Filed 12/26/13 P. v. Keding CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. BRYAN ERNEST KEDING, Defendant and Appellant. A136147
(Sonoma County Super. Ct. No. SCR-600252)

INTRODUCTION In 2011, a Sonoma County Sheriff’s deputy stopped defendant Br yan Ernest Keding for speeding on the highway. Upon contacting Keding, the officer smelled an odor of marijuana emanating from the car. Defendant denied having any marijuana in the vehicle, but suggested the odor might be coming from his person, since he had smoked marijuana earlier (he had a medical marijuan a recommendation). The deputy testified he can distinguish between the smell of burne d marijuana and the smell of unburned marijuana, and it was the sm ell of unburned marijuana emanating from the car. A subsequent search of the vehi cle yielded, among other things , a duffle bag containing 24 pounds of marijuana. Defendant was convic ted by his plea of possessing of more than 28.5 grams of marijuana, an offense that ca rries a maximum punishment of six months in the county jail and/or a $500 fine. (Health & Saf. Code, 1 § 11357, subd. (c).)

1 All further statutory references are to the Health and Safety Code unless otherwise indicated.2 On appeal, defendant contends the search of his car was illegal. He maintains (1) there were no articulable facts to lead a reasonable officer to be lieve that he possessed
more than an ounce of ma rijuana; (2) under California law, the possession and transportation of one ounce or less of mariju ana is an infraction; and (3) the search for
evidence of an infraction viol ates the Fourth Amendment be cause (a) an infraction is a civil matter, (b) defendant is a qualifie d medical marijuana patient, and (c) the automobile exception to the Fo urth Amendment does not apply to searches for evidence of petty offenses. We disagree and affirm the judgment of conviction.
STATEMENT OF THE CASE A felony complaint charge d defendant with possession of marijuana for sale, transportation of marijuana, driving on a su spended license, and speeding. (§§ 11359, 11360, subd. (a); Veh. Code, §§ 14601, su bd. (a), 22349, subd. (a ).) The preliminary hearing and defendant’s motion to suppress evid ence (Pen. Code, § 1 538.5) were heard at
the same time. The motion was denied and defendant was held to answer on both felonies and the speeding infraction. Followi ng the filing of an information alleging the same charges, defendant renewed his motion to suppress in combina tion with a motion to set aside the information. (P en. Code, §§ 1538.5, 995.) Bo th motions were denied. The
information was amended to add a fourth co unt, possession of more than one ounce of marijuana (§ 11357, subd. (c)), to which de fendant pleaded guilty in exchange for dismissal of the first three counts on the pr osecution’s motion. Imposition of sentence was suspended and defendant was placed on pr obation for 36 months. He timely appeals the superior court’s order denying the motion to suppress. (Pen. Code, § 1538.5, subd. (m).)3 STATEMENT OF THE FACTS 2 On the evening of April 10, 2011, Sonoma County Sh eriff’s Deputy Terry White observed a silver Honda on the freeway goin g 75 miles per hour in a 65-mile-per-hour zone. Deputy White initiated a traffic stop a nd contacted the driver, defendant Keding. Deputy White approached the vehicle on the passenger’s side and talked to defendant through the opened window. He “could sm ell the odor of marijuana coming from the vehicle,” so he asked if de fendant had a medical marijuan a recommendation for the use of marijuana. Defendant said yes. Aske d if he had any marijuana with him, defendant said no, but offered that the odor dete cted by the deputy might be coming from his person, since he had smoked marijuana earlie r. However, according to Deputy White, “burnt marijuana has a different odor than no nburnt marijuana. It wasn’t what I was smelling.” 3 After defendant stepped out of the car at White’s request, White searched it. In the cargo area of the vehicle White found, am ong other things, a duf fle bag containing 24 one-pound bags of marijuana an d one smaller bag of marijuan a; and a black garbage bag containing three one-pound bags of marijuan a and one smaller bag of marijuana.
DISCUSSION Defendant argues that the trial court erred in denying his motion to suppress
because there was no articulable basis for a reasonable belief that defendant was in

2 The statement of facts is drawn fro m the testimony adduced at the joint preliminary hearing/motion to s uppress evidence. (See Pen. Code § 1538.5, subd. (i) [“If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing sh all be limited to the transcript of the preliminary hearing and to evidence that coul d not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing.”].)

3 Deputy White, an 18-year law enforcemen t veteran, testified about his extensive training and experience relate d to the investigation of narcotics cases, including his attendance at various law enforcement trai ning seminars dealing specifically with medical marijuana, and “hundreds of occa sions” on which he ha d “seen, handled and smelled marijuana in different st ages [of growth].” He also testified that his expertise in knowing burned marijuana fro m unburned marijuana came from his experience.4 possession of more than one ounce of marijuana. He hy pothesizes that such a belief is critical to the legality of the search here be cause he is a “qualifie d patient” within the meaning of the Compassion Use Act of 1996 (CUA) (§ 11362.5) and the Medical Marijuana Program (MMP) (§ 11 362.7 et seq.). Boiled down to its essential parts, defendant’s argument is that there was a “com plete lack of articulable facts . . . to establish a reasonable susp icion” defendant possessed more than one ounce of marijuana during the traffic stop. Since possession of less than one ounce of marijuana is not a crime but a civil matter in California, the se arch for evidence of an infraction is per se unreasonable under the Fourth Amendment, and the automobile exception to the Fourth Amendment’s warrant requirement does not perm it the warrantless search for evidence of a petty offense. We disagree. Before expl aining our reasons for doing so, we set forth
the standard of review wh ich governs our analysis.
A. Standard of Review In this case the magistrate who presided at the preliminary hearing is the finder of fact, and his or her factual resolutions are bindin g on this court as well as the trial court. ( People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223; § 1538.5, subd. (i).) In reviewing the denial of defendant’s motion to suppress evidence under Penal Code section 1538.5, we defer to the magistrate’s express and imp lied factual findings if they are supported by substantial evidence ( People v. Woods (1999) 21 Cal.4th 668, 673), and indulge all inferences in favor of the lower court’s order. ( People v. Brown (1990) 216 Cal.App.3d 1442, 1447.) We exercise independent ju dgment to determine whether, on the facts found by the fact finder, the search was lawful. ( People v. Woods, at pp. 673–674.)
B. The CUA and MMP We first address defendant’s underlying c ontention that defendant’s status as a medical marijuana patient should have immunized him from Deputy White’s investigatory scrutiny. The CUA, enacted in 1996 by th e initiative process as part of Proposition 215, provides in relevant part: “Section 11357, relati ng to the possession of marijuana, and Section 11358, relating to the cultivation of ma rijuana, shall not apply to a patient . . . who possesses or cultivates mariju ana for the personal medical purposes of the5 patient upon the written or oral reco mmendation or approval of a physician.” 4 (§ 11362.5, subd. (d).) As our supreme court explained in People v. Kelly (2010) 47 Cal.4th 1008 ( Kelly ), “the CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation. [Citations.] The CUA does not grant immunity from arrest for those crimes, however. So long as the authoritie s have probable cause to believe that possession or cultivation has occurred, law enfo rcement officers may arrest a person for either crime regardless of the arrestee’s having a physician’ s recommendation or approval.” ( Id . at p. 1013; see also People v. Mower (2002) 28 Cal.4th 457, 467; People v. Strasburg (2007) 148 Cal.App.4th 1052, 1058; Littlefield v. County of Humboldt (2013) 218 Cal.App.4th 243, 250.) In 2003, the Legislature enacted article 2. 5 of division 10, chapter 6 of the Health and Safety Code, known as the Medical Mariju ana Program. (§ 11362.7 et seq.) “At the heart of the MMP is a voluntary ‘identific ation card’ scheme that, unlike the CUA— which, as noted, provides only an affirmative defense to a charge of possession or
cultivation— provides protecti on against arrest for those and related crimes. Under the MMP, a person who suffers from a ‘serious medical condition ,’ . . . may register and receive an annually renewable identification card that, in turn, can be shown to a law enforcement officer who otherwise might arre st the program participant or his or her primary caregiver.” ( Kelly, supra , 47 Cal.4th at p. 1014, fns. omitted; § 11362.71.)

4 Section 11362.5 also provid es in relevant part that the purpose of the CUA is “[t]o ensure that seriously ill Californians ha ve the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana” and “[t]o ensure that patients . . . who obtain and use marijuana for medical purposes upon the reco mmendation of a physician are not subject to criminal prosecution or sa nction. [¶] . . . [¶] . . . Noth ing in this section shall be construed to supersede legi slation prohibiting persons fro m engaging in conduct that endangers others, nor to condone the diversio n of marijuana for nonmedical purposes.” ( Id. , subds. (b)(1)(A ), (B) & (b)(2).)6 Defendant maintains he co mes within the “safe har bor provision” of the MMP
because he has a medical mar ijuana recommendation and, as su ch, is a “qualified patient” within the meaning of the CUA and MMP. 5 However, so far as this record shows, he did not possess an identification card. Thus, hi s status as a “qualif ied patient” under the
CUA and MMP did not immunize him from reasonable police inve stigations or searches. ( People v. Strasburg, supra , 148 Cal.App.4th at p. 1058 .) “[T]he [CUA] provides a

5 “A ‘qualified patient’ is defined by th e MMP as ‘a person who is entitled to the protections of Section 11362. 5 [the CUA], but who does not have an identification card issued pursuant to this article .’ (§ 11362.7, subd. (f).)” ( Kelly, supra , 47 Cal.4th at p. 1016, fn. 7.) The MMP’s “safe harbor provision”—section 11362.77, subdivision (f)— authorizes possession of certain amounts of me dical marijuana. “It provides that a ‘qualified patient or a person holding a valid identification card . . . may possess amounts of marijuana consistent with this article [t hat is, as provided in subdivisions (a)–(c) of section 11362.77.]’ ” ( Kelly, supra , 47 Cal.4th at p. 1016.) Qualified patients may possess “no more than eight ounces of drie d marijuana.” (§ 11362.77, subd. (a).) However, the CUA does not “specify an am ount of marijuana that a patient may possess or cultivate; it states instead that the marijuana possessed or cultivated must be for the patient’s ‘ personal medical purposes. ’ [Citation.] An early decision construed this provision of the CUA as establishing ‘that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the pa tient’s current medical needs .’ ” ( Kelly, supra , 47 Cal.4th at p. 1013, italics added by Kelly .) Kelly found that in enacting quantitative limits on the amounts of marijuana qualified patients could possess or cultivate in section 11362.77, the Legislature impermissibly amended the CUA without voter approval. ( Kelly , at p. 1012.) “By extending the reach of sec tion 11362.77’s quantity limitations beyond those persons who voluntarily register under the MMP and obtain an identification card that provides protection against arrest—and by additionally restricting the rights of all ‘qualified patients’ and ‘primary caregive rs’ who fall under the CUA—the challenged language of section 11362.77 effectuates a change in the CUA that takes away from rights granted by the initiative statute

. ” ( Id. at p. 1043.) Nevertheless, the court invalidated the statute only insofar as it prevented a qualified patient from asserting, “as a defens e in court, that he or she possessed or cultivated an amount of mariju ana reasonably related to meet his or her current medical needs [citation] without refere nce to the specific quantitative limitations specified by the MMP.” ( Kelly, supra , 47 Cal.4th at p. 1049.) Th e court declined to sever section 11362.77 from the MMP or otherwise declare it void. ( Kelly , at p. 1049

. )7 limited immunity—not a shield from reasonable i nvestigation. An o fficer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card or a marijuana prescription.” ( Id. at p. 1060.)
C. An Infraction Is Not a Civil Matter Defendant’s next contention—that possessi on of less than one ounce of marijuana is not a criminal offense, because it is an in fraction—is also incorrect. Pursuant to Penal Code section 16, an infraction is a crime or public offense. A violation of section 11357, subdivision (c)—possession of less than one ounce of mar ijuana—is an infraction. Therefore, it is a crime or public offense, al beit a minor one. (See also Pen. Code §§ 17, 19.8.) As defendant acknowledges, Pena l Code section 1524, subdivision (a)(3) authorizes the issuance of a warrant upon a showing of probable cause “[w]hen the property or things are in the possession of any person with the intent to use it as a means of committing a public offens e.” Defendant relies on cases describing infractions as noncriminal because “[p]roceedings on in fractions are not attended by the same constitutional safeguards attending felony or misdemeanor prosecutions.” ( People v.
Sava (1987) 190 Cal.App.3d 935, 939 [rule forbidding successive prosecutions]; People
v. Battle (1975) 50 Cal.App.3d Supp.1, 6 [rights to jury trial, appointed counsel].) However, “ ‘cases are not authority fo r propositions not considered.’ ” ( Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1160.) Neither Sava nor Battle is authority for
defendant’s assertion that Penal Code sectio n 1524, subdivision (a)(3) “does not apply to
infractions because an infraction is neith er a crime nor a public offense.” Nor is there any basis for defendant’s asse rtion that an infraction, for the purposes of the Fourth Amendment, is a “civil matter. ” “If an officer has probable cause to
believe that an individual has committed ev en a very minor criminal offense in his presence, he may, without violating the Fo urth Amendment, arrest the offender.” ( Atwater v. Lago Vista (2001) 532 U.S. 318, 354 [manda tory seat belt law].) “Under
Atwater , all that is needed to justify a custodial arrest is a showing of probable cause. . . .
We must therefore conclude that there is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense.” ( People v. McKay (2002) 27 Cal.4th8 601, 607 [riding a bicycle th e wrong way on a residential st reet].) Likewise, under the Fourth Amendment, all that is needed to justify the search of an automobile properly stopped on a highway is probable cause to believe the au tomobile “contains contraband, evidence of a crime, or was itself an inst rumentality of the commission of one.” ( People
v. Laursen (1972) 8 Cal.3d 192, 201.) “I n this class of cases, a search is not unreasonable if based on facts that would justify the issu ance of a warrant, even though a warrant has not actually been obtained.” ( United States v. Ross (1982) 456 U.S. 798, 809, fn. omitted.)
We concluded that neither defendant’s st atus as a qualified pa tient under the CUA and MMP, or section 11357, subdivision (c)’s status as an infraction, provided any impediment to Deputy White’s investigation into the origin of th e unburned marijuana smell emanating from defendant’s car. We th erefore now turn to the question whether Deputy White had probable caus e to search defendant’s car for evidence of the unlawful possession of marijuana.
D. Probable Cause: Defendant’s Evasive Repl y and the Odor of Unburned Marijuana Defendant argues probable cause was lack ing here because Deputy White could not determine the quantity of marijuana from smell alone, and had no articulable basis for inferring that defendant was being untruthful when he denied possessing any marijuana. We disagree. Probable cause posits “a fair probability that contraband or evidence of a crime will be found in a particular place.” ( Illinois v. Gates (1983) 462 U.S. 213, 238.) “[P]robable cause requires onl y a probability or substantial chance of criminal activity, not an actual showing of such activity.” ( Id. at p. 243, fn. 13.) Deputy White testified
that he smelled the odor of unburned mar ijuana through the opened car window. It was
an odor with which he was ve ry familiar, based on his exte nsive training and experience. Defendant’s explanation for the odor—that he had been smoking marijuana earlier— contradicted the evidence under the deputy’s nos e. Under these circumstances the officer
was entitled to infer that defendant’s denial of marijuana possession was probably untrue, and that his admission to smoking marijuana ea rlier, even if true, was designed to deflect the deputy from searching for the source of the unburned mariju ana smell coming from9 the car. The magistrate expressly credite d Deputy White’s testimony, and substantial evidence supports the inference that defenda nt’s responses to White’s inquiries were evasive. Under the appropriat e standard of review, we must defer to the magistrate’s express and implied factual findings if they are supported by substantial evidence, and indulge all inferences in favor of the lower court’s order. ( People v. Woods, supra, 21 Cal.4th at p. 673; People v. Brown, supra, 216 Cal.App.3d at p. 1447.) The magistrate’s findings support the c onclusion that Deputy White had probable
cause to search defendant’s vehicle. Case law establishes that th e odor of unburned marijuana, alone or in combin ation with other circumstances, may justify the search of a car for marijuana. ( People v. Cook (1975) 13 Cal.3d 663, 66 7–669, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421; United States v. Johns (1985) 469 U.S. 478, 482; People v. Strasburg, supra , 148 Cal.App.4th at p. 1055.) Here, the odor of unburned marijuana, coupled with defendant’s evasiv e responses to the deputy’s inquiries, provided probable cause for the sear ch of the car for the source of the odor. The motion to suppress was properly denied.
DISPOSITION The judgment is affirmed.10 _ ____________ ____________ Dondero, Acting P.J.

We concur:

_____________ ____________ Banke, J.

_____________ ____________ Becton, J. *

* Judge of the Contra Costa County Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.