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Filed 5/ 3/24 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re RANDY C. , a Person Coming Under the Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent,

v.

RANDY C.

, Defendant and Appellant. A167331

(Marin County Super. Ct. No. JV27345 A )

This is an appeal from a juvenile court order denying the motion of

defendant Randy C. ( minor ) to suppress evidence pursuant to Welfare and

Institutions Code section 700.1 (motion to suppress)

. Following this ruling,

minor admitted multiple f elony offenses and the juvenile court issued an

order declaring wardship over him. Minor asks this court to reverse the

denial of his motion to suppress, vacate his admissions, and vacate the

wardship order on the grounds that the search and seizure conducted by

police were unlawful. We affirm

.

FACTUAL AND PROCEDURAL BACKGROUND

On November 15 , 202 2 , a wardship petition was filed pursuant to

Welfare and Institutions Code section 602, subdivision (a) , alleging that

minor committed the following offenses : possession of an assault weapon by

a minor (Pen. Code, § 30605, subd. (a) ; count one ); possession of a concealed2

firearm and ammunition in a vehicle by a minor (Pen. Code, § 25400, subds.

(a)(1), (c)(6) ; count two ); carrying a loaded firearm, nonregistered owner (Pen.

Code, § 25850, subd. (a) ; count three ); possession of a firearm by a minor

(Pen. Code, § 29610 ; count four ); possession of ammunition by a minor (Pen.

Code, § 29650 ; count five ); and resisting an officer ( Pen. Code, § 148, subd.

(a)(1) ; count six )

. On November 29 , 202 2

, minor moved to suppress evidence , arguing

th ere was no probable cause to search the vehicle he was driving

. Following

a contested hearing , t he juvenile court denied his mot ion

. On December 6 , 2022, minor admitted the felony offenses charged in

counts one, two, and six

, and t he remaining counts were dismissed pursuant

to a negotiated plea deal

. On January 3 , 2023, a dispositional hearing was held. T he juvenile

court declared wardship and committed minor to juvenile hall for 274 days

with 55 days of credit for time served. This timely appeal followed.

DISCUSSION

Defendant se eks reversal of the order denying his motion to suppress

, vacation of his admission s to the allegations against him, and vacation of the

wardship petition. Defendant reasons the police search of his vehicle was not

justified since the marijuana that was discovered was in the exclusive

possession of the adult passenger, there was no substantial evidence that t he

marijuana was of an illegal amoun t or in a n open container , and the odor of

marijuana without evidence of illegal activity does not fu rnish probable cause

to searc h a vehicle for additional marijuana

. I. Legal Framework.

The Fourth Amendment of the United States Constitution protects

against unreasonable searches and seizures . (U.S. Const., 4 th Amend .) To3

that end, a n officer generally must secure a warrant before conducting a

search of private property

. “ Warrantless searches ‘ are per se unreasonable

under the Fourth Amendment

— subject only to a few specifically established

and well

- delineated exceptions. ’ ( Katz v. United States (1967) 389 U.S. 347,

357 [19 L.Ed.2d 576, 88 S.Ct. 507] , fn s

. o mitted ; [citation] .) ” ( People v. Lopez

(2019) 8 Cal.5th 353, 359.) The prosecution bears the burden of proving the

applicability of an exception. ( People v. Castro (2022) 86 Cal.App.5th 314,

319 ( Castro ) .)

“ One such exception to the warrant requirement is the automobile

exception, under which an officer may search a vehicle without a warrant so
long as the officer has probable cause to believe the vehicle contains

contraband or evidence of a crime. [Citation.] ‘Probable cause is a more
demanding standard than mere reasonable suspicion.’ [Citation.] Probable

cause exists when ‘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.’ ” ( People v. Hall (2020) 57 Cal.App.5th

946 , 951 ( Hall ).) “[W]here 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.’ ” ’ ” ( Castro, supra , 86 Cal.App.5th at p. 321.) Moreover,

“[w]here the court finds that officers have probable cause to search, the

officer’s subjective intent in performing the search is irrelevant.” ( People v.

McGee (2020) 53 Cal.App.5th 796, 80 5

, fn. 3 ( McGee ) .)

“ ‘In reviewing a trial court’s ruling on a motion to suppress evidence,

we defer to that court’s factual findings, express or implied, if they are
supported by substantial evidence. [Citation.] We exercise our independent

judgment in determining whether, on the facts presented, the search or4

seizure was reasonable under the Fourth Amendment.’ ” ( People v. Silveria

and Travis (2020) 10 Cal.5th 195, 232.) As such, we affirm so long as t he

ruling is correct no matter the lower court’s reasoning. ( People v. Session

(2023) 93 Cal.App.5th 723, 730

– 731 .)

II. Fact ual Record

. The relevant factual record comes from the testimony of San Pablo

Police Officer Dugonjic at the hearing on minor’s motion to suppress. Officer

Dugonjic was an 11

- year veteran of the department

, with train ing and

e xperience in marijuana identification , marijuana consumption, and the

legality of tinted windows.

A round 11:00 p.m. o n November 10

, 2022 , Officer Dugonjic conducted a

traffic stop on a black BMW with tinted windows th at appeared to b e in

violation of Vehicle Code section 26708

, subdivision (a) . Officer Dugonjic

contacted minor, the driver of the BMW, who stated that he was 17 years old,

the car belonged to his girlfriend, and he did not have a driver’s license.

Officer Dugonjic noticed the smell of unburn t marijuana coming from inside

the vehicle. He asked minor for identification, but minor was una ble to

produce a government

- issued identification card

. Officer Dugonjic observed a passenger in the BMW who appeared to

have a “marijuana blunt” 1 on his lap. The marijuana appeared to be a usable

amount and was not in a closed container. Minor denied smoking any of the

marijuana and offered to take a test, but there is no evidence that one was

conducted. Officer Dugonjic acknowledged the marijuana blunt was not

1 Officer Dugonjic knew from his training and experience that marijuana is often smoked in paper taken from tobacco products . T he tobacco is then removed from the product and replaced with marijuana. According to Officer Dugonjic, if the amount of marijuana is enough to be manipulated, it is useabl e

.5

burned or smoked. A photograph of the blunt , showing “a little bit of green at

[its] tip,” was admitted into evidence after Officer Dugonjic testified that it

fairly and accurately depicted his observation of the blunt in the vehicle.

Another officer at the scene talked to the BMW’s passenger and

d e termined he was 22 year s old and in possession of the blunt

. Officer Dugonjic conducted a patdown of minor outside the BMW and

found no contraband or identification

. He also “ran” minor’s name and did

not find a match. According to the police report , Officer Dugonjic searched

the car’s front passenger compartment to try to find identification for minor

or the passenger. 2 In doing so, Officer Dugonjic found a handgun in the glove

compartment and an airsoft rifle which was visible behind the driver’s seat.

When Officer Dugonjic went to handcuff minor, minor attempted to flee

on foot but was apprehended. Officer Dugonjic then searched the entire

vehicle, including the trunk, where he found an AR

- 15 firearm with no serial

number

. After this testimony, th e juvenile court found that the total elapsed

time from the traffic stop to when Officer Dugonjic asked minor to exit the

car was several minutes, and from when minor exited the car to when Officer

Dugonjic found the gun in the glove compartment was about two minutes.

Further, the court found based on Officer Dugonjic ’s credible testimony that

he had reasonable suspicion to effectuate a traffic stop based on his belief

that th e BMW’s tinted windows were in viola t ion of the law

. Officer Dugonjic

also had probable cause to then search the BMW ’s passenger compartment

based on the unburnt marijuana smell emanating from the BMW and his

2 On cross

- examination, Officer Dugonjic clarified that trying to find identification was one of the reasons why he searched the vehicle. Another reason was the visible marijuana blunt on the passenger’s lap, which he could smell from outside the vehicle.6

observation of an “open

- ended blunt” in the passenger’s lap that appeared to

be a usable amount in an open container in violation of Health and Safety

Code section 11362.3, subdivision (a)(4)

. 3

III. Analysis.

Minor does not challenge the juvenile court’s finding that he was

legally stopped for driving a car with illegally tinted windows. Rather, minor

challenges the court’s finding that the marijuana blunt on his passenger’s lap

was an “ open container ” within the meaning of section 11362.3,

subdivision (a)(4), which provided probable cause for Officer Dugonjic to

search the BMW’s passenger compartment

. H is challenge fails.

To begin, the law is settled that the lawful possession of marijuana in a

vehicle does not provide probable cause to search the vehicle. (E.g., People v.

Lee (2019) 40 Cal.App.5th 853, 865

– 867; Hall

, supra , 57 Cal.App.5th at

p. 948.) The question raised here, however, is whether the unlawful

possession of marijuana provided probable cause to search the BMW driven

by minor.

Section 11362.3, subdivision (a)(4) clearly states that no one is

permitted to “[p]ossess an open container or open package of cannabis or

cannabis products while driving, operating, or riding in the passenger seat or

compartment of a motor vehicle

. . . . ” (§ 11362.3, subd. (a)(4).) In addition,

section 11357 makes it unlawful for a person under 21 years of age, such as

minor, to possess any amount of recreational marijuana. (§ 11357.)

As recently explained by our appellate colleagues in the Second

Appellate District, “ s ection 11362.1

, added by Proposition 64

,

‘ “fundamentally changed the probable cause determination by specifying

3 Unless otherwise stated, all statutory citations herein are to the Health and Safety Code.7

lawfully possessed cannabis is ‘not contraband’ and lawful conduct under the

statute may not ‘constitute the basis for detention, search or arrest.’

[Citations.]” [Citation.] But this applies only to activities “deemed lawful” by

Proposition 64.’ ” ( Castro, supra , 86 Cal.App.5th at pp. 320

– 321.) I n Castro

, i t was unlawful for the defendant, a minor, and his minor passengers to

“ possess any amount of recreational marijuana due to their age.” ( Id . at

p. 321.) The officer thus had probable cause to search the defendant/minor’s

car for “contraband or evidence of a crime (e.g., marijuana)” based on the

smell of marijuana coming from inside the car and defendant’s admission he

had smoked marijuana. ( Id . at pp. 320

– 321 .)

Similarly, in McGee , supra , 53 Cal.App.5th at page 804 , the officer had

probable cause to search the passenger’s purse, “as a ‘compartment[] [or]

container[] within the vehicle whose contents [were] not in plain view,’ ” after

witnessing the passenger in possession of an unsealed container of marijuana

in violation of section 11362.3, subdivision (a)(4) . According to the court,

“[t]he presence of this contraband provided probable cause to believe the

passenger possessed other open containers,” thereby justifying the officer’s

search under the automobile excep tion. ( McGee , at p. 804

. )

Following this authority

, we conclude Officer Dugonjic had probable

cause to search the BMW that minor was driving based on the officer’s

observation of the unburned marijuana blunt

— a usable amount of marijuana

i n an open container in violation of section 11362.3, subdivision (a)(4)

— in his

passenger’s possession. This open container of marijuana was contraband

that , along with the smell of unburn t marijuana emanating from the vehicle,

provided probable cause to believe minor or his passenger may also have

possessed additional marijuana in violation of section 11357 and/or section8

11362.3, subdivision (a)(4) . ( McGee, supra , 53 Cal.App.5th at p. 804; Castro,

supra , 86 Cal.App.5th at pp. 320

– 321.)

M inor i s mistaken that a marijuana blunt, wrapped in paper but for a

“speck of marijuana” on the flattened end, was not an “open container” of

marijuana within the meaning of section 11362.3

. “ Section 11362.3 does not

define the phrase ‘open container or open package.’ In the absence of a

specifically defined meaning, we look to the plain meaning of a word or

phrase as understood by the ordinary person, which would typically be a

dictionary definition.” ( People v. Johnson (2020) 50 Cal.App.5th 620, 632

– 633.) The plain and commonsense meaning of an “ open container ” is one in

which there is no barrier to accessing the marijuana contained inside. ( Id . at

p. 633 [concluding a knotted plastic baggie is not “open” because the knot

“presents a barrier to accessing the content”].) In this case, the paper

wrapping enclosing the marijuana presented no barrier to accessing the

marijuana. On the contrary, as Officer Dugonjic explained, paper wrapping

holds the marijuana so that it can be smoked

, thereby facilitat ing its

consumption

. (C f. Hall, supra , 57 Cal.App.5th at p p . 958

– 959 [officer lacked

probable cause to search vehicle where there was no evidence the plasti c bag

containing marijuana in the center console was open and not sealed or that

the loose marijuana on the driver’s lap was a usable amount]

. )

Accordingly, the juvenile court order stands

. DISPOSITION

The denial of minor’s motion to suppress is affirmed

.

Jackson, P. J. WE CONCUR:

Burns, J. Chou, J. A167331/ People v. Randy C.9

A16 7331 /People v. Randy C.

Trial Court: Superior Court of the County of Marin

Trial Judge: Beverly Wood

Counsel: Laura Vavakin, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and Susan Sullivan Pithey , Assistant Attorneys General, Steven D. Matthews and A nalee J. Brodie , Deputy Attorneys General, for Plaintiff and Respondent.