed in D.W. On appeal, Castro does not rely 

on D.W., thus we do not discuss the case further.
5

incident to arrest and not a warrantless search under the 

automobile exception. The court cited People v. Strasburg (2007) 

148 Cal.App.4th 1052 in support of its conclusion the odor of 

marijuana and Castro’s age provided probable cause for the 

officers to search Castro’s car because Castro could not lawfully 

possess marijuana. (See id. at p. 1059 [“Under the facts and 

circumstances of this case, [the deputy] had probable cause to 

search [the] defendant’s car for marijuana after he smelled the 

odor of marijuana”].) The matter was sent back to the 

magistrate, and Castro was held to answer. 

On June 29, 2021, the district attorney filed an information 

charging Castro with carrying a loaded, unregistered handgun in 

a vehicle. (§§ 25850, subd. (a) & 25850, subd. (c)(6).) The same 

day, Castro moved to set aside the information under section 995.

At a hearing on July 13, 2021, the trial court (Judge Daniel 

Feldstern) denied Castro’s section 995 motion, in which Castro 

renewed his claim that the court should suppress the evidence 

from the vehicle search. Judge Feldstern stated he agreed with 

Judge Walgren’s rationale for concluding the officers had 

probable cause to search Castro’s car under the automobile 

exception (as summarized above). The matter was transferred 

back to Judge’s Walgren’s courtroom. 

On July 20, 2021, Castro filed a “de novo” motion to 

suppress evidence from the vehicle search. The district attorney 

filed an opposition to the motion. At a hearing on September 8, 

2021, the trial court denied the motion, noting it was based on 

the same arguments the court had already rejected.

III. No Contest Plea

On November 30, 2021, Castro waived his constitutional 

rights and pleaded no contest to carrying a loaded, unregistered 
6

handgun. On January 25, 2022, the trial court suspended 

imposition of sentence and placed Castro on probation for two 

years, with search and seizure conditions and dangerous and 

deadly weapons prohibitions. As a condition of probation, the 

court ordered Castro to serve 120 days in jail, which amounted to 

time served (60 actual days in custody, plus 60 days of conduct 

credit).

Castro filed a timely notice of appeal, indicating he was 

challenging the denial of his motion to suppress evidence under 

section 1538.5. 

DISCUSSION

Castro contends the trial court erred in declining to 

suppress the evidence from the warrantless vehicle search, 

arguing the search does not fall within the automobile exception 

to the Fourth Amendment’s warrant requirement. In reviewing 

the trial court’s denial of Castro’s motion to suppress evidence, 

“we defer to the magistrate’s factual findings [where supported 

by substantial evidence] and, exercising our independent 

judgment, determine whether, ‘on the facts so found, the search 

or seizure was reasonable under the Fourth Amendment.’ ” 

(People v. McGee (2020) 53 Cal.App.5th 796, 800 (McGee), quoting 

People v. Glazer (1995) 11 Cal.4th 354, 362.) As set forth above, 

the magistrate took the facts from Officer Zendejas’s testimony at 

Castro’s preliminary hearing, which we summarized above.

The Fourth Amendment to the Constitution of the United 

States protects against unreasonable searches and seizures of 

private property. (U.S. Const., art. IV.) “In general, a law 

enforcement officer is required to obtain a warrant before 

conducting a search.” (People v. Lopez (2019) 8 Cal.5th 353, 359.) 

Warrantless searches “are per se unreasonable under the Fourth 
7

Amendment—subject only to a few specifically established and 

well-delineated exceptions.” (Katz v. U.S. (1967) 389 U.S. 347, 

357, fn. omitted.) “The prosecution bears the burden of 

establishing an exception applies.” (People v. Hall (2020) 57 

Cal.App.5th 946, 951.)

“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.” (People v. Johnson (2018) 21 

Cal.App.5th 1026, 1034.) Probable cause to search exists “where 

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. U.S. (1996) 517 

U.S. 690, 696.) “Once an officer has probable cause to search the 

vehicle under the automobile exception, they ‘may conduct a 

probing search of compartments and containers within the 

vehicle whose contents are not in plain view.’ ” (McGee, supra, 53 

Cal.App.5th at p. 801.) Moreover, “ ‘[w]here such probable cause 

exists, a law enforcement officer may search the vehicle 

“irrespective of whether [the offense] is an infraction and not an 

arrestable offense.” ’ ” (Id. at p. 805, quoting People v. Fews

(2018) 27 Cal.App.5th 553, 564.)

Here, when the officers approached Castro’s car because of 

the expired registration, Officer Zendejas noticed a “strong odor” 

of “burnt marijuana” emanating from the car. Officer Zendejas 

exited the patrol car to contact the driver (Castro), and he 

observed the two male passengers who he knew to be minors 

based on prior encounters with them. It is unlawful for a person 

under 21 years of age to possess any amount of recreational

marijuana. (See Health & Saf. Code, § 11357.) Officer Zendejas 
8

asked Castro if they were smoking, and Castro responded 

affirmatively, adding that he had smoked marijuana two hours 

earlier. Castro also told Officer Zendejas that he was 20 years 

old. Officer Zendejas testified he “had reason to believe that 

there was still marijuana in [Castro’s] car based on the current 

smell of marijuana coming from inside the car,” and Castro’s 

admission he had smoked marijuana. We conclude Officer 

Zendejas had probable cause to search Castro’s car because, 

under these facts and circumstances, his belief that contraband 

or evidence of a crime (e.g., marijuana) would be found in the car 

was reasonable.

In his opening appellate brief, Castro asserts, “In light of 

the passage of Proposition 64, police may no longer search an 

automobile simply because they smell marijuana inside a vehicle 

stopped for an expired registration.” Castro criticizes the trial 

court for relying on a pre-Proposition 64 case in declining to 

suppress the evidence. Proposition 64, and the cases Castro cites 

which discuss Proposition 64 in relation to warrantless vehicle 

searches, however, are inapplicable here.

“In 2016, the voters passed Proposition 64, the Control, 

Regulate and Tax Adult Use of Marijuana Act, which legalized 

the possession of up to 28.5 grams of cannabis by individuals 21 

years or older. (Health and Saf. Code, § 11362.1, subd. (a)(1).)” 

(Blakes v. Superior Court (2021) 72 Cal.App.5th 904, 911, italics 

added.) Health and Safety Code section 11362.1, added by 

Proposition 64, “ ‘fundamentally changed the probable cause 

determination by specifying lawfully possessed cannabis is “not 

contraband” and lawful conduct under the statute may not 

“ ‘constitute the basis for detention, search or arrest.’ ” 

[Citation.]’ [Citation.] But this applies only to activities ‘deemed 
9

lawful’ by Proposition 64.” (Blakes, at p. 911, italics added.) It 

was unlawful for Castro and his minor passengers to possess any 

amount of recreational marijuana due to their age.

Castro asserts in his opening appellate brief that the 

“police could neither arrest nor cite [him] for underage smoking of

marijuana committed outside their presence.” This assertion is 

immaterial to the legal question before us—whether the officers 

had probable cause to search Castro’s car under the automobile 

exception. We are not evaluating a search incident to an arrest 

and, as explained above, where probable cause to search a vehicle 

under the automobile exception exists, “ ‘a law enforcement 

officer may search the vehicle “irrespective of whether [the 

offense] is an infraction and not an arrestable offense.” ’ ” 

(McGee, supra, 53 Cal.App.5th at p. 805.)

Based on the “strong odor” of “burnt marijuana” emanating 

from Castro’s car, Castro’s admission he had smoked marijuana, 

and the fact all occupants of the car were under 21 years of age, 

the officers had probable cause to believe they would find 

contraband or evidence of a crime (e.g., marijuana possessed by 

someone under 21) in the car. We are unpersuaded by Castro’s

argument that probable cause did not exist because he told 

Officer Zendejas he had smoked marijuana two hours before. 

Officer Zendejas’s belief “that there was still marijuana in the car 

based on the current smell of marijuana coming from inside the 

car” was reasonable under the circumstances of this case. 

Accordingly, we conclude the officers had probable cause to 

search the car under the automobile exception, and the trial court 

did not err in declining to suppress the evidence from the vehicle 

search.
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.